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filed: May 21, 1982.


No. 1123 PHILADELPHIA, 1981, Appeal from the Order of the Court of Common Pleas, Trial Division, Law, of Philadelphia County, 1976, August Term, No. 499


Robert B. B. Schatz, Philadelphia, for appellant.

John J. Tinaglia, Philadelphia, for appellee.

Spaeth, Montgomery and Lipez, JJ.

Author: Montgomery

[ 299 Pa. Super. Page 547]

The instant appeal arises from a lower court order dismissing the Plaintiff-Appellant's post-trial motions in a case involving claims for damages for injuries purportedly suffered in a motor vehicle collision. The Defendant-Appellee, the Philadelphia Electric Company, admitted liability in the collision, in which a vehicle operated by one of its employees struck the rear of a vehicle in which the Appellant was a passenger. At the conclusion of the trial, the jury awarded no damages to the Appellant. On the instant appeal, the Appellant contends that he is entitled to a new trial based upon the alleged racially discriminatory use of peremptory challenges by the defense, and also because the jury awarded him no damages. We find no merit in either of the contentions raised by the Appellant.

We first examine the claim that the Appellant is entitled to a new trial as the result of the alleged racially discriminatory use of peremptory challenges by the Appellee, which resulted in the exclusion of all prospective black jurors in the case. The Plaintiff and all but one of his witnesses were black. During voir dire examination of the prospective jurors by counsel for the respective parties, several of the prospective jurors were removed for cause. In each instance, such jurors were white. The entire panel from which the jury was to be chosen apparently included four black individuals. It was claimed that counsel for the defense exercised peremptory challenges to exclude all four black prospective jurors from the panel which considered the case.

[ 299 Pa. Super. Page 548]

The question of the exclusion of jurors of a particular race from a jury panel has most often been raised in criminal cases. The United States Supreme Court addressed this issue in the landmark case of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). In Swain the Court held that it was not a denial of Equal Protection to exclude blacks from a jury by the use of peremptory challenges in a criminal case.*fn1 It was held that in order to establish a denial of constitutional rights, it would have to be shown that jurors of a particular race were systematically excluded from the array of jurors available, and not simply that racial considerations had played a part in the exercise of peremptory challenges used in the selection of the panel which actually heard a particular case. Our Pennsylvania Supreme Court has recognized this concept. See Commonwealth v. Jones, 465 Pa. 473, 350 A.2d 862 (1976). If such use of peremptory challenges is not deemed to be a violation of rights in a criminal case, where one's very liberty is placed in question, it does not appear to us that there is any basis to create a more stringent standard in civil proceedings by adopting the position urged in the instant case by the Appellant. It appears that such a distinction has been specifically rejected in the Federal courts. Sorenson v. Raymond, 532 F.2d 496 (5th Cir. 1976). Therefore, we reject the Appellant's initial claim of error.

The Appellant also contends that the jury's verdict was against the weight of the evidence and that a new trial is required on the issue of damages. The Appellant argues, in essence, that the jury was compelled to accept the testimony which he and his witnesses offered as to his injuries, pain and suffering, and thereby was required to award him damages. It is well-established that a court should grant a

[ 299 Pa. Super. Page 549]

    new trial only when the verdict is so contrary to the evidence as to shock the court's sense of justice. Weaver v. Firestone Tire & Rubber Company, 267 Pa. Superior Ct. 548, 407 A.2d 45 (1980). Further, it is the general rule that the granting or denial of a new trial is a decision within the sound discretion of the trial judge. Palmer v. Brest, 254 Pa. Superior Ct. 532, 386 A.2d 77 (1978). While it is clear that where legal liability has been imposed, a jury may not capriciously withhold damages [ Pascarella v. Pittsburgh Railway Co., 389 Pa. 8, 131 A.2d 445 (1957)], it is also well-established that a jury is not required to believe the plaintiff and his witnesses, even when their testimony is uncontradicted. See Bronchak v. Rebmann, 263 Pa. Superior Ct. 136, 397 A.2d 438 (1979). Moreover, where a plaintiff's evidence as to damages is contested and placed in doubt, it is within the jury's power to decide that the plaintiff did not meet his burden of proof and to award no damages. Lesoon v. Yellow Cab Co., 195 Pa. Superior Ct. 470, 171 A.2d 877 (1961). This Court has also held that a jury may properly ignore any plaintiff's claim for damages when it disbelieves the witnesses of the plaintiff and therefore is unconvinced by plaintiff's evidence. See Surgent v. Stein, 280 Pa. Superior Ct. 142, 421 A.2d 445 (1980); Rose v. Hoover, 231 Pa. Superior Ct. 251, 331 A.2d 878 (1974).

Our own review of the record convinces us that ample grounds existed upon which the jurors may have concluded that the Plaintiff-Appellant and his witnesses were unworthy of belief on the issue of whether or not he suffered any injuries in the accident in question. The record shows that the accident occurred on October 20, 1975, and that the Appellant was then a passenger in an automobile which was struck from the rear by another vehicle operated by an employee of the Defendant. The Appellant testified at trial that immediately after the accident he went directly home and to bed. He related that he was in tremendous pain, wore a ...

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