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DOMINIC VERNER AND HELEN VERNER v. GEORGE L. SHAFFER AND GEORGE L. SHAFFER (11/08/85)

filed: November 8, 1985.

DOMINIC VERNER AND HELEN VERNER, APPELLANT AT NO. 707 PGH. 1984,
v.
GEORGE L. SHAFFER AND GEORGE L. SHAFFER, JR., APPELLANT AT NO. 586 PGH. 1984



APPEAL FROM THE ORDER ENTERED MAY 4, 1984 IN THE COURT OF COMMON PLEAS OF BEAVER COUNTY, CIVIL AT No. 248 OF 1983.

COUNSEL

John J. Petrush, Beaver, for appellants (at 707) and appellees (at 586).

Robert J. Taylor, Ambridge, for appellants (at 586) and appellees (at 707).

Brosky, Rowley and Feeney,*fn* JJ.

Author: Feeney

[ 347 Pa. Super. Page 207]

This case is before us on cross-appeals filed by plaintiffs Dominic Verner and Helen Verner (No. 707 Pittsburgh, 1984) and by defendants George L. Shaffer and George L.

[ 347 Pa. Super. Page 208]

Shaffer, Jr. (No. 586 Pittsburgh, 1984) to entry of judgment on the verdict in favor of plaintiffs. A verdict was entered in favor of plaintiffs following a jury trial on plaintiffs' breach of contract action against the defendants as guarantors for V & H Oil Company, (V & H OIL). Plaintiffs filed this action when V & H Oil defaulted on an Installment Sales Agreement involving the sale of certain property by plaintiffs to V & H Oil.

The plaintiffs entered into the Sales Agreement with V & H Oil in July of 1976. Pursuant to the Agreement, V & H Oil was to pay the sale price of $225,000 to the plaintiffs in monthly installments over a fifteen year and five month period. At the same time the Agreement was signed, the defendants executed and delivered to the plaintiffs a separate, written guaranty for the satisfaction of all the obligations of V & H Oil under the Agreement. In September of 1981, V & H Oil filed a Petition for Reorganization under the federal bankruptcy law and continued to operate as a debtor in possession. In August of 1982, V & H Oil went into default under the terms of the Sales Agreement and in September of 1982, the Bankruptcy Court converted the case into a liquidation proceeding. On January 12, 1983, at the plaintiffs' request and pursuant to a Court Order, the Trustee in Bankruptcy executed and delivered to plaintiffs a written "Abandonment and Assignment of Installment Sales Agreement," the effect of which abandoned back to plaintiffs the interests of V & H Oil in the Agreement.

Plaintiffs then filed against the defendant-guarantors a breach of contract action, claiming damages exceeding $115,000. Defendants counterclaimed for restitution for improvements, repairs and additions to the property in the amount of $78,000. After a jury trial, the jury entered a verdict in favor of plaintiffs for $88,398.44, and found in favor of plaintiffs and against defendants on defendants' counterclaim. Subsequently, defendants' post-verdict motions were denied, as was plaintiffs' Motion for Molding of the Verdict to include prejudgment interest from January 12, 1983. Defendants then filed a timely appeal, and plaintiffs filed a timely cross-appeal.

[ 347 Pa. Super. Page 209]

Defendants present two arguments on appeal and plaintiffs make one argument on their cross-appeal. Defendants first contend that the trial court erred in failing to instruct the jury that the plaintiffs' resale of the property in question, which occurred subsequent to the abandonment, for an amount exceeding the defendants' underlying obligation, extinguished that obligation. Second, defendants argue that the trial court erred in failing to instruct the jury that the Deficiency Judgment Act, 42 Pa.C.S.A. ยง 8102, applied to the facts of this case, and operated to bar plaintiffs' claim. In their cross-appeal, plaintiffs argue that they are entitled to prejudgment interest from January 12, 1983, the time they claim defendants' obligations of payment became mature.

The trial court below rejected defendants' two claims, as well as plaintiffs' sole contention. First, the court found that the defendants had waived their initial claim, alleging trial court error in failing to instruct the jury concerning the resale of the property in question, because defendants did not raise this issue with specificity in their points for charge, nor did they specifically object to the court's alleged omission following the jury charge. See Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 225, 322 A.2d 114 (1974); Brancato v. Kroger Co., 312 Pa. Super. 448, 458 A.2d 1377 (1983). The court did consider the merits of defendants' second argument, that plaintiffs' failure to comply with the Deficiency Judgment Act barred their recovery, but rejected this argument as meritless. In so doing, the court found that the present case did not involve a ...


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