Atwell v. Beckwith Machinery Co.

• Citation: 872 A.2d 1216
• Parties: Neil ATWELL, t/d/b/a Ben-Hal Mining Company, and Janine A. Atwell, Appellees v. BECKWITH MACHINERY COMPANY, Appellant Neil Atwell, t/d/b/a Ben-Hal Mining Company, and Janine A. Atwell, Appellants v. Beckwith Machinery Company, Appellee
• Decision Date: 12 April 2005
• Court: Pennsylvania Superior Court

872 A.2d 1216

Neil ATWELL, t/d/b/a Ben-Hal Mining Company, and Janine A. Atwell, Appellees
v.
BECKWITH MACHINERY COMPANY, Appellant
Neil Atwell, t/d/b/a Ben-Hal Mining Company, and Janine A. Atwell, Appellants
v.
Beckwith Machinery Company, Appellee

Superior Court of Pennsylvania.

Argued December 8, 2004.

Filed April 12, 2005.

872 A.2d 1218

Kirby L. Boring, Pittsburgh, for Beckwith

Jack W. Cline, Mercer, for Atwell.

Before: HUDOCK, MUSMANNO and

TAMILIA, JJ.

¶ 1 Beckwith Machinery Company appeals from the January 29, 2004 judgment of $175,000 entered on the jury's verdict in favor of Neil Atwell t/d/b/a/ Ben-Hal Mining Company and Janine Atwell (Atwell). Atwell filed a cross-appeal from the January 30, 2004 counterclaim judgment of $32,484.94 entered on the jury's verdict in Beckwith's favor.¹

¶ 2 The underlying cause of action arose out of Atwell's purchase of a D-11N Caterpillar Tractor from Beckwith. Atwell maintains that it contracted to purchase for approximately $775,000, a "Caterpillar Certified Rebuild" tractor from Beckwith,

872 A.2d 1219

but instead received a "Beckwith Rebuild." Beckwith maintains Atwell agreed to purchase a Beckwith Rebuild. According to Beckwith, a Caterpillar Certified Rebuild is one that has had every part on a specific list of parts rebuilt, whereas a Beckwith Certified Rebuild is one that has had only those parts that are unusable replaced. Atwell also alleged that many of the parts on the machine delivered were defective and so it was often out of service and never worked to capacity

¶ 3 Atwell filed suit against Beckwith seeking damages for delivery of a defective Beckwith Rebuild in breach of the parties' agreement. Beckwith filed a counterclaim for unpaid repairs to the tractor that extended beyond the warranty. The trial was bifurcated on issues of liability and damages. The jury found Atwell contracted to purchase a Caterpillar Certified Rebuild Tractor but instead received and accepted a Beckwith Rebuild. Based upon these findings, the court ruled that as a matter of law Beckwith materially breached the contract. Beckwith took no exception to this ruling. The court found that pursuant to the Uniform Commercial Code (UCC),² Section 2714(b), the measure of damages in this case was the difference at the time and place Atwell accepted the tractor, between the value of the tractor accepted and the value it would have had, had it been as warranted. See 13 Pa. C.S.A. § 2714(b).

¶ 4 During the damages phase of the case, the trial court precluded the testimony of Atwell's expert appraiser, but admitted the testimony of Neil Atwell, as it found he was qualified to render an opinion as to the value of the machine he received in contrast to that for which he had contracted. A witness for Beckwith testified on the same issue. The jury awarded Atwell $175,000 and awarded Beckwith $32,484.94 for repairs not covered by warranty. Beckwith filed a post-trial motion for judgment notwithstanding the verdict (JNOV), or in the alternative, a new trial on damages or as to all issues. The motion ultimately was denied.

¶ 5 The verdict was not molded or setoff nevertheless, on December 1, 2003, Atwell entered judgment for $142,515.06. On December 22, 2003, the court struck that judgment. It subsequently denied Beckwith's post-trial motions. Atwell then entered judgment on January 29, 2004, and Beckwith entered judgment the following day. Beckwith appealed, and Atwell filed a cross-appeal. We begin our review by addressing each party's respective argument that the other party's appeal should be quashed for lack of jurisdiction.

¶ 6 Beckwith cites Lenhart v. Cigna Cos., 824 A.2d 1193, 1196 (Pa.Super.2003) for the principle that any issue not raised in a post-trial motion is waived for purposes of appeal. Since Atwell did not file a post-trial motion, Beckwith argues that Atwell has not preserved any issues for our review.

¶ 7 Atwell argued one issue in its statement filed pursuant to Pa.R.A.P.1925(b): that the trial court erred in entering the December 22, 2003 Order striking the December 1, 2003 judgment, because judgments entered pursuant to Pa.R.C.P. 227.4, Entry of Judgment upon Praecipe of a Party, (1)(b), are not subject to reconsideration or any other motion to strike, open, or vacate. In this appeal, Atwell again argues that entry of the December 22, 2003 Order violates Pa.R.C.P. 227.4(1)(b), and contends that Beckwith's appeal is untimely since it was not filed within 30 days of the December 1, 2003 Order.³ Relying

872 A.2d 1220

on the same argument, Atwell also filed with this Court a motion pursuant to Pa.R.A.P. 123, Application for Relief, to quash Beckwith's appeal. On April 23, 2004, we denied the motion without prejudice to renew it at the time of argument

¶ 8 Atwell contends their appeal should not be quashed for failing to file a post-trial motion because the reason for their cross appeal is simply to quash Beckwith's appeal as untimely and that they never intended to appeal the counter-claim judgment. Atwell essentially claims the basis for its appeal could not have been the subject of a post-trial motion. We agree.

¶ 9 Pa.R.C.P. 227.1, Post Trial Relief, (c)(1), provides that post-trial motions must be filed within ten days after entry of a verdict. Here, the verdict was entered on February 11, 2003. Pa.R.C.P. 227.4(1)(b) provides in pertinent part:

the prothonotary shall, upon praecipe of a party:

(1) enter judgment upon the verdict of a jury..., if

. . . . .

(b) one or more timely post-trial motions are filed and the court does not enter an order disposing of all motions within one hundred twenty days after the filing of the first motion. A judgment entered pursuant to this subparagraph shall be final as to all parties and all issues and shall not be subject to reconsideration[.]

Id. Beckwith filed a motion for post-trial relief on February 18, 2003. A hearing on the motion was scheduled for October 15, 2003, and later rescheduled to November 24, 2003. More than 120 days elapsed and the trial court had not entered an Order disposing of the motion. Pursuant to Rule 227.4(1)(b), on December 1, 2003, Atwell filed a praecipe to enter judgment on the verdict in which they requested judgment of $142,515.06, "said amount being the molded verdict of the jury." Record No. 27. The prothonotary entered judgment accordingly.

¶ 10 Beckwith filed a motion to strike the judgment and a hearing was scheduled for December 22, 2003. After the hearing, and on that same day, the court entered an Order which struck the December 1, 2003 judgment because it was in the wrong amount. Trial Court Order, 12/22/03, at 1. The Order further explained that the parties had requested a delay in ruling on the post-trial motion while the parties attempted to amicably settle the matter, and also that both parties were aware there was a lengthy delay in the ruling on the motion due to a problem obtaining the trial transcripts.⁴ Record No. 28, Trial Court Order, 12/22/03, at 1-2; see also Trial Court Opinion, Lutty, J., 4/13/04, at 9.

¶ 11 As previously indicated, the court entered an Order denying Beckwith's post-trial motions on January 23, 2003, and on January 29th judgment was entered upon Atwell's second praecipe, this time in the amount of $175,000. On January 30, 2004, judgment was entered for Beckwith on its praecipe for judgment on the $32,484.94 counterclaim verdict in its favor.

¶ 12 It is clear that in this appeal, Atwell challenges the court's December 22, 2003 Order. A recitation of the above facts makes it apparent Atwell could not possibly have entered a post-trial motion challenging this issue within 10 days of the February 2003 verdict. Accordingly, we reject Beckwith's claim that Atwell waived all issues on appeal for failure to file a post-trial motion.

872 A.2d 1221

¶ 13 We turn now to Atwell's claim that Beckwith's appeal should be quashed as untimely filed from the court's December 1, 2003 judgment. It is true that judgments entered pursuant to Pa.R.C.P. 227.4 are not susceptible to motions to reconsider, strike, open, or vacate. Morningstar v. Hoban, 819 A.2d 1191, 1194 (Pa.Super.2003), appeal denied, 577 Pa. 690, 844 A.2d 553 (2004). Although at first blush it appears the court erred in striking the December 1, 2003 judgment, we need not make a determination on this matter. Even if it was in error, we would not quash Beckwith's appeal as being untimely filed from that judgment because to do so would penalize Beckwith for a breakdown in the court's operation. Accordingly, Atwell's Pa.R.A.P. 123 application for relief is denied

¶ 14 We now address the merits of Beckwith's remaining issues on appeal.

I. Does the failure of the trial court to charge the jury on any aspect of the applicable law constitute reversible error?

II. Is the trial court's refusal to limit the remedy of the plaintiff, pursuant to terms of the contract between the parties reversible error?

III. Where the Uniform Commercial Code provides a formula for calculation of damages in a particular contractual situation, and the evidence introduced and proven by the plaintiff does not meet the requirements of that calculation, is the verdict entered by the jury and the court's refusal to grant a nonsuit and/or judgment notwithstanding the verdict an error as a matter of law or an abuse of discretion?

IV. Was the trial court's determination that Neil Atwell was a competent witness to testify on damages, based solely upon his ownership of the Caterpillar Tractor, which is the subject of litigation an error of law or abuse of discretion which allowed the jury to speculate on the issue of damages?

Appellant's brief at 4.

In reviewing a trial court's decision to grant or deny a motion for a new trial, it is well-established law that, absent a clear abuse of discretion by the trial court, appellate courts must not interfere with the trial court's authority to grant or deny a new trial. Moreover, a new

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