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filed: November 3, 1986.




Robert H. Malis and Stephen A. Cozen, Philadelphia, for appellants in No. 3228 and appellees in No. 82.

Meyer A. Bushman, Philadelphia, for appellant in No. 82 and appellee in No. 3228.

Cirillo, President Judge, and Cavanaugh and Tamilia, JJ.

Author: Cirillo

[ 358 Pa. Super. Page 339]

This case involves cross appeals from an order denying the post-trial motions of Young Adjustment Company (Young), granting in part the post-trial motions of Callie Bryant and assessing damages in favor of Callie Bryant. On appeal, Young contends that the trial court erred in refusing to grant its motions for judgment n.o.v. and a new trial. In the alternative, Young contends that the trial court incorrectly calculated damages. Callie Bryant contends that the trial court erred in calculating the amount of interest due on the award. Each appeal will be considered separately.


The standard of review in cases involving the denial of a motion for judgment n.o.v. is well established. As stated by this Court in Walsh v. Gas and Water Co., 303 Pa. Super 52, 449 A.2d 573 (1982):

In reviewing the denial of a motion for judgment n.o.v., the evidence together with all reasonable inferences therefrom must be viewed in a light most favorable to the verdict winner; all conflicts in the evidence are resolved in favor of the prevailing party. See Gonzalez v. United States Steel Corp., 484 Pa. 277, 398 A.2d 1378 (1979); Mike v. Borough of Aliquippa, 279 Pa. Super. 382, 421 A.2d 251 (1980). Evidence supporting the verdict is considered and the rest rejected. Glass v. Freeman, 430 Pa. 21, 240 A.2d 825 (1968). As we said recently, "A judgment notwithstanding the verdict should be entered only in a clear case, when the facts are such that no two

[ 358 Pa. Super. Page 340]

    reasonable persons could fail to agree that the verdict was improper . . . ." Martin v. Soblotney, 296 Pa. Super. 145, 442 A.2d 700 (1982).

303 Pa. Super. at 58, 449 A.2d at 576. With this standard in mind, the complex facts of the instant case may be summarized as follows.

Bradley and Callie Bryant were married and owned a home in Devon, Pennsylvania, as tenants by the entireties. The home and its contents were insured pursuant to a contract of insurance issued to the Bryants jointly by State Farm Fire and Casualty Company, Inc. (State Farm). The Bryants became separated late in the summer of 1977. On July 8, 1978, the marital home and its contents were destroyed by fire while both Bryants were in Florida. On the following day the Bryants entered into a contract with Young, a public adjustor. Young agreed to represent the Bryants in the presentation and adjustment of their insurance claim in exchange for a fee of ten percent of the Bryant's total monetary recovery.

During the fall of 1978, State Farm issued three drafts in satisfaction of the Bryants' claims. The drafts represented the insurance proceeds from the loss of their home, for loss of their personal property, and for emergency living expenses, respectively. Each draft was made payable to the Bryants jointly. Young was also listed as a joint payee on each of the drafts in light of its fee which was payable upon successful adjustment and payment of the Bryants' claim. Girard Bank was also listed as a joint payee on one of the drafts due to its mortgage interest in the home. Each of the drafts was embossed on its reverse side with the words "ALL PAYEES MUST ENDORSE THIS DRAFT."

The record reveals that on the morning of September 15, 1978, Mr. Lamb, Callie Bryant's attorney, telephoned Mr. Horowitz, Young's Vice President. While in Callie Bryant's presence, Lamb informed Horowitz that he represented Callie Bryant in a domestic relations dispute and that Callie Bryant was concerned. At trial, Lamb testified that he also instructed Horowitz that "when the release came in and the

[ 358 Pa. Super. Page 341]

    checks [drafts from State Farm] came in, that one or both of us wanted to be there to have Mrs. Bryant sign the releases, and when the checks came in to get the checks . . . ." Callie Bryant testified that Lamb instructed Horowitz that "[u]nder no circumstances are you to release those releases or the drafts unless Mrs. Bryant or myself are present."

Lamb also instructed Horowitz that Young represented both Mr. and Mrs. Bryant. According to Lamb, Horowitz stated that he understood Mr. Lamb and that there would be "no problem."

At approximately 4:00 p.m. on September 15, 1978, Mr. Leach, a representative and employee of Bradley Bryant, appeared in Horowitz' office bearing two of the State Farm drafts. The drafts were handed to Mr. Horowitz. Mr. Horowitz endorsed the drafts and handed them back to Leach. In return, Leach handed Horowitz an envelope containing two checks, totaling approximately $47,000, which represented Young's fee. Leach then left Horowitz' office and delivered the State Farm drafts to Bradley Bryant. This process was repeated on October 17, 1978 with respect to the third draft.

Mr. Horowitz did not notify Mr. Lamb or Callie Bryant of any of his transactions with Leach. Neither Lamb nor Callie Bryant were present to receive the drafts.

Subsequently, and without his wife's knowledge, Bradley Bryant printed his name and his wife's name on the back of each draft. The checks were then negotiated through joint accounts maintained by the Bryants at various banks, including Girard, which satisfied the Bryant's mortgage obligation out of the proceeds. The drafts were honored by the banks.

In November of 1978, Lamb and Callie Bryant learned through contacting Horowitz that the drafts had come through and that Horowitz considered the case closed. Horowitz also informed Lamb that, as far as Young and Horowitz were concerned, Young represented Bradley Bryant only.

[ 358 Pa. Super. Page 342]

Bradley Bryant disappeared and disposed of all of the insurance proceeds to the exclusion of his wife and children. He was subsequently incarcerated on unrelated charges.

In 1979, Callie Bryant instituted the present action in Philadelphia County on her own behalf and on behalf of Bradley Bryant as an unwilling plaintiff against Young, State Farm, Girard, and Provident National Bank. Alternatively, the action was brought "on her own behalf by virtue of the fact that her claim for equitable distribution under the 1980 Divorce Code . . . involves and includes the property which is the subject matter of this litigation." In sum, it was alleged that Young breached its fiduciary duty and breached its agency contract when it endorsed and forwarded the drafts to Bradley Bryant despite having advance warning and actual knowledge that Bradley might act adversely to his wife's interest. It was also alleged that Girard and Provident negligently honored the drafts without Callie Bryant's endorsement. Provident joined Savannah and Pioneer banks as additional defendants. Savannah joined Bradley Bryant for purposes of indemnification. Bradley Bryant did not appear at trial and apparently, with the exception of a divorce action subsequently instituted by Callie Bryant, no other action has been instituted against him by any of the parties in the instant matter.

On October 6, 1980, Callie Bryant filed a complaint for divorce in Montgomery County. A decree granting the divorce and retaining jurisdiction to resolve the issue of equitable distribution was entered on December 21, 1982. On September 6, 1983 the Montgomery County court awarded Callie Bryant "the entire proceeds or recovery against [Young] . . . free and clear from any claim or interest of [Bradley Bryant] . . .," and also any and all real or personal property previously or currently titled in Callie Bryant's name. This order was amended on March 9, 1984, and awarded Callie Bryant all property ever possessed by her, titled in her name, or held as tenants by the entireties with her husband.

[ 358 Pa. Super. Page 343]

The instant action went to trial in May of 1985. Prior to trial, Callie Bryant entered into settlement agreements with Provident and the additional defendant banks. Each bank executed a joint tortfeasor release. On the final day of trial, but prior to verdict, Girard also settled and executed a release. The trial proceeded against Young alone. The jury returned a verdict on liability against Young alone with specific findings that Young was negligent with regard to its handling of the State Farm drafts and that such negligence was a substantial factor in bringing about the harm suffered by Callie Bryant.

The issue of damages was decided by the trial court. The trial judge determined that Callie Bryant was entitled to the full amount of the net insurance proceeds payable to the Bryants minus the following: (1) an amount paid in satisfaction of a mortgage on the property, (2) the amounts received in settlement with the banks plus interest earned thereon, and (3) the amount previously paid to Young in fees. Damages were assessed and awarded in the amount of $275,215.84. Young's post-trial motions for judgment n.o.v. and new trial were denied. Callie Bryant's exception to the trial court's order insofar as it deducted interest purportedly accruing on the settlement monies paid previously by the settling banks was denied. These appeals followed.



Young raises three issues with regard to the trial court's denial of its motion for judgment n.o.v.: (1) whether the evidence was legally sufficient to establish a duty on the part of Young and a breach thereof; (2) whether, as a matter of law, Young's conduct could constitute a substantial factor in bringing about Callie Bryant's loss; and (3) whether the record demonstrates the existence of intervening, superseding causes which, as a matter of law, preclude Young's liability for the loss of the drafts.

[ 358 Pa. Super. Page 344]

In support of its first judgment n.o.v. issue, Young asserts that the record does not support an inference that it breached a duty owed to Callie Bryant pursuant to the adjusting contract; that it owed or assumed any duties outside the adjusting contract, or that it breached a duty owed to Bradley or Callie Bryant as members of the entireties estate. We hold that Young's first and second judgment n.o.v. issues are not preserved for our review.

It is well settled that issues not raised in the trial or hearing court are not properly preserved for appellate review and will not be considered. Kovach v. General Telephone Co. of Pennsylvania, 340 Pa. Super. 144, 489 A.2d 883 (1985); Cherry v. Willer, 317 Pa. Super. 58, 463 A.2d 1082 (1983); Durkin v. Equine Clinics, Inc., 313 Pa. Super. 75, 459 A.2d 417 (1983); O'Malley v. Peerless Petroleum, Inc., 283 Pa. Super. 272, 423 A.2d 1251 (1980); Pa.R.A.P. 302(A); Pa.R.C.P. 227.1(b). Moreover, failure to set forth an argument in briefs filed in the trial court in support of post-trial motions constitutes a failure to preserve the issue or issues not argued. Bell v. City of Philadelphia, 341 Pa. Super. 534, 491 A.2d 1386 (1985), citing Tagnani v. Lew, 493 Pa. 371, 426 A.2d 595 (1981); Commonwealth v. Holzer, 480 Pa. 93, 389 A.2d 101 (1978). See also Equipment Finance v. Toth, 328 Pa. Super. 351, 476 A.2d 1366 (1984); Schneider v. Albert Einstein Medical Center, 257 Pa. Super. 348, 390 A.2d 1271 (1978).

In the instant case, Young failed to raise or even suggest in its post-trial motions for judgment n.o.v. the duty and substantial factor issues and related sub-issues now raised on appeal. Further, Young's brief filed in support of its post-trial motions contains no argument whatsoever concerning the nature or existence of the duty owed to Callie Bryant or to the entireties estate. Under these circumstances, we conclude that Young's first two issues have not been preserved for our review.

Young's remaining judgment n.o.v. issue concerns the intervening conduct of Bradley Bryant and the banks. Young argues that the ...

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