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SCHNABEL ASSOCIATES v. T & M INTERIORS (04/17/86)

filed: April 17, 1986.

SCHNABEL ASSOCIATES, INC., GENERAL PARTNER, T/A WILLIAMSPORT BUILDING ASSOCIATES,
v.
T & M INTERIORS, INC. AND ATLANTIC CARPET CORPORATION V. DALTON CARPET FINISHING CO., INC. APPEAL OF ATLANTIC CARPET CORPORATION



Appeal from the Judgment Entered January 22, 1985 in the Court of Common Pleas of Lycoming County, Civil No. 81-2135.

COUNSEL

Joseph R. Musto, Williamsport, for appellant (at 90) and for appellee (at 91).

Clifford A. Rieders, Williamsport, for appellant (at 91) and for appellee (at 90).

W. Hensell Harris, Atlanta, for Schnabel, appellee.

Wieand, Olszewski and Watkins, JJ. Wieand, J., files a concurring opinion.

Author: Olszewski

[ 352 Pa. Super. Page 304]

On July 25, 1984, the Court of Common Pleas of Lycoming County filed an order entering judgment in a contract action in favor of appellee Schnabel Associates, Inc. (Schnabel),

[ 352 Pa. Super. Page 305]

    and awarded damages. Judgment was entered against T & M Interiors, Inc. (T & M), Atlantic Carpet Corporation (Atlantic) and Dalton Carpet Finishing Co., Inc. (Dalton). Cross-claims of Atlantic and Dalton against T & M were denied. Atlantic, however, was found liable to T & M for providing defectively manufactured carpet, and, in turn, Dalton was found liable to Atlantic for improperly applying lamination to the carpet in question. Atlantic (in No. 90 Harrisburg 1985) and Dalton (in No. 91 Harrisburg 1985) filed separate appeals to this order. Since the issues raised in Atlantic's appeal are identical to issues II and III of Dalton's appeal, we have consolidated the appeals. Three issues raised by Dalton and discussed below resolve both appeals.

The first issue raised by both Atlantic and Dalton is that the expert testimony given by Schnabel's expert with respect to delamination strength of the carpet at issue in this action was improper testimony based upon lack of knowledge about the carpet sample and sample size. We disagree. Admission of expert testimony is a matter for the discretion of the trial court, and that court's exercise of discretion will not be disturbed unless there is a clear abuse. Laubach v. Haigh, 433 Pa. 487, 252 A.2d 682 (1969); Kubit v. Russ, 287 Pa. Super. 28, 429 A.2d 703 (1981). Appellants claim that Schnabel's expert, Mr. Alan Lightkep, was not absolutely certain that the carpet sample he tested was new, and did not know exactly from where it came. Appellants also complain that Mr. Lightkep did not test three sample pieces of the carpet. Mr. Lightkep testified that he believed the carpet sample he tested was new; that he knew the sample came from the Timberland Apartments; and that it would make no difference in the testing whether the carpet sample was new or had been installed. Further, the test of one carpet sample was valid, and testing other samples would only serve to reinforce the validity of the test. Mr. Lightkep's testimony that the carpet was defectively manufactured by nature of the absence of sufficient latex was corroborated by the testimony of other experts.

[ 352 Pa. Super. Page 306]

Therefore, we find that the admission of Mr. Lightkep's testimony was not a clear abuse of the trial court's discretion, and we find no reversible error.

Next, another common question raised by Atlantic and Dalton is whether Schnabel failed to mitigate damages properly and whether the trial court incorrectly calculated damages based upon the evidence. We find that this issue also lacks merit. Appellants claim that appellee failed to mitigate damages when it replaced the carpet in the entire building instead of replacing the carpet in only the damaged areas. The lower court ably countered this argument in finding that although the carpet failure was obvious in only 40 percent of the total apartment complex when it was replaced, "the same carpeting material (with defective lamination) was used throughout the project; the failure of the carpeting was pervasive; and while the failure of the carpeting was slower to materialize on the floor areas where the underflooring was used, it was apparent that the carpeting did not meet minimum contract standards." See lower court findings, pp. 15-16. We ...


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