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ATENE v. LAWRENCE (03/25/74)

decided: March 25, 1974.

ATENE, APPELLANT,
v.
LAWRENCE



Appeal from order of Superior Court, Oct. T., 1972, No. 806, affirming order of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1961, No. 400, in case of Angelo P. Atene v. Paul A. Lawrence.

COUNSEL

Fred Lowenschuss, for appellant.

E. R. Paul, with him Joseph G. Manta, James M. Marsh, and LaBrum and Doak, for appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Chief Justice Jones. Mr. Justice Eagen concurs in the result. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice Nix and Mr. Justice Manderino join in this dissenting opinion.

Author: Jones

[ 456 Pa. Page 542]

Appellant was the plaintiff in a trespass action arising out of an automobile accident in 1961. There have been four complete jury trials of this case and an earlier appeal to this Court. The first trial resulted in a verdict for the defendant which was subsequently reversed by this Court on the basis of numerous trial errors.*fn1 The second and third trials both resulted in hung juries. The fourth trial, the subject of this appeal,

[ 456 Pa. Page 543]

    culminated in a verdict in favor of the plaintiff in the sum of $20,000.

Alleging trial errors, the defendant filed timely post-trial motions for judgment n.o.v. and for a new trial which were briefed and argued before the trial court. The allegations of error were that: (1) in appellant's closing argument reference was made to a per diem figure in support of recovery of damages and (2) an uncontrolled experimental re-enactment of the accident was staged. The trial judge then directed the plaintiff to either file a remittitur of all sums in excess of $13,500 or undergo a new trial.*fn2 The Superior Court quashed an immediate appeal on the issue of remittitur on the ground that no appealable order had yet issued. Atene v. Lawrence, 220 Pa. Superior Ct. 444, 289 A.2d 178 (1972). Plaintiff thereafter refused to file the remittitur, and the trial court granted a new trial. After refusing to remit the stated sum, plaintiff again appealed, but the Superior Court affirmed the new trial grant per curiam without opinion. Having granted allocatur, we now affirm.

Appellant contends that there were no trial errors and that the trial judge had no legal basis on which to order either remittitur or a new trial. He argues that the trial judge sought only to effect a compromise in order to forestall the necessity of a new trial, a mode of reduction in the amount of verdict proscribed by this Court in Bell v. Yellow Cab Co., 399 Pa. 332, 160 A.2d 437 (1960). Appellee, to the contrary, maintains that

[ 456 Pa. Page 544]

    the unaccepted remittitur has no impact on the case at this time and that the only issue is the propriety of the trial judge's ruling on the allegations of error raised in the post-trial motions.

The procedural history of this case presents an interesting interpretative issue in the determination of the nature and legal consistency of the trial court ruling on the grant of a new trial. It is not at all clear from the opinion of the trial judge whether he was ruling upon the appellee's post-trial motion for a new trial or solely upon the merits of his own order suggesting remittitur as a basis for the grant of a new trial. This Court must assume the task of construing the propriety of a new trial ...


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