No. 985 April Term 1978, Appeal from the Order of the Court of Common Pleas of Allegheny County, Pa., Civil Div., at No. 3720 July Term 1974.
Maurice A. Nernberg, Jr., Pittsburgh, for appellant.
David B. Fawcett, Jr., Pittsburgh, for appellees.
Van der Voort, Spaeth and Watkins, JJ.
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This is an appeal from an order denying a motion to remove a compulsory non-suit.
A non-suit is proper only if the jury, after viewing the evidence in the light most favorable to the plaintiff, and then giving the plaintiff the benefit of all reasonable inferences
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arising from that evidence, could not reasonably conclude that the elements of the cause of action had been established. Watkins v. Sharon Aerie No. 327 F. O. E., 423 Pa. 396, 223 A.2d 742 (1966); Herman v. Horst, 255 Pa. Super. 232, 234, 386 A.2d 594, 595 (1978). Viewed in this light, the evidence may be stated as follows:
On February 1, 1971, James Bishop and two others filed a complaint against the Duquesne Brewing Company of Pittsburgh, the company's pension plan and pension board, and Raymond Sigesmund and Franklyn Jeans, who were officers of the company. The complaint alleged in paragraph 20 that "The Retirees are entitled to the death benefits which defendant Duquesne, Pension Plan, Pension Board, Sigesmund and Jeans sought to terminate in that said death benefits were earned as deferred wages by the Retirees during their employment by Duquesne," and in paragraph 30 that "Defendants, Duquesne, Pension Plan, Pension Board, Sigesmund and Jeans have been unjustly enriched by the acts and deeds herein set forth."
On February 3, 1971, the Pittsburgh Post-Gazette published an article reporting the lawsuit. The article stated that the plaintiffs claimed that the company, Sigesmund, and Jeans had been "'unjustly enriched' by withdrawing the death benefits, particularly since that feature of the company's retirement package had been earned by employe contributions." The following day, Sigesmund and Jeans met with Malcolm Anderson, who was counsel for Duquesne Brewing Company. They asked Anderson to file a defamation action against the Post-Gazette. Anderson agreed that he would file "some kind of a notice." Record at 185a. Sigesmund testified that he did not again discuss the matter with Anderson. Record at 127a. Jeans testified that in mid-March he asked Anderson about the matter and Anderson replied that "he was moving forward with it." Record at 187a. In fact, no action had been filed.
In April 1971 the Duquesne Brewing Company terminated its relationship with Anderson, and subsequently turned its files over to new counsel. No file was turned over in the
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Post-Gazette matter.*fn1 Jeans only learned in March 1972 of Anderson's failure to file a defamation action against the Post-Gazette, when he questioned new counsel about it. Record at 231a. By then the statute of limitations barred a defamation action.
In June 1974 the Duquesne Brewing Company (by then known as Duke and Company) filed an action in assumpsit against Anderson and his law firm. The action was tried before a jury, on February 27 and 28, 1978, and the defendants' motion for non-suit was granted. On May 23, 1978, the lower ...