Appeal from the Judgment entered on February 5, 1985 in the Court of Common Pleas of Indiana County, Civil Division, at No. 2626 C.D. 1981.
Gregory S. Olsavick, Altoona, for appellant.
Richard C. Schomaker, Pittsburgh, for appellee.
Brosky, Del Sole and Cercone, JJ.
[ 363 Pa. Super. Page 107]
For our consideration is an appeal following a jury verdict in Appellee's favor. The underlying action concerns a contract dispute over the sale of coal by Appellee-seller to Appellant-buyer. We affirm.
Appellant claims that the trial court erred in refusing to grant its Motion for a New Trial since the jury verdict was contrary to both the weight of the evidence and to the law. In a related vein, it is argued that the trial court erroneously denied Appellant's Motion for a Judgment N.O.V. in that the evidence was insufficient to support the verdict.
Our scope of review of the trial court's denial of these motions is firmly established. In considering the trial court's decision on a motion for judgment n.o.v., we must view the evidence in the light most favorable to the verdict winner and draw all reasonable inferences and resolve all conflicts in testimony in that party's favor. By comparison, in reviewing a trial judge's action on a motion for a new trial, we must consider all the evidence. A new trial should be granted only when the jury's verdict is so contrary to the evidence as to shock one's sense of justice. However, we will not reverse the trial court's determinations in this regard absent an abuse of discretion. Burch v. Sears, Roebuck and Co., 320 Pa. Super. 444, 449, 467 A.2d 615, 618 (1983) (citations omitted).
[ 363 Pa. Super. Page 108]
With these principles guiding our analysis, we turn to the facts sub judice. Appellee instituted an action against Appellant for breach of contract in refusing to pay the balance due for coal sold to Appellant. Both parties agree that they reached an oral agreement on the sale of the coal. However, Appellee argued successfully at trial that the oral agreement constituted a contract in which the price of the coal shipped would be determined by a coal analysis conducted at the place of origin. Appellant alleges to the contrary that the terms of the purchase orders sent to Appellee, subsequent to the oral agreement, were controlling. By these terms, the coal analysis was to be conducted at the pier, i.e., the place of destination. A coal analysis at each point divulged that the pier price was less than the original price. Appellant paid the lower destination price which resulted in Appellee's suit for the difference. Following a jury trial, a verdict was rendered for Appellee.
Our disposition of the instant case entails a two-pronged analysis of the legal and factual issues raised. On the first prong, we must examine the oral agreement reached between the parties to determine whether an oral contract was formed, and if so, what were its terms. The second prong involves the legal effect of the purchase orders sent to Appellee. Inasmuch as such writings fall within the ambit of § 2207 of the Uniform Commercial Code, we shall ascertain whether or not these terms became part of the original contract.
During trial, witnesses were called to testify concerning the oral negotiations for the coal sales. Appellee's witness, Mr. Sedlak, testified to the effect that an oral agreement was struck between himself and Appellant's agent in which the price of the coal would be determined by testing at the point of origin. The witness stated that, by implication, the parties agreed to have the coal analysis conducted at Appellee's tipple. (N.T., 28). Further, Mr. Sedlak related that, in instances where there is no discussion as to ...