B & L Asphalt Industries, Inc. v. Fusco

753 A.2d 264, 2000 Pa. Super. 148, 2000 Pa. Super. LEXIS 664
CourtSuperior Court of Pennsylvania
DecidedMay 11, 2000
StatusPublished
Cited by35 cases

This text of 753 A.2d 264 (B & L Asphalt Industries, Inc. v. Fusco) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
B & L Asphalt Industries, Inc. v. Fusco, 753 A.2d 264, 2000 Pa. Super. 148, 2000 Pa. Super. LEXIS 664 (Pa. Ct. App. 2000).

Opinions

POPOVICH, J.:

¶ 1 This is an appeal from the judgment entered in the Court of Common Pleas of Lawrence County on August 31 1999, following denial of appellants’ motion for judgment notwithstanding the verdict and motion for a new trial. This timely appeal followed. Upon review, we affirm in part, vacate in part and remand for new trial.

¶ 2 Herein, appellants ask the following:

I. Should the court have granted [appellants’] non-suit and/or directed verdict and was the court’s denial based on error of law?
II. Did an agency exist between Gary Fusco and John Fusco?
III. Is there equitable estoppel?
IV. Was the court in error in arriving at the inference that [appellee] had difficulty to recognize who he was dealing with because of interplay or “integrally” linked?

Appellant’s brief, at 3.1

¶3 When reviewing a denial of judgment notwithstanding the verdict,

[267]*267an appellate court must decide whether there was sufficient evidence to sustain the verdict; our scope of review is very narrow: all evidence and all reasonable inferences drawn therefrom must be considered in the light most favorable to the verdict winner. Judgment notwithstanding the verdict can be entered only if the movant is entitled to judgment as a matter of law or if evidence is such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant. We will reverse a trial court’s grant or denial of a judgment notwithstanding the verdict only when we find an abuse of discretion or an error of law that controlled the outcome of the case.

Mitchell v. Moore, 729 A.2d 1200, 1203 (Pa.Super.1999) (citations omitted throughout).

¶ 4 When assessing the trial court’s denial of a motion for new trial, we apply a deferential standard of review. “The decision whether to grant or deny a new trial is one that lies within the discretion of the trial court.” Turney Media Fuel, Inc. v. Toll Bros., Inc., 725 A.2d 886, 841 (Pa.Super.1999). We will not overturn such a decision unless the trial court grossly abused its discretion or committed an error of law that controlled the outcome of the case. Id. (citation omitted). “Upon review, the test is not whether this Court would have reached the same result on the evidence presented, but, rather, after due consideration of the evidence found credible by the trial court, and viewing the evidence in the light most favorable to the verdict winner, whether the court could reasonably have reached its conclusion.” Id.

¶ 5 Applying the foregoing standards, the record reveals the following: Gary Fusco was the sole proprietor of Sommer-field Paving Company that engaged in the business of asphalt paving. In forming Sommerfield Paving Company (“Sommer-field Paving”), Gary Fusco borrowed the necessary paving equipment from Som-merfield Enterprises, Inc., which was a business owned by Gary Fusco’s parents, appellant John Fusco and appellant Sylvie Fusco. At one time, Sommerfield Enterprises, Inc. was engaged in the asphalt paving business. Gary Fusco testified that the offices of Sommerfield Paving were located at his home. The offices of Sommerfield Enterprises, Inc. were located in Westgate Plaza. Appellant John Fusco performed the bookkeeping, administered the payroll and prepared the taxes for Sommerfield Paving. Moreover, Gary Fusco gave appellant John Fusco the authority to sign checks on behalf of Som-merfield Paving. In turn, appellant John Fusco issued checks on behalf of Sommer-field Paving for the payment of bills and the purchase of materials from various vendors, including appellee. However, appellant John Fusco did not receive payment for his services performed for Som-merfield Paving. In addition, neither appellant had any ownership interest in Sommerfield Paving.

¶ 6 Prior to the formation of Sommer-field Paving, appellant John Fusco regularly purchased material on behalf of Som-merfield Enterprises, Inc. from appellee and became a reliable customer of appel-lee’s. In fact, the president of appellee, Lindy Ferraro, was a social acquaintance of appellant John Fusco. After the formation of Sommerfield Paving, appellee became one of the vendors from whom Som-merfield Paving purchased material. Mr. Ferraro testified that when appellee began selling material to Sommerfield Paving, he dealt only with appellant John Fusco who asked Mr. Ferraro to extend credit to Sommerfield Paving. Mr. Ferraro further testified that, with regard to the money owed by Sommerfield Paving, Mi*. Ferraro spoke with Gary Fusco and appellants. On direct examination by appellee’s counsel, appellant John Fusco’s unchallenged testimony described one of these conversations with Mr. Ferraro as follows:

[268]*268John Fusco: [Mr. Ferraro] came to my home. Do you want to know the conversation?
Appellee’s counsel: Yes.
John Fusco: [Mr. Ferraro] wanted to know when Gary was going to pay the bill or if I could help him pay the bill, and I told him I only can pay you whatever Gary tells me to pay you, but I will never pay the bill personally from my corporation, because it wasn’t my bill. He extended a credit, and I said he has to pay it.

(N.T. 9/6/96, at 47). The present case arose out of delinquent payments owed by Sommerfíeld Paving to appellee for purchases based primarily on credit.

¶ 7 In its collection efforts, appellee employed the services of Justine Ferraro Kearney who was in charge of appellee’s billing. Ms. Kearney testified that on many occasions, the payment received by appellee was simply designated as being from “Sommerfíeld” and did not specify as being from Sommerfíeld Paving or Som-merfield Enterprises, Inc. Starting in September of 1990, Ms. Kearney began attempting to contact Gary Fusco in an effort to set up a meeting to discuss his delinquent payments. Ms. Kearney testified that she was unaware that the offices of Sommerfíeld Paving were located in Gary Fusco’s home. Instead, Ms. Kearney directed her communications to the offices of Sommerfíeld Enterprises, Inc. in West-gate Plaza, since Ms. Kearney believed this to be Sommerfíeld Paving’s offices. Ms. Kearney testified that in late December, she returned a telephone call received from the offices of Westgate Plaza. Upon returning this phone call, Ms. Kearney testified that a secretary answered the phone by saying “Sommerfíeld”, informed her of the manner in which appellee was to collect the payments owed by Sommerfíeld Paving and told her appellants would pay off the balance in the month of January.

¶ 8 Payment was not received in January, and appellee commenced legal action on May 24, 1991, against appellants as well as Gary Fusco, individually and t/d/b/a Sommerfíeld Paving. Appellee alleged, among other things, that appellants were acting as the agents of Sommerfíeld Paving and that they had specifically agreed to guarantee the debt owed by Sommerfíeld Paving to appellee. After default judgment was entered against Gary Fusco, appellants filed a motion for summary judgment. Partial summary judgment was granted in favor of appellants on January 13, 1994, on grounds that appellants owed no contractual obligation to pay the debt owed to appellee.

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Cite This Page — Counsel Stack

Bluebook (online)
753 A.2d 264, 2000 Pa. Super. 148, 2000 Pa. Super. LEXIS 664, Counsel Stack Legal Research, https://law.counselstack.com/opinion/b-l-asphalt-industries-inc-v-fusco-pasuperct-2000.