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PERRY ECKSEL v. ORLEANS CONSTRUCTION COMPANY AND THOMAS VESEY T/A THOMAS CONSTRUCTION COMPANY (01/13/87)

filed: January 13, 1987.

PERRY ECKSEL
v.
ORLEANS CONSTRUCTION COMPANY AND THOMAS VESEY T/A THOMAS CONSTRUCTION COMPANY, APPELLANTS



Appeal from the Judgment entered December 9, 1985 in the Court of Common Pleas of Philadelphia County, Civil Division, at No. 222 August Term 1972.

COUNSEL

Andrew D. Bershad, Philadelphia, for appellants.

Jeffrey M. Chebot, Philadelphia, for appellee.

Rowley, Kelly and Hoffman, JJ. Rowley, J., files a concurring statement.

Author: Hoffman

[ 360 Pa. Super. Page 124]

This is an appeal from the order and judgment entered in favor of appellee and against appellants in the amount of $52,100.00. Appellants contend that the trial court erred in (1) sua sponte ordering a new trial on the issue of damages, (2) failing to find that appellee had released appellants from liability, (3) concluding that appellants had breached implied warranties, (4) permitting appellee to amend his complaint after completion of the trial, (5) causing delays which prejudiced appellant, (6) failing to consider appellee's duty to mitigate damages, (7) rejecting appellants' evidence as to the market value and costs of repair of the house, (8) awarding an excessive amount of damages. We disagree and, accordingly, affirm the lower court's order and judgment.

Appellee filed this action in assumpsit in 1972, alleging that appellants had defectively constructed his house. In 1970, appellee entered into an agreement of sale in which he

[ 360 Pa. Super. Page 125]

    agreed to buy an as yet unconstructed house from appellants, Orleans Construction Company and Thomas Vesey, its builders and vendors, for $41,000.00. Prior to settlement, appellee discovered water in the basement of the home and was assured by appellants that they would correct the problem. See Trial Court Opinion, June 11, 1984 at 1. Despite this assurance, the basement continued to flood and water collected in the house's lawn and driveway. See Lower Court Opinion, March 14, 1986 at 2. Appellants told appellee that regarding the property might cure the problem and, in accordance with that diagnosis, dumped two piles of dirt on appellee's lawn. However, the regrading was never performed and appellee had to have the piles of dirt removed. Id. On April 7, 1983, the parties entered into an agreement that appellants would complete an agreed-upon list of repairs to the house, including repair of the basement, and, in return, appellee would relinquish his legal claims against appellants. Appellants failed to complete all of the repairs, and those that they did complete were not performed in a reasonably workmanlike manner. Id. at 3.

Trial was held on June 8, 1983. The lower court, sitting without a jury, held that appellants were liable to appellee for the defects that created the wet basement problem. Id. at 8. The court also found, however, that it did not have sufficient information to determine damages pursuant to the formula then recently announced in Gadbois v. Leb-Co. Builders, Inc., 312 Pa. Superior Ct. 144, 458 A.2d 555 (1983) and sua sponte ordered a new trial limited to the issue of damages. Id. at 11-12. Appellants filed timely post-trial motions, but the lower court did not rule on those motions until the new trial was completed. That trial occurred on May 1, 1984. In an opinion dated June 11, 1984, the trial court entered judgment in favor of appellees and against appellants in the amount of $52,100.00. Appellants timely filed further post-verdict motions. On April 23, 1985, the lower court denied all of appellants' post-verdict motions, and this appeal followed.

[ 360 Pa. Super. Page 126]

Appellants first contend that the trial court abused its discretion in sua sponte ordering a new trial limited to the issue of damages. Appellants argue that as the court specifically found that appellee had not offered sufficient evidence to determine damages, judgment should have been entered against appellee. We disagree.

The granting of a new trial is within the sound discretion of the trial court, and a decision to do so will not be reversed on appeal absent a showing that the trial court committed an error of law or palpably abused its discretion. See Burrell v. Philadelphia Electric Co., 438 Pa. 286, 289, 265 A.2d 516, 517 (1970); George I. Reitz & Sons, Inc. v. Donise Enterprise, Inc., 319 Pa. Superior Ct. 76, 81, 465 A.2d 1060, 1063 (1983). A trial court may, in its discretion, order a separate trial on a separate issue in a cause of action in furtherance of convenience or to avoid prejudice. See Pa.R.Civ.P. 213(b). See also Schaefer v. American States Insurance Co., 272 Pa. Superior Ct. 67, 71, 414 A.2d 672, 673 (1979). Additionally, a trial court may grant a new trial on the issue of damages alone where the issue of liability has been fairly determined and the issue of damages is readily separable. See Stokan v. Turnbull, 480 Pa. 71, 75, 389 A.2d 90, 93 (1978); Reid v. Oxendine, 275 Pa. Superior Ct. 548, 556, 419 A.2d 36, 40 (1980).

Here, in order to "avoid speculation" the lower court ordered a new trial on damages after it had found against appellants on the issue of liability. See Lower Court Opinion, supra at 5. Contrary to appellants' assertion that the lower court found that appellee had failed to prove damages, the court instead found that neither party had supplied enough information to determine damages pursuant to the then recently announced formula in Gadbois v. Leb-Co. Builders, Inc., supra. See Lower Court Opinion, supra at 11. We believe that the lower court properly followed the procedure authorized under Pa.R.Civ.P. 213(b) and the above-mentioned case law concerning new trials limited to damages. We therefore find that the lower court did not commit an error of law or palpably abuse its discretion in

[ 360 Pa. Super. Page 127]

    this regard. See Burrell v. Philadelphia Electric Co., supra.

Appellants next contend that the lower court erred in finding that appellee had not released appellants from liability. Specifically, appellants argue that appellee signed two separate agreements that released them from liability arising out of any alleged defects in the construction of the house. The first agreement was allegedly contained in the agreement of sale, signed by appellee on November 19, 1970. The second agreement was allegedly entered into by appellee in April, 1973, subsequent to the filing of this suit and amounted to a settlement of the suit contingent upon the performance of certain enumerated repairs by appellants. Appellants contend that the lower court erred in disregarding these release agreements and finding against appellants on the issue of liability. We will address each of these alleged releases separately.

Because of the special knowledge of the builder-vendor in a home construction situation, language purportedly creating an express restriction or exclusion of an implied warranty must be strictly construed against the builder-vendor. See Tyus v. Resta, 328 Pa. Superior Ct. 11, 19, 476 A.2d 427, 432 (1984) (citations omitted). Additionally, due to the important consumer interests protected by an implied warranty, any attempt to disclaim such a warranty must be clear and unambiguous. Id. The language must also be specific and particular to the legal rights the buyer is waiving and their relation to their effect on specifically designated potential ...


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