No. 77 January Term, 1979, Appeal from the Judgment of the Superior Court at No. 64, October Term, 1978, Affirming the Order of the Court of Common Pleas of Luzerne County, Civil Division at No. 889, March Term, 1972
Joseph J. Musto, Pittston, for Caryl Lynne Lew.
Jonathan C. Teller, Wilkes-Barre, for James M. Reinert.
Anthony C. Falvello, Conrad A. Falvello, Paula C. F. Garrety, Harrisburg, for appellee.
O'Brien, C.j., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Roberts, J., concurred in the result.
The basic issue presented in this appeal is whether the court en banc may give relief on post-verdict motions when such relief had not been requested during trial. We hold that our decision in Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974) precludes such a practice.
The instant appeal originated from a trespass action for damages arising out of the death of Elizabeth Tagnani on
March 19, 1971 in Luzerne County. The trial resulted in a verdict in favor of the defendant-appellants. The Estate of Ms. Tagnani filed post-verdict motions and the court en banc granted a new trial. The Superior Court affirmed, per curiam, and we granted review.
The basis for the grant of a new trial by the court en banc was the attempt by the defense, at trial, to interject the possibility of the remarriage of the husband of the decedent. An objection to the question was promptly sustained and the question was not answered. No further relief was sought by appellee during trial. There was no request for cautionary instructions nor was there a request for the withdrawal of a juror. On post-verdict motions, after the jury had obviously decided the liability question in favor of the defendant-appellants, the court en banc concluded that the improper, unanswered question was so prejudicial that a new trial was warranted. Appellants do not challenge the trial court's ruling as to the impropriety of the question involved.*fn1 The issue involves the power of a court to grant a new trial for alleged harm neither designated as such nor for which remedy was sought during trial.
The court en banc relied upon our decision in Hill v. Gerheim, 419 Pa. 349, 214 A.2d 240 (1965). In Hill the fact that the remedy requested during trial was granted and no further complaint was then made was not controlling. We there suggested a power in the court to grant a ...