
    2601 INCORPORATED, Plaintiff, v. PLANNED MANAGEMENT CONSTRUCTION CORP., Defendant.
    Civ. A. No. 92-6625.
    United States District Court, E.D. Pennsylvania.
    Dec. 3, 1993.
    Paul M. Hummer, Saul Ewing Remick & Saul, Philadelphia, PA, for plaintiff.
    Jeffrey D. Buss, Smith, Buss & Jacobs, New York City, for defendant.
    Henry J. Costa, Jr., Davis & Costa, Blue Bell, PA for movant.
   MEMORANDUM

ROBERT F. KELLY, District Judge.

This construction contract ease was the subject of a jury trial which began on September 20,1993 and concluded on September 27, 1993, with a verdict in favor of defendant, Planned Management Construction Corporation (“Planned Management”) and against plaintiff, 2601 Incorporated (“2601”). The jury awarded Planned Management $200,000 in damages. Because the jury’s verdict was against the weight of the evidence, I am ordering a new trial.

The ordering of a new trial is a matter committed to the sound discretion of the trial court. Bonjorno v. Kaiser Aluminum and Chemical Corp., 752 F.2d 802, 812 (3d Cir.1984), cert. denied, 477 U.S. 908, 106 S.Ct. 3284, 91 L.Ed.2d 572 (1986). A court may grant a new trial if doing so is required to prevent injustice or correct a verdict which is against the weight of the evidence. See, e.g., Grace v. Mauser-Werke GMBH. 700 F.Supp. 1383, 1388 (E.D.Pa.1988).

I am basing this decision on the evidence which was presented at trial, but just as significantly, on facts which were stipulated as undisputed by both sides prior to the trial:

1. The only breach alleged by Planned Management was that 2601 delayed paying Planned Management sums due as a result of certain “change order” work.

2. The work architect, whom both sides agreed was impartial, had concluded at the time 2601 delayed payment that Planned Management’s work was “non-conforming, defective, or incomplete” and therefore payments on the change orders were not “not yet due and payable.”

3. In any event, 2601 paid Planned Management in excess of $600,000 for the disputed change order work before work was completed.

4. Planned Management admitted that before it stopped work, it received $228,-599.20 from 2601 for work done by contractors, and did not pay this amount to the contractors.

5. Subcontractors presently have filed liens against 2601 totalling $193,944.84.

Therefore, if the jury’s puzzling verdict in this case is allowed to stand, Planned Management, having admitted in court that it retained over $200,000 in payments intended for the subcontractors, would be allowed to collect an additional $200,000 in wholly unproven “damages” against 2601 for an alleged breach which was not established by the weight of the evidence. This would produce a $400,000 windfall for Planned Management. Meanwhile, 2601 has $200,000 in outstanding liens to contend with directly as a result of Planned Management’s undisputed failure to pay the subcontractors. Such a result is against the weight of evidence and would be a manifest injustice.

Therefore I am entering the following Order.

ORDER

AND NOW, this 3rd day of December, 1993, upon consideration of Plaintiffs, 2601 Incorporated, Motion for a New Trial Or, in the Alternative, For Remittitur, Plaintiffs Motion to be Excused from Requirement of Ordering a Trial Transcript, and Defendant’s, Planned Management Construction Corporation, Memorandum of Law in Opposition to Plaintiffs Motion for a New Trial or in the Alternative, for Remittitur, it is ORDERED that:

1. Plaintiffs Motion for a New Trial is GRANTED; and

2. Plaintiffs Motion to be Excused from Requirement of Ordering a Trial Transcript is GRANTED.  