author: KURTZ, J.,

text:
    Greyhound Lines Inc. v. TransAm Trucking Inc.
    C.P. of Huntingdon County,
    no. 98-1627.

      Paul C. Troy, for plaintiff.

      Jeffrey B. Rettig, for defendants.

      January 11, 2000
   KURTZ, J.,

— Before this court is a motion filed by Greyhound Lines Inc. to coordinate and consolidate for trial the three cases set forth above. Rules 213 and 213.1, Pa.R.C.P. Procedurally, and in accord with the protocol of Rule 213.1, we set Greyhound’s motion down for hearing on December 9,1999. On that date we heard argument, having received in advance, briefs addressing the question of whether or not this court should exercise its discretion and enter an order coordinating these actions in this or another county. No evidence was proffered, and we are therefore obliged to make a decision without the benefit of any factual record. Nonetheless, after considering the written and oral arguments, we are inclined to deny the motion.

A. BACKGROUND

These actions arise from the collision between a Greyhound bus and a tractor-trailer owned by TransAm Trucking Inc. that occurred June 20,1998, on the Pennsylvania Turnpike, Interstate 78, in Dublin Township, Huntingdon County, Pennsylvania. Tragically, six persons (including Greyhound’s driver) were killed and a number of Greyhound’s passengers were injured. There is no debate that Huntingdon County was the venue where the first action was filed for the recovery of damages allegedly sustained as a result of the accident. Plaintiff in that action is Greyhound.

A brief factual summary drawn exclusively from the pleadings filed in Huntingdon County civil action 98-1627 is appropriate.

Greyhound alleges in its complaint that its passenger bus collided with a tractor-trailer owned by TransAm and operated by the individual defendants. Greyhound also asserts that TransAm and its drivers were negligent since, inter alia, the tractor-trailer was stopped on the shoulder of the roadway without the employment of flares or other reflective devices.

TransAm has responded, and in new matter asserted, that its tractor-trailer was lawfully parked in a designated “emergency parking” area with its lights on and that Greyhound’s bus left the traveled portion of the highway, traveled across the north berm of westbound Interstate 78, and entered the “emergency parking” area where it collided into the rear of the TransAm tractor-trailer.

Greyhound, in its Huntingdon County action, seeks compensation in excess of $50,000 for the damage to its bus; TransAm, in its counterclaim, asks the same for the damage sustained to its tractor-trailer.

B. DISCUSSION

Rule 213.1 provides guidance for the decision whether or not to order coordination. It provides:

“Rule 213.1 Coordination of Actions in Different Counties
“(c) In determining whether to order coordination and which location is appropriate for the coordinated proceedings, the court shall consider, among other matters:
“(1) whether the common question of fact or law is predominating and significant to the litigation;
“(2) the convenience of the parties, witnesses and counsel;
“(3) whether coordination will result in unreasonable delay or expense to a party or otherwise prejudice a party in an action which would be subject to coordination;
“(4) the efficient utilization of judicial facilities and personnel and the just and efficient conduct of the actions;
“(5) the disadvantages of duplicative and inconsistent rulings, orders or judgments;
“(6) the likelihood of settlement of the actions without further litigation should coordination be denied.”

We begin our analysis with a caveat: a plaintiff’s choice of forum should be afforded great weight and rarely disturbed. See Cheeseman v. Lethal Exterminator Inc., 549 Pa. 200, 701 A.2d 156 (1997). Courts should therefore, in our view, proceed cautiously before deciding to embrace a rule, the application of which will defeat the presumptive right of a litigant to select the court in which he or she elects to assert a claim.

Next,'we do not believe Rule 213.1 was intended to confer advantage in civil litigation. In this regard we sense that this motion derives more from a desire by Greyhound to have a rural jury hear the cases arising from this tragic accident than a concern about multiple litigation (three cases). The sharp factual disparity apparent in the pleadings and the failure of counsel in Philadelphia and Delaware counties to conjure up a theory of liability sufficient for them to join TransAm as a defendant have contributed to our perception that this motion is a strategic ploy. In any event, we have considered the Rule 213.1(c) factors and concluded that the first three dictate denial of the motion, and that the fourth is probably not an appropriate circumstance for inclusion in our analysis. See Cheeseman v. Lethal Exterminator Inc., id. As for five and six, we have no opinion.

Moving from the general to the particular, we think it clear that while the factual predicate for all the cases is the same, the legal issues and the parties are substantially different. In the Huntingdon County case, the issues for the fact-finder in the competing claims for the recovery of property damage will be the negligence of Greyhound and TransAm. In the Philadelphia and Delaware County cases, the principal issue for decision will be the amount of damages. In short, we would not be inclined to consolidate these cases since the parties are different, the damages sought are different, and there are different theories (negligence, contributory negligence) at issue. While we have strong admiration for the work done by juries in this jurisdiction, we believe that the competing issues and parties would strain even their ability to separate the wheat from the chaff.

Next, from everything we know and were told at argument, it seems beyond peradventure that the convenience of the parties, witnesses and counsel would be best served with trial in eastern Pennsylvania. The only witness of whom we are aware that resides in this county is the coroner, Daniel Quarry, and his testimony, if indeed it’s needed given the fact that he is not a medical doctor, would be short and easily preserved by deposition.

Similarly, we believe the coordination and consolidation of these cases here would substantially increase the expense of the litigation since it is a four-hour drive from Philadelphia to Huntingdon; and, it would in the Delaware County case delay disposition since the matter there is already scheduled for hearing by a panel of arbitrators.

Finally, while we have no basis to express an opinion as to whether the likelihood of settlement would be enhanced by coordination, we do acknowledge what we were told by movant’s counsel at argument, which is that a number of claims arising from the accident have already been settled without coordination. A fair inference therefore is that settlement of claims is not related to the success or failure of this motion.

For these reasons, we will enter an order denying the motion.

ORDER

And now, January 11,2000, it is the order of this court that the motion of Greyhound Lines Inc. to coordinate and consolidate is denied.


source: Caselaw Access Project

author: FIELD, J.,

license: Public Domain

text:
    McCarthy v. SEPTA

      Robert St. L. Goggin III, for plaintiff.

      James F. Kilcur, for defendant.
    April 14, 2000
   FIELD, J.,

— Plaintiff, Jonann McCarthy, appeals from this court’s order of January 28, 2000, denying her post-trial motion. For the reasons which follow, the post-trial motion was properly denied, and the judgment entered in favor of the defendant, Southeastern Pennsylvania Transportation Authority, should be affirmed.

This suit arises out of injuries sustained by plaintiff on June 19, 1996, while she was working as a foreman for SEPTA. She and her work crew were to unload railroad ties at the work site. Normally such a task would be performed with more workers and different equipment than was available on site at that time. Rather than wait for more workers and equipment, plaintiff decided to perform the work manually. While moving the lumber, a piece of timber swung back at the plaintiff, causing injury to her back. After six days of trial, the jury returned a verdict in favor of SEPTA, finding that SEPTA was not negligent.

Prior to trial, defendant had filed a motion in limine to preclude the admission of statements of three SEPTA employees which were obtained ex parte by plaintiff’s counsel, without prior notice to SEPTA’s counsel. On May 17, 1999, the motion was granted, and the statements were precluded, and Mr. Keller, plaintiff’s lead counsel, was instructed that any further ex parte contacts were prohibited. The following day it was revealed that, despite the instructions of the previous day, the three witnesses were waiting in Mr. Keller’s office, and had been provided with lunch as well. Consequently, Mr. Keller was disqualified as counsel. However, in the interest of allowing the matter to proceed, the court allowed Mr. Keller’s associate, Mr. Goggin, to proceed to trial, as he clearly had familiarity with the case and would be able to try this matter ably.

Plaintiff raised several grounds for relief in her post-trial motion. The majority pertain to the disqualification of Mr. Keller. First, whether what he did was improper; and second, whether the court could properly impose such sanctions. The:remainder of plaintiff’s arguments concern jury instructions. These will be discussed in turn.

• The basis of-defendant’s motion in limine was Rule 4.2 of the Rules of Professional Conduct, which provides:

“Rule 4.2 Communication with person represented by counsel
“In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.”

The official comment explains that in the case of an organization, this rule prohibits communications by a lawyer for one party with persons having managerial responsibility on behalf of the organization, and “with any other person whose act or omission ... may be imputed to the organization ... or whose statement may constitute an admission on the part of the organization.” (emphasis added) When read in conjunction with Rule 803(25) of the Pennsylvania Rules of Evidence, the contact was clearly improper. Rule 803(25) provides that a statement may be admissible as an admission by a party-opponent when, inter aha, it is a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment. Pa.R.E. 803(25)(D). Hence, this court rejects the plaintiff’s argument that Rule 4.2 does not apply.

Plaintiff’s next argument is that even if 4.2 does apply, it is preempted by section 60 of the Federal Employer’s Liability Act, 45 U.S.C. §51 et seq. This section states that any rule or regulation which prohibits the employees of a common carrier from voluntarily giving information shall be void. However, contrary to plaintiff’s interpretation, Rule 4.2 does not prohibit her attorneys from obtaining statements from other SEPTA employees, it merely prescribes the proper procedures for obtaining such information. Hence, 45 U.S.C. §60 does not preempt Rule 4.2 of the Pennsylvania Rules of Professional Conduct. Belote v. Maritrans Operating Partners L.P., 1998 A.M.C. 1781, 1998 WL 136523 (E.D. Pa. 1998).

Having determined that counsel’s actions were improper, we turn to the issue of sanctions. It is well established that a trial court has the power to regulate the conduct of attorneys practicing before it. American Dredging Co. v. City of Philadelphia, 480 Pa. 177, 183, 389 A.2d 568, 571 (1978). Where a breach of ethics occurs, the court may grant a motion to disqualify and remove the offending attorney. Id., 480 Pa. at 184, 389 A.2d at 572. In deciding whether to disqualify counsel, a court must balance a client’s right to choose with the opposing party’s right to prepare and try a case without prejudice. Belote, supra. A client’s right to choice of counsel in a civil case is not absolute. Papalia v. Montour Auto Service Co., 452 Pa. Super. 395, 682 A.2d 343 (1996).

At oral argument on the post-trial motion, Mr. Goggin advanced the argument that if Mr. Keller was properly disqualified, then his entire firm, including Mr. Goggin, should have also been disqualified, and that a mistrial would then have been appropriate. The general rule governing imputed disqualification is set forth in Rule 1.10 of the Pennsylvania Rules of Professional Conduct, which prohibits all the lawyers of a firm from representing a client whom any one of the lawyers would be prohibited from representing under Rules 1.7,1.8(c), 1.9 or 2.2. Rule 1.10 refers to situations where a lawyer is disqualified due to a conflict of interest. By its terms, Rule 1.10 does not apply to a disqualification imposed as a sanction for a particular lawyer’s behavior.

Here, it was Mr. Keller’s personal actions, and his continued actions contrary to the court’s stated position, that warranted his removal. Mr. Goggin, despite his protestations, was not unfamiliar with the case. He had been acting as co-counsel and knew the case well. He tried the case with expertise and has been unable to cite any specific failure on his part which could have prejudiced the plaintiff. Furthermore, the plaintiff herself did not object at trial to proceeding with Mr. Goggin in Mr. Keller’s stead. As noted above, a party in a civil action does not have an absolute right to counsel of choice. Where, as here, there is no evidence of malpractice on the part of her attorney, plaintiff’s right to counsel was not infringed. Papalia, 452 Pa. Super. at 401, 882 A.2d at 346.

Finally, plaintiff asserts that the court erred in its instructions to the jury and that she is therefore entitled to a new trial. This argument is without merit. The standard of review for jury instructions is whether the trial court committed clear abuse of discretion or error of law controlling the outcome of the case. Stewart v. Motts, 539 Pa. 596, 654 A.2d 535 (1995). A new trial is not warranted on the ground of inadequacy of the charge unless there is a prejudicial omission of something basic or fundamental. Id.; Boutte v. Seitchik, 719 A.2d 319 (Pa. Super. 1998). In assessing the adequacy of a jury charge, an appellate court must review the trial court’s jury instructions in their entirety. Wilson v. Anderson, 420 Pa. 169, 173, 616 A.2d 34, 36 (1992). The charge will be found adequate unless the issues are not made clear to the jury, or the judge’s instructions palpably misled the jury, or there is an omission in the charge which amounts to fundamental error. Stewart, supra.

The instruction at issue was the proper standard for imposing liability upon SEPTA upon a finding of negligence. While ordinarily a party’s negligence must be found to have been a “substantial factor” in causing plaintiff’s harm, in a case under FELA, liability is imposed on a railroad for injury resulting from any level of negligence. 45 U.S.C. §51. In its instructions to the jury, the court referred both to “factor” and “substantial factor” in describing plaintiff’s burden of proof. However, later in the charge, the correct FELA instruction was given, and the jury was told that the plaintiff could recover if “SEPTA’s negligence played any part, even the slightest,” in bringing about plaintiff’s injuries. N.T. 5/ 24/99 at 126. Additionally, after the charge, plaintiff’s counsel pointed out the discrepancy and requested that the jury questionnaire be amended to reflect the correct standard. N.T. 5/24/99 at 142-45. The request was granted. The verdict sheet read as follows:

“Question 1: Was SEPTA negligent?
“(If your answer to question 1 is ‘yes,’ proceed to question 2. If your answer to question 1 is ‘no,’ return to the courtroom.)
“Question 2: Was SEPTA’s negligence in whole or in part a factor in causing plaintiff’s injuries?”

When viewing the charge as a whole, taking into consideration the entire charge as well as the interrogatories submitted to the jury, it is clear that the jury was instructed properly as to the applicable standard as to causation.

Assuming arguendo that an error had occurred, it would have been harmless because the jury never reached the causation issue. In response to the first question, the jury found that SEPTA had not been negligent. Hence, their inquiry ceased at that point.

For all of the foregoing reasons, the plaintiff’s post-trial motion was properly denied. Judgment as entered on February 3, 2000 in favor of defendant, SEPTA, should be affirmed.


author: MINORA, J„

text:
    Hall v. Seeley

      C.P. of Lackawanna County,
    no. 98-CV-5121.

      Robert A. Mazzoni, for plaintiff.

      Matthew R Barrett, for defendant.
    February 1, 2000
   MINORA, J„

— This matter presently before the court concerns the disposition of the defendant’s motion for summary judgment. At issue is whether the plaintiff’s injuries sustained in an automobile accident amount to a “serious injury” and therefore allows for the recovery of noneconomic damages under the “limited tort” provision of his insurance policy. This issue was argued on December 2, 1999 and both parties have submitted their respective briefs. Accordingly, this matter is ripe for disposition.

FACTUAL BACKGROUND

On August 16, 1997, Timothy Hall was driving on South Main Street in the Borough of Archbald when his vehicle was allegedly struck by Manuel Seeley who allegedly failed to stop at a stop sign. At the time of the accident, the plaintiff was covered by an automobile insurance policy issued by Nationwide Insurance in which the “limited tort” option on the policy was elected.

Following the accident, the plaintiff was taken to the Mid-Valley Hospital where he was treated for his injuries and later released with a neck brace. Following the accident, the plaintiff was treated by his family physician who in turn referred him to an orthopedic specialist. This specialist continued to treat the plaintiff on numerous occasions for symptoms of upper back and neck pain. The plaintiff has also been treated by a chiropractor and was evaluated by a neurosurgeon, who has concurred with the orthopedic specialist in that the plaintiff suffers from chronic cervical strain.

The plaintiff was deposed on February 24, 1999. At the deposition, the plaintiff testified that as a result of the accident, he has been suffering various long-term problems and limitations on his lifestyle. Most notably, the plaintiff claims to suffer neck pain associated with sleeping, headaches and shoulder pain. Also, the plaintiff missed two weeks of work and experienced pain at work for one month after he returned, associated with lifting “soda boxes” and other heavy objects. Presently under consideration is the defendant’s motion for summary judgment, asserting that the “limited tort” option precludes the plaintiff from recovering noneconomic damages because these injuries do not amount to a “serious injury.”

DISCUSSION

I. Standard of Review for Summary Judgment

A party may move for summary judgment after pleadings are closed in two situations. First, when there is no genuine issue of material fact that could be established by additional discovery, and second, after discovery, if an adverse party bearing the burden of proof has failed to produce evidence of essential facts so as to warrant the submission of the issue to a jury. Pa.R.C.P. 1035.2; Fazio v. Fegley Oil Co. Inc., 714 A.2d 510, 512 (Pa. Commw. 1998). Further, under the revised rules, a court may grant summary judgment where it is clear and free from doubt that the moving party is entitled to judgment as a matter of law. Boyer v. Walker, 714 A.2d 458, 459 (Pa. Super. 1998); Cappelli v. York Operating Co. Inc., 711 A.2d 481, 483 (Pa. Super. 1998) (en banc). When making this determination, the trial court must consider the evidence in a light most favorable to the nonmoving party. Pa.R.C.P. 1035.1-1035.4; Harman on Behalf of Harman v. Borah, 720 A.2d 1058, 1061 (Pa. Super. 1998); Sebelin v. Yamaha Motor Corp. USA, 705 A.2d 904, 907 (Pa. Super. 1998).

Rule 1035.3(a) requires that the adverse party file a response setting forth the facts in dispute within 30 days after the service of the motion for summary judgment. Pa.R.C.P. 1035.3(a); Henninger v. State Farm Insurance Co., 719 A.2d 1074, 1076 (Pa. Super. 1998); Stilp v. Hafer, 701 A.2d 1387, 1390 (Pa. Commw. 1997). Where a motion for summary judgment has been properly supported with corroborating documentation, the adverse party must demonstrate by specific facts contained within their depositions, answers to interrogatories, admissions or affidavits that there is a genuine issue of material fact for trial. Sovich v. Shaughnessy, 705 A.2d 942, 944 (Pa. Commw. 1998), citing Marks v. Tasman, 527 Pa. 132, 135, 589 A.2d 205, 206 (1991).

The threshold determination of whether a serious injury has been sustained is not normally the domain of the trial judge. However, the trial judge may grant a motion for summary judgment if reasonable minds could not differ on this issue. Washington v. Baxter, 553 Pa. 434, 446, 719 A.2d 733, 740 (1998).

II. Issue

The plaintiff’s insurance policy was of the “limited tort” variety. According to Pennsylvania statutory law: “[ejach person who elects the limited tort alternative remains eligible to seek compensation for economic loss sustained in a motor vehicle accident as the consequence of the fault of another person pursuant to applicable tort law. Unless the injury sustained is a serious injury, each person who is bound by the limited tort election shall be precluded from maintaining an action for any noneconomic loss ....” 75 Pa.C.S. §1705(d) (1999). (emphasis added)

The defendant’s argument in support of his motion for summary judgment can be summarized as follows. The plaintiff’s injuries do not amount to a “serious injury” under 75 Pa.C.S. § 1705(d). Furthermore, the injuries are so apparently below this threshold that reasonable minds could not differ on this point. Accordingly, there is no genuine issue of material fact to be put before a jury. The plaintiff counter-argues that the severity of his injuries are a question of fact to be determined by a jury and therefore the defendant’s motion for summary judgment should be denied.

III. The Definition of “Serious Injury” Under 75 Pa.C.S. §1705(d) and its Application to the Plaintiff’s Injuries

“Serious injury” is statutorily defined as “[a] personal injury resulting in death, serious impairment of body function or permanent serious disfigurement.” 75 Pa.C.S. §1702 (1999). Our initial inquiry shall be whether any of the plaintiff’s injuries fall under any of these categories. As mentioned supra, the plaintiff claims to suffer neck pain associated with sleeping, headaches and shoulder pain. In addition, he missed two weeks of work and experienced pain at work for one month after he returned, associated with lifting “soda boxes” and other heavy objects. Clearly, none of these injuries amount to death or “permanent serious disfigurement.” Therefore, the question before the court is whether reasonable minds would agree that these injuries amount to “serious impairment of body function.”

In the recent case of Washington v. Baxter, the Supreme Court of Pennsylvania adopted a test for “serious impairment of body function.” To satisfy this threshold, two inquiries must be made:

“(a) What body function, if any, was impaired because of injuries sustained in a motor vehicle accident?
“[and]
“(b) Was the impairment of the body function serious? The focus of these inquiries is not on the injuries themselves, but on how the injuries affected a particular body function. Generally, medical testimony will be needed to establish the existence, extent, and permanency of the impairment. ... In determining whether the impairment was serious, several factors should be considered: the extent of the impairment, the length of time the impairment lasted, the treatment required to correct the impairment, and any other relevant factors. An impairment need not be permanent to be serious.” Washington v. Baxter, 553 Pa. 434, 447, 719 A.2d 733, 740 (1998).

This analysis will now be applied to the present facts before the court.

In answer to the first question, the plaintiff claims to suffer from pain associated with sleeping and lifting objects. The answer to the second question, (i.e., was this impairment serious?), requires further examination. In Washington v. Baxter, the Supreme Court provides an example of injuries which, in their estimation, do not amount to a serious impairment of body function. In that case, the plaintiff/appellant was treated in an emergency room and diagnosed with injuries consisting of contusions, sprains and strains. He was discharged within a few hours and subsequently missed four or five days of work of his full-time job and four weekly shifts of his part-time job. After approximately six months following the accident, one of the plaintiff/appellant’s physicians stated that there appeared to be joint arthritis in the right foot, possibly requiring him to wear orthotic foot heel lifts. He was also injected with cortisone. One year after the accident in which the plaintiff/appellant sustained his injuries, he still felt pain in his foot but was able to adequately perform his work-related duties. Id. at 448, 719 A.2d at 741. These injuries were found to be not serious by the Supreme Court. Id.

The facts of the case sub judice, when viewed in a light most favorable to the plaintiff, show that his experience is more severe than that of the plaintiff/appellant in Washington v. Baxter. Here, the plaintiff was taken to the hospital and treated for his injuries. He was later diagnosed with chronic cervical strain with other associated back ailments. The plaintiff then underwent 12 weeks of physical therapy. The plaintiff, a relatively young man, continues to suffer from back, neck and head pain. He also claims that he had intended to wrestle on his high school team but was unable to on account of his injuries. The plaintiff also experiences pain associated with sleeping and waking. Further, he missed a week of work following the accident and when he returned, he had trouble lifting heavy objects for a month. To this day he complains of pain when lifting, but is apparently able to do so regardless.

The severity of the plaintiff’s injuries, when viewed in a light most favorable to him, clearly exceed the plaintiff/appellant’s injuries in Washington v. Baxter. However, when deciding a motion for summary judgment, any ambiguity must be decided in favor of the non-moving party. Pa.R.C.P. 1035.1-1035.4; Harman on Behalf of Harman v. Borah, 720 A.2d 1058, 1061 (Pa. Super. 1998); Sebelin v. Yamaha Motor Corp. USA, 705 A.2d 904, 907 (Pa. Super. 1998). In light of this, there exists a genuine issue of material fact as to the plaintiff’s injuries seriously impacting on his body function under the meaning of 75 Pa.C.S. §1702. Accordingly, this court must deny the defendant’s motion for summary judgment.

An appropriate order will follow.

ORDER

And now, to wit, February 1, 2000, it is hereby ordered and decreed that the defendant’s motion for summary judgment is denied.

      . “Noneconomic loss” is defined as “pain and suffering and other nonmonetary detriment.” 75 Pa.C.S. §1702 (1999).

      . The other ailments included discogenic-type symptoms and a reversal of the normal cervical lordosis.


author: NEALON, J.,

text:
    Fischer v. Troiano
    C.P. of Lackawanna County,
    no. 96-CV-753.

      Janine M. Torda, for plaintiffs.

      George E. Mehalchick, for defendants.
    January 12, 2000
   NEALON, J.,

— Plaintiffs, Robert Fischer and Stella Fischer, have filed a motion for a new trial on damages only and a petition for delay damages under Pa.R.C.P. 238 following a verdict in their favor in which the jury declined to award any noneconomic damages. Since the defense medical expert testified that plaintiff, Stella Fischer, sustained a vertebral fracture which took at least three months to resolve, the motion for a new trial on damages only will be granted on her behalf, but denied with respect to the personal injury and consortium claims of plaintiff, Robert Fischer. In light of the grant of a new trial on damages, the petition for prejudgment interest pursuant to Pa.R.C.P. 238 will be dismissed as moot relative to plaintiff, Stella Fischer, and granted as to plaintiff, Robert Fischer.

I. FACTUAL BACKGROUND

Plaintiffs, Robert Fischer and Stella Fischer, commenced this litigation based upon a slip-and-fall incident that occurred on April 23,1994, at the home of defendants, Joseph Troiano and Sophia Troiano, as a result of which Mr. Fischer and Mrs. Fischer sustained personal injuries. In their complaint, Mrs. Fischer sought to recover damages for her medical expenses and pain and suffering causally related to her injuries, whereas Mr. Fischer claimed damages for loss of his injured wife’s consortium. Although Mr. Fischer also advanced a separate claim for medical costs and noneconomic damages attributable to his own relatively minor injury, Mrs. Fischer did not assert a cause of action for loss of her husband’s consortium.

At the time of trial, the Fischers argued that they were both injured when they simultaneously fell during a bridal shower at the Troianos’ home. The Fischers maintained that their falls were caused by an obscured single step which led into a sunken living room, and they offered lay and expert testimony in support of their negligence claims. The Troianos denied any liability for the fall and further posited that the Fischers’ alleged injuries were the product of their own contributory negligence.

With respect to the issue of damages, Mrs. Fischer introduced the expert testimony of her family physician, James J. McGraw Jr. M.D., and an orthopedic specialist, Albert M. Murtland M.D. Both medical experts opined that Mrs. Fischer sustained a chest wall contusion, an aggravation of a preexisting degenerative condition in her lumbar spine, and a compression fracture of the thoracic vertebra at the T-ll level which had been objectively demonstrated by radiographic studies such as x-rays and bone scans. Dr. McGraw and Dr. Murtland also testified as to Mrs. Fischer’s symptomatology and the physical restrictions that they had imposed upon her as a result of her injuries. (See transcript of Dr. James J. McGraw Jr. deposition dated 10/2/98, pp. 8-20; transcript of Dr. Albert M. Murtland deposition dated 9/17/98, pp. 12-29.) In addition, Mr. Fischer offered the medical testimony of Matthew T. Kuber M.D. who treated him on three occasions on May 3, 1994, June 6, 1994 and August 28, 1994, for a “contusion to the right elbow” which had completely healed by August 1994. (See transcript of Dr. Matthew T. Kuber deposition dated 10/ 2/98, pp. 7-13.)

Inasmuch as Mr. Fischer was not claiming a serious or permanent injury, the Troianos did not introduce any expert testimony to rebut the opinions of Dr. Matthew T. Kuber. However, the defense did have Mrs. Fischer examined by an orthopedic surgeon, Jeffrey A. Mogerman M.D., who testified at trial by way of videotaped deposition. Dr. Mogerman disputed the nature and extent of Mrs. Fischer’s injuries and opined that her condition had completely resolved as of the date of his examination on July 22,1998. Notwithstanding that fact, Dr. Mogerman did agree that Mrs. Fischer sustained a compression fracture of her thoracic vertebra which was causally related to the fall on April 23, 1994. (See transcript of Dr Jeffrey A. Mogerman deposition, pp. 25, 33, 36, 39-40.) Furthermore, although Dr. Mogerman denied that the fracture caused permanent symptoms, he testified that Mrs. Fischer’s injury would have caused some temporary pain that would have subsided within three to five months. (Id., pp. 26, 38.)

At the conclusion of three days of testimony, the jury returned a verdict finding both the Fischers and the Troianos causally negligent. In accordance with the provisions of the Comparative Negligence Act, the jury apportioned the parties’ respective liability by allocating 60 percent causal negligence to the Troianos and 40 percent responsibility to the Fischers. With regard to Mrs. Fischer’s claim for damages, the jury answered special verdict interrogatories by awarding $24,588.73 for medical expenses, but zero damages for past and future pain and suffering, mental anguish, discomfort, inconvenience, embarrassment and humiliation, and loss of the ability to enjoy the pleasures of life. The jury also assessed zero damages to Mr. Fischer in connection with his loss of consortium claim and awarded $231.70 to Mr. Fischer for his own personal injuries, which amount was equal to the medical expenses that he had incurred. By order dated April 7,1999, Mrs. Fischer’s gross award of $24,588.73 was molded to $14,753.24, and Mr. Fischer’s verdict of $231.70 was reduced to $139.02 to reflect the causal negligence which had been assigned to them by the jury.

The Fischers filed a timely motion for a new trial on the issue of damages only and contemporaneously submitted a petition for delay damages seeking an award of prejudgment interest pursuant to Pa.R.C.P. 238. The Troianos filed a response to the Fischers’ post-trial motions and alternatively argued via new matter that if a new trial was deemed warranted, it should be granted as to all issues “since the plaintiffs should not have the benefit of a liability verdict which the jury may not have made if the jury were not permitted to award only the compromised amount that the jury did award.”

In their motion for a new trial, the Fischers contend that the jury could not return a zero award for noneconomic damages inasmuch as the uncontroverted evidence established that the Fischers suffered injuries which were “of the type that naturally and normally cause pain and suffering.” (See plaintiffs’ motion for new trial on damages only, ¶4.) The Troianos counter that it was within the province of the jury to gauge the credibility of the witnesses and award no damages to the Fischers for their claims for noneconomic damages. On November 30, 1999, the court reporter filed the transcript of the trial proceedings, and the parties were thereafter afforded 30 days within which to submit their memoranda of law, at which time this matter became ripe for disposition.

II. DISCUSSION

(A) Standard of Review

When ruling on a motion for a new trial, the court must view all the evidence, and if it concludes that the judicial process has effected a serious injustice, only then should it grant a new trial. Clack v. PennDOT, 710 A.2d 148, 151 n.5 (Pa. Commw. 1998). “A new trial is warranted when the jury’s verdict is so contrary to the evidence that it shocks one’s sense of justice.” Martin v. Evans, 551 Pa. 496, 501, 711 A.2d 458, 461 (1988); Kiser v. Schulte, 538 Pa. 219, 225, 648 A.2d 1, 4 (1994). A new trial should not be granted “because of a mere conflict in testimony or because the trial judge on the same facts would have arrived at a different conclusion.” Martin, supra; Thompson v. City of Philadelphia, 507 Pa. 592, 598, 493 A.2d 669, 672 (1985).

In the context of a motion for a new trial, it is axiomatic that a jury is free to believe all, some, or none of the testimony presented by a witness. Neison v. Hines, 539 Pa. 516, 520, 653 A.2d 634, 637 (1995). However, this rule is tempered by the requirement that the verdict must bear some reasonable relation to the loss suffered by the plaintiff as demonstrated by the uncontroverted evidence presented at trial. Neison, supra at 520, 653 A.2d at 637; Slaseman v. Myers, 309 Pa. Super. 537, 541, 455 A.2d 1213, 1215 (1983). “The synthesis of these conflicting rules is that a jury is entitled to reject any and all evidence up until the point at which the verdict is so disproportionate to the uncontested evidence as to defy common sense and logic.” Charlton v. Toyota Industrial Equipment, 714 A.2d 1043, 1045-46 (Pa. Super. 1998) (citing Neison, supra).

(B) Noneconomic Damages Award

As a general rule, injury victims must be compensated for all that they suffer as a result of the tort of another. Neison, supra at 523, 653 A.2d at 638; Boggavarapu v. Ponist, 518 Pa. 162, 167, 542 A.2d 516, 518 (1988). In that regard, the Supreme Court of Pennsylvania has recognized “that there are injuries to which human experience teaches there iis accompanying pain.” Neison, supra; Boggavarapu, supra; Hawley v. Donahoo, 416 Pa. Super. 469, 472, 611 A.2d 311, 313 (1992). The Boggavarapu court noted that “[tjhose injuries are obvious in the most ordinary sense” and include “the broken bone” and the “twist of the skeletal system.” Id. at 167, 542 A.2d at 518. Nevertheless, “[jjurors are not compelled to find pain where there was no objective injury.” Id. at 168, 542 A.2d at 519.

“It is impermissible for a jury in a personal injury case to disregard the uncontroverted testimony from the experts for both parties that the plaintiff suffered some injury as a result of the incident in question.” Mano v. Madden, 738 A.2d 493, 497 (Pa. Super. 1999). For example, in Neison, the jury awarded no damages for pain and suffering even though the defense medical expert had conceded that the plaintiff had suffered a soft tissue injury which usually would take three to five months to heal. Neison, supra at 519, 522, 653 A.2d at 636, 637. In affirming the trial court’s grant of a new trial, the Supreme Court concluded:

“[T]he evidence offered at trial left room for disagreement as to whether the pain resulting from [plaintiff’s] injuries was as severe as she claimed or whether the accident was in fact causative. However, the jury’s decision to find for [plaintiff] and award no damages for pain and suffering bears no rational relationship to the evidence produced at trial. The jury’s decision to disbelieve all the evidence presented during the trial defies common sense and is indeed shocking.” Id. at 522-23, 653 A.2d at 638. (footnote omitted) Accord Mano, supra (holding that a new trial on the issue of damages only was warranted after a jury awarded no damages despite the fact that the defense medical expert had acknowledged that plaintiff “suffered some strain to his neck and back as a result of the accident, differing only as to the extent and duration of his injury”); Hixson v. Barlow, 723 A.2d 716, 717 (Pa. Super. 1999) (ordering a new trial following a zero verdict since the defense did not challenge the existence of an injury and “differed only [as] to the extent and severity of [plaintiff’s] injuries”); Craft v. Hetherly, 700 A.2d 520, 523 (Pa. Super. 1997) (upholding the grant of a new trial following a defense verdict on the grounds that “both parties’ medical experts agreed that [plaintiff] was injured as a result of the accident, and they disagreed only to the severity and duration of her injuries”).

With regard to Mrs. Fischer’s injury, i.e., a fractured vertebra, the holding in Hawley, supra, is virtually dis-positive. In that case, the jury returned an award of zero damages notwithstanding the fact that the uncontroverted evidence established that the plaintiff had suffered a compression fracture of her lumbar vertebra. In reversing the trial court’s denial of the injured victim’s motion for a new trial, the Superior Court reasoned:

“[T]he record in the present case indicates that the existence of the fractured vertebra was not questioned by the [defendant] on cross-examination, and therefore the jury’s refusal to believe in the existence of this injury was unwarranted....
“While the jurors are the sole judges of credibility, and [plaintiff’s] inconsistent and perhaps exaggerated testimony could have been perceived as an indication of [plaintiff’s] interests of opportunity beyond pain which could dilute their belief in the existence of the occasion itself, the jury is not free to ignore an obvious injury---Based on the uncontested evidence of the compression fracture, we find that [plaintiff] suffered compensable pain from a known medical source which was more than a mere transient rub of life.” Hawley, 416 Pa. Super. at 473-74, 611 A.2d at 313-14. See also, Neison, 539 Pa. at 525-26, 653 A.2d at 639 (“[T]he uncontroverted medical evidence established that Ms. Neison suffered pain from a known medical source, . . . much like the compression fracture in Hawley. We believe that these injuries are similar in type to the ‘obvious injury,’ the Superior Court found in Hawley, and agree with the conclusion of that court that a jury cannot freely ignore evidence of obvious injury.”).

Instantly, even the Troianos’ medical expert testified that Mrs. Fischer suffered a compression fracture of her vertebra which, at a minimum, would have taken three months to resolve. It was likewise uncontested that the existence of the fracture had been objectively manifested by various diagnostic studies. Since the Superior Court has distinctly recognized a compression fracture of a vertebra as an objective injury which produces “compensable pain from a known medical source,” Hawley, 416 Pa. Super. at 474, 611 A.2d at 314, the jury could not refuse to award any damages for pain and suffering and loss of the ability to enjoy the pleasures of life. See Todd v. Bercini, 371 Pa. 605, 607-608, 92 A.2d 538, 539 (1952) (ordering a new trial after a jury awarded the “exact amount of the medical bills” but no recovery “for pain, suffering and inconvenience” on the grounds that “[a] jury may not eliminate pain from wounds when all human experience proves the existence of pain”); Rozanc v. Urbany, 444 Pa. Super. 645, 648-49, 664 A.2d 619, 620-21 (1995) (in light of the defense expert’s acknowledgment of some injury, albeit minor, the grant of a new trial was justified); Lupkin v. Sternick, 431 Pa.Super. 300, 306, 636 A.2d 661, 664 (1994), affirmed, 542 Pa. 351, 667 A.2d 13 (1995) (ordering a new trial following a zero verdict on the basis that “[a]lthough [defendant’s] witness disagreed with [plaintiff’s] assertions concerning the severity of the injury, he did not contest the existence of an injury”).

Consequently, the failure of the jury to award any non-economic damages to Mrs. Fischer does not bear any reasonable relation to the uncontroverted evidence presented at trial. In contrast, the Troianos did not similarly concede that Mr. Fischer suffered a compensable injury, nor does the law regard an elbow contusion as the type of injury which must be accompanied by pain. Furthermore, unlike their acknowledgment of Mrs. Fischer’s fractured vertebra, the Troianos did not agree that Mr. Fischer suffered some degree of a loss of consortium by virtue of Mrs. Fischer’s injury. As the finder of fact, the jury was at liberty to reject Mr. Fischer’s claims for non-economic damages and loss of consortium and thereby award no damages, particularly in the absence of any objective evidence of the same. See Boggavarapu, 518 Pa. at 168, 542 A.2d at 519.

Accordingly, a new trial will be granted as to Mrs. Fischer’s cause of action, but denied with regard to Mr. Fischer’s claims. Mrs. Fischer has requested a new trial limited to the issue of damages whereas the Troianos alternatively seek a new trial on liability as well, in the event that the motion for post-trial relief is granted. A new trial on damages only will be granted where “(1) the issue of damages is not ‘intertwined’ with the issue of liability; and (2) where the issue of liability has been ‘fairly determined’ or is ‘free from doubt.’ ” Kiser, 538 Pa. at 233, 648 A.2d at 8; Hixson, 723 A.2d at 718. In the case at bar, the jury considered and decided the question of liability which was not intertwined with the item of damages. Moreover, the Troianos had a fair opportunity to litigate the issues of negligence, contributory negligence and causation and it would be inappropriate to require the Fischers to re-litigate those matters after liability has already been established by a jury. See Mano, 738 A.2d at 498. Thus, a new trial will be ordered on behalf of Mrs. Fischer solely on the issue of damages.

(C) Delay Damages

The Fischers have also filed a motion for delay damages seeking the assessment of prejudgment interest on their damage awards. In light of the grant of a new trial on behalf of Mrs. Fischer, her request for delay damages will be dismissed as moot. However, inasmuch as Mr. Fischer’s motion for post-trial relief has been denied, his motion under Rule 238 will be considered.

A successful plaintiff may recover delay damages in the form of prejudgment interest on the jury award if the verdict is more than 125 percent of the last written settlement offer tendered by the defendant. Pa.R.C.P. 238(b)(1). Delay damages are to be calculated at a rate of interest “equal to the prime rate as listed in the first edition of the Wall Street Journal published for each calendar year for which the damages are awarded, plus 1 percent, not compounded.” Pa.R.C.P. 238(a)(3). Although an earlier version of Rule 238 did not exclude any time periods from the delay damages computation, the current rule provides that prejudgment interest does not begin to accrue until one year after the service of original process up to the date of the verdict, excluding any periods of time during which the plaintiff caused delay of the trial. Pa.R.C.P. 238(a)(2)(h) and (b)(2).

Rule 238 is designed to compensate a plaintiff for the delay in receiving funds that a jury has determined are owed to the plaintiff, Willet v. Pennsylvania Medical Catastrophe Loss Fund, 549 Pa. 613, 622-23, 702 A.2d 850, 854-55 (1997); Putt v. Yates-American Machine Co., 722 A.2d 217, 227 (Pa. Super. 1998), and to prevent a defendant from being unjustly enriched by keeping interest that could be earned during the litigation process on what is essentially the plaintiff’s money. Costa v. Lauderdale Beach Hotel, 534 Pa. 154, 160, 626 A.2d 566, 569 (1993). The availability of delay damages to a prevailing plaintiff also serves to alleviate delay in the courts by encouraging defendants to settle meritorious claims as soon as reasonably possible. Arthur v. Kuchar, 546 Pa. 12, 18, 682 A.2d 1250, 1253 (1996); Miller v. Hellman, 433 Pa. Super. 539, 543, 641 A.2d 592, 594 (1994), appeal denied, 540 Pa. 601, 655 A.2d 990 (1995).

A defendant who opposes a motion for delay damages bears the burden of proving either that the requisite written offer has been made or that the plaintiff was responsible for periods during which the trial was delayed. City of Pittsburgh v. Jodzis, 147 Pa. Commw. 234, 249-50, 607 A.2d 339, 347 (1992), appeal denied, 533 Pa. 647, 622 A.2d 1378 (1993). As a consequence, prejudgment interest may be assessed even if the defendant is free from fault in delaying the trial, Schrock v. Albert Einstein Medical Center, 527 Pa. 191, 196, 589 A.2d 1103, 1106 (1991), and Rule 238 does not permit an exclusion for periods of delay which are attributable to extraneous administrative concerns or congestion of the court calendar. Wirth v. Miller, 398 Pa. Super. 244, 253, 580 A.2d 1154, 1159 (1990), appeal dismissed, 534 Pa. 278, 632 A.2d 309 (1993); Tindal v. SEPTA, 385 Pa. Super. 94, 101, 560 A.2d 183, 187 (1989). If a plaintiff has been found causally negligent, any prejudgment interest is to be computed based upon the molded verdict rather than on the gross award. Hughes v. GAF Corp., 364 Pa. Super. 311, 318, 528 A.2d 173, 177 (1987), appeal denied, 517 Pa. 623, 538 A.2d 876 (1988).

According to the docket entries in this case, the Fischers filed their complaint on February 8, 1996, and served initial process upon the Troianos on February 22, 1996. The parties have stipulated that no written settlement offer was ever made prior to trial, and as a result, Mr. Fischer’s net award of $139.02 was more than 125 percent of the last written offer. However, the Troianos maintain that delay damages should not be computed for the entire period from the date of the service of initial process up to the time of the verdict on April 7, 1999, inasmuch as the Fischers or their counsel were responsible for periods of time during which the trial of this matter was delayed.

A review of the file reflects that the Fischers did not postpone the commencement of trial at any time between February 22, 1996 and the date that this case was first called for trial on September 27, 1998. However, this matter did not proceed to trial on September 27, 1998, due to a request for a continuance that was made by the Fischers. Thus, although delay damages will be assessed for the period between February 22,1997 (one year after the service of initial process) to September 27, 1998, prejudgment interest will be precluded from September 27,1998 until November 29, 1998, the date upon which this action was relisted for trial. See Wirth, 398 Pa. Super. at 254, 580 A.2d at 1159 (plaintiff’s request for a continuance constituted a delay of the trial and was ex-cludable under Rule 238).

Although scheduled for trial during the week of November 29, 1998, this litigation was never reached during the trial term due to the congested court calendar. This matter was thereafter called for trial on January 31, 1999, but was postponed to the second week of the trial term at the request of the defense. Hence, the delay between November 29, 1998 and February 7, 1999 was not attributable to the actions of the Fischers and is, therefore, includable under Pa.R.C.P. 238.

This case was subsequently called to trial on February 7,1999, at which time counsel for the Fischers requested a continuance due to the unavailability of the Fischers’ human factors engineering expert to testify at trial. Consequently, this matter was rescheduled for trial beginning on April 3, 1999, and ultimately proceeded to trial on that date. Since the period of delay between February 7, 1999 and April 3, 1999 was caused by the continuance requested by the Fischers, it will be excluded from the delay damages calculation. Wirth, supra.

Accordingly, Mr. Fischer is entitled to an award of prejudgment interest on his molded verdict for the periods of time from February 22, 1997 to September 27, 1998, and November 29,1998 to February 7,1999. Any delay of the trial from September 27,1998 to November 29,1998, and February 7,1999 to April 3,1999, was the product of the actions of the Fischers and is excepted from the delay damages calculation. The parties are directed to submit a stipulation within the next 10 days setting forth the computation of delay damages for the foregoing time periods based upon the applicable rate of interest under Pa.R.C.P. 238(a)(3).

ORDER

And now, January 12,2000, upon consideration of the plaintiffs’ motion for a new trial on damages only and plaintiffs’ petition for delay damages under Pa.R.C.P. 238, and based upon the reasoning set forth in the foregoing memorandum, it is hereby ordered and decreed that:

(1) The motion for a new trial on damages only is granted as to the claims of plaintiff, Stella Fischer;

(2) The motion for a new trial on damages only is denied with regard to the claims of plaintiff, Robert Fischer, for noneconomic damages and loss of consortium;

(3) The petition for delay damages under Pa.R.C.P. 238 is dismissed as moot with regard to plaintiff, Stella Fischer, who has been granted a new trial on damages only; and

(4) The petition for delay damages under Pa.R.C.P. 238 is granted as to the molded jury award on behalf of plaintiff, Robert Fischer, consistent with the calculations set forth in the foregoing memorandum.

      . The medical evidence of Mrs. Fischer’s injury is markedly distinguishable from that which was introduced in those cases in which zero awards for noneconomic damages have been affirmed, See e.g., Catalano v. Bujak, 537 Pa. 155, 157, 161, 642 A.2d 448, 449, 451 (1994) (finding that jury could award damages for medical expenses only, without any provision for pain and suffering, since the defense had offered evidence that the injury had been caused at work rather than by defendant’s conduct); Labett v. Port Authority of Allegheny County, 714 A.2d 522, 526 (Pa. Commw. 1998) (defense argued that plaintiff’s alleged harm was the result of an unrelated incident). In the case sub judice, the Troianos agreed that the fall caused Mrs. Fischer’s fractured vertebra which produced symptoms for several months.


author: KLEINFELTER, J.,

text:
    Robinson v. Lower Paxton Township

      C.P. of Dauphin County,
    no. 1322 S 1997.

      Conrad J. Benedetto, for plaintiff.

      John Flounlacker, for defendant.
    November 17, 1999
   KLEINFELTER, J.,

— This matter arises out of a high-speed pursuit by Lower Paxton Township Police Officer Ronald T. Gramigni that occurred during the early hours of March 25,1995. Officer Gramigni’s suspicions were aroused when he observed a car with a broken rear passenger window being driven in an office complex along Crums Mill Road at approximately 1:30 that morning. The officer followed the car out of the parking lot onto Colonial Road. After turning onto Route 22, the vehicle accelerated to a high rate of speed, at which time Officer Gramigni activated his overhead lights and siren to initiate a stop of the car. The vehicle eventually veered onto Walnut Street, and was discovered after it collided with several parked cars. Plaintiff Ebony Robinson was thrown from the vehicle and injured. Defendant Fred D. Campbell, the driver, was captured a short time later.

Robinson commenced this action against Lower Paxton Township, Campbell and Leslie M. Lawson, owner of the vehicle. The count against Lower Paxton alleges that Officer Gramigni negligently caused the accident.

Presently before us is Lower Paxton’s motion for summary judgment. We have received supporting memoranda from both Lower Paxton and Robinson, and heard the oral argument of Lower Paxton, September 23, 1999. Robinson’s counsel was delayed by traffic and not present for argument. Her position has been considered as presented in her brief.

The standard for summary judgment is well established in the Commonwealth:

“[Sjummary judgment is properly granted ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ ... Summary judgment may be granted only in those cases where the right is clear and free from doubt. . . . The moving party has the burden of proving that there is no genuine issue of material fact.... Moreover, the record and any inferences therefrom must be viewed in the light most favorable to the non-moving party, and any doubt as to the existence of a genuine issue of material fact must be resolved against the moving party.” Bigansky v. Thomas Jefferson University Hospital, 442 Pa. Super. 69, 73-74, 658 A.2d 423, 425 (1995), appeal denied, 542 Pa. 655, 668 A.2d 1119 (1995). (citations omitted)

Lower Paxton is a local agency enjoying the protections of governmental immunity. Such immunity is subject to eight exceptions provided by the Political Subdivision Tort Claims Act, 42 Pa. C.S. §8542. Robinson argues that the “vehicle liability” exception applies to the case at bar:

“(b) Acts which may impose liability. — The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency:
“(1) Vehicle liability. — The operation of any motor vehicle in the possession or control of the local agency, provided that the local agency shall not be liable to any plaintiff that claims liability under this subsection if the plaintiff was, during the course of the alleged negligence, in flight or fleeing apprehension or resisting arrest by a police officer or knowingly aided a group, one or more of whose members were in flight or fleeing apprehension or resisting arrest by a police officer. As used in this paragraph, ‘motor vehicle’ means any vehicle which is self-propelled and any attachment thereto, including vehicles operated by rail, through the water or in the air.” 42 Pa.CS. §8542(b)(l).

We agree with plaintiff that the exception to immunity set forth in (b)(1) applies in this case. Although the alleged negligence occurred during flight from the police, plaintiff, as a passenger in the vehicle, was not per se “in flight or fleeing apprehension.”

There are, however, two threshold conditions before any of the exceptions apply. Those conditions require that:

“(1) The damages would be recoverable under common law or a statute creating a cause of action if the injury were caused by a person not having available a defense under section 8541 (relating to governmental immunity generally)..and
“(2) The injury was caused by the negligent acts of the local agency or an employee thereof acting within the scope of his office or duties____” 42 Pa.C.S. §8542(a).

Notwithstanding their lack of immunity under section 8542, Lower Paxton cites section 8541 as precluding liability. Section 8541 provides that no local agency shall be liable for personal injury resulting from “any act of ... any other person.” Our Supreme Court has construed this language as precluding local agency liability for harm caused by third parties. See e.g., Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987); Dickens v. Horner, 531 Pa. 127, 611 A.2d 693 (1992). In Dickens, the court opined that the acts of third parties may not be imputed to a local agency. “We [view] this conclusion as being consistent with the general rule that the criminal and negligent acts of third parties are superseding causes which absolve the original actor from liability for the harm caused by such... parties.” 531 Pa. at 130-31, 611 A.2d at 695.

Lower Paxton’s reliance on Dickens must fail, however, since the case was expressly overruled in Jones v. Chieffo, 549 Pa. 46, 700 A.2d 417 (1997). In Jones, an action was brought against the City of Philadelphia and others to recover for the death of a driver and for injuries sustained by a passenger who were struck by an automobile being pursued by police.

“We cannot hold as a matter of law that appellants’ alleged negligence was not a substantial factor causing Jones’ injuries. A jury must make this determination. . . . This result is consistent with Crowell and Powell, which established] that a governmental party is not immune from liability when its negligence, along with a third party’s negligence, causes harm.” Id., 549 Pa. at 52, 700 A.2d at 420. (footnote omitted)

Jones instructs us that a municipality is not per se immune from liability under section 8541 of the Act. Here, Lower Paxton could be liable if found by a jury to be a joint tort-feasor. The jury would be required to find that Lower Paxton’s alleged negligence was a substantial factor — if not the sole factor — in bringing about the harm here claimed by Robinson.

Accordingly, we enter the following:

ORDER

And now, November 17,1999, upon consideration of defendant Lower Paxton Township’s motion for summary judgment, defendant’s motion is hereby denied.


author: NEW, A., J.,

text:
    Schindler v. Stuart Pharmaceutical Co.

      Lee B. Balefsky, for plantiffs.

      Gregory A. Bolzle, for defendant.
    February 15, 2000-
   NEW, A., J.,

PROCEDURAL HISTORY

On December 15, 1994, plaintiffs, Dorothy and Robert Schindler, filed a civil complaint initiating this action against defendants, Sofamor Inc., Sofamor Danek Group Inc., Somepic Technologies and Stuart Pharmaceutical Company. The complaint sought recovery for injuries sustained when a spinal fixation device surgically implanted in Dorothy Schindler’s spine broke. Plaintiffs claimed the rod, which was manufactured by S of amor and distributed by Stuart Medical, was defectively designed.

On October 20, 1998, the Honorable John W. Herron granted summary judgment in favor of the Sofamor defendants. A jury trial before the Honorable Arnold L. New commenced against the remaining defendant, Stuart Medical, on December 4,1998. On December 11,1998, the jury returned a verdict in favor of plaintiffs in the amount of $1,585,000.

On December 21, 1998, Stuart Medical filed timely post-trial motions requesting judgment n.o.v. or, in the alternative, a new trial, based on numerous alleged errors committed by this court during trial. Oral argument took place on July 8, 1999. For the following reasons, judgment n.o.v. must be entered in favor of defendant Stuart Medical.

FACTUAL HISTORY

In January 1963, plaintiff, Dorothy Schindler, was diagnosed with scoliosis, which is a curvature of the spine. Notes of Testimony, p. 1.47. Between 1963 and 1988, Mrs. Schindler was treated by a chiropractor. N.T., pp. 1.48-1.49. In 1988, Mrs. Schindler began to experience intense leg and back pain and went to see Richard A. Balderston M.D., an orthopedic surgeon. N.T., p. 1.51. Dr. Balderston informed Mrs. Schindler that her spine had curved to 74 degrees and that she would need back surgery in order to improve. N.T., p. 1.52.

In November 1988, Mrs. Schindler underwent posterior and anterior fusion surgery. N.T., p. 1.53. A Cotrel-Dubousset spinal fixation device was placed in Mrs. Schindler’s spine. N.T., p. 1.54. The device consists of a series of hooks and rods which are used to stabilize and align the spine until bone fusion occurs. N.T., p. 3.46. In January 1989, an x-ray revealed that one of the hooks implanted in Mrs. Schindler’s spine had not set properly. N.T., p. 1.56. Surgery was performed to repair the hook. N.T., p. 1.56. After the surgeries, Mrs. Schindler’s curve was reduced by 30 degrees and she became asymptomatic. N.T., pp. 1.61, 1.119-1.200.

Between 1989 and 1993, Mrs. Schindler testified that she felt good and that her activities resumed with no problems. N.T., pp. 1.56-1.61. In February 1993, while attending an exhibition baseball game, Mrs. Schindler experienced sharp lower back pain and was unable to walk out of the stadium. N.T., p. 1.64. After that date, Mrs. Schindler began to experience pain and numbness in her legs and back. N.T., p. 1.65.

Mrs. Schindler saw Dr. Balderston again in July 1993. N.T., p. 1.69. An examination revealed that Mrs. Schindler’s spine had not fused at the T11-T12 and T8-T9 sites. N.T., p. 1.170. At this point of nonfusion, an x-ray revealed that one of the CD rods implanted in Mrs. Schindler’s spine had fractured. N.T., p. 1.73. Dr. Balderston informed Mrs. Schindler that she would have to undergo surgery to repair the rod. N.T., p. 1.73. Surgery was performed in September 1993. N.T., p. 1.76. The CD rods were removed and three new rods were placed in Mrs. Schindler’s back. N.T., p. 1.76.

On December 15, 1994, plaintiffs initiated this lawsuit, asserting products liability claims. Plaintiffs claimed that the knurled surface of the CD rod was a design defect, which caused the rod to prematurely fracture. In its post-trial motions, defendant Stuart Medical argued this court should have ruled that the CD rod was not unreasonably dangerous as a matter of law. Defendant argues that such error requires this court to enter judgment n.o.v. For the following reasons, this court agrees.

LEGAL ANALYSIS

A judgment n.o.v. may be granted only in clear cases where the facts are such that “no two reasonable persons can fail to agree that the verdict is improper.” Lira v. Albert Einstein Medical Center, 384 Pa. Super. 503, 508, 559 A.2d 550, 552 (1989). When determining whether to grant a judgment n.o.v., the trial court must consider all the evidence, along with all reasonable inferences which may be drawn therefrom, in the light most favorable to the verdict winner. Id. Defendant, Stuart Medical, claims this court erred in failing to rule as a matter of law that the CD rod was not unreasonably dangerous.

In order to prevail on a products liability claim, a plaintiff must prove that the product is defective and that the defect was the proximate cause of the plaintiff’s harm. Weiner v. American Honda Motor Co. Inc., 718 A.2d 305, 307 (Pa. Super. 1998). The threshold inquiry in any products liability action is whether a defect existed. Id. There are three types of defective conditions which may give rise to a cause of action: manufacturing defect, design defect and failure to warn defect. Id. In the present case, plaintiffs alleged that the CD rod was defectively designed.

A product contains a design defect where the design of the product results in an “unreasonably dangerous” product. Riley v. Warren Manufacturing Inc., 455 Pa. Super. 384, 390, 688 A.2d 221, 224 (1997). A product is “unreasonably dangerous” when it is not safe for its intended use. Weiner, 718 A.2d at 308. Generally, the question of whether a product is unsafe for its intended use is determined by the trial court as a matter of law. Id. This determination depends upon considerations of social policy, including weighing factors such as “the gravity of the danger posed by the challenged design; the likelihood that such danger would occur; the mechanical feasibility of a safer design; and the adverse consequences to the product and to the consumer that would result from a safer design.” Riley, 455 Pa. Super. at 391, 688 A.2d at 224.

In the instant case, plaintiffs claimed the CD rod implanted in Mrs. Schindler’s spine was defectively designed. The CD rod implanted in Mrs. Schindler’s spine was made of 316L stainless steel. N.T., p. 3.41. The rod’s surface was knurled, or grooved. The knurling provided improved holding power and was not decorative. N.T., p. 2.106. Plaintiffs claimed that the knurled surface of the rod caused the rod to prematurely break. Plaintiffs’ expert opined that smooth metallic surfaces last longer than any metallic surfaces which have been altered. Thus, plaintiffs claimed that the knurled surface was a design defect.

An examination of the record clearly reveals that the CD rod was not unreasonably dangerous for its intended use. The intended use of the rod was to stabilize the spine until fusion occurred. If fusion is to occur in an individual, it will occur within one year of surgery. The rod was never intended to last indefinitely in the absence of fusion. N.T., pp. 3.48-3.49. The testimony at trial established that all implants will eventually fracture in the event of nonfusion. N.T., pp. 3.104-3.107.

Mrs. Schindler’s surgery took place in January 1989 and fusion should have occurred by January 1990. Therefore, the CD rod had served its intended purpose if it stabilized Mrs. Schindler’s spine within the one year following her January 1989 surgery. Plaintiffs do not claim that the rod failed to align Mrs. Schindler’s spine in the year following the surgery. The rod did not break until July 1993, four and a half years after the surgery and three and a half years after the point that fusion should have occurred. The CD rod fulfilled its intended use in providing stabilization for an additional three and a half years past its intended use. As such, the CD rod was not defectively designed and judgment n.o.v. must be entered in favor of defendant Stuart Medical.

Wherefore, for all the above-stated reasons, defendant, Stuart Medical’s, motion for post-trial relief in the nature of a motion for judgment n.o.v. must be granted.

ORDER

And now, February 15, 2000, upon consideration of defendant, Stuart Pharmaceutical Company’s, motion for post-trial relief in the nature of a motion for judgment n.o.v., plaintiffs’ response thereto, and oral arguments, it is hereby ordered and decreed that said motion is granted.

Judgment n.o.v. is hereby entered in favor of defendant, Stuart Pharmaceutical Company, and against plaintiffs, Dorothy and Robert Schindler.

      . The docket reveals that Somepic Technologies, a French corporation, was never served with the complaint.

      . The complaint set forth causes of action for products liability, negligence and breach of express/implied warranties. At trial, all claims except design defect were voluntarily dismissed by plaintiffs. N.T., p. 3.13.

      . Defendant also raises several evidentiary issues in its post-trial motions. These issues, however, will not be discussed, as this court finds the CD rod was not unreasonably dangerous as a matter of law.


author: COHEN, J.,

text:
    Bolden v. SEPTA

      G. Sander Davis, for plaintiff.

      John B. Phelan, for defendant.
    January 31, 2000
   COHEN, J.,

— This opinion is written pursuant to the appeal of plaintiff Leonard Bolden. A trial was held before this court and a jury beginning July 26, 1999, wherein the jury found in favor of the defendant Southeastern Pennsylvania Transportation Authority and against plaintiff. Plaintiff’s motion for post-trial relief was filed on August 9, 1999. This court did not receive the notes of testimony until October 14, 1999. Therefore, in order to allow the parties time to prepare, a briefing schedule was set, with arguments to be heard December 22, 1999. Counsel for SEPTA requested an extension of time through the end of the year. The request was granted, with arguments scheduled to take place on January 12,2000. On December 23,1999, defendant SEPTA filed a praecipe to enter judgment pursuant to Phila. Cty. R.C.P. 227.4(l)(b). Therefore, judgment was entered before post-trial motions could be disposed of properly. Consequently, this court is in the unenviable position of advocating a reversal on appeal with an order for new trial. The reasons for which are set forth below.

FACTS

On August 14, 1997, plaintiff Leonard Bolden was working as a conductor on a passenger railcar for SEPTA. (N/T 7/26/99 at 90.) As part of his duties, Bolden was inspecting each car before allowing passengers on board for the return from Lansdale to Center City. (N/T 7/26/ 99 at 90.) He claims he was injured when he pushed open one of the doors in between cars. According to Bolden, normally the doors move only with great force due to the hydraulic door hinge. Plaintiff stated that when he pushed the door, it opened with no resistance, flinging him to the ground while he was still holding the door handle, thereby permanently injuring his shoulder. (N/T 7/26/99 at 90, 94-95.)

DISCUSSION

The plaintiff had filed a motion in limine to preclude any testimony of the plaintiff’s drug or alcohol history. Counsel for SEPTA argued the evidence was relevant because there was a claim for permanent injury, and based upon the Superior Court’s decision in Kraus v. Taylor, the evidence was admissible to show a reduction in life expectancy. 710 A.2d 1142 (Pa. Super. 1998), alloc. granted, 556 Pa. 257, 727 A.2d 1109 (1999), dismissed as improvidently granted, Pa. Lexis (Jan. 20, 2000). As Kraus is currently the law in the Commonwealth, this court denied the plaintiff’s motion to preclude.

What ensued was an extensive cross-examination about the plaintiff’s drug history. (N/T 7/27/99 at 39-60.) This included cross-examination concerning a drug history taken upon admission to Friends Hospital that stated that the plaintiff had used cocaine daily since the age of 18. (N/T 7/27/99 at 41.) The plaintiff denied the report’s accuracy. (N/T 7/27/99 at 41.) Defense counsel also extensively questioned plaintiff’s expert on vocational and economic assessment, Anthony Gamboa, about the plaintiff’s drug use. (N/T 7/27/99 at 106, 136, 139, 144, 148, 150.) Finally, defendant called Dr. Robert DeSilverio as an expert in substance abuse, who testified as to the likelihood that cocaine use will decrease the plaintiff’s life expectancy. (N/T 7/28/99.) This court believes that the extensive testimony on drug use likely prejudiced the jury. And that prejudice outweighed any relevance to the plaintiff’s life expectancy.

Evidence of a party’s drug use is clearly highly prejudicial. See Commonwealth v. LaCava, 542 Pa. 160, 176, 666 A.2d 221, 228 (1995); Kraus, 710 A.2d at 1144. In fact, this court originally planned to exclude such evidence in its entirety. (N/T 3/26/99 at 44-45.) However, based on Kraus, this court felt compelled to allow the evidence. A limiting instruction was not given. This court should have instructed the jury that the purpose of such evidence was only relevant to the plaintiff’s life expectancy for claims of permanent injury. This may have, at least to some extent, balanced the unfairly prejudicial effect of the evidence. This is especially true, considering the defendant misused the court’s ruling to hammer home the plaintiff’s previous drug use to the jury. Without such an instruction, this court believes that the prejudicial effect of such evidence outweighed its probative value. See Pa.R.E. 403. Accordingly, a new trial should be ordered.

      . While the defendant was within its rights to enter judgment, this court considers it a sharp practice to take post-trial motions out of the trial court’s hands, especially after originally requesting a time extension. This type of ruthless behavior is unbecoming and is an affront to this court.