Kowalewski v. Whittington

71 Pa. D. & C.4th 157, 2005 Pa. Dist. & Cnty. Dec. LEXIS 176
CourtPennsylvania Court of Common Pleas, Lackawanna County
DecidedJanuary 18, 2005
Docketno. 2003 CV 2991
StatusPublished

This text of 71 Pa. D. & C.4th 157 (Kowalewski v. Whittington) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lackawanna County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kowalewski v. Whittington, 71 Pa. D. & C.4th 157, 2005 Pa. Dist. & Cnty. Dec. LEXIS 176 (Pa. Super. Ct. 2005).

Opinion

MINORA, J,

I. INTRODUCTION

This matter was tried before the undersigned without a jury on September 17,2004. The parties were given an opportunity to submit written post-trial briefs and the matter is now ripe for decision.

By way of background, the plaintiff claims she was employed as a bookkeeper for Zazzera’s Market in Carbondale, Pennsylvania.

[159]*159In November of 2000, the market was purchased by Patrick Whittington. After Mr. Whittington purchased the market, some cash flow difficulties arose.

Mr. Whittington had mentioned the cash flow difficulties to Mrs. Kowalewski and she claims she lent certain monies to Mr. Whittington and/or his corporation totaling $36,900.

She claims she did receive some payment on the debt in the amount of $2,063.24, leaving abalance on the loan of $34,836.76.

Her theory is that the debt was incurred by both the corporation, P. Whittington Inc. and that Mr. Whitting-ton, through his partial repayment of the loan and also representations made to Mrs. Kowalewski, guaranteed the corporation, thus personally obligating him or the indebtedness to Mrs. Kowalewski.

The defense admits the corporation is liable for the debt (see N.T. 9/17/04 p. 30) but disputes that Mr. Whittington is individually liable for the debt due to the fact there are no writings (notes, memos, etc.) to indicate such and take it out of the Statute of Frauds, 33 P.S. §3.

II. GENERAL FINDINGS AS PER PA. RULE OF CIVIL PROCEDURE 1038(b)

Initially we note that, in a bench trial, the judge sits as the finder of fact and must determine the credibility of the witnesses and the probative value of the evidence presented. Bonenberger v. Nationwide Mutual Insurance Company, 791 A.2d 378, 381 (Pa. Super. 2002). As the [160]*160sole assessor of credibility, the judge in a non-jury trial is free to believe all, part or none of the testimony or evidence submitted by the parties. In re Funds in the Possession of Conemaugh Township Supervisors, 562 Pa. 85, 89, 753 A.2d 788, 790 (2000); L.B. Foster Co. v. Charles Caracciolo Steel & Metal Yard Inc., 777 A.2d 1090, 1093 (Pa. Super. 2001). The factual findings set forth below are based upon the testimony and exhibits which have been determined to be competent, credible and relevant. See also, Ciccone v. Sposito, 104 Lacka. Jur. 389, 390 (2003).

In the case at hand, the credible and/or undisputed evidence indicates that plaintiff was employed at Zaz-zera’s Food Center for an excess of 30 years. In November of 2000, Zazzera’s became owned by a corporation known as P. Whittington Inc. Prior to the time Whittington took over the operation of Zazzera’s Food Center, Zazzera’s Food Center was a profitable ongoing concern.

Soon after defendant had assumed the operation of Zazzera’s Food Center, defendant began to experience cash flow difficulties. In April 2001, plaintiff began loaning defendants various sums of money in an attempt to assist defendants through their financial difficulties. Over the course of time, plaintiff lent to defendant the sum of $36,900. No note or other evidence of indebtedness was executed by defendants in favor of plaintiff and all of plaintiff’s checks were made payable either to P. Whittington Inc. or Zazzera’s Food Center.

Between April 2001 and February 2002, the period within which plaintiff was loaning the aforesaid sums to [161]*161defendants, individual defendant, Patrick Whittington, made various representations and promises to plaintiff that he would personally repay plaintiff the aforesaid monies. In fact, at various times, Mr. Whittington did pay to plaintiff the sum of $2,063.24. The said payments were made either in cash or by checks issued from Mr. Whittington’s personal account. No repayment was made to plaintiff from the corporate assets of P. Whittington Inc. Presently, there is an outstanding balance on defendant’s obligation to plaintiff of $34,836.76.

The corporate defendant has acknowledged its indebtedness to plaintiff and its obligation to repay to plaintiff the said sums of money. Therefore, this court will enter a judgment in favor of plaintiff and against the corporate defendant based upon the acknowledgments of the corporate defendant.

The individual defendant denies an obligation to repay plaintiff the said sums of money. The individual defendant raises as a defense the bar of the Statute of Frauds, 33 P.S. §3. The individual defendant also alleges that there was a failure of consideration to support his promise to plaintiff to repay the sums of money lent to said defendants.

The Statute of Frauds provides:

“No action shall be brought whereby to charge any executor or administrator, upon any promise to answer damages out of his own estate, or whereby to charge the defendant, upon any special promise, to answer for the debt or default of another, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by [162]*162the party to be charged therewith, or some other person by him authorized.” 33 P.S. §3.

Plaintiff contends that the above Statute of Frauds does not apply as the main object of the promise by Patrick Whittington, the individual defendant, was to serve his own pecuniary or business purpose. Biller v. Ziegler, 406 Pa. Super. 1, 593 A.2d 436 (1991); Thomas A. Armbruster Inc. v. Barron, 341 Pa. Super. 409, 491 A.2d 882 (1985). The leading object rule applies whenever a promisor, in order to advance some pecuniary or business purpose of his own, purports to enter into an oral agreement even though that agreement may be in the form of a provision to pay the debt of another. Biller v. Ziegler, supra at 8, 593 A.2d at 439, citing cases. We agree with the plaintiff’s contentions regarding the “leading object” rule.

The testimony of plaintiff during a trial held in the above matter was to the effect that the corporate defendant was experiencing severe cash flow problems which would adversely impact its ability to continue in business. Plaintiff’s testimony was uncontradicted. In order to sustain the business activities of the corporate defendant, the individual defendant induced plaintiff to lend the aforesaid sums of money in order to keep the corporate defendant in business. Further, beginning in July 2001, the individual defendant began making partial repayment of the debt to plaintiff, all the while promising her that he would pay the debt that was due and owing. The partial repayments to plaintiff by the individual defendant from his personal funds served as further inducement to plaintiff to lend additional monies to defendant. Plaintiff testified at time of trial that it [163]*163was always her understanding that the individual defendant would stand responsible for the debt then and there due and owing.

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Related

In Re Funds in the Possession of Conemaugh Township Supervisors
753 A.2d 788 (Supreme Court of Pennsylvania, 2000)
Bonenberger v. Nationwide Mutual Insurance
791 A.2d 378 (Superior Court of Pennsylvania, 2002)
Thomas A. Armbruster, Inc. v. Barron
491 A.2d 882 (Supreme Court of Pennsylvania, 1985)
Biller v. Ziegler
593 A.2d 436 (Superior Court of Pennsylvania, 1991)
L.B. Foster Co. v. Charles Caracciolo Steel & Metal Yard, Inc.
777 A.2d 1090 (Superior Court of Pennsylvania, 2001)
Schroyer v. Wally
96 Pa. Super. 234 (Superior Court of Pennsylvania, 1929)

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Bluebook (online)
71 Pa. D. & C.4th 157, 2005 Pa. Dist. & Cnty. Dec. LEXIS 176, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kowalewski-v-whittington-pactcompllackaw-2005.