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CARL CARNICELLI v. WILLIAM J. BARTRAM (06/12/81)

filed: June 12, 1981.

CARL CARNICELLI, APPELLANT,
v.
WILLIAM J. BARTRAM, JR., AND MARJORIE B. BARTRAM, HIS WIFE



No. 241 Pittsburgh, 1980, Appeal from Order of the Court of Common Pleas of Allegheny County, Civil Division at No. 3002, July Term, 1972.

COUNSEL

Dina G. McIntyre, Pittsburgh, for appellant.

Edward L. Kochuba, Pittsburgh, for appellees.

Spaeth, Wickersham and Lipez, JJ. Wickersham, J., concurs in the result.

Author: Spaeth

[ 289 Pa. Super. Page 427]

This appeal is from an order granting a new trial. We reverse because the lower court relied on reasons not specifically assigned in the motion for new trial, and remand so that the court may consider those reasons that were specifically assigned.

-1-

An order granting or refusing to grant a new trial is within the discretion of the lower court. However, the discretion is not absolute, Decker v. Kulesza, 369 Pa. 259, 85 A.2d 413 (1952); Albert v. Alter, 252 Pa. Super. 203, 381 A.2d

[ 289 Pa. Super. Page 428459]

(1977), and if the order is based on an error of law or represents an abuse of discretion, we will reverse. Handfinger v. Philadelphia Gas Works, 439 Pa. 130, 266 A.2d 769 (1970); Weaver v. Firestone Tire & Rubber Co., 367 Pa. Super. 548, 407 A.2d 45 (1979); Sindler v. Goldman, 256 Pa. Super. 417, 389 A.2d 1192 (1978). In reviewing the order, we examine all of the evidence presented at trial. Hayter v. Sileo, 230 Pa. Super. 329, 326 A.2d 462 (1974).

Appellant is an architect and engineer. He brought the present action to recover fees for architectural and engineering services rendered to appellee pursuant to a series of oral contracts.*fn1 Appellee counterclaimed for amounts loaned or advanced to appellant. The jury returned verdicts of $155,000 for appellant and $6,900 for appellee. On appellee's motion, the lower court granted a new trial as to both appellant's claim and appellee's counterclaim.

In its opinion in support of the order granting a new trial, the lower court held that the verdict was "contrary to law" and "contrary to the evidence." The court held the verdict contrary to law because with respect to the performance of one of the agreements between the parties the court found that "[t]he probata . . . did not conform with the allegata as set forth in his complaint." Slip op. at 14. The court held the verdict contrary to the evidence for two reasons. First, the court said, appellant's "theory at the time of trial," that is, his theory as shown by his testimony, was inconsistent with the theory of his complaint. Id. at 14-15. Second, the court said, "the verdict of the jury was in conflict with [appellant's] evidence." Id. at 16.

Later in this opinion we shall consider the merits of these rulings. First, however, we must consider a procedural issue, which is of considerable importance. This issue arises because nowhere in his motion for the new trial did appellee assign as error either that, on the issue relied on by the lower court, the probata did not conform with the allegata

[ 289 Pa. Super. Page 429]

    or that appellant's theory as shown by his testimony was inconsistent with the theory of his complaint, or that the verdict was in conflict with the evidence. Appellee did open his motion for new trial with three "boiler-plate" assignments: that the verdict was "against the evidence," "against the weight of the evidence," and "against the law." R.R. at 15a. He followed these with thirteen specific assignments. However, the lower court discussed none of these thirteen in its opinion. The issue we must decide, therefore, is this: When a party makes only boilerplate assignments of error, may the court sua sponte consider, as though within those assignments, specific assignments of error that might have been but were not made?

Some cases have held that because a trial court has the power to grant a new trial sua sponte, it is not error to grant a new trial for a reason not assigned in the motion for new trial. E. g., Getz v. Balliet, 431 Pa. 441, 446, 246 A.2d 108, 110 (1968). However, these cases preceded Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974). The Supreme Court has very recently considered the impact of Dilliplaine on the Getz line of cases. In Tagnani v. Lew, 493 Pa. 371, 426 A.2d 595 (1981), the Court held that it was error for a court en banc to grant a new trial when at trial an objection had been made and sustained and no further relief, such as a cautionary instruction or the withdrawal of a juror, had been requested.

It is not clear from the opinion in Tagnani just how specifically the error for which the court en banc granted a new trial had been assigned in the motion for new trial. The Court held that because relief could have been requested during trial but was not, the issue was waived. Thus it did not matter how general or how specific the assignment of error in the motion for new trial had been. However, in this case it does matter, because in granting a new trial the lower court relied on a reason that could not have been raised during trial -- what it saw to be a conflict between the verdict and the evidence. Accordingly, we must consider the degree of specificity required in post-verdict motions in a

[ 289 Pa. Super. Page 430]

    civil case, and we must do so in the light of the Supreme ...


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