Appeal from the order entered July 1, 1983 by the Court of Common Pleas, Civil Division, of Allegheny County, at No. GD 76-28554. Appeal from the Judgment of the Court of Common Pleas, Civil Division, of Allegheny County, at No. GD76-28554.
Dina G. McIntyre, Pittsburgh, for appellant (at 865), for appellee (at 901).
Daniel M. Berger, Pittsburgh, for appellant (at 901), for appellee (at 865).
Cirillo, Montgomery and Bucher,*fn* JJ.
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These cross-appeals arise from actions by the lower court, which denied a motion for a partial new trial by the verdict winner, and a motion for a new trial and/or a judgment n.o.v. by the party against whom the verdict was issued. On appeal, the verdict winner asserts that the lower court erred in: (1) disallowing a claim based upon previously unrecognized tort grounds; (2) denying a claim for punitive damages; and (3) refusing to mold the verdict to provide pre-judgment interest on the consequential damages awarded by the jury. On its appeal, the verdict loser contends that the trial court committed error by: (1) permitting the Appellant to amend its Complaint to conform to the verdict; (2) finding that there was sufficient proof of a novation, as well as direct damages and consequential damages; and (3) charging the jury on the degree of certainty required to establish a right to consequential damages. We find no merit in any of the claims of error, and affirm the holdings of the trial court on all issues.
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We must review the facts in a light most favorable to the verdict winner. See Fannin v. Cratty, 331 Pa. Super. 326, 480 A.2d 1056 (1984). The verdict winner, Standard Pipeline Coating Company [hereinafter "Standard"], the Appellant in No. 901 Pittsburgh, 1983, contracted to clear and coat the interior of a water pipeline that the verdict loser, Solomon & Teslovich, Inc. [hereinafter "Solomon"], the Appellant in No. 865 Pittsburgh, 1983, was constructing for United States Steel.*fn1 The terms of a contract between Standard and Solomon were set forth in a purchase order dated November 5, 1975. The portions relevant to this appeal provided that Standard would clean and coat approximately 67,000 feet of pipeline at a specific price per linear foot, and that payment would be made in three installments. More specifically, it was agreed that twenty-five (25%) per cent of the contract price would be paid on set-up, another twenty-five (25%) per cent would be paid upon completion of the cleaning of the pipeline, and the balance would be paid upon completion and acceptance of the coating. The purchase order also stated that work was to begin in November, 1975. Consequently, after the agreement was reached between Solomon and Standard, the latter promptly ordered the coating material and otherwise prepared to begin work. Standard's key employee, Goldworth Davis [hereinafter "Davis"], arrived at the job site on November 15, 1975, but informed by a Solomon representative that the pipeline would not be ready for Standard's work for another month. Davis, with other Standard personnel, arrived at the work site in December, 1975, with equipment and supplies for the job. However, the pipeline was still not sufficiently ready for Standard to begin its work. Davis ultimately made at least three more trips to the job site before he was able to begin work cleaning the pipeline in early February, 1976.
While the purchase order provided that Standard was to pay for all materials, Standard offered proof at trial that Solomon had agreed to advance the cost of the coating
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materials. Standard submitted the invoice to Solomon, but it was never paid. Also, after Davis and other Standard personnel arrived at the site in December with equipment and supplies, Standard invoiced Solomon for twenty-five (25%) per cent of the contract price, on the basis that Standard was set up for the work. This invoice was also never paid by Solomon. By the middle of February, 1976, Standard had coated approximately half of the pipeline. Standard submitted another invoice, for further payment, which, like those previously submitted, was never paid.
In March, 1976, U.S. Steel inspected and subsequently rejected the coating that Standard had applied. The evidence at trial indicated that Standard offered to repair the defects when it coated the remaining pipeline. Whether this was agreed to by Solomon and U.S. Steel was unclear. By April, 1976, however, Standard was experiencing cash-flow problems, allegedly because Solomon had not made any payments. Of particular importance, evidence was presented that Standard could not obtain coating materials because of its unpaid bill to the only available supplier of such materials. Thus, Standard could not obtain additional coating materials to perform any other similar jobs.
Mark Shriver [hereinafter "Shriver"], President of Standard, met with Donald Gearhart [hereinafter "Gearhart"], a Vice President of Solomon, on April 22, 1976. Although the testimony conflicts as to the exact terms, some agreement was reached in an attempt to alleviate Standard's financial problems. Shriver testified that Gearhart told him, inter alia, that Solomon would pay the invoice for the coating materials and pay for all work done by May 15, 1976. In exchange, Standard was to relinquish to Solomon the right to finish the remainder of the job. Gearhart asserted that the terms of the agreement were set forth in a letter dated April 23, 1976, which was made an exhibit at trial. Solomon subsequently made only two ...