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CLARK v. RUTECKI. (06/28/62)

June 28, 1962

CLARK, APPELLANT,
v.
RUTECKI.



Appeal, No. 223, Jan. T., 1962, from judgment of Court of Common Pleas No. 6 of Philadelphia County, Dec. T., 1956, No. 6605, in case of Andrew J. Clark v. Wallace Rutecki. Judgment affirmed; reargument refused July 12, 1962.

COUNSEL

John F. McElvenny, with him Norman Shigon, for appellant.

James J. McEldrew, with him Elston C. Cole, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.

Author: Jones

[ 408 Pa. Page 26]

OPINION BY MR. JUSTICE BENJAMIN R. JONES

A jury in a trespass action in the Court of Common Pleas No. 2 of Philadelphia County on May 9, 1960 returned a verdict in favor of Walter Rutecki, defendant, and against Andrew Clark, plaintiff. On May 11, ,1960, Clark's counsel filed a motion for a new trial averring that the verdict was (a) against the law, (b) against the evidence, (c) against the law and evidence, (d) against the weight of the law, (e) against the weight of the evidence and (f) against the weight of the law and evidence. At the same time Clark's counsel reserved the right to file additional reasons for a new trial after the transcription of the notes of evidence.*fn1

For a period of approximately sixteen months Clark's counsel did nothing about the motion for a new trial, neither filing additional reasons for a new trial nor ordering the motion on the argument list. Finally, on September 29, 1961, Rutecki's counsel filed a motion to dismiss the motion for a new trial for lack of prosecution and to that motion an answer was filed. The motion to dismiss came up for hearing before

[ 408 Pa. Page 27]

Judge VINCENT CARROLL on October 31, 1961 and at that time Clark's counsel filed no brief nor did he appear at the hearing. On that date Judge CARROLL dismissed the motion for a new trial for lack of prosecution.*fn2

Almost ten weeks later Clark's counsel entered a judgment on the verdict in favor of Rutecki and against Clark.*fn3 About ten days later Clark's counsel took an appeal from that judgment.*fn4

On this appeal Clark seeks to raise three questions: (1) that the court below erred in permitting the introduction into evidence of certain Unemployment Compensation and Workmen's Compensation payments to Clark; (2) that the court below erred in referring to an Act of God in its charge to the jury; (3) that the court below was prejudiced against Clark. The motion for a new trial made no reference whatsoever to these questions nor were they raised in or presented for the consideration of the court below.

Time and again we have stated that questions which are not raised in the court below will not be considered on appeal: Bechler v. Oliva, 400 Pa. 299, 303, 161 A.2d 156; Robinson v. Philadelphia, 400 Pa. 80, 89, 161 A.2d 1; Rosenfeld v. Rosenfeld, 390 Pa. ...


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