No. 1468 October Term, 1979, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Civil Division, at No. 5695 July Term, 1974
Howard D. Scher, Philadelphia, for appellant.
Anthony E. Creato, Philadelphia, for appellee.
Brosky, Watkins and Montgomery, JJ.
[ 301 Pa. Super. Page 262]
The appellant, Chelsea Industries, Inc. (Chelsea), questions the propriety of the trial court's decision to grant a motion for a new trial limited to damages where the issue of damages is inextricably intertwined with that of liability and where the damages, lost future profits, are speculative. We are satisfied that the trial court acted correctly and accordingly affirm the decision of the trial court.
[ 301 Pa. Super. Page 263]
Chelsea and appellee, General Dynafab, Inc. (Dynafab), entered an agreement wherein Chelsea would manufacture and sell products produced by a process called "Fiberweld Process" which had been developed by Dynafab. Chelsea was to produce the product at its Jersey Laminating and Finishing Company in Roselle, New Jersey, where it owned a plant and machinery which were required for use in the "Fiberweld Process." The agreement provided that Dynafab would deliver materials and equipment to Chelsea's plant and that Chelsea would modify its machinery in order to produce the product.
The record discloses that shortly after the agreement was executed, Dynafab was locked out of Chelsea's plant. This rendered it impossible for Dynafab to participate in the agreement in which it had contracted for various commissions and other payments. Dynafab then sued Chelsea, claiming Chelsea had breached the contract. A jury awarded Dynafab $215,000 in damages. Chelsea moved for a judgment n. o. v. or new trial and to mold the verdict. Dynafab moved for a new trial limited only to the issue of damages. Dynafab's motion was granted. Chelsea's motions were denied. This appeal followed.
Chelsea argues that the issue of damages herein is so inextricably intertwined with the issue of liability that at a new trial both issues must be considered. In Gudat v. Heuberger, 275 Pa. Super. 535, 542-543, 419 A.2d 30, 33-34 (1980), we said:
The question remains, however, whether the new trial should be limited to the issue of damages. This court will grant a new trial limited to damages where the issue of liability has been fairly determined and the issue of damages is readily separable from the issue of liability. See Lininger v. Kromer, 238 Pa. Super. 259, 358 A.2d 89 (1976). In cases involving inadequate verdicts, however, we are reluctant to grant new trials limited to the issue of damages and will consider the issue of liability to have been fairly determined only where it is "uncontested," "clear" or "free from doubt." Gagliano v. Ditzler, 437 Pa. 230,
[ 301 Pa. Super. Page 264263]
A.2d 319 (1970). The reason for our reluctance is the possibility that the inadequate verdict may in fact have been a compromise verdict reflecting an agreement among the jurors to lessen the plaintiff's award because of evidence that he contributed to the injury. See ...