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WHITE v. ROSENBERRY (04/23/69)

decided: April 23, 1969.

WHITE
v.
ROSENBERRY, APPELLANTS



Appeals from judgment of Court of Common Pleas of Lebanon County, June T., 1966, No. 115, in case of Arthur J. White v. Sheldon William Rosenberry et al.

COUNSEL

Richard A. Bausher, with him John D. Glase, and Stevens and Lee, for defendant, appellant.

J. R. Whitman, with him Richard W. Cleckner, and Lewis, Brubaker, Whitman & Christianson, and Nissley, Cleckner & Fearen, for plaintiff, appellee.

Stanley W. Katz, with him Davis, Katz, Buzgon & Davis, for additional defendant, appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Jones. Mr. Justice Roberts concurs in the result.

Author: Jones

[ 434 Pa. Page 116]

Arthur White (White) brought suit in the Court of Common Pleas of Lebanon County against Sheldon Rosenberry (Rosenberry) seeking damages for personal injuries arising out of an automobile accident.*fn1

[ 434 Pa. Page 117]

Rosenberry joined Nancy Keller (Keller) as an additional defendant. The jury returned a verdict in favor of White and against Rosenberry and Keller in the sum of $146,723.30. Keller subsequently filed motions for a new trial and judgment n.o.v.*fn2 Copies of these motions were mailed to Rosenberry's attorney but were not received until after the time for the filing of post-trial motions had expired.

Approximately one month after the trial, White entered judgment on the verdict against both Rosenberry and Keller. White then demanded the full amount from Rosenberry. Realizing that he was now caught in a squeeze, Rosenberry petitioned the court to strike off the judgment entered against him and requested leave to file a motion for a new trial nunc pro tunc for the limited purpose of protecting his right of contribution from Keller. The court denied both of Rosenberry's petitions, and he has appealed to our Court.*fn3 In the meantime, Keller filed a motion to strike the judgment as to her alone, which the court granted.

Rosenberry's position is that the court's orders granting Keller's motion to strike the judgment and not permitting his motion for a new trial to be filed nunc pro tunc jeopardize his right of contribution from Keller under the original jury verdict. If the court grants Keller's motion for a new trial without permitting Rosenberry to have a new trial also, Rosenberry will lose his right of contribution unless the matter proceeds to trial again and the jury returns another verdict against Keller. If White is permitted to

[ 434 Pa. Page 118]

    recover the entire verdict from Rosenberry, the matter in all likelihood will not proceed to trial again because neither White nor Keller will be interested in relitigating Keller's liability. The end result, therefore, is that Rosenberry will have to pay the entire ...


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