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JAMES F. DREW v. CHARLES LABER (04/25/80)

filed: April 25, 1980.

JAMES F. DREW, APPELLANT,
v.
CHARLES LABER, JR. AND TOWNSHIP OF RIDLEY



No. 2181 October Term, 1978, Appeal from the Order of the Court of Common Pleas of Delaware County, Pennsylvania, Civil Division, at No. 1490 of 1971.

COUNSEL

Dale A. Betty, Media, for appellant.

George J. McConchie, Media, for appellee.

Cercone, President Judge, and Watkins and Hoffman, JJ. Watkins, J., files a concurring opinion. Hoffman, J., files a dissenting opinion.

Author: Cercone

[ 277 Pa. Super. Page 420]

This is an appeal from the order of the Court of Common Pleas of Delaware County which granted the Township of Ridley's Motion for New Trial. We reverse the order of the lower court and enter judgment on the verdict.

[ 277 Pa. Super. Page 421]

The procedural history of this case is as follows: Appellant, James Drew, while walking on a road in the Township of Ridley, was struck by an automobile and seriously injured. Appellant sued both the driver of the car, Charles Laber, and the Township of Ridley. After hearing all the evidence, the jury returned a verdict in favor of Drew against Ridley Township and Laber in the sum of $173,440.55. Thereafter, the township filed motions for judgment n.o.v. or, in the alternative, for a new trial. Following a hearing on the motions, the lower court judge struck part of the expert testimony presented by Drew which tended to establish the township's negligent construction and maintenance of the road, and granted the township's motion for judgment n.o.v. Having done so, the trial court did not reach the township's motion for a new trial. When we affirmed the trial court's order, Drew appealed to the Supreme Court, which reversed the lower court's order granting judgment n.o.v. in favor of Ridley Township and remanded the case for the disposition of the motions for new trial. Drew v. Laber & Twp. of Ridley, 477 Pa. 297, 383 A.2d 941 (1978). On remand, the lower court granted the township's motion for new trial on the basis that Drew's expert should not have been allowed to testify and that the township's requested point for charge*fn1 should have been granted. It is from this order that Drew has again appealed to our court.

On appeal, the issue presented for our review is whether the lower court abused its discretion or committed an error of law in granting the new trial on the basis of the reasons cited by that court. The general rule is that a new trial order will not be disturbed absent an abuse of discretion or an error of law by the trial judge. Gilligan v. Shaw, 441 Pa. 305, 272 A.2d 462 (1971); Hussey v. May Dept. Stores, Inc., 238 Pa. Super. 431, 357 A.2d 635 (1976). In this case, we are

[ 277 Pa. Super. Page 422]

    constrained to find that the law was not properly applied and, therefore, we must reverse.

In granting the township a new trial, the lower court stated that it improperly had allowed into evidence testimony of Drew's traffic engineering expert, Dr. James Schuster, which testimony unfairly prejudiced the township's defense. Appellant's major contention is that the Supreme Court, in its opinion reversing the judgment n.o.v., addressed the relevance and admissibility of Dr. Schuster's testimony, found it admissible and, thereby, precluded the court on remand from granting the township a new trial on that basis. Justice Larsen, in writing for the majority, stated:

"Finally, it was not improper for the trial court to permit Dr. Schuster, an expert in the field of transportation engineering, to testify at the trial. Dr. Schuster testified that the section of Bullens Lane where the accident occurred was 'not properly maintained . . . consistent with good traffic engineering principles' and that at a minimum, Ridley Township should have ...


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