Appeals from judgments of Court of Common Pleas No. 2 of Philadelphia County, Dec. T., 1961, No. 4298, and Court of Common Pleas No. 1, March T., 1963, No. 2506, in cases of Mary Helen Walsh, administratrix of estate of Thomas J. Walsh, deceased, v. Sun Oil Company et al., and Edward B. Kinney et al. v. Sun Oil Company et al.
Carl M. Mazzocone, with him James D. McCrudden, Glenn A. Troutman, and Sheer & Mazzocone, for plaintiffs.
Edward J. Gilson, for plaintiff.
Albert S. Fein, for plaintiff.
Henry T. Dolan, for plaintiff.
Edward Greer, with him Harry Kozart and Alan L. Spielman, for defendant.
Perry S. Bechtle, with him James P. Gannon, and Liebert, Harvey, Bechtle, Herting & Short, for defendant.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Concurring and Dissenting Opinion by Mr. Chief Justice Bell. Concurring and Dissenting Opinion by Mr. Justice Cohen. Concurring and Dissenting Opinion by Mr. Justice Roberts. Mr. Justice O'Brien joins in this opinion. Concurring Opinion by Mr. Justice Pomeroy.
The order of the Court of Common Pleas of Philadelphia County is affirmed in Numbers 218 and 219. The judgments entered are affirmed as to all other plaintiffs.
Order affirmed in Nos. 218 and 219; judgments affirmed as to all other plaintiffs.
[EDIT ] Concurring Opinion by Mr. Justice Pomeroy:
On the merits the Court has affirmed the actions of the lower court, and with this I am in agreement. This brief comment is not directed to the merits of the appeal, but to the procedural problem presented by the use of the test case device where the pretrial order directing it is discovered to be defective.
I subscribe to Justice Cohen's remarks concerning the usefulness of the test case device and the need for this Court to develop guidelines for this type of action. My view of the case at hand, however, leads me to a different conclusion than Justice Cohen as to the appropriate result. In the present case, the pretrial order providing for simultaneous trial of two test cases was entered without an awareness by the trial court that contributory negligence would be an issue with respect to some plaintiffs. In the course of the trial, the importance of that issue became evident. Realizing that the situation of certain firemen placed them outside the reasonable ambit of the pretrial order, the trial court realistically attempted to rectify the situation by granting new trials as to those men. Post-trial modifications of such pretrial orders should be carefully weighed, but in my view the trial court was fully justified in its action in the present instance.
When events prove a pretrial order inadequate as to some parties, it does not follow that the order must for that reason be set aside as to all parties. In the present case, I think it was correct to conclude, as the lower court did, that a new trial as to all thirty-two plaintiffs was not required because of a defect in the consolidation order which affected only six of their
number. The trial of disputes on a test case basis is a device peculiarly suited to large-scale tort litigation of the sort now before us; refusal to allow correction of an imperfect order would in my mind unduly inhibit its use. Similarly inhibiting would be a requirement that absolute congruence of the ...