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PNIEWSKI v. KUNDA ET AL. (12/01/75)

decided: December 1, 1975.

PNIEWSKI, APPELLANT,
v.
KUNDA ET AL.



Appeal from judgment of Court of Common Pleas of Montgomery County, No. 69-12617, in case of Elizabeth Pniewski, Administrator d.b.n. of the Estate of Zenon Pniewski, deceased v. Theodore E. C. Kunda and Stanley T. Kunda, individually and trading as Kunda Sign Company, and Philadelphia Electric Co., and Bridgeport Welding, Inc., additional defendant.

COUNSEL

James P. Geoghegan, with him Edward J. Ozorowski, and Geoghegan & Ozorowski, for appellant.

Gilbert P. High, Jr., with him Richard K. Masterson, Michael G. Trachtman, and High, Swartz, Roberts & Seidel, and Waters, Fleer, Cooper & Gallager, for appellees.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J.

Author: Price

[ 237 Pa. Super. Page 439]

Plaintiff-appellant's decedent, Zenon Pniewski, was fatally electrocuted on September 10, 1968, while in the process of erecting steel beams for the construction of new offices for the corporation of which he was half-owner. At the time, a crane was being used to position the beams on the foundation and Pniewski was guiding the beams onto bolts protruding from the concrete. The crane was rented from defendant-appellee Kunda Sign Company, who also supplied the crane operator. During this process, the crane operator brought the crane within six feet of a high voltage electric wire, owned by defendant-appellee Philadelphia Electric Company. When the beam came to within six inches of the bolts beneath it, an electric current arched from the wire to the ground, killing Pniewski.

Appellant filed wrongful death and survival actions against the appellees and it is from the judgments rendered in those actions that appellant appeals. Only one question is raised on this appeal: Did the trial court err in molding the verdict to conform to the intent of the jury. We hold that the lower court did err and will therefore reverse and grant a new trial as to damages.

[ 237 Pa. Super. Page 440]

After the jury had been deliberating, on and off, for approximately twenty-four hours, they submitted the following question to the judge:

"Will you please differentiate Survival Action and Wrongful Death Action, both in terms of determining which award is selected and in terms of how the amount of the actual award is determined."

The trial judge repeated his earlier charge on these matters, which included a discussion cautioning the jury against duplication of damages. The jury retired for twenty-five minutes and returned with a verdict for the appellant of $110,336.00, "with no award for pain and suffering" in the wrongful death action. When the clerk began to read the survival action verdict, the foreman interrupted and the following discussion took place:

"FOREMAN: That sheet is crossed out. We did not use the ...


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