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PAULA CINGOTA v. KENNETH MILLIKEN (04/10/81)

filed: April 10, 1981.

PAULA CINGOTA, APPELLANT,
v.
KENNETH MILLIKEN, APPELLEE



No. 420 Pittsburgh, 1980, Appeal from the Judgment of the Court of Common Pleas of Allegheny County, Pennsylvania at No. G.D. 76-25809.

COUNSEL

W. Thomas Laffey, Jr., Pittsburgh, for appellant.

Dennis St. J. Mulvihill, Pittsburgh, for appellee.

Spaeth, Wickersham and Lipez, JJ.

Author: Spaeth

[ 286 Pa. Super. Page 118]

This is a personal injury case. Appellant, who was the plaintiff below, argues that the lower court erred in charging the jury that it could not return a verdict for her if it found that her injury was an aggravation of a pre-existing condition. We agree and shall therefore reverse and remand for a new trial.*fn1

On January 26, 1976, appellant sustained injuries when she fell down a flight of four steps in an apartment building

[ 286 Pa. Super. Page 119]

    in Pittsburgh owned by appellee. Appellant was on the premises visiting a friend who was a tenant in the building. In her complaint, appellant described her injuries as follows: "a. Acute low back sprain; b. Severe pain in the low lumbar area; c. Herniated disc; d. Radiation of pain into both legs; e. Ruptured lumbosacral disc; f. Numbness of the left thigh; g. Weakness in the left great toe; h. Shock and injuries to the nerves and nervous system; and, i. Other severe and serious injuries including injuries to the head, neck, chest, abdomen, arms, hands, wrists, legs, ankles, knees, feet, fingers and toes."

At the close of the evidence, appellant's counsel submitted the following requested point for charge:

9. If you shall find in favor of the Plaintiff, you are instructed that the Defendant is not excused because the Plaintiff may have had a pre-existing condition which made her peculiarly susceptible to the injury and disability of which she complains in this action due to the accident of January 26, 1976; and, in arriving at your verdict, you are instructed that the Defendant takes the Plaintiff as he finds her at the time of the accident and you are not to deduct anything from the damages to which the Plaintiff is entitled because of her pre-existing condition. Pavorsky v. Engles, 410 Pa. 100, 188 A.2d 731 (1963).

Appellee's counsel objected:

MR. MULVIHILL: Nine I take exception to, Your Honor, because as we stated after Court yesterday off the record, and I would like it on the record now, there is nothing in the Complaint that makes reference to an aggravation claim. All of the contentions in the complaint were that her problems were directly covered and caused by this incident.

THE COURT: Yes, but if you have somebody that has a weak back, that is what he is asking me to charge here, you take her as you find her.

After the court had noted defense counsel's exception, appellant's counsel made an oral motion to amend the complaint

[ 286 Pa. Super. Page 120]

    to include a claim of aggravation of a pre-existing back condition, which the court denied:

MR. LAFFEY [Counsel for plaintiff]: To the extent that that would be necessary, I would respectfully move, under 1033, that my ...


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