Allocation of costs upon restriction of the claim in first-instance proceedings; remittal for new regulation of procedural costs, appeal dismissed for the remainder

Facts

The [A. AG] (defendant, appellant) and [B.] (plaintiff, respondent) concluded an employment contract on 25 April 2011. The defendant terminated the employment relationship without notice by registered letter of 23 October 2017. The plaintiff considered the conditions for summary dismissal not met and the dismissal abusive, filed a protective objection and offered his work.

On 25 October 2018 the plaintiff filed an action with the Regional Court Emmental-Oberaargau, initially claiming net CHF 138'273.40 plus interest, compensation under Art. 337c para. 3 CO and the removal of the objection. In the written submissions of January 2020 he restricted the action to net CHF 115'699.20 plus interest, demanded two monthly salaries as compensation and the transfer of a retained BMW 520d into his sole ownership with credit of CHF 2'000.00.

The Regional Court dismissed the action by decision of 19 February 2020, as it allowed set-off against the entire amount claimed. The Court of Appeal of the Canton of Bern, 2nd Civil Chamber, partially upheld the appeal by decision of 16 June 2021 (ZK 20 351). It ordered the defendant to pay Fr. 88'031.-- plus interest at 5 % since 25 October 2017, after finding counterclaims of the defendant in the amount of Fr. 11'864.80 to be set-off eligible. It allocated the procedural costs of both instances two thirds to the defendant and one third to the plaintiff. The summary dismissal was held to be justified for good cause.

The defendant filed a civil law appeal with the Federal Supreme Court. She requested the annulment of the cantonal appellate decision and the dismissal of the action, alternatively remittal. She further requested that the first-instance court costs be split equally and that the first-instance party costs be offset. The respondent requested dismissal of the appeal; the lower court waived a response. By presidential order of 11 October 2021, suspensive effect was granted to the appeal.

Considerations

The contested decision is a final decision (Art. 90 FSCA) of a superior cantonal court (Art. 75 FSCA). The amount in dispute reaches the minimum threshold of Fr. 15'000.-- in employment matters (Art. 74 para. 1 lit. a FSCA), so the civil law appeal is admissible. The complaint must be raised in accordance with Art. 95 and 96 FSCA and be adequately reasoned (Art. 42 para. 2 FSCA). The Federal Supreme Court bases its decision on the facts established by the lower court (Art. 105 para. 1 FSCA) and corrects them only in case of obvious inaccuracy, that is arbitrariness, whereby the defect must be decisive for the outcome (Art. 105 para. 2 and Art. 97 para. 1 FSCA).

As regards the assessment of evidence, the Federal Supreme Court intervenes only in case of arbitrariness. An obviously untenable assessment exists where the meaning and scope of a piece of evidence are obviously misjudged, a decisive piece of evidence is disregarded without objective reason, or untenable conclusions are drawn. Appellatory criticism is insufficient.

On the merits, the appellant complained that the counterclaims had not been sufficiently disputed and should therefore have been deemed admitted. The Federal Supreme Court acknowledges that implicit disputes are possible, whereby the required degree of substantiation of the dispute depends on the degree of substantiation of the allegations (BGE 144 III 519). The appellant failed to show that the lower court applied an incorrect legal view. The Federal Supreme Court is bound by the finding that the claims were disputed and does not reinterpret the cantonal written submissions. The subsidiary complaint of incorrect assessment of evidence (Art. 157 CPC) is not adequately reasoned as an arbitrariness complaint. The remaining complaints concerning Art. 29 para. 2 Cst., Art. 4 CC, Art. 42 CO as well as Art. 55, 58, 221 and 317 CPC mix legal and factual criticism and rely on facts not established; they are inadmissible. The appeal is to be dismissed on this point.

As regards the first-instance procedural costs, the appellant challenged their allocation. The respondent had initially claimed Fr. 138'273.40 before the Regional Court and restricted the action to Fr. 115'699.20 only in the written submissions. A restriction of the claim under Art. 227 para. 3 CPC is equivalent to a partial withdrawal of the action (Art. 65 CPC) and has the effect of res judicata.…