(3d Cir. 1986) (under Pennsylvania law, test for enforceability of agreement is whether both parties have manifested an intent to be bound by its terms, whether terms are sufficiently definite to be specifically enforceable and whether consideration exists).
We realize that the full consideration contemplated by the timber sales contract has not changed hands in that the plaintiffs only received 2,500 of the 3,500 feet of boards required by the contract and that the 2,500 feet received was not made of white oak, which Omega had agreed to provide. Also, Omega never received title, through identification, of any timber along Whitestown Road. However, neither party has raised any such failure of consideration as a defense to the contractual aspects of this dispute, either in the pleadings or at trial, and, as previously mentioned, both seek to enforce the agreement. As failure of consideration is an affirmative defense, In re Beeruk, 429 Pa. 415, 241 A.2d 755 (1968), we deem that any related question as to the enforceability of the contract has therefore been waived, Western Kraft East, Inc. v. United Paperworkers International Union, Local 375, 531 F. Supp. 666 (E.D. Pa. 1982) (generally, failure to plead affirmative defense results in waiver of that defense and its exclusion from the case, citing Fed. R. Civ. P. 8(c)).
Despite the enforceability of the contract and its inherent grant of an irrevocable license to the defendant, though, we conclude that the plaintiffs have established by a preponderance of the evidence that Omega is liable for trespass and conversion. To the extent the defendant, by and through its subcontractor, Robert Taylor, severed trees which were not described by the contract, the defendant has committed trespass quare clausum fregit for injury to the plaintiffs' real estate. See Shiffer v. Broadhead, 126 Pa. 260, 17 A. 592 (1889) (where persons, having a right of entry on land for the purpose of cutting trees of a certain size, enter and cut others of a different size, they are liable in trespass for the unauthorized cutting). Cf. Espy v. Butler Area Sewer Authority, 63 Pa. Commw. 95, 437 A.2d 1269 (1981) (work done by contractor outside of right-of-way exposes employer to liability for trespass, citing Culver v. Commonwealth, 346 Pa. 262, 29 A.2d 531 (1943)). To the extent such severance acts to change plaintiffs' title in this wrongfully cut timber from one in real estate to one in personalty and as such timber was then removed from plaintiffs' property, the defendant committed trespass de bonis asportatis - trespass for goods carried away. See Crawford v. Forest Oil Co., 208 Pa. 5, 57 A. 47 (1904) (one who wrongfully converts property which has been wrongfully severed from the real estate of another, has committed a trespass against both realty and personal property); Holshue v. Hoover, 15 Northumb. L.J. 56 (1941) (one who removes coal from land of another is not merely a trespasser, but is guilty of carrying away and conversion of the coal as personalty in an action for trespass).
Finally, we conclude that the defendant is also liable for tortious conversion of such severed timber, as we have found defendant's subcontractor to have acted intentionally in cutting the trees not specified by the contact and removing ninety of these trees from plaintiffs' property. Conversion is an act of willful interference with the dominion or control over a chattel, done without lawful justification, by which any person entitled to the chattel is deprived of its use and possession; a person not in lawful possession of a chattel may commit conversion by intentionally dispossessing the lawful possessor of the chattel. Baram v. Farugia, 606 F.2d 42 (3d Cir. 1979) (defining the Pennsylvania common law of conversion, as based on the Restatement (Second) of Torts § 223 (1965)). In addition to the element of intent previously discussed, we find the remaining elements of conversion to be met here in that: (1) severance of the timber converts such timber to personalty, cf. Baker v. Lewis, 150 Pa. 251, 24 A. 616 (1892) (severed crops); Holshue v. Hoover, supra ; (severed coal); and (2) the plaintiffs have been dispossessed of the timber wrongfully cut - they have been deprived of the use and possession of such timber.
We note that some question may exist as to whether Omega ever interfered with the plaintiffs' right and title to the wrongfully cut timber, as opposed to interference by Robert Taylor, Omega's subcontractor on the logging operation. Mr. Chovan, in his testimony when called on cross-examination by plaintiffs' attorney, indicated that he never authorized the wrongful cutting of the white oak or other trees outside the contract and that he had no knowledge of such cutting, as he would have been aware of that quantity of white oak had it been processed in the defendant's saw mills. Such testimony indicates that Mr. Taylor may have been acting outside the scope of his authority as subcontractor and agent or employee of the defendant, thereby cutting off any liability on the part of Omega:
Under Pennsylvania law, a master-servant relationship is established if the employer had the power to control and direct the conduct of the employee. A master is liable for the torts of his servant if the latter's tortious conduct was within the scope of his employment, i.e., conduct performed to further the business of the employer and not the servant's personal purposes.
Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265, 1267 (3d Cir. 1979).
We find, however, that any question and related defense on the part of Omega as to whether Omega is liable for Mr. Taylor's acts has also been waived. Lack of agency or of a master-servant relationship is an affirmative defense which the defendant should have pled. See Zielinski v. Philadelphia Piers, Inc., 139 F. Supp. 408 (E.D. Pa. 1956)(lack of agency must be specifically and affirmatively denied; general denial of pleading which, in part, contains an allegation of agency in part is insufficient to create an issue as to the existence of agency). Cf. Branding Iron Club v. Riggs, 207 F.2d 720, 725 (10th Cir. 1953)(defense of defendant president's lack of authority to bind defendant corporation is an affirmative defense which must be specifically pled). As the defendant here did not raise this affirmative defense, we find that it is estopped to deny responsibility for Mr. Taylor's acts, see Western Kraft East, supra, especially since the statute of limitations for any action by plaintiffs against Mr. Taylor has run, 41 Pa. C.S. § 5524 (two-year limitations period in action for trespass and conversion), and because the plaintiffs, as the result of defendant's failure to raise this defense, never received notice that they would need to join Mr. Taylor as an additional defendant in order to protect any action by plaintiffs against him, see Zielinski, supra (defendant equitably estopped to deny agency after time limitations had barred action against true employee).
We further acknowledge that an argument may be made that this issue was tried by the implied or express consent of the parties, thereby amending the pleadings pursuant to Fed. R. Civ. P. 15(b), so as to raise any lack of agency defense and avoid any estoppel or waiver. However, we will not allow any such amendment because of the aforementioned prejudice to the plaintiffs which would result. Omega is not without recourse, though, as it may pursue an action for indemnity or contribution against Taylor.
Implicit in our conclusion that the defendant is liable for trespass and conversion are denials of defendant's motions to exclude the testimony of George Cline and for involuntary dismissal. While it is true that under our Local Rules the testimony of an expert witness is inadmissible absent the filing of an expert's report, Mr. Cline's testimony is otherwise admissible as that of a lay witness having personal knowledge of the matters to which he testified:
The modern trend favors the admission of opinion testimony, provided that it is well founded on personal knowledge and susceptible to specific cross-examination. A lay witness in a federal court proceeding is permitted under Fed.R.Evid. 701 to offer an opinion on the basis of relevant historical or narrative facts that the witness has perceived. Entitled "Opinion Testimony by Lay Witnesses," Rule 701 provides: