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PAUL H. FLECK v. DURAWOOD INC. AND SEARS ROEBUCK & COMPANY (06/08/87)

submitted: June 8, 1987.

PAUL H. FLECK
v.
DURAWOOD INC. AND SEARS ROEBUCK & COMPANY, APPELLANTS



Appeal from the Order entered in the Court of Common Pleas of Philadelphia County, Civil Division, No. 4530 Oct Term 1983.

COUNSEL

G. Alexander Bochetto, Philadelphia, for appellants.

Malcolm H. Waldron, Jr., Philadelphia, for appellee.

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

Author: Tamilia

[ 365 Pa. Super. Page 125]

Appellants, Durawood, Inc. (Durawood) and Sears, Roebuck and Company (Sears), appeal from an Order by the trial court which denied their motion for new trial or judgment n.o.v. This Court reverses the lower court's denial of appellant/Sears' motion for judgment n.o.v. but will permit the verdict to stand as to Durawood.

At trial, appellee sought recovery of commissions he allegedly earned as a salesman of kitchen improvement jobs. A jury awarded appellee recovery against both defendants. Appellee was hired by Durawood (T.T. 10/2/86, p. 84). Durawood had an arrangement with Sears whereby Durawood would manufacture and sell kitchen improvement jobs, advertising under the Sears name and using Sears' warranties (T.T. at 83). Durawood would receive calls from potential customers and would then send a sales representative to the customers' homes to enter a contract with the customer (T.T. at 85). Customers were to pay the

[ 365 Pa. Super. Page 126]

    sales representative who would turn the money over to Durawood. Durawood then would give the salesman a certain commission, figured according to guidelines, and would pay Sears an amount for use of its name (T.T. at 85).

During questioning at trial, appellee testified Sears had never hired him, Sears never told him they would pay him a commission, he had never received nor did he expect to receive any money from Sears, his employment was really with Durawood and not Sears and he did not expect any recovery to come from Sears, but rather from Durawood (T.T. at 35).

The first issue on appeal is whether the trial court erred in not granting appellant's motion for non-suit and motion for judgment n.o.v., since appellant urges there was no evidence from which the jury could have found against Sears. The trial court properly noted that the propriety of the court's action in not granting a motion for a non-suit is not appealable. What is appealable is the trial court's Order denying a motion for judgment notwithstanding the verdict (Slip Op., Wallace, J., 3/5/87) (citing Elder v. Orluck, 334 Pa. Super. 329, 483 A.2d 474 (1984).

As to the trial court's denial of appellant/Sears' motion for judgment n.o.v., however, we find we must reverse. In Timberbrook v. Foremost Insurance Co., 324 Pa. Super. 384, 471 A.2d 891 (1984), we outlined our scope of review:

The standard which we employ when reviewing the denial of a motion for directed verdict and a motion for judgment n.o.v. is the same. We will reverse the lower court when we find "an abuse of discretion or an error of law which controlled the outcome of the case." McDevitt v. Terminal Warehouse Co., 304 Pa. Super. 438, 442, 450 A.2d 991, 993 (1982). In ruling upon these motions, the trial judge must consider "the evidence, together with all reasonable inferences that may be drawn therefrom . . . in the light most favorable to the verdict winner." Carrender v. Fitterer, ...


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