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PALMER v. MOSES (04/12/73)

decided: April 12, 1973.

PALMER
v.
MOSES, APPELLANT



Appeals from order of Court of Common Pleas, Civil Division, of Allegheny County, Jan. T., 1969, No. 690, in case of Margaret R. Palmer, and Helen E. Stroech and Carl P. Stroech v. Foss Motors, Inc., and Hurtis Moses v. Margaret R. Palmer.

COUNSEL

Thomas J. Reinstadtler, with him Egler, McGregor & Reinstadtler, for appellant.

H. Fred Mercer, with him H. Fred Mercer, III, and Mercer, Buckley & Scully, for appellees.

Wright, P. J., Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. (Watkins, J., absent.) Opinion by Hoffman, J. Dissenting Opinion by Cercone, J. Spaulding, J., joins in this dissenting opinion.

Author: Hoffman

[ 224 Pa. Super. Page 277]

In this appeal, the issue is whether the lower court properly granted a mistrial on the basis that the series of verdict slips lacked certainty.

The verdict slips are set out in footnote 2 of the dissenting opinion. We have examined the record and studied the submitted slips, and we are not convinced that they reveal such a clearly expressed intent. The trial court, after receiving the multiple slips and reading them together, concluded: "I do believe that in view of the series of matters that have now transpired that it is impossible to say with certainty that this jury has an understanding of the problems presented to it and I, therefore, grant the motion for the withdrawal of a juror." We must join the trial court's action in the instant matter.

Underlying the trial court's action is the general rule that a court has broad discretion in molding a

[ 224 Pa. Super. Page 278]

    verdict, and a refusal to do so will not ordinarily be reversed unless there has been an abuse of discretion. Pittsburgh v. Dinardo, 410 Pa. 376, 189 A.2d 886 (1963); East Broad Top Transit Co. v. Flood, 326 Pa. 353, 192 A. 401 (1937).

This Court is guided by the well-established rule that the grant of a new trial lies within the sound discretion of the trial court. See, e.g., Zeman v. Canonsburg Boro, 423 Pa. 450, 223 A.2d 728 (1966).

In the case of May v. Pittsburgh Railways Co., 209 Pa. Superior Ct. 126, 129-130, 224 A.2d 770 (1966), in reversing a trial court's action in molding inconsistent verdicts and granting a new trial, our Court said: "In order to mold the verdicts, the trial judge had to assume facts which could not be determined from the verdicts. The rule that a trial court has power to mold a verdict to agree with the obvious intention of the jury, Wadatz v. Taormina, 356 Pa. 481, 52 A.2d 220 (1947), does not apply where the intention of the jury is far from obvious.

"It has long been the law of Pennsylvania that a new trial is properly granted where verdicts are inconsistent. . . . See Thompson v. Iannuzzi, 403 Pa. ...


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