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May 29, 1952


Appeal, No. 121, March T., 1952, from judgment of Court of Common Pleas of Westmoreland County, Aug. T., 1950, No. 124, in case of Charles Nunamaker et ux. v. New Alexandria Bus Company, Inc., and Luther Tanyer. Judgment reversed.


H. Reginald Belden, with him Paul M. Robinson and Edwin J. Morrell, for appellant.

Joseph M. Loughran, for appellees.

Before Drew, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Jones

[ 371 Pa. Page 30]


The plaintiffs, a husband and wife, sued the defendant bus company and the driver of a private automobile for damages for personal injury to the wife resulting from a collision between the automobile and a bus of the defendant company on which the wife was a passenger for hire. The complaint alleged that the accident was caused by the negligence of the drivers of the two vehicles. Only the defendant company appeared and defended. The wife claimed damages for her physical injuries and for pain and suffering, while the husband claimed for the loss of his wife's services and companionship and for the expenses occasioned by her injuries. The two cases were joined for suit in the one action as required by Rule 2228 (a) of the Pennsylvania Rules of Civil Procedure: 337 Pa. 6a.

As a direct consequence of the learned trial judge's instruction to the jury concerning the form their verdict should take in case they found for the plaintiffs, the jury returned a verdict in one lump sum for both plaintiffs. The defendant company moved for a new trial. Argument on the motion was heard by a court en banc composed of the four Common Pleas judges of

[ 371 Pa. Page 31]

    the County who became evenly divided in opinion as to whether or not a new trial should be granted. Two separate opinions with respective orders, each concurred in by two members of the court en banc, were filed, the one order granting, the other refusing, the motion for a new trial.

In the impasse thus arrived at, one of the judges who favored the granting of a new trial entered an order (apparently with the acquiescence of the other three members of the court) adjudging that the legal effect of the opposed opinions and orders of the evenly divided members of the court was that the motion for a new trial had not prevailed and, therewith, directed that "the papers [be] filed in the Prothonotary's Office." While the order did not specifically contain any definitive action with respect to the disposition of the motion for new trial, the prothonotary evidently construed it to be tantamount to a refusal of the motion and, on the same day, accepted payment of the verdict fee and entered the judgment on the verdict from which this appeal was taken.

The fundamental point on which the members of the court split was whether the single verdict on the two causes of action was fatally defective. It undoubtedly was. But, before we come to that, we shall point out for the future guidance of the members of the court below what they should do to avoid an even division of opinion to the end that direct and positive action by the court may be attained. In the first place, it is unnecessary for all four judges to sit at the same time as a court en banc. According to a prearranged schedule, the judges could rotate in panels of three for the purpose of constituting a court en banc, the panel of course containing, if possible, the trial judge whose work is the immediate subject of review. If, however, all four judges should insist upon participating in the court en banc at any given time, upon the eventuation

[ 371 Pa. Page 32]

    of an equal division of opinion among them, an outside judge should be called in as an additional member of the court for the time being, reargument should be had and disposition of the matter made by majority action of the court. A litigant is entitled to positive and definitive action in a court of first instance and that can be had only by the unanimous or majority vote of the judges composing the court. Judicial practices to achieve that goal should be pursued. In appellate review it sometimes happens that the appealed decision must be affirmed because of an evenly divided court. But, that is because there is no provision for augmenting such a court by the addition of a temporary member. Such practice has no bearing on the manner in which a court of first instance can properly attain finality of a matter before it. In fact, it would have been more in keeping with the practice governing the entry of ...

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