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MERKLIN v. PHILADELPHIA SUBURBAN WATER COMPANY ET AL. (03/29/76)

decided: March 29, 1976.

MERKLIN, ET AL. APPELLANTS,
v.
PHILADELPHIA SUBURBAN WATER COMPANY ET AL.



Appeal from order of Court of Common Pleas of Montgomery County, No. 69-7014, in case of Sherry J. Merklin and Louis Merklin v. Philadelphia Suburban Water Company and Martin Walter.

COUNSEL

Andrew Elash, with him Galen D. Hawk, Alexander B. Giacobetti, and Wright, Spencer, Manning & Sagendorph, and Richter, Syken, Ross & Levant, for appellants.

Joseph J. Murphy, with him Robert J. Murphy, Thomas W. Murphy, and Murphy, Murphy & Murphy, for appellees.

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

Author: Price

[ 239 Pa. Super. Page 230]

Appellants in this case contend that it was error for the court en banc to grant a compulsory non-suit after the trial judge had declared a mistrial. For the reasons which follow, we agree, and grant appellants a new trial.

This appeal arises from the trial of a motor vehicle collision case. On the second day of trial a colloquy took place between the respective attorneys and the judge, wherein counsel for the appellees stated that he wished to argue certain motions, but that he would do so only if appellants' case on liability was closed. Appellants' counsel agreed that his case on liability was completed. Appellees then moved for a compulsory non-suit on the ground that appellants had failed to identify, either by the pleadings or by testimony, the party who struck appellants' car. Appellees' motion for compulsory non-suit was taken under advisement by the trial judge.

The trial was reconvened the following day, at which time appellants' counsel sought leave of court to reopen his case as to liability. This request was denied. Subsequently, during the testimony of appellants' medical witness, certain prejudicial remarks were made by the witness, prompting appellees' motion for a mistrial. A mistrial was then declared.

Approximately six months later, appellees' prior motion for compulsory non-suit was granted by the court en banc. Appellants' motion to take off compulsory non-suit was denied by the court en banc on February 27, 1975.

Appellants first contend that it was error for the court to grant a compulsory non-suit on the basis of a motion which the trial judge had taken under advisement

[ 239 Pa. Super. Page 231]

    prior to his declaration of a mistrial.*fn1 It is a question of first impression in Pennsylvania. Both statutory and case law are silent as to the procedural effect of a mistrial.

There are several cases outside our jurisdiction, however, which deal directly with the procedural results stemming from a mistrial. In Re Bartholomae's Estate, 261 Cal. App. 2d 839, 68 Cal. Rptr. 332 (1968), involved a court's grant of a mistrial. The California Court of Appeals ...


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