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DONALD A. GILBERT v. HARRY J. OTTERSON (10/11/88)

filed: October 11, 1988.

DONALD A. GILBERT, APPELLEE,
v.
HARRY J. OTTERSON, D.B.A. GETTYSBURG EXTERMINATING AND LAWN CARE COMPANY, APPELLANT



Appeal from Judgment of the Court of Common Pleas, Civil Division, of Adams County, No. 86-S-272.

COUNSEL

Lovette M. Mott, Gettysburg, for appellant.

Jeffery M. Cook, Harrisburg, for appellee.

Cirillo, President Judge, and Wieand and Del Sole, JJ.

Author: Wieand

[ 379 Pa. Super. Page 484]

Donald Gilbert was employed as a pest control technician by Harry J. Otterson, t/a Gettysburg Exterminating & Lawn Care Company. On August 12, 1977, Otterson borrowed two thousand ($2,000.00) dollars from Gilbert, giving as evidence of the indebtedness a promissory note payable within six (6) months after the termination of Gilbert's employment by Otterson. The note also provided for the payment of interest on unpaid principal at the rate of fifteen (15%) percent per annum. Between 1978 and 1984, Otterson paid Gilbert the sum of three hundred ($300.00) dollars per year as interest, but the principal indebtedness was not reduced. In August, 1985, Gilbert left Otterson's

[ 379 Pa. Super. Page 485]

    employ and started a competing business known as Fairfield Pest Control Corp.

On March 21, 1986, Gilbert recovered a judgment against Otterson for the principal of the note, as well as unpaid interest, before a District Justice. Otterson appealed to the Court of Common Pleas of Adams County where he defended against liability on grounds that the rate of interest contained in the note had been usurious. He also filed a counterclaim in which he alleged that Gilbert had tortiously interfered with existing and prospective contractual relations by soliciting Otterson's customers and had stolen trade secrets. The trial court determined that interest of fifteen (15%) percent was usurious and granted partial summary judgment by applying excessive interest payments in the amount of seven hundred twenty ($720.00) dollars in reduction of the principal indebtedness. Otterson was also granted leave of court to amend his counterclaim to include a demand for treble damages on account of the usury.

At trial, Otterson's evidence was that the loan had been made by Gilbert to help Otterson over a business slump so that Gilbert would not have to be laid off. The rate of interest, according to Otterson and his wife, had been set by Gilbert. Gilbert, on the other hand, testified that his employer had asked him to invest in the business and that Otterson had set the rate of interest. In any event, it is clear that the note was prepared by an attorney employed by Otterson. The trial court instructed the jury, inter alia, that estoppel was a defense to Otterson's claim for treble damages. The jury disallowed Otterson's claim for treble damages and returned a verdict in favor of Gilbert for the unpaid balance of the loan. Otterson filed post-trial motions in which he contended that the trial court had erred in charging the jury that estoppel was a defense to a claim for treble damages.*fn1 The trial court denied Otterson's motion

[ 379 Pa. Super. Page 486]

    for post-trial relief. On appeal, Otterson renews his argument that estoppel is not a defense to a claim for treble damages under the usury law.

With few exceptions, the maximum lawful rate of interest chargeable for the loan or use of money in an amount of fifty thousand ($50,000.00) dollars or less is six (6%) percent per annum. Act of Jan. 30, 1974, P.L. 13, No. 6, § 201, 41 P.S. § ...


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