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CITY PITTSBURGH v. WASHALLEN READIE (07/06/79)

decided: July 6, 1979.

CITY OF PITTSBURGH, APPELLANT
v.
WASHALLEN READIE, APPELLEE



Appeals from the Order of the Court of Common Pleas of Allegheny County in case of Washallen Readie v. City of Pittsburgh, No. 2720 October Term, 1974.

COUNSEL

Joseph A. Fricker, Jr., Chief Trial Counsel, with him Virginia I. Cook, Assistant City Solicitor, and Mead J. Mulvihill, Jr., City Solicitor, for City of Pittsburgh.

C. William Berger, with him Berger, Kapetan & Malakoff, for Readie.

Judges Mencer, DiSalle and Craig, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 44 Pa. Commw. Page 73]

The City of Pittsburgh (city) has appealed a decision of the Court of Common Pleas of Allegheny County, denying both its motions for judgment n.o.v. and for a new trial.

These proceedings originated when Washallen Readie (Readie), owner of property located at 1616-1618 Webster Street, Pittsburgh, Pennsylvania, instituted an action in trespass against the city to recover damages for the condemnation and wrongful demolition of that property. In post-trial motions from a $25,000 jury verdict in Readie's favor, the city claims: (1) that erroneous jury instructions and misleading statements by Readie's counsel in closing to the jury constitute grounds for a new trial, and (2) that, because the jury verdict was based on insufficient evidence and is against the law, the city has adequate grounds for a judgment n.o.v.

The city's motion for a new trial on the basis of erroneous and incomplete jury instructions is without

[ 44 Pa. Commw. Page 74]

    merit. Counsel for the city failed to except to the charge and did not request further or clarifying instructions at the close of the charge. Under such circumstances, the city cannot now assert inadequate, incomplete or erroneous charges as grounds for a new trial. Pennsylvania Power & Light Co. v. Gilotti, 39 Pa. Commonwealth Ct. 234, 395 A.2d 624 (1978); Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974).

Further, the city's claim that opposing counsel's remark to the jury, that the city should be required to reinspect condemned premises after the 30-day appeal period has passed, was so prejudicial as to require the grant of a new trial, is without merit where the judge's charge to the jury was clear and correct.

Reviewing the facts which culminated in the demolition of the property, we note that the city's involvement with Readie's property began in September, 1965, when it issued a notice of dangerous conditions on the property, resulting from a fire in July, 1965.

Testimony in the record indicates that Readie began repairs almost immediately, including: removal of all the plaster from walls and ceilings and replacing it with plaster board; replacement of the roof including new joists, a project which took several years to complete; removal of all the glass from the windows; and removal of all the ...


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