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[U] Blue Barn Realty, LLC v. Western Express, Inc.

Superior Court of Pennsylvania

February 21, 2014

BLUE BARN REALTY, LLC Appellant
v.
WESTERN EXPRESS, INC. Appellee

NON-PRECEDENTIAL DECISION

Appeal from the Judgment Entered June 3, 2013 In the Court of Common Pleas of Lehigh County Civil Division at No(s): 2011-C-3298

BEFORE: BENDER, P. J., LAZARUS, J., and FITZGERALD, J. [*]

MEMORANDUM

LAZARUS, J.

Blue Barn Realty, LLC ("Blue Barn") appeals from the judgment entered in its favor, against Western Express, Inc. (Western), in the amount of $109.73, by the Court of Common Pleas of Lehigh County on June 3, 2013. After careful review, we affirm.

The underlying facts of this case are as follows. On April 19, 2011, Blue Barn, the owner of a large property in Allentown, entered into a 13-month lease with Western, a freight hauler, beginning May 1, 2011. Western agreed to pay $8,000 per month plus utilities to lease a storage building, garages, a mobile office and thirty parking spaces for tractor-trailers. Western paid rent for May through August 2011.

In August 2011, Western moved its equipment from Blue Barn's property to a facility in Northampton County, and informed Blue Barn that it was terminating the lease.

On September 16, 2011, Blue Barn filed a complaint against Western, seeking, inter alia, nine months' rent ($72,000) plus the cost of repairs for damage to its property caused by Western.

A non-jury trial took place on December 27, 2012, before the Honorable J. Brian Johnson. On January 2, 2013, Judge Johnson issued an opinion containing findings of fact and conclusions of law. Judge Johnson found that Michael Kritsak, the president of Blue Barn, demanded that Western vacate the property. The court concluded that by leaving the property at Blue Barn's request, Western was no longer obligated to pay rent.

The court found that Western owed Blue Barn $2,307.13 for utilities and $5,800 for damage to the property. Because Blue Barn retained an $8,000 security deposit from Western, it ordered Western to pay Blue Barn $107.13.

On January 11, 2013, Blue Barn filed a motion for post-trial relief seeking judgment notwithstanding the verdict (JNOV), or in the alternative, a new trial. The trial court denied the motion by order dated May 14, 2013, and judgment was entered on June 3, 2013.

This timely appeal followed in which Blue Barn raises one issue for our review:

Given the requisite standard of proof necessary to qualify as "clear, precise and convincing evidence," did the disputed testimony of [Western's] witnesses, contradicted by [Western's] own correspondence and pleadings, fail as a matter of law to establish an oral modification of the written lease provision prohibiting oral modification?

Brief of Appellant, at 9.

We apply the following standard of review from an order denying a motion seeking JNOV.

In reviewing a trial court's decision whether or not to grant judgment in favor of one of the parties, we must consider the evidence, together with all favorable inferences drawn therefrom, in a light most favorable to the verdict winner. Our standard of review when considering motions for a directed verdict and judgment notwithstanding the verdict are identical. We will reverse a trial court's grant or denial of a judgment notwithstanding the verdict only when we find an abuse of discretion or an error of law that controlled the outcome of the case. Further, the standard of review for an appellate court is the same as that for a trial court.
There are two bases upon which a judgment N.O.V. can be entered: one, the movant is entitled to judgment as a matter of law and/or two, the evidence is such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant. With the first, the court reviews the record and concludes that even with all factual inferences decided adverse to the movant the law nonetheless requires a verdict in his favor, whereas with the second, the court reviews the evidentiary record and concludes that the evidence was such that a verdict for the movant was beyond peradventure.

Ty-Button Tie, Inc. v. Kincel and Co., Ltd., 814 A.2d 685, 690 (Pa. Super. 2002) (citation omitted).

The lease between Blue Barn and Western provides for modification "only by a writing signed by the party against whom such modification is sought to be enforced." As this Court recognized in ADP, Inc. v. ...


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