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filed: March 5, 1987.


Appeal from the judgment entered March 25, 1986 in the Court of Common Pleas of Lackawanna County, Civil Division, at No. 80 Civ. 1968.


Michael J. Donohaue, Scranton, for appellants in No. 1076 and appellees in No. 1142.

Arthur L. Piccone, Wilkes Barre, and Michael H. Roth, Scranton, for appellants in No. 1142 and appellees in No. 1076.

Wickersham, Hoffman and Beck, JJ.

Author: Beck

[ 363 Pa. Super. Page 254]

This appeal and cross-appeal arise from a jury verdict against defendant-appellant United Penn Bank (the "Bank") and for plaintiffs-appellees Robert C. Bolus, Key Brockway, Inc., t/a Key Freightliner and D.B. & B. Realty Co., Inc. ("Bolus") in the amount of $375,000. Bolus cross-appeals. We affirm but remand for a hearing on the delay damages issue only in accordance with Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986).

The factual and procedural context of this case can be briefly summarized. Since 1970, Robert Bolus had been engaged in various trucking businesses. He sold trucks and parts for trucks, repaired trucks and towed trucks. In connection with these businesses, Bolus formed two corporations, Key Brockway, Inc. and D.B. & B. Realty Co., Inc.,

[ 363 Pa. Super. Page 255]

    both of which were also plaintiffs below. In 1976, Bolus decided to expand his businesses by building a truck repair facility on a tract of land in Bartonsville, Pennsylvania (the "Bartonsville project"). Bolus contacted the Bank to obtain financing for the project.

Bolus was referred to Emmanuel Ziobro, co-defendant below and an Assistant Vice-President of the Bank. Ziobro orally agreed that the Bank would provide the funding for the Bartonsville project. Bolus contended at trial that Ziobro assured him that the Bank would fund the purchase of the land, construction of the facility, equipment and inventory. In September 1976, the Bank lent Bolus One Hundred Thirty-Five Thousand Dollars ($135,000) and Bolus purchased the Bartonsville property and began construction.

In January 1977, Bolus lost a truck dealership he was operating at a different location. He arranged to replace that dealership with another from Freightliner Corporation. Bolus alleges that he informed Ziobro of this fact and on Ziobro's "direction" returned to Freightliner to obtain an additional dealership to be conducted at the Bartonsville location, which Bolus obtained. The acquisition of the additional dealership markedly changed Bolus' plans as to the scope of the Bartonsville project. He needed additional parts and equipment as a condition of conducting the dealership. The total cost of these additional requirements was in excess of One Hundred Thousand Dollars ($100,000). Bolus approached the Bank for the additional funds and the Bank refused to provide them. However, shortly thereafter, the Bank did lend Bolus an additional Seventy-Five Thousand Dollars ($75,000) to fund construction cost overruns at the Bartonsville project.

Bolus' businesses began to collapse in 1978. He eventually lost both truck dealerships and fell behind in his payments to the Bank. The Bank confessed judgment against Bolus in the amount of Five Hundred Thousand Dollars ($500,000), the amount of a Small Business Administration guaranteed loan from the Bank to Bolus, and seized the

[ 363 Pa. Super. Page 256]

    proceeds of an auction salvage sale Bolus had conducted at another of his business locations. The Bank applied these funds to satisfy Bolus' debt to the Bank as well as certain of his debts to others. Finally, Bolus was forced to sell his properties where he had formerly conducted the two dealerships and the proceeds of those sales were applied to satisfy the Bank's loans.

On April 3, 1980, Bolus and his two corporations instituted this action in trespass and assumpsit against the Bank and Ziobro. Bolus alleged the Bank had breached an oral contract to fund the Bartonsville project, had negligently misrepresented that it would fund the project, and was guilty of the torts of conversion and tortious interference with a contract. The latter two causes of action were terminated by the entry of a compulsory non-suit against Bolus at the close of Bolus' case. Bolus has not appealed the non-suit.

A jury trial of the remaining causes of action commenced on October 29, 1984 and ended on November 5, 1984. The jury returned a verdict in favor of all plaintiffs and against the Bank alone in the amount of $375,000. The Bank filed a timely Motion for Post-Trial Relief seeking judgment N.O.V. or, in the alternative, a new trial. The Motion was denied and the trial court molded the verdict to add delay damages pursuant to Pa.R.C.P. 238 on February 25, 1986. Judgment was entered on March 25, 1986.

We can summarily dispose of Bolus' cross-appeal. The sole ground of the cross-appeal is that the trial court erred in refusing to dismiss the Bank's Motion for Post Trial Relief on the ground that the Bank violated Lackawanna County Rule of Procedure 211(h) by failing to file a timely brief in support of the Motion.

First, we note that the cross-appeal was timely filed. Pennsylvania Rule of Appellate Procedure 903, relating to the time for filing appeals, states:

(b) Except as otherwise prescribed in Subdivision (c) of this rule, if a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days

[ 363 Pa. Super. Page 257]

    of the date on which the first notice of appeal was filed, or within the time otherwise prescribed by this rule, whichever period last expires.

Pa.R.A.P. 903(b). Since the Bank here did not file its appeal in this matter until April 14, 1986, Bolus had at least until April 28, 1986 to file its cross-appeal. The docket reveals that Bolus' Notice of Appeal was filed on April 17, 1986. Thus, the Bank's argument that Bolus' appeal is untimely is clearly without merit in that it takes no cognizance of the expansion of time for filing cross-appeals provided in Rule 903(b).

However, the Bank does have a meritorious response to the substantive ground of the cross-appeal. As we have noted, the sole contention Bolus raises is that the Bank's post-trial motion should have been dismissed by the trial court because the Bank failed to file its brief in support of that motion within the briefing schedule set by the trial court. In support of this argument, Bolus cites us to Lackawanna County Rule of Procedure 211, concerning argument and briefing before the Lackawanna Court of Common Pleas. Sections (g) and (h) of Rule 211 provide that the trial court may establish a briefing schedule and that if it does so and the moving party fails to file a timely brief, ". . . the matter may be dismissed by the court as a matter of course." Lackawanna Co. R.P. No. 211(g), (h).

In this case, there is no dispute that the Bank's brief was untimely. However, we do not agree that the trial court was therefore mandated by the provisions of Rule 211 to dismiss the Bank's post-trial motion. Rule 211 says the matter may be dismissed by the court, but not that it shall be. Rule 211 vests discretion in the trial court and that court's discretion was not abused under these circumstances. Although the Bank's brief was late filed, it was filed prior to oral argument and Bolus was, therefore, able to review it prior to argument. Moreover, Bolus has not argued to us that it suffered any specific prejudice as a result of the Bank's untimely brief.

[ 363 Pa. Super. Page 258]

Thus, we affirm the trial court's order denying Bolus' motion to dismiss the Bank's post-trial motion. In doing so, however, we do not sanction the Bank's failure to comply with the local rules of the Lackawanna Court. As we have so frequently stated in the past, rules of court are absolutely necessary to the efficient operation of the judicial system and noncompliance therewith is to be condemned. Straff v. Nationwide Mutual Fire Insur. Co., 230 Pa. Super. 403, 326 A.2d 586 (1974). We simply hold that in this case, we will not interfere with the trial court's exercise of the discretion the rule in question grants.

We now turn to a consideration of the issues raised in the Bank's appeal, which consist in six allegations of error that the Bank contends mandate the grant of a new trial. In reviewing these issues, we will not reverse the trial court's denial of a new trial unless we find that the trial court's denial constituted an abuse of discretion or was based upon an error of law. Baldino v. Castagna, 505 Pa. 239, 478 A.2d 807 (1984).

The Bank's allegations of error are as follows:

(a) The evidence adduced at trial failed to establish an agency relationship between co-defendant Emmanuel Ziobro and the Bank;

(b) The jury's verdict finding only the Bank liable and exonerating Ziobro of liability is inconsistent in that the Bank cannot be liable for a tort based upon the actions of its servant under the doctrine of respondeat superior unless the servant is also found liable for the tort;

(c) The trial court erred in not instructing the jury that a compulsory non-suit had been entered against the plaintiffs on their conversion and tortious interference with a contract causes of action;

(d) The jury's award of future and past profits damages was based upon speculation;

(e) The testimony of plaintiffs' expert on future and past profits damages was inadmissible; and

(f) The delay damages award was erroneous.

[ 363 Pa. Super. Page 259]

Since we find no merit in any of the Bank's contentions on appeal, we affirm.

1. Agency of Ziobro

First, the Bank argues that there was no evidence to show that Ziobro had express, implied or apparent authority to bind the Bank to a lending commitment of the size Bolus alleged that Ziobro made to Bolus on behalf of the Bank. The Bank points to the fact that there was testimony that Ziobro had express authority only to make $5,000 unsecured and $10,000 secured loans. The Bank, therefore, argues that since there was no evidence that Ziobro was acting as the Bank's agent, the Bank cannot be liable either in contract or tort. The Bank draws this conclusion because absent a showing of Ziobro's agency, the evidence of Ziobro's acts is inadmissible against the Bank and without that evidence, the Bank contends that it cannot possibly be held liable. The Bank thus seeks a new trial because the verdict was against the weight of the evidence.

In reviewing a denial of a new trial where the appellant argues that the verdict was against the weight of the evidence, we must award a new trial only where the verdict is so contrary to the evidence as to shock this Court's sense of justice. Macina v. McAdams, 280 Pa. Super. 115, 421 A.2d 432 (1980). In this case, our review demonstrates that the evidence was clearly sufficient to support a finding of Ziobro's agency relationship with the Bank and that as such, Ziobro was clothed with at least apparent authority to bind the Bank to the transactions with Bolus.

It is true as the Bank urges that Bolus had the burden of proving an agency relationship before Ziobro's actions could be attributed to and binding on the Bank. Girard Trust Bank v. Sweeney, 426 Pa. 324, 231 A.2d 407 (1967). Whether an agency relationship exists is a question of fact for the jury. Levy v. First Pennsylvania Bank N.A., 338 Pa. Super. 73, 487 A.2d 857 (1985); Breslin by Breslin v. Ridarelli, 308 Pa. Super. 179, 454 A.2d 80 (1982). There are four grounds upon which a jury can conclude that

[ 363 Pa. Super. Page 260]

    an agency relationship exists and that the principal is bound by a particular act of the agent and liable to third parties on the basis thereof. ...

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