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filed: May 23, 1989.


Appeal from the Judgment Entered on July 14, 1988, in the Court of Common Pleas of Dauphin County, Civil Division, at No. 1157 S 1986.


John S. Feinour, Harrisburg, for appellant (at 554) and appellee (at 561).

Marvin Beshore, Harrisburg, for appellee (at 554) and appellant (at 561).

Wieand, Popovich and Hester, JJ.

Author: Hester

[ 384 Pa. Super. Page 527]

Commonwealth National Bank, situate in York, Pennsylvania, and now an affiliate of Mellon Bank, N.A. (appellant), appeals from the judgment entered by the Court of Common Pleas of Dauphin County on July 14, 1988, awarding an employment referral commission to R.P. Clarke Personnel, Inc., t/a Career Bankers, appellee.*fn1

Appellant argues that the trial court erred by not directing a verdict in its favor since there was no evidence to support the alleged referral contract entitling appellee to a fee, by refusing to instruct the jury that the employment agency must be the predominant "efficient procuring cause" for hiring the job applicant in order to be entitled to receive a fee, and by admitting irrelevant and self-serving business records of appellee. Appellant also argues that the trial court improperly permitted appellee to amend its complaint to conform to the evidence introduced at trial. We find no merit in any of appellant's arguments and, accordingly, affirm.

The facts adduced at trial are as follows. In late 1983, appellant, due to its poor earnings and the consequent diminished possibilities for bonuses and security in employment, had difficulty obtaining a senior lender. Appellee, which specialized in banking placements, previously had solicited appellant for information about its job openings and had attempted to find suitable applicants whose backgrounds met appellant's requirements. At least one of appellee's referrals was hired for trust work and resulted in the payment of a referral fee. In 1983 or early 1984,

[ 384 Pa. Super. Page 528]

    appellant informed appellee of its need for a senior lender. Consequently, appellee submitted several resumes.

In January, 1984, Timothy Price, a senior loan officer for an Indiana bank, wanted to return to the eastern United States for personal reasons. He simultaneously sent his resume and an introductory letter to several employment agencies that he knew, including appellee. Appellee acknowledged receipt of his resume and screened it. R. Peter Clarke, appellee's president, immediately called Mr. Price and informed him about a job opening with an anonymous bank and requested permission to submit his resume. Mr. Price assented, and appellant submitted his resume, slightly altered, along with a cover letter outlining its customary fee requirements to appellant on February 2, 1984.

Several weeks later, Mr. Clarke called appellant's personnel manager, Craig Hill, to question him about Mr. Price's resume. Mr. Hill acknowledged receipt of the resume and asked to interview Mr. Price over the telephone on March 16, 1984. Mr. Clarke then called Mr. Price and urged him to telephone Commonwealth National Bank on March 16, 1984, providing him with Mr. Hill's name and telephone number. Subsequently, Mr. Clarke confirmed with Mr. Hill that Mr. Price would call him on March 16. Mr. Hill customarily conducted telephone interviews before arranging a personal interview. Mr. Price did telephone Mr. Hill on March 16, 1984, but Mr. Hill was unavailable.

Prior to these events, on December 21, 1983, appellant had signed an employment search agreement with R.J. Evans Agency. This agreement entitled R.J. Evans to an exclusive right to present qualified candidates for sixty days in consideration for its best efforts to locate and present three qualified candidates for each job opening. R.J. Evans was entitled to a $3,000 commission upon presenting three candidates considered by appellant as qualified, regardless whether any one of them was hired. Appellee was never informed of R.J. Evans's exclusive contract with appellant.

[ 384 Pa. Super. Page 529]

R.J. Evans also had Mr. Price's resume and submitted it to appellant. R.J. Evans contacted Mr. Price by telephone after Mr. Clarke contacted R.J. Evans about the opening. Mr. Price informed R.J. Evans that Mr. Clarke had already spoken to him about the job opportunity with appellant, but that he had not yet been interviewed. At this point, appellant realized that both appellee and R.J. Evans were recruiting the same individual, and appellant ceased returning appellee's telephone calls. In addition, Mr. Price informed appellee that another agency was recruiting him for the position with appellant.

Subsequently, R.J. Evans set up a series of interviews for Mr. Price and made considerable effort to convince both Mr. Price and his wife of the merits of the York, Pennsylvania area and the terms offered by ...

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