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LEROY ATWATER v. TERMINIX INTERNATIONAL (02/28/86)

filed: February 28, 1986.

LEROY ATWATER, SR. AND SARAH J. ATWATER, APPELLEES,
v.
TERMINIX INTERNATIONAL, INC., AND BOB YOST'S REPAIR SERVICE, INC. APPEAL OF TERMINIX INTERNATIONAL, INC.



APPEAL OF: TERMINIX INTERNATIONAL, INC., Appeal from the Order of the Court of Common Pleas of York County, Civil, at No. 82-S-1101.

COUNSEL

Michael J. Brillhart, York, for appellant.

Daniel W. Shoemaker, York, for appellees.

Rowley, Olszewski and Montemuro, JJ.

Author: Montemuro

[ 351 Pa. Super. Page 223]

On March 22, 1982, appellees filed a complaint in trespass and assumpsit against appellant, Terminix International, Incorporated. Briefly stated, appellees allegations were that, in anticipation of obtaining a mortgage and thereafter purchasing their current residence, appellant was contracted to perform a wood infestation inspection. Following the inspection, appellant allegedly prepared a report representing that the property was free of termites and/or other wood destroying insects. The bases of appellees' complaint

[ 351 Pa. Super. Page 224]

    were the claimed negligent failure of appellant to discover the property's actual infestation and appellees' alleged detrimental reliance upon appellant's representations.

Appellees' case was subsequently tried before the Honorable James E. Buckingham, of the Court of Common Pleas of York County, and a jury. On June 22, 1984, the jury returned a verdict in favor of appellees in the amount of $22,000.00 with an additional award of $2,050.00 representing the value of appellees' loss of the use of their property. In response to appellant's motion for post-trial relief, the court below filed an opinion and order on December 4, 1984, directing the entry of judgment in appellees' favor for $22,000.00, yet remitting the loss of use award. This timely appeal followed.

Appellant instantly frames five issues for our consideration and we shall address each ad seriatim.

Appellant first argues that the jury erred in assessing damages in the amount of $22,000.00 in that the evidence adduced at trial was inadequate to support such a verdict. We disagree. Appellant specifically contends that appellees' recovery should have been limited to compensation for only those damages that were demonstrated by direct, non-circumstantial evidence.

At trial, appellees presented the expert testimony of John Roth, a building contractor, with regard to the cost of repairing the damage to appellees' home.*fn1 Based on his inspection of the damage, Roth offered an itemized estimate of $2,950.00. This estimate took into account only the readily ascertainable extent of damage, i.e., that damage which was discoverable without "tearing things apart." N.T. June 21 and 22, 1984, at 234. However, Roth also offered a second estimate of $22,000.00 as the cost of repair. Roth testified that ...


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