Gianetti v. Teakwood, Ltd.

[Cite as Gianetti v. Teakwood, Ltd., 2016-Ohio-213.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Charles Gianetti, :
Plaintiff-Appellant, :
No. 15AP-413
v. : (C.P.C. No. 14CV-2939)
Teakwood, Ltd. et al., : (REGULAR CALENDAR)
Defendants-Appellees. :
D E C I S I O N
Rendered on January 21, 2016
Charles D. Gianetti, pro se.
The Behal Law Group LLC and Jack D'Aurora, for appellees.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, P.J.
{¶ 1} Plaintiff-appellant, Charles Gianetti, pro se, appeals the March 19, 2015
judgment of the Franklin County Court of Common Pleas following a bench trial, in which
the trial court granted the motion of defendants-appellees, Teakwood, Ltd., 256
Enterprises, Inc., Heritage Resources, Inc., David W. Houze, and Todd Fentress, for
involuntary dismissal under Civ.R. 41(B)(2). For the reasons that follow, we affirm the
judgment of the trial court.
I. Facts and Procedural History
{¶ 2} This matter concerns appellant's limited partnership interest in Discovery
76, a limited partnership which owned several properties in the Columbus area. As set
forth in the Amended and Restated Agreement of Limited Partnership of Discovery 76
("Partnership Agreement"), which was dated May 7, 1975, the investment objective of
Discovery 76 was to own and manage approximately 200 residential-housing rental units.
No. 15AP-413 2
Discovery 76 planned to manage the rental units subject to and in conformity with the
applicable rules and regulations of the United States Department of Housing and Urban
Development ("HUD"). Generally speaking, in return for their investment in the creation
of federally subsidized housing, the investors in Discovery 76, including appellant,
received federal income tax deductions and cash distributions from the partnership.
Appellant testified that he received approximately $200,000 in income tax deductions
during the first five to six years of Discovery 76's existence.
{¶ 3} Beginning in 1996, the record reflects that Discovery 76 sought solutions to
prevent potential negative tax consequences for the limited partners resulting from their
continued investment due to potential changes in HUD regulations and operations. On
July 18, 1996, Discovery 76 general partner Medallion-Discovery, Inc., through its
president, appellee Houze, sent a letter to limited partners advising that impending
changes to the HUD program might have "drastic implications * * * for project investors."
On March 15, 1999, Houze sent a letter to limited partners, including appellant,
recommending that they transfer their ownership interest in Discovery 76 to a charitable
organization for tax purposes. Houze stated that, "without some financial and project
restructuring the project will likely fail, causing immediate gain recognition, or it may
limp along with marginal operations while generating increasingly higher levels of taxable
income." On October 8, 2000, Houze sent another letter to the limited partners, including
appellant, stating that Discovery 76 was "currently exploring the possibility of a
transaction which would preserve all or most of your tax basis well into the future,
deferring your annual ordinary income recognition to a future capital gain."
{¶ 4} Included with both the 1999 and 2000 letters was a consent form that
proposed significant changes to the partnership. The consent form provided in part as
follows: "I hereby authorize and give my consent to the restructuring and/or refinancing
of the mortgage indebtedness of the project and the modification, addition to,
amendment, change and/or substitution of any of the other contracts of this partnership
and the sale or assignment of my limited partnership interest or the assets of the
partnership." Appellant never executed such consent form. In 2003, Discovery 76
transferred its interests in the rental properties in a transaction that resulted in the
No. 15AP-413 3
limited partners, including appellant, receiving an ownership interest in Teakwood. As a
result of this transaction, Discovery 76 was terminated.
{¶ 5} On March 17, 2014, appellant filed a complaint in the trial court.1 In his
complaint, appellant asserted eight claims against appellees: (1) action for discovery; (2)
breach of contract; (3) accounting; (4) breach of fiduciary duty; (5) fraud; (6) disregard of
business entity; (7) negligent misrepresentation; and (8) successor liability.
{¶ 6} On April 16, 2014, appellees filed a motion to dismiss appellant's complaint
and a motion to strike. On June 2, 2014, appellant filed a memorandum contra appellees'
motion to dismiss, voluntarily withdrawing his claims for discovery and negligent
misrepresentation. On July 25, 2014, the trial court filed a journal entry granting in part
appellees' motion to dismiss as to appellant's claim for fraud only, and denying appellees'
motion to strike.
{¶ 7} On October 27, 2014, appellees filed a motion for partial summary
judgment on appellant's claims for breach of fiduciary duty and disregard of business
entity. On November 10, 2014, appellant filed a memorandum contra appellees' motion
for partial summary judgment, voluntarily withdrawing his claim for breach of fiduciary
duty but asserting that appellees failed to meet their burden of demonstrating the absence
of genuine issues of material fact as to appellant's claim for disregard of business entity,
i.e., piercing the corporate veil. On December 18, 2014, appellees filed a motion to extend
the cutoff date for dispositive motions. On January 6, 2015, the trial court filed a journal
entry granting partial summary judgment on appellant's claim for disregard of business
entity, denying appellees' motion to extend the dispositive motion deadline, and setting a
date for bench trial on appellant's remaining claims.
{¶ 8} On March 17, 2015, the trial court conducted a bench trial, granting
appellees' motion for involuntary dismissal pursuant to Civ.R. 41(B)(2) at the conclusion
of appellant's case. On March 19, 2015, the trial court filed a decision and final judgment
following bench trial. On April 10, 2015, appellees filed a motion for attorney fees
pursuant to R.C. 2323.51.2
1 We note that appellant indicated that this action was originally filed in December 2011 and was
voluntarily dismissed in March 2013. (Appellant's Memorandum Contra, June 2, 2014, 4.)
2 We note that this motion for attorney fees remains pending before the trial court.
No. 15AP-413 4
II. Assignments of Error
{¶ 9} Appellant appeals assigning the following ten errors for our review:
I. THE TRIAL COURT ERRED IN GRANTING
DEFENDANTS-APPELLEES TEAKWOOD, LTD., ET AL.'S
MOTION FOR INVOLUNTARY DISMISSAL BECAUSE
PLAINTIFF-APPELLANT PRESENTED A PRIMA FACIE
CASE OF BREACH OF CONTRACT BY DEFENDANTS-
APPELLEES, WITH THE NECESSARY QUANTUM OF
PROOF.
II. THE TRIAL COURT ERRED IN RULING THAT
CONSENTS OF OTHER PARTNERS ARE NOT RELEVANT
TO BREACH OF CONTRACT AS TO PLAINTIFF-
APPELLANT.
III. THE TRIAL COURT ERRED IN RULING THAT ONLY
PLAINTIFF-APPELLANT AND NOT ALL PARTNERS
WOULD BE HARMED BY DEFENDANTS-APPELLEES'
ACTIONS.
IV. THE TRIAL COURT ERRED IN NOT ALLOWING
DEFENDANT-APPELLEE HOUZE TO ENUMERATE THE
CONSENT FORMS IN HIS TESTIMONY RELATED TO
DEFENDANTS-APPELLEES' EXHIBIT E.
V. THE TRIAL COURT ERRED IN HOLDING THAT
SUFFICIENT CONSENT FORMS WERE OBTAINED TO
SATISFY CONTRACTUAL REQUIREMENTS.
VI. THE TRIAL COUT ERRED IN FINDING THAT
DEFENDANTS-APPELLEES' REFERENCE IN THE
CONSENT AND AUTHORIZATION TO SECTION 21b OF
THE AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF DISCOVERY 76 WAS
HARMLESS ERROR.
VII. THE TRIAL COURT ERRED IN NOT ALLOWING
AMENDMENT OF THE COMPLAINT.
VIII. THE TRIAL COURT ERRED IN DISMISSING WITH
PREJUDICE ALL CLAIMS AS TO DEFENDANTS-
APPELLEES HOUZE AND FENTRESS.
IX. THE TRIAL COURT ERRED IN NOT ORDERING AN
ACCOUNTING OF ALL TRANSACTIONS IN 2003.
No. 15AP-413 5
X. THE TRIAL COURT ERRED IN NOT FINDING THAT
DEFENDANTS-APPELLEES HAD VIOLATED THE
COVENANT OF GOOD FAITH AND FAIR DEALING.
Because several of appellant's assignments of error are interrelated, we address them
together as applicable.
A. First Assignment of Error
{¶ 10} In his first assignment of error, appellant asserts that the trial court erred by
dismissing, pursuant to Civ.R. 41(B)(2), his breach of contract claim.
{¶ 11} Civ.R. 41(B)(2) governs dismissal in a bench trial and provides as follows:
After the plaintiff, in an action tried by the court without a
jury, has completed the presentation of the plaintiff's
evidence, the defendant, without waiving the right to offer
evidence in the event the motion is not granted, may move for
a dismissal on the ground that upon the facts and the law the
plaintiff has shown no right to relief. The court as trier of the
facts may then determine them and render judgment against
the plaintiff or may decline to render any judgment until the
close of all the evidence. If the court renders judgment on the
merits against the plaintiff, the court shall make findings as
provided in Civ.R. 52 if requested to do so by any party.
"Civ.R. 41(B)(2) allows a trial court to determine the facts by weighing the evidence and
resolving any conflicts therein." Stanley v. Ohio State Univ. Med. Ctr., 10th Dist. No.
12AP-999, 2013-Ohio-5140, ¶ 104, citing Whitestone Co. v. Stittsworth, 10th Dist. No.
06AP-371, 2007-Ohio-233, ¶ 13. "If, after evaluating the evidence, a trial court finds that
the plaintiff has failed to meet her burden of proof, then the trial court may enter
judgment in the defendant's favor." Jarupan v. Hanna, 173 Ohio App.3d 284, 2007-Ohio-
5081, ¶ 9 (10th Dist.), citing Daugherty v. Dune, 10th Dist. No. 98AP-1580 (Dec. 30,
1999). "Therefore, even if the plaintiff has presented evidence on each element of her
claims, a trial court may still order a dismissal if it finds that the plaintiff's evidence is not
persuasive or credible enough to satisfy her burden of proof." Jarupan at ¶ 9, citing
Tillman v. Watson, 2d Dist. No. 06-CA-10, 2007-Ohio-2429, ¶ 11. "An appellate court will
not overturn a Civ.R. 41(B)(2) involuntary dismissal unless it is contrary to law or against
the manifest weight of the evidence." Stanley at ¶ 104, citing Whitestone Co. at ¶ 13.
{¶ 12} "To recover upon a breach of contract claim, a plaintiff must prove the
existence of a contract, performance by the plaintiff, breach by the defendant, and damage
No. 15AP-413 6
or loss to the plaintiff." (Citations omitted.) Jarupan at ¶ 18. "In order to prove a breach
by the defendant, a plaintiff must show that the defendant 'did not perform one or more
of the terms of a contract.' " Jarupan at ¶ 18, quoting Little Eagle Props. v. Ryan, 10th
Dist. No. 03AP-923, 2004-Ohio-3830, ¶ 15.
{¶ 13} In his complaint, appellant asserted that appellees' "actions in failing to
distribute cash available from a real estate transaction, and instead distributing
ownership interests in a functionally worthless business entity (Teakwood, Ltd.)
constitute a breach of contract." (Complaint, ¶ 25.) Further, appellant claimed that
"proper application of the terms of the limited partnership operating agreement in this
instance, viewed in light of the fiduciary duty the general partners owed the limited
partners and the duty of good faith and fair dealing imposed in every Ohio contract,
required a valid pursuit of an arms-length sale of the real estate owned by Discovery 76."
(Complaint, ¶ 25.) The trial court found that appellant "proved no obligation owed him
under his Limited Partnership Agreement was breached in 2003." (Mar. 19, 2015
Decision ¶ 26.)
{¶ 14} At trial, appellant was asked regarding whether the Discovery 76
partnership agreement required a sale of properties for cash or that the interest in a
successor entity such as Teakwood had to have a cash value:
Q: This is the document that determines the relationship
between the investors and the general partner; am I correct?
A: Among other things. Did you want me to look at some
specific items on that?
Q: No, I just want you to look at that document. Is that the
governing document for the partnership?
A: Yes.
Q: Would you please find for the court the paragraph that says
that the partnership was obligated to sell the properties on a
cash basis?
A: There isn't any such paragraph.
Q: Would you find for us the paragraph that says that if the
partnership gave you an interest in another entity such as
No. 15AP-413 7
Teakwood, that interest had to have a cash value on the open
market? Would you find that paragraph?
A: I don't believe -- I don't believe a provision like that exists
in the agreement, either.
(Tr. 29.)
{¶ 15} Thus, appellant's own testimony reflects that the partnership agreement did
not contain the terms he alleged that appellees breached. Appellant does not contend
otherwise upon appeal. Therefore, based upon appellant's own testimony, our review of
the partnership agreement, and the lack of any additional evidence to support his claim,
we find that appellant failed to demonstrate that appellees did not perform one or more of
the terms of the contract. Jarupan at ¶ 18.
{¶ 16} Although the conclusion that appellant failed to establish a breach of a term
of the contract by appellees would ordinarily end the analysis, the trial court also
considered whether appellant established damages. We address this now as it is relevant
to our resolution of the seventh assignment of error. The trial court found that "[j]ust as
[appellant's] proof failed to show a threshold case of liability on any theory against
Discovery 76, Teakwood or any other defendant, so too he failed to show any credible
evidence of damages proximately caused by the events of 2003." (Mar. 19, 2015 Decision,
¶ 28.) At trial, appellant presented the testimony of Ben L. Corcoran, a real estate
appraiser whom appellant retained in 2013 to appraise three properties formerly owned
by Discovery 76. Corcoran stated that he appraised the properties "retrospectively as of
April 1, 2003" by examining historical market rents and market sale data for the area and
then comparing such values to the value listed by the Franklin County Auditor. (Tr. 34.)
However, Corcoran also testified that, in order to determine the value of the properties in
2003, he was forced to make "extraordinary assumptions based on what would be typical
in the marketplace." (Tr. 41.) Further, Corcoran did not observe any interiors of the
properties or consider any regulatory restrictions that applied to them.
{¶ 17} Based upon the three "retrospective" appraisals conducted by Corcoran,
appellant attempted to demonstrate the total value of the properties owned by Discovery
76 in 2003 by adding approximately 42 percent to the value of the properties as listed by
No. 15AP-413 8
the Franklin County Auditor. The trial court summarized appellant's methodology for
determining the values of the Discovery 76 properties as follows:
Having no appraisals of the dozens of other properties owned
by Discovery 76, [appellant] sought instead to value the
balance by interpolating figures from those three actual
appraisals and from property tax values on the Auditor's
website. ([Appellant] acknowledged that a few of the
Discovery 76 properties had been destroyed since 2003, but
nevertheless tried to value them as well.) As to most
properties, [appellant] asked the court to accept that an
approximately 42% (on average) difference existed between
fair market value in 2003 and the Auditor's tax values shown
for 2003. He based this on the three actual appraisals
(backdated to 2003) for which value was then compared to
publicly available Auditor's tax values for those same three
properties. Since the average difference found was that fair
market value was 42% higher than tax value, he used that
percentage to gross-up the tax values for all Discovery 76
properties. This simplistic approach (that Auditor's tax
valuations for all properties were 42% too low in 2003) then
became the basis for contending that Discovery 76 acted
improperly in the Teakwood reorganization in 2003, and to
contend that it caused him financial damages allegedly
because the partnership's collection of properties in 2003 was
worth more than Discovery 76 thought it was.
(Decision ¶ 22.) When asked regarding appellant's method of calculating the values of all
properties owned by Discovery 76, Corcoran stated that it was not reasonable based on
the limited survey he completed.
{¶ 18} The trial court found that the "three 2013 appraisals with values back-dated
to 2003, based upon 'extraordinary assumptions' and the other uncertainties noted, may
not be relied upon." (Decision ¶ 21.) Further, the trial court found that appellant's
methodology was "speculative and not credible," and, as a result, that appellant failed to
meet his burden of proof to establish damages. Upon review, as the trial court acted
within its discretion by finding appellant's evidence with regard to damages was not
credible, we cannot find that the trial court erred in determining that appellant failed to
meet his burden of proof to establish damages from the alleged breach of contract.
{¶ 19} Having conducted a thorough review of the transcript and the evidentiary
materials in the record, we cannot agree that the trial court erred in finding that appellant
No. 15AP-413 9
failed to meet his burden of proof on the elements for his breach of contract claim,
including both breach by appellees and resultant damages. Therefore, appellant's claim
for breach of contract was properly dismissed under Civ.R. 41(B)(2). Jarupan ¶ 9.
Accordingly, we overrule appellant's first assignment of error.
B. Seventh Assignment of Error
{¶ 20} In his seventh assignment of error, appellant asserts that the trial court
erred by failing to permit him to amend his action for breach of contract at trial to include
a claim relating to the number of consents obtained by appellees.
{¶ 21} "We review the trial court's denial of leave to amend a complaint for abuse
of discretion." Morgan v. Ohio State Univ. College of Dentistry, 10th Dist. No. 13AP-287,
2014-Ohio-1846, ¶ 50, citing Wilmington Steel Prods., Inc. v. Cleveland Elec. Illum. Co.,
60 Ohio St.3d 120 (1991).
{¶ 22} Appellant correctly cites Civ.R. 15(A) for the proposition that leave of court
to amend a complaint shall be freely given when justice requires. However, we do not find
that justice required the amendment of appellant's complaint. In his complaint, appellant
stated that he had been "damaged because he did not possess any type of 'veto power'
under the limited partnership agreement to cancel the transaction at issue and Defendant
Houze was able to persuade a majority of investors holding partnership interests to agree
to the transaction at issue." (Complaint ¶ 36.) Thus, appellant never asserted that his
claim included an allegation regarding the validity of consents obtained by appellees but,
rather, complained that he was damaged because he did not possess a "veto power" over
the transaction at issue.
{¶ 23} Appellant had a full and fair opportunity to introduce evidence to support
his claim that appellees breached the partnership agreement by failing to sell the
properties and distribute cash proceeds from such sales to the limited partners. Further,
even if appellant was able to amend his complaint at trial to include a claim for breach
based on the consent forms, appellant failed to meet his burden of proof on damages
resulting from any breach. Thus, as appellant failed to establish damages, appellant
cannot show prejudice by the decision of the trial court to refuse amendment to the
complaint. Daugherty, 10th Dist. No. 98AP-1580. See generally Alternatives Unlimited-
Special, Inc. v. Ohio Dept. of Edn., 10th Dist. No. 12AP-647, 2013-Ohio-3890, ¶ 38 ("A
No. 15AP-413 10
reviewing court will not disturb a judgment unless the error contained within is materially
prejudicial to the complaining party. When avoidance of the error would not have
changed the outcome of the proceedings, then the error does not materially prejudice the
complaining party."). Therefore, we cannot conclude that the trial court abused its
discretion by refusing to allow appellant to amend his complaint at trial. See Morgan at ¶
51.
{¶ 24} Accordingly, we overrule appellant's seventh assignment of error.
C. Second, Third, Fourth, Fifth, and Sixth Assignments of Error
{¶ 25} In his second, third, fourth, fifth, and sixth assignments of error, appellant
argues that the trial court committed error in several respects related to the consent forms
obtained by Discovery 76. In his second assignment of error, appellant asserts that the
trial court erred by ruling that the consents of other partners were "not relevant to breach
of contract as to plaintiff-appellant." In his third assignment of error, appellant asserts
that the trial court erred by ruling that only appellant, and not all partners, would be
harmed by appellees' actions. In his fourth assignment of error, appellant asserts that the
trial court erred by refusing appellant's request to have Houze enumerate the consent
forms contained in appellees' Exhibit E. In his fifth assignment of error, appellant asserts
that the trial court erred in finding that sufficient consent forms were obtained to satisfy
contractual requirements. In his sixth assignment of error, appellant asserts that the trial
court erred in finding that the reference in the consent forms to Section 21(b) of the
partnership agreement was harmless error.
{¶ 26} We note that appellant does not argue these assignments of error separately
but, rather, argues them in the context of arguing that appellees breached the contract
because they did not have sufficient or valid consent forms. Such claim was not included
in the original complaint but, rather, was the subject of appellant's motion to amend the
complaint at trial.
{¶ 27} As we have determined in our resolution of appellant's seventh assignment
of error that the trial court did not err by refusing to allow appellant to amend his
complaint at trial to include a claim related to the validity of consent forms obtained by
Discovery 76, we find that appellant's second, third, fourth, fifth, and sixth assignments of
error are moot.
No. 15AP-413 11
D. Eighth Assignment of Error
{¶ 28} In his eighth assignment of error, appellant asserts that the trial court erred
in dismissing his claims against Houze and Fentress. In its March 19, 2015 decision, the
trial court found that appellant "produced no evidence suggesting any possible legal
liability for defendants David W. Houze and Todd Fentress. It appears their only
involvement in any of the events discussed in this law suit was as employees of a
corporate general partner of Discovery 76 or Teakwood. Accordingly, since they breached
no legal obligation owed to plaintiff all claims against both men are dismissed with
prejudice." (Decision ¶ 14.)
{¶ 29} Appellant offers no support, either legal or factual, for his assertion that the
trial court erred by dismissing claims against Houze and Fentress. App.R. 12(A)(2)
provides as follows: "The court may disregard an assignment of error presented for review
if the party raising it fails to identify in the record the error on which the assignment of
error is based or fails to argue the assignment separately in the brief, as required under
App.R. 16(A)."
{¶ 30} "It is the duty of the appellant, not the appellate court, to construct the legal
arguments necessary to support the appellant's assignments of error." Bond v. Village of
Canal Winchester, 10th Dist. No. 07AP-556, 2008-Ohio-945, ¶ 16, citing Whitehall v.
Ruckman, 10th Dist. No. 07AP-445, 2007-Ohio-6780, ¶ 20. " 'It is not the duty of [an
appellate] court to search the record for evidence to support an appellant's argument as to
alleged error.' " Ruckman at ¶ 20, quoting State ex rel. Petro v. Gold, 166 Ohio App.3d
371, 2006-Ohio-943, ¶ 94 (10th Dist.). " ' "If an argument exists that can support [an]
assignment of error, it is not [an appellate] court's duty to root it out." ' " Ruckman at
¶ 20, quoting Petro at ¶ 94, quoting Cardone v. Cardone, 9th Dist. No. 18349 (May 6,
1998). Further, we note the principle that "[p]ro se civil litigants are bound by the same
rules and procedures as those litigants who retain counsel. They are not to be accorded
greater rights and must accept the results of their own mistakes and errors." Ruckman at
¶ 21 (citations omitted).
{¶ 31} As appellant provides no support for his assertion that the trial court erred
by dismissing claims against Houze and Fentress, we decline to consider appellant's
assignment of error.
No. 15AP-413 12
{¶ 32} Accordingly, we overrule appellant's eighth assignment of error.
E. Ninth Assignment of Error
{¶ 33} In his ninth assignment of error, appellant asserts that the trial court erred
by failing to order an accounting of all transactions in 2003. We find that the trial court
did not err by granting an involuntary dismissal related to appellant's claim for an
accounting. Having reviewed the transcript, we find that appellant never demonstrated
that he was entitled to an accounting. Appellant points to no evidence in the record to the
contrary. See Ruckman at ¶ 20. Accordingly, the trial court did not err by dismissing such
claim under Civ.R. 41(B)(2). Stanley at ¶ 104; Jarupan at ¶ 9.
{¶ 34} Accordingly, we overrule appellant's ninth assignment of error.
F. Tenth Assignment of Error
{¶ 35} In his tenth assignment of error, appellant asserts that the trial court erred
by failing to find that appellees violated a duty of good faith and fair dealing. "[A] claim
for breach of contract subsumes the accompanying claim for breach of the duty of good
faith and fair dealing." Krukrubo v. Fifth Third Bank, 10th Dist. No. 07AP-270, 2007-
Ohio-7007, ¶ 19. On the facts of this case, because appellant failed to establish a breach of
contract, he necessarily also failed to establish a breach of the duty of good faith and fair
dealing. Id. ("Because appellant's complaint fails to state a claim for breach of contract, it
also fails to state a claim for breach of the duty of good faith and fair dealing."); Interstate
Gas Supply, Inc. v. Calex Corp., 10th Dist. No. 04AP-980, 2006-Ohio-638, ¶ 98 (stating
that "an allegation of a breach of the implied covenant of good faith cannot stand alone as
a separate cause of action from a breach of contract claim").
{¶ 36} Accordingly, we overrule appellant's tenth assignment of error.
III. Disposition
{¶ 37} Having overruled appellant's first, seventh, eighth, ninth, and tenth
assignments of error and rendered moot appellant's second, third, fourth, fifth, and sixth
assignments of error, we affirm the judgment of the Franklin County Court of Common
Pleas.
Judgment affirmed.
KLATT and BRUNNER, JJ., concur.
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