These cross-appeals arise from actions by the lower court, which denied a motion for a partial new trial by the verdict winner, and a motion for a new trial and/or a judgment n.o.v. by the party against whom the verdict was issued. On appeal, the verdict winner asserts that the lower court erred in: (1) disallowing a claim based upon previously unrecognized tort grounds; (2) denying a claim for punitive damages; and (3) refusing to mold the verdict to provide pre-judgment interest on the consequential damages awarded by the jury. On its appeal, the verdict loser contends that the trial court committed error by: (1) permitting the Appellant to amend its Complaint to conform to the verdict; (2) finding that there was sufficient proof of a novation, as well as direct damages and consequential damages; and (3) charging the jury on the degree of certainty required to establish a right to consequential damages. We find no merit in any of the claims of error, and affirm the holdings of the trial court on all issues.
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We must review the facts in a light most favorable to the verdict winner. See
Fannin v. Cratty,
While the purchase order provided that Standard was to pay for all materials, Standard offered proof at trial that Solomon had agreed to advance the cost of the coating *373 materials. Standard submitted the invoice to Solomon, but it was never paid. Also, after Davis and other Standard personnel arrived at the site in December with equipment and supplies, Standard invoiced Solomon for twenty-five (25%) per cent of the contract price, on the basis that Standard was set up for the work. This invoice was also never paid by Solomon. By the middle of February, 1976, Standard had coated approximately half of the pipeline. Standard submitted another invoice, for further payment, which, like those previously submitted, was never paid.
In March, 1976, U.S. Steel inspected and subsequently rejected the coating that Standard had applied. The evidence at trial indicated that Standard offered to repair the defects when it coated the remaining pipeline. Whether this was agreed to by Solomon and U.S. Steel was unclear. By April, 1976, however, Standard was experiencing cash-flow problems, allegedly because Solomon had not made any payments. Of particular importance, evidence was presented that Standard could not obtain coating materials because of its unpaid bill to the only available supplier of such materials. Thus, Standard could not obtain additional coating materials to perform any other similar jobs.
Mark Shriver [hereinafter “Shriver”], President of Standard, met with Donald Gearhart [hereinafter “Gearhart”], a Vice President of Solomon, on April 22,1976. Although the testimony conflicts as to the exact terms, some agreement was reached in an attempt to alleviate Standard’s financial problems. Shriver testified that Gearhart told him, inter alia, that Solomon would pay the invoice for the coating materials and pay for all work done by May 15, 1976. In exchange, Standard was to relinquish to Solomon the right to finish the remainder of the job. Gearhart asserted that the terms of the agreement were set forth in a letter dated April 23, 1976, which was made an exhibit at trial. Solomon subsequently made only two $5,000.00 payments to Standard. In the meantime, Solomon formed a joint venture with another company to enter the pipeline coating business. The joint venture hired Davis and another Standard *374 employee, and ultimately completed the job. Standard sold its assets at the end of July, 1976, and ceased operations shortly thereafter.
Standard filed a Complaint in assumpsit and trespass on December 22, 1976, alleging that Solomon breached the contract by refusing to make progress payments and by preventing Standard from performing its obligations under the contract. Standard also alleged that Solomon’s breach was “intentional, willful, malicious and done with the intent, purpose and effect of causing harm to the plaintiff.” In this connection, in addition to direct and consequential damages, Standard sought punitive damages.
The trial was bifurcated into liability and damage phases. The jury found that the parties entered into a novation at the April 22, 1976 meeting, and that Solomon breached the novation. After that jury finding was announced, Standard successfully moved to amend its Complaint to conform to the jury’s findings. The jury then awarded Standard $500,-000.00, consisting of both direct and consequential damages, and interest on the direct damages.
No. 901 Pittsburgh, 1983
Appeal of Standard Pipeline Coating Company
Standard first contends on appeal that the lower court committed error in finding that there is no cause of action in tort, arising from Solomon’s alleged conduct of breaching its contract with Standard with the specific intent to drive Standard out of business. We find no Pennsylvania authority that permits a recovery in a tort action on the basis suggested by Standard, where the only alleged tortious act was a breach of contract. Standard concedes that Solomon’s actions did not fall within the parameters of any established tort, but nevertheless, Standard suggests that our Court recognize such a new cause of action in tort. We decline to do so. We believe that existing tort and contract principles afford adequate remedies to address claims such as those asserted by Standard in this case. Because of that conclusion, and because we do not find convincing the *375 arguments offered by Standard in favor of a new tort, we will not create such a new cause of action in this case. 2 We find no error in the lower court’s similar refusal to do so.
Our rejection of the request that we create a new ground for recovery in tort also resolves the second contention of error by Standard. Because there can be no recovery in tort, there can be no punitive damages. It has been held that punitive damages will not be assessed for a mere breach of contractual duties, where no recognized trespass cause of action, pleaded by the plaintiff, arose out of the same transaction. See
Daniel Adams Associates, Inc. v. Rimbach Publishing, Inc.,
With regard to Standard’s final claim of error, we conclude that the trial court acted properly in refusing to mold the verdict to provide pre-judgment interest on the consequential damages. The Restatement (Second) of Contracts is instructive. In Section 354(2) it provides that prejudgment interest “may be allowed as justice requires on the amount that would have been just compensation had it been paid when performance was due.” 3 Comment d to Section 354 recognizes that interest may be added to conse *376 quential damages, but states that because such damages are often difficult to estimate before the trial, the award of interest is to be left to judicial discretion in light of all the circumstances. We find nothing to indicate — nor has Standard argued — that the trial court abused its discretion by refusing to add interest to the consequential damages. Moreover, Standard has not presented any authority suggesting the propriety of such an interest award in Pennsylvania. In such circumstances we conclude that there was no error in the lower court’s ruling denying the prejudgment interest sought by Standard on the consequential damages.
Therefore, we reject the arguments offered by Standard, and affirm the judgment of the lower court.
No. 865 Pittsburgh, 1983
Appeal of Solomon & Teslovich, Inc.
We next turn to the issues raised by Solomon in its appeal. First, Solomon contends that the trial court committed error when it permitted Standard to amend its Complaint to conform to the verdict. The trial judge allowed such an amendment to permit Standard to state a cause of action based upon a breach of an oral novation. Pa.R.C.P. 1033 allows amendments “at any time,” and specifically permits amendments “to conform the pleading to the evidence offered or admitted.” The right to amend should be granted liberally, unless the adverse party is prejudiced.
Arzinger v. Baughman,
Solomon also urges that the amendment permitted by the lower court should not have been permitted because of the bar of a statute of limitations. This defense was not raised during the course of the trial in response to the motion to amend, nor in Solomon’s post-trial motions for new trial or judgment n.o.v. The first time it was mentioned was in Solomon’s brief in support of such post-trial motions. In these circumstances, it must be held that the statute of limitations argument has not been properly preserved for appellate review. See
Turnway Corporation v. Soffer,
We next address the claim by Solomon that Standard failed to produce evidence of the breach of the novation and the resultant direct damages. We cannot agree. Both parties offered significant testimony about the meeting of April 22, 1976, the existence of a novation, and facts relating to the issue of direct damages. The jury gave greater weight to the testimony of Standard’s witnesses. A verdict based on substantial, albeit conflicting evidence, is conclusive on appeal. It is not our role, as an appellate court, to pass upon the credibility of witnesses or to act as the trier of fact; we will not substitute our judgment for
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that of the fact-finding jury.
Burbage v. Boiler Engineering and Supply Co., Inc.,
For similar reasons, we find no merit in the argument that the lower court erred in refusing to direct a verdict in Solomon’s favor on the question of consequential damages. There was substantial evidence presented which indicated that Standard would have survived as an entity but for Solomon’s breach of the novation. In that regard, we note that Mr. Shriver, the President of Standard, testified that he entered into the novation to try to ensure Standard’s continued viability. Standard’s lack of survival was clearly of great significance in the jury’s award of consequential damages. Therefore, the lower court obviously acted correctly in declining Solomon’s request for a directed verdict on the point.
After careful review, we also reject Solomon’s contention that the testimony of Standard’s expert witness, Dr. Merril J. Foote, was grossly speculative, lacked any reasonable factual basis, and failed to establish consequential damages.
4
Dr. Foote testified regarding Standard’s past financial condition, the operation and management of the business and the market for Standard’s services. He also offered projections of future sales, which he then reduced to present value. Further, he discussed his calculation of the value of Standard. Based upon his qualifications and background, we cannot hold that Dr. Foote lacked the requisite expertise to offer opinions for the jury’s consideration concerning these matters. Moreover, we do not find that his testimony could be regarded as highly speculative. It had a clear factual basis and adequately supported the jury’s award of consequential damages. While it may be impossible to predict future business performance with total accuracy in a case such as this, an expert appraisal of probabilities is permissible testimony. The jury has discre
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tion as to the weight such testimony is to be given.
Bialek v. Pittsburgh Brewing Company,
Finally, we review Solomon’s contention that the trial court erred in charging the jury that a lesser degree of certainty was required in proving damages if it would be determined that Solomon willfully breached the novation. The court’s charge in that regard was not inconsistent with the well-established principle that mere uncertainty as to the amount of damages will not bar a recovery where it is clear that damages were the certain result of the defendant’s conduct. See
Pugh v. Holmes,
The order of the lower court is affirmed.
Notes
. Solomon, the general contractor on the job, was in the earthmoving, trucking, and coal business. Another subcontractor, Davis Industries, actually erected the pipeline.
. The new tort theory proposed by Standard is easily differentiated from the established cause of action for intentional interference with the performance of a contract. The latter occurs when one intentionally interferes with the performance of a contract (other than a marriage contract) between another and a third party by inducing or otherwise causing the third party not to perform the contract. Restatement (Second) of Torts, Section 766 [Although this Section has not been formally adopted in our Commonwealth, our courts have cited it with approval. See
Thompson Coal Co. v. Pike Coal Co.,
. For reasons enunciated in further discussions of this issue, which provide independent grounds for denying Standard’s claim for interest on the consequential damages, we do not find it necessary to decide whether Restatement (Second) of Contracts Section 354 should be adopted into the law of our Commonwealth. However, it does provide some guidance which is worthy of consideration in this case.
. Dr. Foote was identified as an economist, business consultant, teacher, researcher and a member of Standard’s Board of Directors.