Schnabel Associates, Inc. v. T & M Interiors, Inc.
Schnabel Associates, Inc. v. T & M Interiors, Inc.
Opinion of the Court
On July 25, 1984, the Court of Common Pleas of Lycom-ing County filed an order entering judgment in a contract action in favor of appellee Schnabel Associates, Inc. (Schna
The first issue raised by both Atlantic and Dalton is that the expert testimony given by Schnabel’s expert with respect to delamination strength of the carpet at issue in this action was improper testimony based upon lack of knowledge about the carpet sample and sample size. We disagree. Admission of expert testimony is a matter for the discretion of the trial court, and that court’s exercise of discretion will not be disturbed unless there is a clear abuse. Laubach v. Haigh, 433 Pa. 487, 252 A.2d 682 (1969); Kubit v. Russ, 287 Pa.Super. 28, 429 A.2d 703 (1981). Appellants claim that Schnabel’s expert, Mr. Alan Lightkep, was not absolutely certain that the carpet sample he tested was new, and did not know exactly from where it came. Appellants also complain that Mr. Lightkep did not test three sample pieces of the carpet. Mr. Lightkep testified that he believed the carpet sample he tested was new; that he knew the sample came from the Timberland Apartments; and that it would make no difference in the testing whether the carpet sample was new or had been installed. Further, the test of one carpet sample was valid, and testing other samples would only serve to reinforce the validity of the test. Mr. Lightkep’s testimony that the carpet was defectively manufactured by nature of the absence of sufficient latex was corroborated by the testimony of other experts.
Next, another common question raised by Atlantic and Dalton is whether Schnabel failed to mitigate damages properly and whether the trial court incorrectly calculated damages based upon the evidence. We find that this issue also lacks merit. Appellants claim that appellee failed to mitigate damages when it replaced the carpet in the entire building instead of replacing the carpet in only the damaged areas. The lower court ably countered this argument in finding that although the carpet failure was obvious in only 40 percent of the total apartment complex when it was replaced, “the same carpeting material (with defective lamination) was used throughout the project; the failure of the carpeting was pervasive; and while the failure of the carpeting was slower to materialize on the floor areas where the underflooring was used, it was apparent that the carpeting did not meet minimum contract standards.” See lower court findings, pp. 15-16. We find that appellee’s conduct, viewing all the facts, and circumstances presented at the time the carpet was replaced, was reasonable and proper. See Toyota Industrial Trucks, U.S.A., Inc. v. Citizens National Bank, 611 F.2d 465 (3d Cir. 1979).
Appellants further claim that the damages award was improper. They claim the lower court erred in failing to consider the salvage value of the replaced carpet, and in allowing appellee to replace the defective carpet with an higher quality carpet. First, we refer to the lower court findings, page 16, where the lower court expressly states: “Plaintiff entered into a contract with Sears to remove the old carpet and replace it with 24 ounce carpeting at a cost of $9.40 per square yard. The $9.40 price included a credit to Sears for salvage of the carpet which was removed.” No further comment is necessary. With regard to the appellants’ complaint that the appellee wrongfully used upgraded carpet to replace the old carpet, appellants cite Popkin Brothers v. Dunlap, 130 Pa.Super. 50, 196 A. 586 (1938),
The final issue in this action pertains solely to appellant-Dalton. Dalton argues that the Pennsylvania courts lack in personam jurisdiction over it, as Dalton is a Georgia corporation. Pennsylvania’s courts can exercise in person-am jurisdication over a non-resident defendant if jurisdiction is conferred by the state long-arm statute; and the exercise of jurisdiction under the statute must meet the constitutional standards of due process. Since the Pennsylvania long-arm statute extends to the fullest extent permitted by the Constitution of the United States, in personam jurisdiction is proper when the non-resident has sufficient “minimum contacts” with the state. Hewitt v. Eichelman’s Subaru, Inc., 341 Pa.Super. 589, 492 A.2d 23 (1985); see 42 Pa.Cons. Stat.Ann.Sec. 5322 (Purdon 1981). Due process standards are satisfied if these “minimum contacts” are sufficient so that maintenance of the suit does not offend the traditional notions of fair play and substantial justice. International
The facts of the case at bar show that there are sufficient “minimum contacts” with Pennsylvania under the Supreme Court standard to subject Dalton to in personam jurisdiction. Evidence at trial established that Dalton did the finishing work on carpet shipped by Atlantic for a period of twenty years. Atlantic shipped the finished carpet to the 48 contiguous states, including between 100 and 1,000 shipments to Pennsylvania. Dalton obviously intended to serve an interstate market indirectly through Atlantic. Dalton was aware of its work being shipped to Pennsylvania as it was forced on occasion to deal with complaints on its finishing jobs from Pennsylvania. Therefore, Dalton regularly engaged in shipping carpet into Pennsylvania through Atlantic, and this action provided the requisite “minimum contacts” to confer in personam jurisdiction on the Pennsylvania courts.
Finally, it would be useful to apply the guidelines established by this court to determine if “minimum contacts” exist. In Proctor & Swartz, Inc. v. Cleveland Lumber Company, 228 Pa.Super. 12, 323 A.2d 11 (1974), we held that it must be determined: (1) whether the non-resident
Order affirmed.
. See Skinner v. Flymo, Inc., 351 Pa.Super. 234, 505 A.2d 616 (Pa.Super.Ct. 1986).
Concurring Opinion
concurring:
I join the opinion of the majority as it affirms the trial court’s award of damages and its allowance of testimony by appellee’s expert. I also agree with the majority that Dalton Carpet Finishing Co., Inc. had sufficient contacts with Pennsylvania to render it subject to the jurisdiction of the Pennsylvania courts. For reasons stated in the opinion filed in Skinner v. Flymo, Inc., 351 Pa.Super. 234, 505 A.2d 616 (1986), however, I am of the opinion that the standards set forth in Proctor & Swartz, Inc. v. Cleveland Lumber Co., 228 Pa.Super. 12, 323 A.2d 11 (1974), are too rigid and no longer provide a valid test for determining the “mini
. The three-pronged test of Proctor & Swartz was criticized in Kingsley & Keith (Canada) Ltd. v. Mercer International Corp., 500 Pa. 371, 374 n. 1, 456 A.2d 1333, 1335 n. 1 (1983) (opinion of Roberts, C.J., in support of affirmance). See also: United Farm Bureau Mutual Insurance Co. v. United States Fidelity and Guaranty Co., 501 Pa. 646, 462 A.2d 1300 (1983).
Reference
- Full Case Name
- SCHNABEL ASSOCIATES, INC., General Partner, T/A Williamsport Building Associates, v. T & M INTERIORS, INC. and Atlantic Carpet Corporation v. DALTON CARPET FINISHING CO., INC. Appeal of ATLANTIC CARPET CORPORATION
- Cited By
- 3 cases
- Status
- Published