author: CIRILLO, President Judge:

text:
    525 A.2d 428
    James P. FOX and Angela Fox, husband and wife, Appellants, v. Robert J. BYRNE, M.D. and Norristown Surgical Associates, Incorporated, Appellees. (Two Cases)
    Superior Court of Pennsylvania.
    Argued Jan. 14, 1987.
    Filed April 29, 1987.

      Beth Liss Shuman, Philadelphia, for appellants.
    Alan K. Cotler, Philadelphia, for appellees.
    Before CIRILLO, President Judge, and ROWLEY and HOFFMAN, JJ.
   CIRILLO, President Judge:

Must a plaintiff file a responsive pleading to new matter in a defendant’s answer which raises the statute of limitations as an affirmative defense, when the plaintiff’s complaint states facts indicating that the statute should be extended via application of the discovery rule?

The Court of Common Pleas of Montgomery County granted defendant’s, Dr. Robert Byrne and Norristown Surgical Associates, motion for judgment on the pleadings since the plaintiffs, James and Angela Fox, failed to respond to such new matter. Because we find that the answer to the question posed above is no, we reverse. We also quash appellants’ appeal from the trial court’s denial of their motion to reconsider.

The Foxes instituted suit against Dr. Robert Byrne and Norristown Surgical Associates (appellees) on November 5, 1982, by filing a praecipe for summons.

On August 8, 1984, the Foxes filed a complaint alleging Dr. Byrne’s negligent performance of surgery on Mr. Fox’s fractured leg on September 10, 1980. Among the acts of negligence alleged were the decision to perform the surgery; permitting a bone fragment to be expelled from the wound onto the floor and then sterilizing and reinserting the bone fragment; and improperly selecting and inserting an intramedullary rod. The complaint also alleged the doctor’s “[cjoncealing from the husband-plaintiff”:

1) “the fact that bone left the operative site”;

2) “the fact that the bone which left the operative site became contaminated and necrotic and that such necrotic bone was reinserted into the fracture area”;

3) “the fact that the rod was undersized and had failed to immobilize the fracture and had backed out of the femur.”

Paragraph 12 of the complaint further asserted:

The husband-plaintiff continued under the care of the defendants until on or about December 23, 1980, relying on the defendants’ assurances and representations that all was well in the treatment and progress of healing; it was not until December 22, 1980 that the husband-plaintiff became aware for the first time that the rod was backing out of the bone. It was later still that husband-plaintiff became aware of the contamination of the bone during surgery.

The defendants filed an answer and new matter on August 14, 1984. The answer admitted that the bone fragment had been expelled and reinserted, and that the rod had backed into the femur. However, the answer specifically denied all allegations of concealment, and averred that Dr. Byrne kept Fox “fully informed as to his treatment and condition while he was under the care of Defendant Byrne.”

The new matter raised Fox’s contributory negligence for ceasing treatment with Dr. Byrne on December 23, 1980, and the bar of the statute of limitations in that suit was filed on November 5, 1982, “[t]he injury ... occurred on September 10, 1980,” and hence “[m]ore than two years expired between the date of the injury and commencement of this action.”

The Foxes filed no reply to the new matter. On November 5, 1984, the defendants moved for judgment on the pleadings. The Foxes responded on October 10, 1985, with a memorandum in opposition to the motion.

On June 11, 1986, Judge Subers granted judgment on the pleadings to the defendants. On June 24, he denied the Foxes’ motions for reconsideration and for nunc pro tunc amendment of the pleadings to respond to new matter. The Foxes have filed two appeals. The first appeal is from the order granting the motion for the judgment on the pleadings. The second appeal is from the court’s denial of appellant’s motion for reconsideration. Because this is not an appealable order, we quash the second appeal and consider only the first. Provident National Bank v. Rooklin, 250 Pa.Super. 194, 378 A.2d 893 (1977).

Rule 1030 of the Pennsylvania Rules of Civil Procedure provides in pertinent part:

“All affirmative defenses including but not limited to the defenses of ... statute of limitations ... shall be pleaded in a responsive pleading under the heading ‘New Matter’ ”.

An affirmative defense for “new matter” purposes is a defense which, even if all the allegations of the complaint are true, is still a bar to the plaintiff’s recovery. Pisiechko v. Diaddorio, 230 Pa.Super. 295, 300, 326 A.2d 608, 610 (1974). The Rules require that a defendant plead these matters and the plaintiff reply to them so that the issues in the dispute may be sharpened at an early stage. If the court then determines that there does not exist any factual dispute, it may resolve the case as a matter of law and avoid an unnecessary trial. See, e.g., Sechler v. Ensign-Bickford Co., 322 Pa.Super. 162, 166, 469 A.2d 233, 235 (1985), Ruhe v. Kroger Co., 425 Pa. 213, 216, 228 A.2d 750, 751 (1967).

An affirmative defense which is not properly raised in new matter is waived. Judge v. Celina Mut. Ins. Co., 303 Pa.Super. 221, 226, 449 A.2d 658, 661 (1982). Likewise, if a plaintiff fails to properly respond to an affirmative defense pled as new matter, the factual averments underlying that defense are admitted and the defendant is entitled to judgment on the pleadings. Hyser v. Allegheny County, 61 Pa.Comwlth. 169, 170, 434 A.2d 1308, 1310 (1981). The plaintiff need not deny conclusions of law but he must respond to factual averments which provide the basis for those conclusions. Enoch v. Food Fair Stores, Inc., 232 Pa.Super. 1, 5, 331 A.2d 912, 914 (1974).

The statute of limitations is an affirmative defense which ordinarily must be raised as new matter or it is waived. Bartanus v. Lis, 332 Pa.Super. 48, 64, 480 A.2d 1178, 1186 (1984). See also Pa.R.Civ.P. 1030. It is an affirmative defense because even if the plaintiffs allegations are true and he has made out a cause of action, the statute of limitations may be a bar to his recovery. Sechler, 322 Pa.Super. at 166, 469 A.2d at 235. Therefore, the typical situation is as follows: the plaintiffs complaint alleges facts necessary to sustain his claim; the defendant’s answer pleads as new matter facts required to make out a statute of limitations defense; the plaintiffs response denies those facts.

However, this simple series of steps becomes muddled and confused in cases involving the equitable “discovery rule.” The discovery rule as applied in Pennsylvania decisions is explained in Prince v. Trustees of University of Pennsylvania, 282 F.Supp. 832 (E.D.Pa.1968):

“The Pennsylvania Supreme Court has held that the statute of limitations in a personal injury malpractice case does not begin to run until the plaintiff or injured party either is aware or reasonably should be aware of the harm he has suffered. In Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959), the rule was applied to a sponge left in the complainant’s abdomen during an ulcer operation. The source of pain which the complainant suffered was not discovered for nine years.”

Id. at 840-41.

In Stein v. Richardson, 302 Pa.Super. 124, 448 A.2d 558 (1982), this court stated that “the Pennsylvania discovery rule delays the accrual of the cause of action from the time of the defendant’s negligent conduct to a time when the injury caused by that conduct becomes known or knowable.” Id., 302 Pa.Superior Ct. at 135, 448 A.2d at 563.

In Stein, we held that once a defendant pleads the statute of limitations as new matter it is the plaintiff’s obligation to present facts indicating that the discovery rule is applicable. Id., 302 Pa.Superior Ct. at 142, 448 A.2d at 566. The Stein court reviewed the pleadings and determined that the trial court was never presented “any facts indicating that the injury was discovered at such a time as would bring the complaints filed within the statute of limitations period.” Id., 302 Pa.Superior Ct. at 140, 448 A.2d at 566. The court affirmed the trial court’s decision granting judgment on the pleadings. We stated “that the complaint presented, on its face, contained no facts which would indicate that the claim could be sustained.” Id. The Stein court apparently would have been willing to reverse the trial court’s decision if the plaintiff’s complaint had contained sufficient facts to justify application of the discovery rule. The court did not hold that the plaintiff’s claim should be automatically dismissed because he did not specifically reply to the defendant’s new matter raising the statute of limitations as a defense. The court was willing to search the pleadings to determine whether the Steins had at any time asserted that they were unable to discover the injury or could not have been able to discover the injury until such time as would prevent the statute from acting as a bar. Therefore, based upon the reasoning of the Stein court, there are two ways a plaintiff may proceed when he wishes to assert the “discovery rule”. He may wait until the defendant asserts the statute of limitations defense as new matter and file a responsive pleading presenting a factual denial of the defense consistent with application of the discovery rule. Or, he may plead sufficient facts to sustain application of the rule in his initial complaint. In the latter case, the plaintiff need not specifically respond even if the defendant affixes the new matter label to the defense.

Appellees claim that this rule will over-burden and confuse our trial courts. They claim that a plaintiff should be required to specifically respond to new matter without exception. They argue that a court should not have to comb the pleadings to see if the new matter has been contradicted. Appellees assert that it is much more efficient if a plaintiff files a specific response even if that response is repetitive of facts already pled in the complaint. We are grateful for the appellees heartfelt concern for the welfare of our judicial brethern but we find ourselves much more confident of those jurists’ abilities. The ordinary complaint is neither very long nor very complicated. When an affirmative defense is pled as new matter and the plaintiff chooses not to reply and the defendant moves for judgment on the pleadings, a trial court must examine the original complaint to determine if it factually controverts the asserted defense. We have no doubt that our judges can meet this challenge as they routinely handle much more complex tasks.

This result is fair, simple and consistent with the applicable precedent. An affirmative defense is a defense which will bar recovery even if all the facts in the complaint are true. The plaintiff must respond because if the defense is applicable, he is not entitled to recovery and a trial would be a waste of time and resources. However, if the complaint alleges facts sufficient to deny application of the defense then it does not bar recovery. It is no longer a true affirmative defense. In that situation, it is no more than a denial of the plaintiffs allegations. The issue must be settled by a factfinder much like any other factual disagreement. Forcing a plaintiff to file a pro forma response as if his complaint had been silent on the issue seems to us a rather fruitless exercise. We do not wish to put litigants out of court for noncompliance with pointless technical rules.

It is also settled that a plaintiff does not have to factually deny an assertion merely because it is labeled new matter. He need only respond if the new matter factually avers a true affirmative defense. Watson v. Green, 231 Pa.Super. 115, 331 A.2d 790 (1974). The rule urged upon us by appellees would corrupt this principle. Because of the discovery rule, the staute of limitations is not always an affirmative defense. Yet, appellees argue that a plaintiff must always respond when the statute is pled as new matter. Appellees are actually asking this court to adopt an exception to the above cited rule that the plaintiff’s required response is governed by the substance of the defendant’s pleading and not the label affixed to it. In cases involving the statute of limitations, the label would control. Plaintiffs would have to respond in some situations even though the statute was not a true affirmative defense. As previously discussed, this requirement would be pointless. It would also be confusing.

It would be confusing because plaintiffs would be unsure when they may ignore incorrectly labeled new matter and when they must respond to it. The rule we adopt is fairer and simpler. A plaintiff has to factually deny new matter only when it asserts a defense, which if all the allegations of the complaint are true, is still a bar to the plaintiff’s recovery. Any other defense pled as new matter is wrongly labeled. This result is also consistent with the applicable precedent.

In Watson v. Green, a panel of this court reached a similar conclusion. In Watson, Ann Watson hired Marshall Bernstein as her attorney and Mr. Bernstein engaged Jean Green to handle Watson’s case in Montgomery County. Watson, 231 Pa.Superior Ct. at 117, 331 A.2d at 791. The prospective defendant died before Green filed suit but he never filed a complaint against the defendant’s personal representative and the statute of limitations expired. Watson later brought an action alleging negligence by Green who filed an answer and new matter denying that an attorney client-relationship ever existed between him and Watson. Id., 231 Pa.Superior Ct. at 117-18, 331 A.2d at 791. Watson failed to respond to the new matter and the Court of Common Pleas entered judgment on the pleadings in favor of Green. The Superior Court reversed, holding that the existence of an attorney-client relationship had been placed in issue by the complaint. Therefore, no reply was needed to the new matter. Id., 231 Pa.Superior Ct. at 118-19, 331 A.2d at 792. The court stated that “[n]ew matter properly contains averments of facts only if they are extrinsic to facts averred in the complaint.” Id., 231 Pa.Superior Ct. at 119, 331 A.2d at 792. Because the plaintiff had already put this matter in issue it was not an affirmative defense despite the label used by the defendant. It was a simple denial representing a factual disagreement which must be resolved by the factfinder. Taking all the plaintiff’s allegations to be true, the asserted defense would not bar recovery because the plaintiff had already alleged that an attorney-client relationship had in fact existed. Therefore, Green’s new matter failed to allege a proper affirmative defense.

In the instant case, the Foxes complaint alleged that they first became aware of Mr. Fox’s injury on December 22, 1980. The Foxes instituted suit on November 5, 1982. If the staute was tolled until December 22, 1980 the suit began before the two year statute of limitations expired. Taking the allegations of the complaint as true, the statute should be tolled because the discovery rule applies. Mr. Fox did not become aware of his injury until December 22. Nor should he have been aware sooner. The complaint also alleges that Mr. Fox relied on Dr. Byrne’s assurances that all was well in the treatment and progress of healing. Therefore, taking this to be true, it was reasonable for the Foxes not to discover the injury until December 22. The defendant’s new matter raising the statute of limitations is a denial of the above allegations. However, as in Watson, if the plaintiff’s complaint is deemed true, the asserted defense still does not bar recovery. It is not an affirmative defense. Therefore, the trial court’s grant of judgment on the pleadings was improper.

Accordingly, the judgment on the pleadings granted by the Court of Common Pleas of Montgomery County is reversed. Appellant’s appeal of the court’s denial of their request for reconsideration is quashed.


source: Caselaw Access Project

license: Public Domain

text:
    525 A.2d 433
    RECORDS CENTER, INC. v. COMPREHENSIVE MANAGEMENT, INC., Janet Himmelreich, Douglas Washburn, and Willis Bannon, Jr., Appellants.
    Superior Court of Pennsylvania.
    Argued Jan. 15, 1987.
    Filed May 8, 1987.

      Rocco P. Imperatrice, III, Media, for appellants.
    Thomas Martin, Philadelphia, for appellee.
    Before CIRILLO, President Judge, and ROWLEY, and HOFFMAN, JJ.
   CIRILLO, President Judge:

This is an appeal from an order of the Court of Common Pleas of Delaware County granting a preliminary injunction and from an order refusing to dissolve the injunction.

Respondent/appellants, Himmelreich, Washburn, and Bannon, are each ex-employees of plaintiff/appellee, Records Center, Inc. Records Center is a Pennsylvania corporation which provides management consulting services and computerized billing and bookkeeping services to physicians and other health care professionals. Himmelreich began her employment with Records Center in July of 1979. At that time she executed a restrictive covenant, preventing her from competing with the company’s clients in Massachusetts, New York, New Jersey, Connecticut, and Pennsylvania for twelve months after termination of her employment.

On March 24, 1981 and March 7, 1984, she signed substantially similar agreements. The 1984 agreement extended the area of non-competition to Rhode Island, Vermont, New Hampshire, and Delaware. There was no change in her employment status at that time. Records Center hired Washburn as an hourly employee in November of 1984. In May of 1985, he was promoted to consultant and in connection with his promotion he executed a restrictive covenant prohibiting him from competing with the company’s customers in Massachusetts, New York, New Jersey, Connecticut, Pennsylvania, Rhode Island, Vermont, and New Hampshire. Bannon executed no such agreement during his employment with the company. Himmelreich, Bannon and Washburn later resigned from Records Center and formed respondent/appellant, Comprehensive Management, Inc. Comprehensive began operating in May of 1986 and immediately procured two of Record Center’s clients. Record Center filed the instant proceedings seeking a preliminary injunction to enforce the restrictive covenants executed by Himmelreich and Washburn. On May 28, 1986, the hearing court granted this request and included Bannon and Comprehensive within the scope of its order. The court’s order restrained the respondents from competing for Records Center’s existing clients in Massachusetts, Pennsylvania, New Jersey, New York, Connecticut, Rhode Island, Vermont, and New Hampshire. On June 4, 1986, the respondents requested that the court dissolve the injunction. The court denied this request on June 17 and on June 24 the respondents appealed that denial to this Court.

Appellants present three issues for our review: 1) whether the preliminary injunction is overbroad; 2) whether the restrictive covenants are valid; and 3) whether Records Center has an adequate remedy at law.

The purpose of a preliminary injunction is to preserve the status quo by restoring it to the last peaceable status which preceeded the alleged wrongful conduct. Alpha Tau Omega Fraternity v. University of Pennsylvania, 318 Pa.Super. 293, 301, 464 A.2d 1349, 1354 (1983). The plaintiff’s right to the relief sought must also be clear. Independent State Store Union v. Pennsylvania Liquor Control Bd., 495 Pa. 145, 157, 432 A.2d 1375, 1381 (1981).

The trial court’s injunction in the instant matter restricted Himmelreich, Washburn, Bannon, and Comprehensive Management, Inc. from competing with Records Center for twelve months. However, only Himmelreich and Washburn executed restrictive covenants with Records Center. Bannon and Comprehensive were restrained from competition with the plaintiff based only on their association with Himmelreich and Washburn. This order is overbroad. It goes far beyond restoring the status quo which preceeded this dispute. That status quo allegedly restricted only Himmelreich and Washburn. A permissible preliminary-injunction may go no further than to enforce that restriction.

Under the terms of the trial court’s order, Bannon may not compete with Records Center even if he were to leave Comprehensive and join another company. The court subjected Bannon to an obligation he never agreed to undertake. Likewise, even if Himmelreich and Washburn severed all ties with Comprehensive, the company would still not be allowed to compete with Records Center under the terms of the preliminary injunction. The alleged wrongdoers are Himmelreich and Washburn and the trial court must tailor the relief accordingly.

We recognize that Himmelreich and Washburn must not be permitted to achieve indirectly that which they may not do directly. Certainly, they may not violate the restrictive covenants by acting through Comprehensive or Bannon. But, the trial court must mold its order. If the wrongdoers disassociate themselves from the other appellants, Bannon and Comprehensive should be free to compete with Records Center. Our examination of the learned trial judge’s excellent opinion has convinced us that he enjoined Bannon’s activities because the court found that Bannon was acting in concert with Washburn and Himmelreich and not because Bannon was subject to any independent legal restriction. We feel that the court’s order should reflect this rationale. The court must make clear that Bannon is permitted to independently compete with Records Center.

Also, Records Center’s right to relief against Bannon and Comprehensive is far from clear. The plaintiff has not alleged any contractual restriction that binds either of those parties. A plaintiff is not entitled to a preliminary injunction unless his rights in the matter are clear. Independent State Store, 495 Pa. at 157, 432 A.2d at 1381. It is well-settled in Pennsylvania that a restrictive employment covenant is valid if it is reasonably limited in duration of time and geographic extent, reasonably necessary to protect the employer without imposing an undue hardship on the employee, ancillary to an employment relation and supported by consideration. See, e.g., Bettinger v. Carl Berke, Assoc., Inc., 455 Pa. 100, 103, 314 A.2d 296, 298 (1974); Jacobson & Co. v. International Environment Corp., 427 Pa. 439, 452, 235 A.2d 612, 619-20 (1967).

The covenants pertaining to Himmelreich and Washburn satisfy these requirements. They are reasonably limited in time as the competitive restrictions are only for twelve months. See John G. Bryant Co., Inc. v. Sling Testing & Repair, Inc., 471 Pa. 1, 8, 369 A.2d 1164, 1170 (1977) (three-year period of noncompetition held reasonable). It is also reasonably limited in geographic extent as it applies only to those states in which Records Center has a reasonable interest in restricting competition. See Hayes v. Altman, 424 Pa. 23, 29, 225 A.2d 670, 672 (1967) (covenant not to compete is reasonably limited if restricted to area reasonably necessary to protect employer’s interest). Records Center’s reasonable interest is to protect the goodwill it has developed with its customers. This restriction does not impose an undue hardship on the appellants because they are still free to compete with their former employer for new business. Also, they are not restricted in any manner outside the zone specified in the covenants.

The covenants executed by Himmelreich and Wash-burn were both ancillary to an employment relation as both individuals were employed by Records Center. Appellants have argued that the covenants were not ancillary to an employment relationship because neither Himmelreich or Washburn ever executed a written employment contract. However, the appellants have been unable to cite any authority for this requirement. Nor can we conceive of any justification for the imposition of such a rule. The covenant must be ancillary to an employment relationship but this relationship may be established without a written contract. See Fawcett v. Monongahela Railway Co., 391 Pa. 134, 139, 137 A.2d 768, 771 (1958).

Courts have consistently held that the taking of employment is sufficient consideration for a covenant not to compete. Capital Bakers v. Townsend, 426 Pa. 188, 190, 231 A.2d 292, 293 (1967). An employee’s promotion to a new position within the company also constitutes sufficient consideration. Jacobson & Co. v. International Environment Corp., 427 Pa. 439, 449, 235 A.2d 612, 618 (1967). However, the covenant must be executed contemporaneously with the exchange of consideration. Capital Bakers 426 Pa. at 190-91, 231 A.2d at 293-94. In Capital Bakers, a salesman executed a restrictive covenant when he was hired. He later executed a supplementary covenant without any change in his employment status. Our Supreme Court refused to enforce the second covenant because it was not executed contemporaneously with the exchange of consideration. The Court allowed enforcement of the original covenant. Id.

Washburn executed the restrictive covenant contemporaneously upon his promotion to salesperson. Therefore, the trial court correctly ordered enforcement of this agreement. However, Himmelreich executed a series of such covenants. But only the 1979 agreement was coincident in time with the exchange of consideration because that is when Records Center hired her. The trial court’s injunction enforces the terms of the 1984 covenant even though there was no change in Himmelreich’s employment status at that time. The only covenant executed by Himmelreich which was supported by consideration was that agreed to in 1979. This covenant restricts her freedom to compete with Records Center in only Massachusetts, New York, New Jersey, Connecticut, and Pennsylvania. Therefore, the trial court’s preliminary injunction is overbroad as to Himmelreich because it restricts her from competing in the above-cited states as well as Rhode Island, Vermont, New Hampshire, and Delaware. However, except for this error, the injunction is proper as to Himmelreich and Washburn.

Appellants have also claimed that the restrictive covenants at issue should not be enforced because Records Center has an adequate remedy at law in that it may sue for damages. We disagree. It is true that an injunction is an extraordinary remedy which should not issue if the parties may be adequately compensated by damages. Bronstein v. Sheppard, 50 Pa.Commw. 199, 200, 412 A.2d 672, 673 (1980). However, the injury caused by violation of a covenant not to compete is particularly difficult to quantify for damage purposes. As stated in Schwartz v. Laundry & Linen Supply Drivers, 339 Pa. 353, 14 A.2d 438 (1940): “The great weight of modern authority is to the effect that one who has been or will be injured [by violation of a covenant not to compete] is ordinarily entitled to the equitable remedy of injunction....” Id., 339 Pa. at 357, 14 A.2d at 440. The Pennsylvania Supreme Court has also stated that such covenants are prima facie enforceable in equity. Bettinger v. Carl Berke Assocs., Inc., 455 Pa. 100, 103, 314 A.2d 296, 298 (1974).

In Bryant Co. v. Sling Test & Repair, 471 Pa. 1, 369 A.2d 1164 (1977), the Court explained why equitable relief is almost always necessary in these cases. The Court stated that “[t]he covenant seeks to prevent more than just the sales that might result by the prohibited contract but also the covenant is designed to prevent a disturbance in the relationship that has been established between [the former employer] and their accounts through prior dealings. It is the possible consequence of this unwarranted interference with customer relationships that is unascertainable and not capable of being fully compensated by money damages.” Id., 471 Pa. at 8, 369 A.2d at 1167. This is the very interest which the trial court sought to protect by its order in the case now before us.

Finally, Records Center requests that we dismiss this appeal because it is improper. Appellee claims that the appellants have appealed from the trial court’s denial of their motion requesting that the court dissolve the preliminary injunction and not from the issuance of the injunction itself. An injunction may be dissolved only upon a showing of changed circumstances. Ladner v. Siegel, 298 Pa. 487, 497, 148 A. 699, 702 (1930). See also Tamagno et al. v. Waiters and Waitresses Union, 373 Pa. 457, 460, 96 A.2d 145, 146 (1953); Dravosburg Hous. Ass’n. v. Dravosburg Borough, 71 Pa.Commw. 144, 148, 454 A.2d 1158, 1161 (1983). Records Center correctly states that the appellants have failed to allege that the applicable circumstances have in any way changed since the injunction was entered. However, appellants’ notice of appeal demonstrates that they actually appealed from the court’s grant of the injunction as well as the order refusing to dissolve. Though their brief states that they appealed only from the court’s order refusing to dissolve the injunction, that statement is in error. Therefore, the validity of the injunction was properly before this court.

Furthermore, on this appeal, the appellants have confined themselves to challenging the validity of the preliminary injunction. Appellee has responded ably to these arguments. Therefore, neither party has been prejudiced by any procedural confusion caused by appellant’s lack of clarity.

Because of our disposition of this matter, the issue of changed circumstances is moot as to every appellant but Washburn. Since Washburn failed to demonstrate changed circumstances, he was not entitled to dissolution of the injunction. Ladner, supra. Therefore, to the extent the issue is before us, the trial court’s refusal to dissolve the preliminary injunction was correct.

The preliminary injunction of the Court of Common Pleas of Delaware County is affirmed in part and reversed and remanded in part. It is affirmed as to Washburn and remanded as to Himmelreich, Comprehensive and Bannon so that the preliminary injunction may be modified in accordance with this opinion. The court’s refusal to dissolve the injunction is affirmed though that issue is moot as to every party but Washburn.

Order of May 28, 1986 is affirmed in part and reversed and remanded in part. Order of June 16, 1986 is affirmed.


author: BECK, Judge:

text:
    525 A.2d 732
    Cecilia McGINN, Appellant, v. Joseph M. VALLOTI, M.D.
    Superior Court of Pennsylvania.
    Argued Oct. 30, 1986.
    Filed March 16, 1987.
    Reargument Denied May 29, 1987.

      Avram G. Adler, Philadelphia, for appellant.
    R. Bruce Morrison, Norristown, for appellee.

      Before CIRILLO, President Judge, and ROWLEY and BECK, JJ.
   BECK, Judge:

The issue is whether the Workmen’s Compensation Act immunizes a physician employed by a company from liability to a co-employee who states a cause of action for intentional fraudulent misrepresentation. We find the company physician may be liable and therefore reverse the trial court’s grant of summary judgment in favor of the physician.

In April 1980, plaintiff-appellant, Cecilia McGinn, injured her wrist while on the job as an assembly worker at Scott Paper Company (Scott Paper). From April through July of that year, she was treated by defendant-appellee, Dr. Joseph M. Valloti, at his office on the premises of Scott Paper. During that time Dr. Valloti prescribed medication, provided a brace, and on several occasions recommended that McGinn take time off from work to rest her wrist. McGinn claims that because she saw no improvement in her condition she asked Dr. Valloti about consulting a doctor outside the plant. Valloti informed her that she could not consult an outside doctor without his permission. He stated if she did she would be fired. She asserts that he knew that she had a right to outside medical consultation under the Workmen’s Compensation Act. She concludes that if she had seen another doctor, her wrist would not have deteriorated, because she would have received proper treatment.

In July 1980, while Valloti was on vacation, McGinn, continuing to complain about her wrist, reported to the Scott Paper dispensary. At the company dispensary Nurse Toogood advised her to see her family doctor. She saw him immediately and within days she was seen by several specialists. She has undergone several operations and has had rehabilitation therapy for her hand. She claims she has lost the use of her hand.

McGinn brought suit against Valloti for damages caused by his alleged intentional fraudulent misrepresentation in advising her that she would be fired if she exercised her right to see a doctor outside the plant as provided in the Workmen’s Compensation Act.

The trial court, finding Valotti immune from liability, granted his motion for summary judgment on the basis of Section 205 of the Workmen’s Compensation Act (“Act”). McGinn appeals the grant of summary judgment.

A motion for summary judgment may properly be granted only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Pa.R.C.P. 1035(b). In reviewing the trial court’s grant of summary judgment, we must examine the record in the light most favorable to the nonmoving party. We do not decide issues of fact, but determine only whether there is an issue of fact to be tried. Any doubt must be resolved against the moving party. See Washington Federal Savings & Loan v. Stein, 357 Pa.Super. 286, 288, 515 A.2d 980, 981 (1986).

We note at the outset that Valloti asserts that appellant’s complaint fails to state a claim for fraudulent misrepresentation with the specificity required by Pennsylvania Rule of Civil Procedure 1019(b). We disagree. This rule provides in part that “[a]verments of fraud or mistake shall be averred with particularity.” The requirements of the rule are satisfied if plaintiff pleads facts sufficient to permit defendant to prepare his defense. Plaintiff must set forth the exact statements or actions plaintiff alleges constitute the fraudulent misrepresentations. DelConte v. Stefonick, 268 Pa.Super. 572, 408 A.2d 1151 (1979). While conceding that appellant’s complaint is inartfully drawn, we find that, liberally construed, her allegation in Paragraph 9(f) satisfies Rule 1019(b): she avers that defendant advised “[pjlaintiff that her employment was at risk if she sought a second opinion for the condition which had persisted in her left wrist.”

In reviewing the grant of summary judgment, we must take McGinn’s averments as true. Rybas v. Wapner, 311 Pa.Super. 50, 457 A.2d 108 (1983). In light of this standard we find the trial court’s grant of summary judgment improper. McGinn avers that Valloti intentionally misrepresented to her that she had no right to outside medical treatment under the Workmen’s Compensation Act and that she would be fired if she sought such treatment. We find such averments state a cause of action for intentional fraudulent misrepresentation. We must determine, however, whether Section 205 of the Workmen’s Compensation Act immunizes Valloti from liability. We find it does not.

Section 205 provides:

If disability or death is compensable under this act, a person shall not be liable to anyone at common law or otherwise on account of such disability or death for any act or omission occurring while such person was in the same employ as the person disabled or killed, except for intentional wrong, (emphasis added).

McGinn initially claims that Dr. Valloti was not a fellow employee under the Act because Scott Paper did not directly control his medical practice and procedures. We disagree. This argument was thoroughly explored in Budzichowski v. Bell Telephone Company of Pennsylvania, 503 Pa. 160, 469 A.2d 111 (1983), following Babich v. Pavich, 270 Pa.Super. 140, 411 A.2d 218 (1979). The Babich court, discussing the status of a plant physician working for Bethlehem Steel, provided:

Although the record does indicate that Bethlehem does not control the manner and method of treating patients, this fact alone is not controlling in determining whether appellee is an employee or independent contractor. The following facts point to the conclusion that appellee is an employee rather than an independent contractor: he worked for Bethlehem on a full-time basis; Bethelehem [sic] paid him a fixed salary and did not allow him to engage in private practice; his fringe benefits were the same as those received by Bethlehem’s supervisory employees; and Bethlehem controlled the hours and number of days that appellee worked.

270 Pa.Super. at 145, 411 A.2d at 221. The court cautioned that none of these factors absolutely controls the outcome and each case must be determined on its facts. Id.

In support of her position, McGinn points out that Dr. Valloti worked only part-time at Scott Paper, from 8:00 a.m. to noon, five days a week. However, we find more significant the facts that his hours were regular, and set by his employer; that he received the same fringe benefits as other part-time employees at Scott Paper; that Scott Paper withheld Social Security and federal income taxes from his paycheck; and that he reviewed all decisions concerning the hiring and firing of nurses on the dispensary staff. In short, Valloti was an integral part of the day-to-day operations' at Scott Paper and we conclude that he was a co-employee of McGinn for purposes of Section 205.

Secondly, McGinn claims that Valloti’s statement that she would be fired if she sought outside medical help was an intentional fraudulent misrepresentation. As such it is the kind of “intentional wrong” that deprives him of the immunity conferred by Section 205. We agree.

The trial court in granting summary judgment in favor of Valotti relied on Higgins v. Clearing Machine Corporation, 344 Pa.Super. 325, 496 A.2d 818 (1985). This court held in Higgins that the employer’s knowing violation of safety regulations and knowing neglect of a dangerous condition did not constitute an intentional tort so as to take the injury out of the coverage of the Act.

The trial court read Higgins overly broadly as suggesting that in Pennsylvania employers are now insulated from liability for any intentional misconduct. This is fundamentally wrong. On the contrary, the Superior Court in Higgins carefully distinguished between non-actionable intentional misconduct, such as an employer’s knowing violation of safety requirements, Evans v. Allentown Portland Cement Company, 433 Pa. 595, 252 A.2d 646 (1969); and actionable intentional misconduct, such as an employer’s physical assault upon an employee. Readinger v. Gottschall, 201 Pa.Super. 134, 191 A.2d 694 (1963). The fact that the Higgins court found that the employer’s actions did not fall within the intentional tort exception to the Workmen’s Compensation Act should not be interpreted as rendering the exception meaningless.

In determining the nature of the intentional tort that will give rise to a cause of action under Section 205, we examine whether the “intentional wrong” is one that is not normally expected to be present in the workplace. An employee does not normally expect a physical assault, Readinger, supra, and an employee does not normally expect infliction of emotional distress, Jones v. PMA Insurance Company, 343 Pa.Super. 411, 495 A.2d 203 (1985); therefore these intentional torts have been found to be actionable. In contrast, an employee might expect the condition of the workplace itself to be unsafe; for example, where there has been a knowing neglect of safety regulations. Therefore these intentional torts have been found to be nonactionable. Evans, Higgins, supra. We conclude that intentional fraudulent misrepresentation is more like physical assault and intentional infliction of emotional distress than an unsafe workplace. Fraudulent misrepresentation is not a hazard normally expected to occur in the workplace and it is therefore actionable.

In adopting this standard, we are influenced by the New Jersey Supreme Court’s rationale in a worker’s compensation case, Millison v. E.I. duPont de Nemours & Co., 101 N.J. 161, 501 A.2d 505 (1985). There, plaintiff-employees suffering from asbestos-related diseases brought suit against their employer du Pont and against the plant physicians who learned during employee physicals that employees showed signs of pulmonary disease and fraudulently concealed this knowledge. The court found that the employees stated a cause of action against the doctors:

Plaintiffs contend that although plaintiffs’ physical examinations revealed changes in chest x-rays indicating asbestos-related injuries, du Pont’s doctors did not inform plaintiffs of their sicknesses, but instead told them that their health was fine and sent them back to work under the same hazardous conditions that had caused the initial injuries.
These allegations go well beyond failing to warn of potentially-dangerous conditions or intentionally exposing workers to the risks of disease. There is a difference between, on the one hand, tolerating in the workplace conditions that will result in a certain number of injuries or illnesses, and, on the other, actively misleading the employees who have already fallen victim to those risks of the workplace. An employer’s fraudulent concealment of diseases already developed is not one of the risks an employee should have to assume. Such intentionally-deceitful action goes beyond the bargain struck by the Compensation Act. But for defendants’ corporate strategy of concealing diseases discovered in company physical examinations, plaintiffs would have minimized the dangers to their health. Instead, plaintiffs were deceived — or so they charge — by corporate doctors who held themselves out as acting in plaintiffs’ best interests. The legislature, in passing the Compensation Act, could not have intended to insulate such conduct from tort liability.

Id. 501 A.2d at 516 (emphasis added).

We note that the plaintiff-employees in Millison also brought suit against du Pont for knowingly exposing them to a hazardous work environment. The court dismissed this portion of the suit against du Pont on the ground that knowing disregard of employee safety did not fall within the “intentional wrong” exception of the New Jersey Worker’s Compensation statute.

We hold that in enacting the Workmen’s Compensation Act the Pennsylvania legislature did not intend totally to wipe out all of the employees’ rights to sue in tort, but instead struck a bargain between employer and employee and excluded from coverage under the Act those intentional torts normally not expected to be present in the workplace. Matters outside the scope of the bargain are still governed by the common-law tort system.

We hold that Yalloti’s alleged intentional fraudulent misrepresentations are actionable as an “intentional wrong” under Section 205 of the Act.

We reverse the trial court’s grant of summary judgment and remand for trial.

      . Pa.Stat.Ann. tit. 77, § 72 (Purdon Supp.1986).

      . Appellant further contends that appellee should be precluded from claiming the status of a co-employee because of his failure to provide her a list of five outside physicians as she asserts he is required to do by Section 531 of the Act. Section 531 provides that an employer may at his option provide an employee with a list of five physicians from whom the employee must obtain treatment for a period of 14 days following the first visit. Nowhere does § 531 require the employer, much less a co-employee physician, to provide such a list.

      . The proposition embraced by the trial court here, that an employer is completely immune from liability for any intentional tort, was advanced by appellees in Higgins. Appellees there pointed out that the holding in Readinger was based on the language in the Act requiring that an injury be the result of an “accident” to be compensable. Because the employer's deliberate assault was not an accident, it fell outside the Act. The 1972 amendments to the Act eliminated the requirement that the injury be the result of an accident. Appellees argued that the deletion from the Act of the language relied on in Readinger would imply that Readinger's holding, recognizing an exception to the coverage of the Workmen’s Compensation Act for an employer’s intentional tort, was no longer valid. We disagree. The continued validity of Readinger was assumed by this court in Jones v. PMA Insurance Company, 343 Pa.Super. 411, 495 A.2d 203 (1985), a case decided well after the 1972 amendments. Even more recently, this court explicitly stated, “[A]n action can lie against the employer itself if it harmed its employee through an intentional wrongful act.” Boris v. Liberty Mutual Insurance Company, 356 Pa.Super. 532, 539, 515 A.2d 21, 24-25 (1985). Clearly, the 1972 amendments did not abolish the intentional tort exception to the Act.


author: PER CURIAM:

text:
    525 A.2d 736
    S.N.T. INDUSTRIES, INC., a corporation, and Stephen P. Stavros and Tula Stavros, Appellees, v. Clifford T. GEANOPULOS and Thomas Geanopulos, individuals, the Doggery, Inc., a corporation, and Nicholas Geanopulos, Appellants.
    Superior Court of Pennsylvania.
    Argued March 5, 1985.
    Filed March 30, 1987.
    Reargument Denied May 19, 1987.

      Stephen J. Harris, Pittsburgh, for appellants.
    Louis C. Long, Pittsburgh, for appellees.
    Before BROSKY, WIEAND and LEDERER, JJ.
   PER CURIAM:

This matter is before the Superior Court following remand, 512 Pa. 330, 516 A.2d 705, by the Supreme Court with instructions to consider the merits of the appeal.

S.N.T. Industries, Inc. was a corporation engaged in the operation of a fast food restaurant under the name of “The Doggery” in the Pitt Building in downtown Pittsburgh. Fifty percent of the corporate stock was owned by Stephen P. Stavros and Tula Stavros, husband and wife, as tenants by the entireties. The other fifty percent of the stock was owned by Clifford Geanopulos and his son, Nicholas. Thomas Geanopulos, another son of Clifford Geanopulos, owned, with his brother, Nicholas, The Doggery, Inc., which operated a growing number of fast food outlets also under the name of “The Doggery.”

S.N.T. Industries conducted its business in the Pitt Building pursuant to lease with Lepar, Inc. A lease had been executed in 1977 for a five year term with an option to renew for another five year term. The lease, however, contained a provision permitting termination upon sale of the Pitt Building; but if the building were sold within five years, the tenant was to be permitted to recoup a proportionate part of the cost which it had expended in remodeling the demised premises. The building was thereafter sold by Lepar, Inc. to Coin Flip Associates; and on January 30, 1979, all tenants of the Pitt Building received formal written notification that their leases were being terminated. In fact, however, all tenants except S.N.T. Industries, Inc. were permitted to remain in the building and were able to re-negotiate their leases.

Stavros attempted to negotiate a new lease on behalf of S.N.T. Industries, Inc. with Edward Goldston, the managing partner of Coin Flip Associates. At this time friction already existed between the Stavros and Geanopulos interests, and Stavros had offered to sell his interest or buy the other one-half interest for $60,000. Clifford Geanopulos refused to accept either of these propositions. When Stavros expressed a desire to offer a higher rental for a new lease, the amount thereof was vetoed by Clifford Geanopulos. Clifford Geanopulos, however, made no effort himself to negotiate a new lease for the corporation’s business. Although Clifford and Nicholas Geanopulos denied knowledge thereof, the evidence was clear that at the same time, Thomas Geanopulos was secretly negotiating a lease on behalf of The Doggery, Inc. On March 20, 1979, S.N.T. Industries, Inc. was given written notice that negotiations were at an end and that the premises were to be vacated no later than May 31, 1979. Believing the corporation was going out of business, Stavros was induced to agree to a sale of the corporation’s equipment to Thomas Geanopulos, who represented that he would use it in some other location. On the final day of operation, Stavros accepted his portion of the price for the equipment and his portion of the refund from the landlord, believing that all operations were ceasing. On the next business day, much to his surprise, he found the same business being operated from the same premises, under the same name, i.e., The Doggery, by Thomas Geanopulos. The only difference was that Stavros and his daughter, who had worked there, were now excluded.

Stavros and the corporation commenced a civil action to recover compensatory and punitive damages against the members of the Geanopulos family and the corporation which they owned, i.e., The Doggery, Inc. It was alleged that the defendants had (1) conspired to breach fiduciary duties owed to S.N.T. Industries, Inc. and (2) tortiously interfered with existing or prospective contractual relationships between S.N.T. Industries and Coin Flip Associates.

In addition to the facts herein previously narrated, the evidence showed, as recited in the opinion of the trial court, that

“[w]hile Stavros was still trying to obtain a new lease for S.N.T. from Goldston, the latter said nothing about having entered into an understanding in principle with Thomas Geanopulos as early as February of 1979. Pursuant to this understanding, Coin Flip gave a long term percentage lease to Thomas, and the latter obligated himself to expend $200,000 in improvement of the Pitt Building. Goldston also obtained from Thomas the money with which Coin Flip settled its obligation to S.N.T. for early cancellation of the latter’s lease, but pretended that this money came from Coin Flip. Then Goldston, being aware that his collaboration and surreptitious dealing could lead to liability of Coin Flip or himself, obtained from Thomas an indemnification agreement covering all expenses, judgments or attorneys’ fees which might result from the cancellation of the lease to S.N.T. and Stavros. There also was the testimony of a witness who had overheard Clifford and Thomas conversing in hushed tones about their plan to take over the Smithfield Doggery.

Trial Court Opinion at p. 5.

The jury which heard the case returned verdicts in favor of the plaintiffs, which the court molded to award to the individual plaintiffs compensatory damages of $62,000 and punitive damages of $50,000. Post-trial motions were denied, and judgment was entered on the verdict.

On appeal, it is argued that the evidence was insufficient to sustain the verdict. “When a court is considering judgment notwithstanding the verdict, the party in whose favor the verdict has been entered ... is entitled to the benefit of every fact pertinent to the issue or issues which may reasonably be deduced from the evidence; such facts and inferences must be taken as true, all testimony must be read in the light most favorable to such party, and all conflicts of evidence must be resolved in his favor, whether such testimony has been offered by him or his adversary.” 10 Std.Pa. Practice § 64:14. See: Estate of Flickinger v. Ritsky, 452 Pa. 69, 76, 305 A.2d 40, 44 (1973).

We have reviewed the evidence and conclude that it was sufficient to enable a jury to find that Clifford Geanopulos and his sons, Nicholas and Thomas, conspired to and did breach a fiduciary duty owed to S.N.T. Industries, Inc. by seizing a corporate opportunity for themselves. See: Act of May 5, 1933, P.L. 364, § 408, 15 P.S. § 1408 (officers and directors stand in fiduciary relation to corporation and must discharge their duties in good faith); Seaboard Industries Inc. v. Monaco, 442 Pa. 256, 261-262, 276 A.2d 305, 309 (1971) (officers and directors owe corporation their undivided loyalty and may not usurp corporate opportunities for themselves).

The evidence was also sufficient to establish a cause of action for intentional interference with prospective contractual relations. In Glenn v. Point Park College, 441 Pa. 474, 272 A.2d 895 (1971), the Supreme Court held that interference with a prospective contractual relation is a tort and adopted the rule of the Restatement of Torts § 766, which provided as follows:

... one who, without a privilege to do so, induces or otherwise purposely causes a third person not to ... (b) enter into or continue a business relation with another is liable to the other for the harm caused thereby.

Section 766B of the Restatement (Second) of Torts provides that

One who intentionally and improperly interferes with another’s prospective contractual relation (except a contract to marry) is subject to liability to the other for the pecuniary harm resulting from loss of the benefits of the relation, whether the interference consists of
(a) inducing or otherwise causing a third person not to enter into or continue the prospective relation or
(b) preventing the other from acquiring or continuing the prospective relation.

Comment e to this section refers the reader to Restatement (Second) of Torts § 766, comment k, where the following appears:

There is no technical requirement as to the kind of conduct that may result in interference with the third party’s performance of the contract. The interference is often by inducement. The inducement may be any conduct conveying to the third person the actor’s desire to influence him not to deal with the other. Thus, it may be a simple request or persuasion exerting only moral pressure. Or it may be a statement unaccompanied by any specific request but having the same effect as if the request were specifically made____ Or it may be the promise of a benefit to the third person if he will refrain from dealing with the other.

In the instant case, the evidence, although predominantly circumstantial, was sufficient to permit a finding that the defendants had (a) induced the landlord not to lease the premises to S.N.T. Industries but to enter a new lease with the Geanopulos interests and (b) prevented S.N.T. Industries from offering a sufficient rental to obtain the lease necessary to a continuation of the business by the corporation which was owned jointly by Stephen and Tula Stavros and Clifford Geanopulos.

Of course, an interference with the prospective contractual relation must also be improper to be actionable. However, in view of the fact that Clifford and Nicholas Geanopulos were in a fiduciary relationship as directors of S.N.T. Industries, Inc., the fact that the Geanopulos interests seized a corporate opportunity was itself evidence that their interference with a prospective lease in favor of S.N.T. Industries, Inc. was wrongful.

We conclude, therefore, that the evidence was sufficient to support a verdict in favor of the plaintiff-appellees. The trial court properly denied appellants’ motion for judgment n.o.v. Appellants contend, in the alternative, that the verdict was against the weight of the evidence. Again, we disagree.

“A new trial will be awarded on the ground that the verdict is against the weight of the evidence, when the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice, and the award of a new trial is imperative so that right may be given another opportunity to prevail.” 10 Std.Pa. Practice § 62:59. See: Macina v. McAdams, 280 Pa.Super. 115, 118, 421 A.2d 432, 433 (1980); Ditz v. Marshall, 259 Pa.Super. 31, 35, 393 A.2d 701, 703 (1978). “However, where the jury’s verdict is supported by testimony which is not inherently improbable nor at variance with admitted or proven fact or with ordinary experience, a new trial will not be granted.” 10 Std.Pa. Practice § 62:59. Moreover, a new trial will not be granted on the ground that the verdict was against the weight of the evidence where the evidence is conflicting and the jury could have decided in favor of either party. Hilliard v. Anderson, 440 Pa. 625, 628, 271 A.2d 227, 228 (1970); Macina v. McAdams, supra, 280 Pa.Super. at 118, 421 A.2d at 433. In the instant case, the trial court’s conscience was not shocked by the verdict — as the court’s opinion emphatically makes clear — and we find no basis for registering disagreement with the court’s conclusion that the verdict was consistent with the weight of the evidence.

Although citing no specific error in the trial court’s jury instructions, appellants contend that they should receive a new trial because the trial court “emphasized and highlighted plaintiffs’ theory of the case.” We have reviewed the trial court’s charge to the jury and find no basis whatsoever for appellants’ assertion. The trial court instructed the jury regarding the several grounds on which the plaintiff-appellees sought recovery and defined in a clear and impartial manner the elements of those alleged causes of action. The trial court also explained to the jury the assertions of the defense and reviewed the testimony that Thomas Geanopulos had negotiated the new lease on his own and without the knowledge of his father and brother. Indeed, the trial court’s charge was commendable for its clarity and for its unbiased explanation of the issues to be resolved by the jury. We find no error therein and no basis for giving credence to appellants’ general assertion that the trial court unfairly highlighted the contentions of the appellee-plaintiffs.

The trial court also did not err in molding the verdict. The jury found that S.N.T. Industries had been damaged in the amount of $124,000 and awarded the corporation punitive damages of $100,000. Because the Stavros’s interest in the corporation was fifty (50%) percent, the trial court directed that the verdict in their favor be entered as one-half of the damages awarded to S.N.T. Industries, Inc. The amount of the judgment in favor of the Stavroses, and the only amount which the individual plaintiffs were entitled to recover, was $112,000. This was not error.

Judgment affirmed.

LEDERER, J., was specially assigned by the Supreme Court, heard oral argument, and participated in the initial decision to quash. He did not participate in the decision of the appeal on its merits following remand by the Supreme Court.

      . A panel of this Court had previously quashed the appeal because the specific issues argued on appeal had been raised only in supplemental post-trial motions filed without leave of court after the time for filing post-trial motions had expired.

      . The trial court allowed a subsequent amendment which enabled Tula Stavros to be joined as a plaintiff, for she owned jointly with her husband a fifty percent interest in the corporation as tenants by the entireties. Appellants contend that this was error because the joinder occurred after the statute of limitations had expired. We reject this contention. The amendment served only to identify correctly the entity which owned a fifty percent interest in the corporation. See: Moyer v. Frankford Crate Co., 133 Pa.Super. 323, 2 A.2d 587 (1938); Aiken v. Mayberry, 128 Pa.Super. 15, 193 A. 374 (1937).


author: DEL SOLE, Judge:

text:
    525 A.2d 741
    UNITED COAL & COMMODITIES CO., INC., a Corporation v. HAWLEY FUEL COAL, INC., a Corporation, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 22, 1987.
    Filed April 9, 1987.
    Reargument Denied May 19, 1987.

      Gregory S. Olsavick, Altoona, for appellant.
    Richard C. Schomaker, Pittsburgh, for appellee.
    Before BROSKY, DEL SOLE and CERCONE, JJ.
   DEL SOLE, Judge:

For our consideration is an appeal following a jury verdict in Appellee’s favor. The underlying action concerns a contract dispute over the sale of coal by Appellee-seller to Appellant-buyer. We affirm.

Appellant claims that the trial court erred in refusing to grant its Motion for a New Trial since the jury verdict was contrary to both the weight of the evidence and to the law. In a related vein, it is argued that the trial court erroneously denied Appellant’s Motion for a Judgment N.O.V. in that the evidence was insufficient to support the verdict.

Our scope of review of the trial court’s denial of these motions is firmly established. In considering the trial court’s decision on a motion for judgment n.o.v., we must view the evidence in the light most favorable to the verdict winner and draw all reasonable inferences and resolve all conflicts in testimony in that party’s favor. By comparison, in reviewing a trial judge’s action on a motion for a new trial, we must consider all the evidence. A new trial should be granted only when the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice. However, we will not reverse the trial court’s determinations in this regard absent an abuse of discretion. Burch v. Sears, Roebuck and Co., 320 Pa.Super. 444, 449, 467 A.2d 615, 618 (1983) (citations omitted).

With these principles guiding our analysis, we turn to the facts sub judice. Appellee instituted an action against Appellant for breach of contract in refusing to pay the balance due for coal sold to Appellant. Both parties agree that they reached an oral agreement on the sale of the coal. However, Appellee argued successfully at trial that the oral agreement constituted a contract in which the price of the coal shipped would be determined by a coal analysis conducted at the place of origin. Appellant alleges to the contrary that the terms of the purchase orders sent to Appellee, subsequent to the oral agreement, were controlling. By these terms, the coal analysis was to be conducted at the pier, i.e., the place of destination. A coal analysis at each point divulged that the pier price was less than the original price. Appellant paid the lower destination price which resulted in Appellee’s suit for the difference. Following a jury trial, a verdict was rendered for Appellee.

Our disposition of the instant case entails a two-pronged analysis of the legal and factual issues raised. On the first prong, we must examine the oral agreement reached between the parties to determine whether an oral contract was formed, and if so, what were its terms. The second prong involves the legal effect of the purchase orders sent to Appellee. Inasmuch as such writings fall within the ambit of § 2207 of the Uniform Commercial Code, we shall ascertain whether or not these terms became part of the original contract.

During trial, witnesses were called to testify concerning the oral negotiations for the coal sales. Appellee’s witness, Mr. Sedlak, testified to the effect that an oral agreement was struck between himself and Appellant’s agent in which the price of the coal would be determined by testing at the point of origin. The witness stated that, by implication, the parties agreed to have the coal analysis conducted at Appellee’s tipple. (N.T., 28). Further, Mr. Sedlak related that, in instances where there is no discussion as to where the coal is to be tested, the custom of the industry is to have it sampled where it is loaded. (N.T. 21). Likewise, Mr. Sedlak expressed that, had Appellant’s agent told him that the pier analysis was to be the prevailing cost, Mr. Sedlak would not have entered into the oral contract. (N.T., 27).

Mr. Donahue, an agent for Appellant, testified that there was no agreement entered into by which the “pit analysis” would control the sale price. (N.T., 79). Moreover, the witness maintained that he had no authority to enter into such a contract. (N.T., 81). Finally, Mr. Weisberger, also a witness for Appellant, opined that it was not a standard procedure for Appellant to purchase coal on a point-of-origin price sale. (N.T., 117).

It is axiomatic that the jury’s function is to determine from the surrounding facts of the parties’ dealings whether an oral contract exists. Ingrassia Construction Co., Inc. v. Walsh, 337 Pa.Super. 58, 67, 486 A.2d 478, 483 (1984). “[I]n the case of a disputed oral contract, what was said and done by the parties as well as what was intended by what was said and done by them are questions of fact for the jury.” Solomon v. Luria, 213 Pa.Super. 87, 246 A.2d 435, 438 (1968) (citations omitted).

In the case at bar, there was ample evidence from which a reasonable jury could conclude that an oral contract existed and that the “pit analysis” of the coal would control the sale price. It is patently clear that the disposition of this issue turned on the disputed facts submitted to the jury. As illustrated, supra, the parties’ witnesses gave conflicting testimony which the fact finder could either believe or disbelieve. It is obvious that the jury chose to accept as true Appellee’s version of the facts. From our examination of the evidence under the appropriate scopes of review for a judgment n.o.v. and new trial, we therefore hold that the jurors were justified in drawing their conclusions. We find no error committed by the trial court in denying Appellant’s motion on these grounds.

The second prong of our analysis involves the effect of the purchase orders sent to Appellee. These documents contained the provisions that the final pier analysis would govern the price of coal. Mr. Sedlak testified at trial that he received purchase orders, but did not examine their provisions. Likewise, he stated that he did not sign or otherwise execute the purchase orders. (N.T., 16-17).

It is Appellant’s position that Appellee’s conduct in relation to the purchase orders constituted acceptance of their terms. Appellant argues that the “pier analysis” versus “origin analysis” distinction merely determined the location of the analysis and did not amount to a material alteration of the oral contract previously established by the parties. In the alternative, it is urged that Appellee’s failure to notify Appellant by objection waived any “material alteration” protection under § 2207 of the Uniform Commercial Code. We find Appellant’s interpretation of the facts and law on this issue to be untenable.

Clearly, “prior oral agreement cases in which one or both of the parties follow up with a confirming form are to be run through [§ 2207(b)(2) ] with whatever result [that] subsection dictate[s]”. J. White and R. Summers, Uniform Commercial Code, § 1-2 at 35-36 (2nd ed. 1980). Section 2207(b) of the Uniform Commercial Code, as adopted by our legislature, provides:

(b) Effect on contract. The additional terms are to be construed as proposals for addition to the contract. Between merchants such terms become part of the contract unless:
(1) the offer expressly limits acceptance to the terms of the offer;
(2) they materially alter it; or
(3) notification of objection to them has already been given or is given within a reasonable time after notice of them is received.

13 Pa.C.S.A. § 2207. Whether or not the terms of the purchase orders became part of the oral contract depends upon the provisions of subsection (2). If the “pier analysis” terms are a material alteration to the oral contract’s “origin analysis” terms, they will not be included unless expressly agreed to by Appellant.

The task of interpreting a contract provision is a matter of law to be performed by the court, rather than by a jury. Kardibin v. Associated Hardware, 284 Pa.Super. 586, 595-596, 426 A.2d 649, 654 (1981). Although the trial court opinion does not discuss this question of law, we find that the jury verdict was properly upheld. The “pier analysis” clause in the purchase order would have been a material alteration to the underlying oral contract. This is evidenced by the fact that the ultimate difference in the price of the coal for which Appellee sued amounted to $26,323.84.

Appellant’s claim that § 2207(b)(2) is not applicable since reasonable notification was not sent by Appellee is equally unconvincing. Insofar as the “pier analysis” provisions were material alterations to the oral contract, Appellee did not have the duty to give notification of objection within a reasonable time following detection. Comment 6 to the Uniform Commercial Code is dispositive:

[w]here clauses on confirming forms ... conflict each party must be assumed to object to a clause of the other conflicting with one on the confirmation sent by himself. As a result the requirement that there be notice of objection which is found in subsection (2) is satisfied and the conflicting terms do not become a part of the contract.

Accordingly, Appellant’s argument must fail.

Judgment affirmed.