Bertab Inc. v. Fox

• Court: Pennsylvania Superior Court
• Writing for the Court: SPAETH
• Citation: Bertab Inc. v. Fox, 418 A.2d 618, 275 Pa.Super. 76 (Pa. Super. Ct. 1980)
• Decision Date: 25 April 1980
• Parties: BERTAB INC., and its subsidiary, American Heating Company and Fidelity & Deposit Company of Maryland v. Patricia A. FOX and Craig L. Fox v. Blaise DEL VAGLIO, a/k/a William Del Vaglio and Florence Del Vaglio, his wife. Appeal of Blaise DEL VAGLIO, a/k/a William Del Vaglio and Florence Del Vaglio.

Page 618

418 A.2d 618

275 Pa.Super. 76

BERTAB INC., and its subsidiary, American Heating Company and Fidelity & Deposit Company of Maryland v. Patricia A. FOX and Craig L. Fox v. Blaise DEL VAGLIO, a/k/a William Del Vaglio and Florence Del

Vaglio, his wife.

Appeal of Blaise DEL VAGLIO, a/k/a William Del Vaglio and

Florence Del Vaglio.

Superior Court of Pennsylvania.

Argued April 10, 1979.

Filed Feb. 13, 1980.

Reargument Denied April 25, 1980.

John P. Joyce, Pittsburgh, for appellants.

James R. Farley, Pittsburgh, for appellee, Bertab Inc., etc., and Fidelity & Deposit Company of Maryland.

Before VAN der VOORT, SPAETH and WATKINS, JJ.

SPAETH, Judge:

This is an appeal from an order granting a new trial in a garnishment action on the ground that the jury's verdict was against the weight of the evidence.

Patricia A. Fox, who is the daughter of appellants, Blaise and Florence Del Vaglio, worked for appellee American Heating Company from June 1972 until December 1974, when it was discovered that she had been embezzling money. She admitted the embezzlement and on December 17, 1974, signed a judgment note payable to American Heating in the amount of $159,276.50. Later it was discovered that Mrs. Fox had also misappropriated additional funds amounting to approximately $100,000, and judgment was also entered against her in that amount.

In the meantime, on December 10, 1974, the Del Vaglios bought a house for $19,500 in Wilkinsburg, Allegheny County. They paid for the house with a cashier's check, made payable to them and drawn on Equibank. Mrs. Fox had purchased the cashier's check on December 6, 1974. The theory of the present action is that in purchasing the cashier's check, Mrs. Fox used funds she had embezzled from American Heating, and that from this fact it follows that the Del Vaglios may not keep the house.

In support of this theory, appellees presented the following evidence. On December 6, 1974, Mrs. Fox deposited several American Heating checks in her account and then wrote herself a personal check in the amount of $17,500. An Equibank teller testified that Mrs. Fox bought the cashier's check for $19,500 by using this personal check and additional American Heating checks in the amount of $2,000. The teller testified that Mrs. Fox did not use any cash but only the checks, and that she requested the cashier's check to "purchase a house for her mother and father."

The Del Vaglios testified as follows. They had been renting the house for many years from a relative. In September 1974, he informed them that he was no longer interested in renting the house to them but wanted to sell it. They decided to buy it and sent their daughter, Mrs. Fox, to the bank to get a check for the purchase price, giving her $19,500 in cash. Not trusting banks, they had kept the money hidden at home. When they gave Mrs. Fox the money to take to the bank for the check, they put it in a brown paper shopping bag. Copies of the deed to the house and tax and insurance receipts were admitted as evidence that the Del Vaglios owned the house.

The trial judge instructed the jury that "the issue is very simple did Patricia Fox purchase this property from funds that had been misappropriated from (American Heating)? And, secondly, did she buy this property for herself and put it in the name of her parents?" N.T. at 140-41. During its deliberations the jury asked two questions, which will be discussed later. After several hours, it returned a verdict against appellees and in favor of the Del Vaglios. The lower court granted appellees' motion for a new trial, and this appeal followed.

It is settled that the "grant of a new trial is within the sound discretion of the trial judge, who is present at the offering of all relevant testimony but that discretion is not absolute; (the appellate court) will review the action of the court below and will reverse if it determines that it acted capriciously or palpably abused its discretion." Austin v. Ridge, 435 Pa. 1, 4, 255 A.2d 123, 124 (1969) (collecting cases); Albert v. Alter, 252 Pa.Super. 203, 212, 381 A.2d 459, 463 (1977). A trial judge will be held to have abused his discretion when he grants a new trial merely because he would have arrived at a different conclusion on the facts of the case than that reached by the jury. Austin v. Ridge, supra ; see Carroll v. Pittsburgh, 368 Pa. 436, 445-46, 84 A.2d 505, 509 (1951); Albert v. Alter, supra. Thus a trial judge should only grant a new trial when the jury's verdict is so contrary to the evidence as to shock his sense of justice and a new trial is necessary to rectify the situation. Austin v. Ridge, supra ; Ditz v. Marshall, 259 Pa.Super. 31, 393 A.2d 701 (1978). In reviewing the grant of a new trial the appellate court looks to all of the evidence. Ditz v. Marshall, supra.

In granting the new trial in this case, the lower court relied on the testimony of the bank teller to conclude that "(i)n the present case, regardless of the testimony of the Del Vaglios that they gave their daughter money to obtain a cashier's check, and regardless of what may have happened to the money that the Del Vaglios claimed they gave to their daughter, it is clear that the money actually used for the purchase of the home was money misappropriated from American Heating Company by Patricia A. Fox." Opinion of the lower court at p. 2. As appellants, the Del Vaglios criticize the lower court for its reliance on the testimony of the teller, but in our opinion the court's reliance was not misplaced, for the teller was the only disinterested witness and the only person besides Mrs. Fox who was present at the purchase of the cashier's check. The Del Vaglios did not see Mrs. Fox purchase the cashier's check with the cash they claimed they gave to her, and the teller was sure that Mrs. Fox paid with checks, and not with cash, and certainly not with $19,500 cash.

Were the sole issue in this case that of the source of the funds used to purchase the cashier's check, we should have no problem in concluding that in granting a new trial, the lower court did not abuse its discretion, and we should affirm without further discussion. There is another issue, however, that requires discussion.

Pa.R.Civ.P., No. 3101(b), upon which the present action is based, provides:

Any person may be a garnishee and shall be deemed to have possession of property of defendant if he . . . (4) holds the legal title to property of the defendant whether or not in...