Fultz v. Fine

40 Pa. D. & C.4th 292, 1998 Pa. Dist. & Cnty. Dec. LEXIS 19
CourtPennsylvania Court of Common Pleas, Delaware County
DecidedOctober 28, 1998
Docketno. 95-51044
StatusPublished

This text of 40 Pa. D. & C.4th 292 (Fultz v. Fine) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Delaware County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fultz v. Fine, 40 Pa. D. & C.4th 292, 1998 Pa. Dist. & Cnty. Dec. LEXIS 19 (Pa. Super. Ct. 1998).

Opinion

McGOVERN, J.,

Defendant Andrew K. Fine has appealed from the denial of his post-trial motion in the above-captioned legal malpractice action.

This cause of action arose from defendant’s representation of plaintiffs in two underlying legal matters. Defendant was retained by plaintiffs in May 1993 to execute upon a $1,500 judgment that had been obtained in the District Court of Chester, Pennsylvania, resulting from an action for improper engine repair work by Mike’s Garage. (7/7/97 N.T. 13-15, 88.) Mike’s. Garage was granted leave to appeal from the district court’s judgment nunc pro tunc by a judge of this court. Fultz v. Mike’s Garage, no. 93-7523, in the Court of Common Pleas of Delaware County, Pennsylvania. (Exhibit P-5.) That court order required plaintiffs to file a complaint within 20 days from August 16, 1993 or suffer a judgment of “non pros.” Defendant here, independently, filed a praecipe for writ of summons under case caption no. 93-50729 on August 16, 1993, but did not file a complaint in the appeal from the district justice decision until November 15,1993. (Exhibit P-6.)1 Mike’s Garage, on November 19) 1993, filed a “complaint” captioned at no. 93-7523. This constituted, in effect, a counterclaim alleging that the matter of Fultz v. Mike’s Garage had been frivolously filed. (Exhibit P-7.) Defendant here has never explained why he filed the writ on behalf of plaintiffs on August 16, 1993, under an entirely different case file and then later a complaint under the original file no. 93-7523. Defendant in the case sub judice claims that he never received a copy of the plead[295]*295ing and that this explains his failure to ascertain its existence or to respond. (N.T. 99.)

When Mike’s Garage received no answer to its “complaint,” its attorney sent notice in December of 1993 of intention to obtain default judgment against plaintiffs. (N.T. 99-100; exhibit P-8.) Defendant in the case at bar took no action. Notice was sent January 4, 1994, of the entry of default judgment against plaintiffs and in favor of Mike’s Garage, but again defendant here took no action. (Exhibit P-9.) Damages in the amount of $4,113.50 were assessed against the plaintiffs on February 15, 1994, and still the defendant proffered neither response nor any action to protect his clients, the plaintiffs here. (Exhibit P-10.) The writ filed by defendant Fine under the caption of Fultz v. Mike’s Garage, no. 93-50729, was stricken on May 12, 1994, for failure to file a complaint.

Defendant Fine claims that he never received notices of default, suggesting that this occurred because he moved from his office in the first week of December 1993, before any such notices were sent, leaving no forwarding address. (N.T. 101-102,123-24.) Defendant Fine, however, did admit that he used the office address to which all the notices were sent on a letter that he sent in August 1994, some eight months after he allegedly moved from that office. His excuse was that he failed to delete the address from his computer. (N.T. 36-40; exhibit P-3.) However, defendant Fine asserted in paragraph 3 of his answer to plaintiffs’ complaint that the office was not actually closed until November 1994. Further, defendant testified that plaintiff James Fultz had been to his home “over 50 times” after December 1993, and lived but a block away, raising a very serious doubt that defendant was never informed by plaintiffs of the complaint and default notices filed against them in this regard. (N.T. 65.)

[296]*296The second underlying matter involved a claim for the improper termination of electricity against the Philadelphia Electric Company in September 1993. (Exhibit P-12.) Defendant Fine had filed a complaint on behalf of plaintiffs Fultz but failed to appear at the scheduled hearing on October 22, 1993. Instead, the defendant sent his secretary-paralegal to request a continuance. (N.T. 50-51; exhibit P-2.) Judgment was entered in favor of PECO. (Exhibit P-13.) Plaintiffs Fultz appealed therefrom, and the matter, under the caption of Fultz v. PECO, no. 93-51613, was scheduled for compulsory arbitration on August 14, 1994. Defendant Fine notified plaintiffs immediately before the hearing that he had withdrawn the case pursuant to an agreement with PECO’s attorney that jurisdiction of the matter properly was vested in the Public Utilities Commission. Defendant filed a praecipe to dismiss the case without prejudice, and thereafter ceased all involvement with this matter, providing no assistance to the plaintiffs in the furtherance of this claim. (Exhibit P-3.) Here, plaintiffs seek to recover in the above-captioned matter the costs and fees advanced to defendant in light of defendant’s abandonment of plaintiffs.

This court, sitting without a jury, found in favor of plaintiffs, awarding compensatory damages in the amount of $5,279.74, and punitive damages in the amount of $8,000 against the defendant.2 Defendant’s timely filed post-trial motion was denied and this appeal followed.

[297]*297Defendant has filed an appeal contending basically that the verdict was against the weight of the evidence because there was neither factual nor legal basis supporting the award of compensatory damages or the award of punitive damages and also because there was no expert testimony to support the claim for compensatory or punitive damages.3

WEIGHT OF THE EVIDENCE AND PROOF OF DAMAGES

Defendant Fine argues that the award of compensatory and punitive damages had no support in the evidence or in the law and, therefore, claims that he is entitled to a new trial.4 It is the trial court’s responsibility to assess credibility, weigh testimony, and review all of the competent evidence in determining whether a verdict rendered in a bench trial was against the clear weight thereof. Weir v. Gasper, 521 Pa. 491, 556 A.2d 819 (1989); Allegheny County v. Monzo, 509 Pa. 26, 500 A.2d 1096 (1985); Tyus v. Resta, 328 Pa. Super. 11, 476 A.2d 427 (1984). The trial court’s determination thereof will be set aside only where there is clear abuse of discretion or error of law. Frowen v. Blank, 493 Pa. 137, 425 A.2d 412 (1981). Credibility and the weight of evidence are left to the trier of fact. Commonwealth v. Paquette, 451 Pa. 250, 301 A.2d 837 (1973); In the Interest of McElrath v. Commonwealth, 405 Pa. Super. 431, 592 A.2d 740 (1991). The fact-finder is free to accept all, part, or none of a witness’s testimony. Weir v. Gasper, supra. If the record adequately supports the trial court’s verdict, then that court will be found [298]*298to have acted within the limits of proper judicial discretion. Exner v. Gangewere, 397 Pa. 58, 152 A.2d 458 (1959).

Defendant, in the case at bar, presented no trial witnesses other than himself, and presented but a minimum of trial exhibits. Although defendant, in his answer to plaintiffs’ complaint, denied knowing anything about the complaint against Mike’s Garage in the action no. 93-7523, he testified at trial to the filing of that complaint. (N.T. 19, 91.)

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Feld v. Merriam
485 A.2d 742 (Supreme Court of Pennsylvania, 1984)
Mariscotti v. Tinari
485 A.2d 56 (Supreme Court of Pennsylvania, 1984)
Tyus v. Resta
476 A.2d 427 (Supreme Court of Pennsylvania, 1984)
Sprague v. Walter
656 A.2d 890 (Superior Court of Pennsylvania, 1995)
Allegheny County v. Monzo
500 A.2d 1096 (Supreme Court of Pennsylvania, 1985)
Laubach v. Haigh
252 A.2d 682 (Supreme Court of Pennsylvania, 1969)
Ammon v. McCloskey
655 A.2d 549 (Superior Court of Pennsylvania, 1995)
Dalton v. Dalton
597 A.2d 1192 (Superior Court of Pennsylvania, 1991)
Hess v. Hess
580 A.2d 357 (Supreme Court of Pennsylvania, 1990)
Palange v. Philadelphia Law Dept.
640 A.2d 1305 (Superior Court of Pennsylvania, 1994)
Ludmer v. Nernberg
640 A.2d 939 (Superior Court of Pennsylvania, 1994)
Rizzo v. Haines
555 A.2d 58 (Supreme Court of Pennsylvania, 1989)
Gans v. Gray
612 F. Supp. 608 (E.D. Pennsylvania, 1985)
Storm v. Golden
538 A.2d 61 (Supreme Court of Pennsylvania, 1988)
Solomon v. Baum
560 A.2d 878 (Commonwealth Court of Pennsylvania, 1989)
Frowen v. Blank
425 A.2d 412 (Supreme Court of Pennsylvania, 1981)
Delahanty v. First Pennsylvania Bank, N.A.
464 A.2d 1243 (Supreme Court of Pennsylvania, 1984)
Spitzer v. Tucker
591 A.2d 723 (Superior Court of Pennsylvania, 1991)
Weir by Gasper v. Estate of Ciao
556 A.2d 819 (Supreme Court of Pennsylvania, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
40 Pa. D. & C.4th 292, 1998 Pa. Dist. & Cnty. Dec. LEXIS 19, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fultz-v-fine-pactcompldelawa-1998.