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ROBERT ELLIS BURTON v. JOHN E. BOLAND (03/01/85)

filed: March 1, 1985.

ROBERT ELLIS BURTON
v.
JOHN E. BOLAND, INDIVIDUALLY AND TRADING AS CONDOMINIUM DEVELOPMENT CORPORATION, D/B/A HILL CAFE APARTMENTS, ALSO TRADING AS WINTERS-BOLAND AGENCY, 4401 LINGLESTOWN RD., HARRISBURG, PA. APPEAL OF CONDOMINIUM DEVELOPMENT CORPORATION



No. 00253 HBG 83, Appeal from the Order entered June 13, 1983 in the Court of Common Pleas of Dauphin County, Civil Division, at No. 425 S 1979.

COUNSEL

Roger M. Simon, Harrisburg, for appellant.

William J. Fulton, Harrisburg, for appellee.

Wickersham, Johnson and Hoffman, JJ.

Author: Hoffman

[ 339 Pa. Super. Page 445]

Appellant contends that the lower court erred in granting a new trial. We agree and, accordingly, reverse.

Between January and April, 1978, appellant, John Boland, and appellee, Robert Burton, an architect, met several times to discuss the renovation of a piece of property owned by Condominium Development Corporation, a corporation owned by appellant and his wife. Appellee agreed to perform certain services in order to prepare for the renovations. When his bills for those services were not paid, appellee brought this action in assumpsit against Condominium Development Corporation and appellant, individually, for $4,894.05. Following a trial on December 5 and 6, 1979, a jury returned a verdict for appellee against Condominium

[ 339 Pa. Super. Page 446]

Development Corporation in the amount of $2,500. On December 17, 1979, appellee filed a motion for a new trial. On June 13, 1983, the lower court granted that motion, finding that (1) appellant had not disclosed that he was acting as an agent for Condominium Development Corporation when appellee was hired and therefore appellant was personally liable, and (2) Condominium Development Corporation was a "shell" and therefore the corporate entity should be disregarded in the interest of justice. This appeal followed.

While the grant of a new trial is within the sound discretion of the trial judge, that discretion is not absolute; an appellate court will review the action of the court below and reverse if it determines that the court below acted capriciously or palpably abused its discretion. Austin v. Ridge, 435 Pa. 1, 4, 255 A.2d 123, 124 (1969); Cianci v. Burwell, 299 Pa. Superior Ct. 387, 390, 445 A.2d 809, 810 (1982); Bertab, Inc. v. Fox, 275 Pa. Superior Ct. 76, 79, 418 A.2d 618, 620 (1980).

A trial judge will be held to have abused his discretion when he grants a new trial merely because he would have arrived at a different conclusion on the facts of the case than that reached by the jury. Austin v. Ridge, supra; see Carroll v. Pittsburgh, 368 Pa. 436, 445-46, 84 A.2d 505, 509 (1951); . . . . Thus a trial judge should only grant a new trial when the jury's verdict is so contrary to the evidence as to shock his sense of justice and a new trial is necessary to rectify the situation. Austin v. Ridge, supra; Ditz v. Marshall, 259 Pa. Super. 31, 393 A.2d 701 (1978). In reviewing the grant of a new trial, the appellate court looks to all of the evidence. Ditz v. Marshall, supra.

Bertab, Inc. v. Fox, supra, 275 Pa. Superior Ct. at 79, 418 A.2d at 620 (citation omitted).

Here, the court below correctly stated the law when it held that an agent who enters into a contract without disclosing that he is acting for a principal is personally liable on the ...


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