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MUNDY v. ACME MARKETS (09/19/73)

decided: September 19, 1973.

MUNDY
v.
ACME MARKETS, INC., APPELLANT



Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, Dec. T., 1966, No. 159, in case of Margaret Mundy v. Acme Markets, Inc.

COUNSEL

D. O'Connor, with him Edward W. Madeira, Jr., Nancy J. Gellman and Pepper, Hamilton & Scheetz, for appellant.

Morton B. Wapner, with him Gary Green and Sidkoff, Pincus, Greenberg, Wapner & Golden, for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding and Cercone, JJ. (Spaeth, J., absent). Spaeth, J., took no part in the consideration or decision of this case.

Author: Per Curiam

[ 225 Pa. Super. Page 64]

On July 22, 1966, the plaintiff fell while shopping with her daughter and grandson in one of defendant's markets in Fallsington, Pennsylvania. About a week later, a physician diagnosed a condition of the plaintiff's eyes as glaucoma and surgery was performed relative to that condition. Certain additional operative procedures, designed to ameliorate problems allegedly

[ 225 Pa. Super. Page 65]

    caused by the glaucoma, were later performed on plaintiff's eyes.

In the present negligence action, plaintiff included in compensation sought from defendant that for glaucoma-related injuries and losses, which were attributed by plaintiff to her fall.*fn1 The fall, it was alleged, resulted from an accumulation of foreign matter negligently allowed to remain on the floor of defendant's market, without warning to customers, by its employees.

Following a 5-day trial, a jury returned a verdict in favor of the plaintiff in the amount of $200,000. Immediately after the jury was excused, the lower court asked the attorneys involved whether there were any motions to be made. The defendant's attorney answered affirmatively. He expressed his understanding that post-trial motions for judgment notwithstanding the verdict and for a new trial were to be made at that time.*fn2 The lower court replied: "Yes, sir. I will accept them now orally if you have any."

[ 225 Pa. Super. Page 66]

Defendant's attorney proceeded to argue a motion for judgment notwithstanding the verdict, which was denied. He then argued a motion for a new trial, during the course of which he obtained permission from the lower court to file supplemental reasons for his motion within 10 days of transcription of the record.*fn3 At the conclusion of the oral argument, the lower court denied the motion for a new trial, and repeated the denial of the motion for judgment notwithstanding the verdict. Subsequent to disposition of the motions, the defendant submitted, in accordance with the allowance granted by the court below, more than 80 supplemental reasons in support of the motion for a new trial. The lower court had declined to permit the defendant to file a brief in support of its supplemental reasons, and there is no suggestion in the record that the court reconsidered its original ruling on the new trial motion in light of the reasons submitted.

In its brief on appeal, the defendant limits the relief requested to that of a new trial, abandoning its argument in favor of judgment notwithstanding the verdict. It raises a number of points, several of which were not before the lower court when it made its ruling on the motion for a new trial, but ...


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