Hydro-Flex, Inc. v. Alter Bolt Co., Inc.
| Citation | 223 Pa.Super. 228,296 A.2d 874 |
| Parties | HYDRO-FLEX, INC., Appellant, v. ALTER BOLT COMPANY, INC. |
| Decision Date | 16 November 1972 |
| Court | Pennsylvania Superior Court |
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Michael F. Walsh, Philadelphia, for appellant.
Kenneth S. Hall, Stanley Frank, Edwin L. Scherlis, Philadelphia, for appellee.
Before WRIGHT, P.J., and WATKINS, JACOBS, HOFFMAN, SPAULDING CERCONE and PACKEL, JJ.
This is an appeal from the denial of plaintiff-appellant's petition to re-open a judgment entered against it or grant a new trial after plaintiff filed exceptions to findings of the trial judge. Exceptions were argued before the Court of Common Pleas of Philadelphia, sitting en banc and dismissed by that panel. This appeal followed.
Appellant brought suit in 1967 on book accounts for goods sold to appellee. In April of 1968, appellee answered and asserted a counter-claim for commissions on an oral contract in which appellee acted as a 'middleman' in preliminary arrangements for a sale by appellant to a third party (DeVal Corp.) of hydraulic hoses and fittings. Appellee's liability on the book accounts was admitted and the only issue in controversy at the trial was the existence of the commissions contract for 7 1/2% Of the gross sales to DeVal. [1]
The trial judge held for appellee on this issue, finding that an oral contract was, in fact entered into by the parties for stated commission. Appellant's records of account indicated sales to DeVal in excess of $304,000. Commissions thereon amounted to $22,800 and judgment in that amount was entered for appellee. The Court en banc affirmed this finding of the trial judge.
The oral contract was allegedly entered into in February or March of 1966 between Mr. Leonard Schwartz, president of appellant corporation and Albert Heffler, president of appellee corporation. Appellant's general manager, Mr. John Heil, was also present. Heffler was aware of DeVal's needs for supplies on a large government contract and contacted Schwartz and advised him to come to Philadelphia. Schwartz and Heil did so. Prior to introducing them to officers of DeVal Corp., Heffler demanded a commission in return for his services as middleman, in the event that appellant be awarded the DeVal contract.
Heffler and Heil testified that an agreement for a commission of 7 1/2% Of gross sales was reached between Heffler and Schwartz before Heffler introduced Schwartz to representatives of DeVal Corp. Schwartz denied that such an agreement had been reached. Mr. Finn, a representative of DeVal, testified that Heffler did arrange the preliminary meetings between DeVal and appellant.
As the basis for its petition to re-open and for a new trial, appellant argued that the court's finding of an oral contract was so against the weight of the evidence as to cause an injustice requiring a new trial. On appeal it is urged that the denial of the petition was an abuse of discretion. With this we cannot agree, and affirm the lower court's refusal to extend these proceedings.
The granting of a new trial on the grounds that the findings of the trial judge were against the weight of the evidence is for the trial judge, and such a determination should not be reversed on appeal unless there has been a clear and palpable abuse of discretion. Bell Telephone Co. v. Cruice, 178 Pa.Super. 308, 116 A.2d 355 (1955); Beitch v. Mishkin, 184 Pa.Super. 120, 132 A.2d 703 (1957). In the instant case, the judge was in a position to hear the conflicting evidence and to evaluate the credibility and demeanor of the witnesses. Indeed, the entire case turns on a question of credibility and a 'resolution of conflicting testimony.' In such a case, the findings of the trial judge where supported by the record should not be disturbed on appeal in the absence of manifest error. Scientific Living v. Hohensee, 440 Pa. 280, 270 A.2d 216 (1968); Drummond v. Drummond, 414 Pa. 548, 200 A.2d 887 (1964). This is especially true where the trial judge's findings have been approved by a court en banc. Selway v. Selway, 426 Pa. 224, 231 A.2d 872 (1967); Craft Reupholstering Co. v. Rosenberg, 420 Pa. 43, 216 A.2d 49 (1966). There is adequate support on the record for the findings and no manifest error present that would justify disturbing the trial judge's findings.
Appellant argues, however, that the refusal of the court to consider further evidence resulted in a clear and palpable injustice. An analysis of appellant's petition to re-open or grant a new trial discloses no new facts upon which the petition should have been granted.
Such a petition for the consideration of additional evidence should be granted only where that evidence 1) is new; 2) could not have been obtained at trial in the exercise of due diligence; 3) is relevant and non-cumulative; 4) is not for the purposes of impeachment; 5) and must be likely to compel a different result. Higbee v. Koziol, 383 Pa. 116, 117 A.2d 707 (1955); Der Hagopian v. Eskandarian, 396 Pa. 401, 153 A.2d 897, cert. den. 361 U.S. 938 (1955); Bowie v. Shelton, 214 Pa.Super. 107, 251 A.2d 667 (1969).
Appellant's petition set forth, in substance, the following grounds in support of his petition for a re-opening of the proceedings or for a new trial:
1) that evidence of trade practice would be offered to show that commissions contracts were not made in the appellant's business;
2) that appellant's profits for the years of 1967 through 1969 were such that the payment of a commission would have completely eroded that profit;
3) that the criminal record of appellee's agent, Heffler, was not sufficiently detailed at trial;
4) that testimony given by Heil was substantially different than that given in a personal bankruptcy proceeding;
5) that prior to trial appellee was willing to discontinue suit on the counter-claim if appellant would discontinue suit on the book accounts and pay a certain amount in compromise.
Appellant's first ground is flatly contradicted by its own witness, Mr. Schwartz, who testified that he had given commissions both before and after the one involved in the instant case. Messrs. Heil and Heffler also testified that commissions were not abnormal in the trade. While evidence of the trade custom would have some relevancy, the lower court's determination that a commissions contract was, in fact, consummated in this case indicates that such evidence would not have compelled a different result. Moreover, there is no indication that such evidence was not available at trial. Higbee v. Koziol, supra.
The second reason advanced in support of his petition, that a payment of 7 1/2% Commission on gross sales would have completely eroded yearly profit from 1967 to 1969 has no relevancy to the issue of whether a commissions contract was agreed upon in 1966. (The contract was prospective, the desirability of which would hinge upon appellant's expectation of profit from sales to DeVal and not the subsequent frustrated expectations.) In this regard if it is important to note that appellant expected a profit in Excess of 13 to 15% Of gross which was its normal profit on sales. Schwartz testified that he did make the mormal profit on the DeVal contract.
The third and fourth reasons are directed toward an attack upon the credibility of Messrs. Heil and Heffler, and, as such, do not constitute grounds for the taking of additional evidence by opening the judgment or granting a new trial. Higbee v. Koziol, supra. Moreover, the criminal record of Heffler was available at trial and brought to the attention of the trial judge for his consideration in evaluating credibility.
Appellee's fifth allegation relates to a compromise settlement of the counterclaim. The lower court en banc, considered the appellee's attempt to compromise his claim of...
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