Solomon v. Luria

• Decision Date: 12 September 1968
• Citation: 246 A.2d 435,213 Pa.Super. 87
• Parties: Harriet SOLOMON v. Joseph LURIA, Ind. and t/a Luria's Ladies Wearing Apparel, Appellant.
• Court: Pennsylvania Superior Court

Page 435

246 A.2d 435

213 Pa.Super. 87

Harriet SOLOMON v. Joseph LURIA, Ind. and t/a Luria's Ladies Wearing Apparel, Appellant.

Superior Court of Pennsylvania.

Sept. 12, 1968.

Rehearing Denied Sept. 30, 1968.

Michael H. Egnal, Milton S. Lazaroff, Egnal & Simons, Philadelphia, for appellant.

M. Mark Mendel, Jerome M. Dubyn, Mendel & Dubyn, Philadelphia, for appellee.

Before WRIGHT, P.J., and WATKINS, MONTGOMERY, JACOBS,

HOFFMAN, SPAULDING and HANNUM, JJ.

PER CURIAM.

The judgment of the court below is affirmed on the opinion of HONORABLE FRANCIS SHUNK BROWN, Jr., P.J.

The opinion of FRANCIS SHUNK BROWN, Jr., P.J., follows:

This action in assumpsit was brought to recover damages for the alleged breach of a contract of employment between plaintiff and defendant. The trial resulted in a verdict by the jury in plaintiff's favor in the sum of $8,132.62. Defendant then moved for a new trial and for judgment n.o.v. After argument, these motions are now before the court in banc for determination.

As reasons for a new trial, it was asserted by defendant that the verdict was against the law and the evidence, that the trial judge erred in charging the jury in certain respects and in refusing to affirm points for charge submitted in defendant's behalf. In addition, it is contended in support of the motion for a new trial that paragraph 4 of the complaint was not subject to amendment at trial, and that the court erred in sending out with the jury plaintiff's calculation of damages. Defendant's argument in connection with the motion for a new trial is, however, not limited to the matters set forth in the motion. 'In drafting a motion for a new trial, the reasons assigned should be set forth with such clarity that both the court and the adverse party may be informed of the import of such reasons and given sufficient opportunity to meet them.' Evans v. Otis Elevator Co., 403 Pa. 13, 30, 168 A.2d 573, 581. Nevertheless, all of the contentions made by defendant in support of the motions have been fully considered.

In the complaint, it was alleged that 'On or about October 29, 1960, the Defendant, after a series of negotiations with Plaintiff, originating through Defendant's own solicitation and that of his agent or representative, did enter into a verbal contract of employment with the Plaintiff whereby Defendant did agree to employ Plaintiff permanently at a salary of $9,000.00 per year to be paid in weekly installments of $175.00. * * *' At the trial, plaintiff testified that she had arrived at an agreement with George H. Revness, who did personnel and employment work for defendant, which required that she be employed for at least a year. Defendant's position is that the complaint does not allege a contract for a definite period, and that it was too late to amend the complaint at the time of trial. At the time of argument of the motions, there was also before the court, a petition and rule to amend the complaint, filed on plaintiff's behalf.

There is no ground for the entry of judgment n.o.v. in favor of defendant on the ground of the state of the pleading in the complaint. It could well be that the averment in the complaint that it was agreed that plaintiff be employed 'permanently' is sufficient to allege that she was to have 'at least a yearly contract'. It is important to note that there was no objection by defendant to any of plaintiff's testimony which established that the contract of employment was not at will or indefinite in time. To be employed 'permanently' is certainly not inconsistent with being employed for 'at least a year'. Under the circumstances, the amendment was proper. In Keller v. R. C. Keller Motor Co., 386 Pa. 56, 58, 124 A.2d 105, 106, in which a contract of hiring and a default thereof were pleaded, and where there was new matter which tended to set up an accord and satisfaction, the plaintiff entered a general denial, and at the trial, it was contended that the general denial established an implied admission of the averments in the new matter, whereupon a request for leave to amend was granted so that specific denials could be made, it was held that 'This Court decided in McNernie v. W. S. Peace, Inc., 344 Pa. 24, 26, 24 A.2d 12, 13, that 'pleadings may be amended at any stage of the proceedings and the matter is one within the discretion of the trial court;' and this rule was also declared in Trabue v. Walsh, 318 Pa. 391, 393, 177 A. 815. See also Hileman v. Hileman, 172 Pa. 323, 328, 33 A. 575, * * *. It has long been the law that technical defects in pleadings can be amended at the discretion of the court; this in order to prevent the case from turning on purely technical objections.'

Even if the amendment were improper in the present case, there would still be no ground for the entry of judgment n.o.v. in favor of defendant. In Lucacher v. Kerson et al., 355 Pa. 79, 80, 48 A.2d 857, wherein the plaintiff testified that an oral contract of employment had been entered into which was to result in a 'permanent' job, and the trial judge allowed the jury to determine what the parties intended by the provision that, as claimed by plaintiff, his job was to be 'permanent', it was held that 'This was proper because it is for the jury to ascertain the meaning to be ascribed to the words employed in an oral contract, in the light of all the circumstances, surrounding the making of the agreement: McCormack v. Jermyn, 351 Pa. 161, 40 A.2d 477.

It is well settled that in 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. Forrest v. Nelson, 108 Pa. 481, 488; Fulton v. Lancaster County, 162 Pa. 294, 297, 306, 29 A.2d 763; Schweyer v. Walbert, 190 Pa. 334, 338, 42 A. 694; McCormack v. Jermyn, 351 Pa. 161, 164--166, 40 A.2d 477. Analysis of the evidence in light of the applicable legal principles discloses that the case at bar turns on disputed issues of fact which were properly submitted to the jury. There is evidence, which, if accepted, supports the verdict in plaintiff's favor. Moreover, the verdict was not against the law or the evidence. From an examination of the surrounding facts and circumstances, it appears that the jurors were justified in their conclusion as to the intention of the parties to the oral contract of hiring.

According to the evidence, plaintiff had been engaged in the ladies' wearing apparel business since 1934, and in October of 1960 she was employed in Allentown, Pennsylvania, at approximately ten thousand dollars a year and an override. She and her daughter, who was a high school student, were living together in Allentown. As a result of the agreement made by plaintiff with defendant, plaintiff moved her daughter from Allentown High School to Overbrook High School in Philadelphia, and the girl came here to live with plaintiff's mother so as not to lose any time from the school semester. Plaintiff herself moved from Allentown to Philadelphia after having rented an apartment and terminated the lease covering her Allentown apartment. She also terminated her employment in Allentown. It can readily be concluded that the jury in this case could well have found from all the surrounding facts and circumstances that plaintiff had indeed agreed with defendant that her employment was not to be a hiring at will. Certainly a new trial would not be justified on the ground that the verdict was against the law or the evidence.

Nor is there any basis for a new trial arising out of the charge to the jury that 'The plaintiff had alleged an oral agreement of employment for one year.' Plaintiff's allegations in her complaint as to the duration of the employment resulting from her agreement with defendant have been set forth above. What was actually contained in the instructions to the jury did not deal with the allegations of the complaint, but with the testimony submitted and the contentions made at the trial by plaintiff in support of her claim. Surely, it was proper, and, indeed, essential that the jury be carefully told what the respective positions of the parties were so as to delineate the factual and legal issues upon which ...