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BENITO R. FERNANDEZ v. HOWARD B. LEVIN (10/14/88)

decided: October 14, 1988.

BENITO R. FERNANDEZ, APPELLANT,
v.
HOWARD B. LEVIN, APPELLEE



Appeal from the Order of the Superior Court of Pennsylvania, entered June 20, 1986, at Nos. 00741 and 00879 Philadelphia 1985, affirming the Judgment of the Court of Common Pleas Montgomery County, Civil Division, entered December 26, 1985, at No. 80-04592. 357 Pa. Super. 640, 513 A.2d 1079 (1986).

COUNSEL

Kurt J. Shaffer, Bucks, for appellant.

Kenneth E. Aaron, Philadelphia, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ.

Author: Stout

[ 519 Pa. Page 376]

OPINION OF THE COURT

This is an action in assumpsit in which Benito R. Fernandez, an investment broker, sued Howard B. Levin, a half-owner

[ 519 Pa. Page 377]

    of Typhoon Fence of Pennsylvania, to recover $15,000. The case went to arbitration and an award was entered for Fernandez. Levin appealed to the Court of Common Pleas and, in a non-jury trial, Fernandez again prevailed. Judgment was entered for $15,000 but prejudgment interest was denied. Cross-appeals were filed in the Superior Court with Levin appealing the judgment in favor of Fernandez and Fernandez appealing the denial of prejudgment interest. From the Superior Court's affirmance of the judgment but denial of the interest, 357 Pa. Super. 640, 513 A.2d 1079. Fernandez sought and was granted an appeal to this Court.

Two questions require our review: first, whether the appeal was filed timely, and, second, whether there was error in the denial of prejudgment interest. Each question begets an affirmative answer.

This case has been wandering through the wilderness of litigation since March 17, 1980 when Fernandez filed the action in assumpsit. The Complaint alleged that, on or about June 30, 1979, Levin delivered a check payable in cash to Fernandez in the amount of $15,000, and that, on or about July 2, 1979, the check was dishonored for insufficient funds. Although Fernandez did not demand interest in his Complaint, he did pray for judgment "plus interest, and cost of suit" in his Answer to New Matter.

After the Trial Court decided the matter in favor of Fernandez, Fernandez again raised the question of prejudgment interest in a document entitled "Exceptions to the Verdict,"*fn1 which he filed April 19, 1984, and in a "Petition to Amend the Verdict," which he ...


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