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JOHN E. ROBERTS v. JOSEPH S. PILCAVAGE AND BUCKEYE PIPE LINE COMPANY (06/11/82)

SUPERIOR COURT OF PENNSYLVANIA


June 11, 1982

JOHN E. ROBERTS, APPELLANT
v.
JOSEPH S. PILCAVAGE AND BUCKEYE PIPE LINE COMPANY

No. 2014 Philadelphia, 1980, Appeal from the Order and Judgment in the Court of Common Pleas of Northampton County, Civil Division, Trespass at No. 359 October Term, 1974.

Before Price, Montemuro and Van der Voort

Per Curiam

The Judgment of the Court of Common Pleas of Northampton County is affirmed.

MEMORANDUM

The instant appeal is from the entry of judgment in the Court of Common Pleas of Northampton County following the order of that court denying appellant's motion for a new trial. Having thoroughly examined the record before us, we find meritless appellant's allegations of error and thus affirm the trial court's order on the basis of the per curiam opinion of the en banc Court of Common Pleas of Northampton County.

IN THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY, PENNSYLVANIA CIVIL ACTION - LAW

JOHN E. ROBERTS, Plaintiff vs. JOSEPH S. PILCAVAGE and BUCKEYE PIPELINE COMPANY, Defendants

No. 359 October Term, 1974

IN TRESPASS

Opinion OF THE COURT EN BANC

This case arose out of an automobile accident which occurred on December 22, 1972. The plaintiff commenced this action against both the individual defendant, Joseph Pilcavage and his employer, Buckeye Pipeline Company (hereinafter Buckeye) on a theory of respondeat superior (at the time of the accident, the individual defendant was driving a truck belonging to Buckeye). There was considerable pretrial activity, and trial on the matter commenced on May 10, 1977. However, a mistrial was declared when the plaintiff began sobbing uncontrollably as the trial judge was giving cautionary instructions to the jury prior to the taking of testimony. Also, the trial court had granted a motion for a compulsory non-suit as to Buckeye on the representation of plaintiff's then counsel that he would present no evidence as to the liability of Buckeye. The Court En Banc of Northampton County refused a motion to remove the non-suit, but the Superior Court reversed on the grounds that the non-suit had been entered prematurely. The case was again brought to trial on October 29, 1979, at which time the liability of the individual defendant was admitted, but that of Buckeye denied. The evidence presented by the plaintiff related only to damages, and when the plaintiff rested, the motion for a compulsory non-suit as to Buckeye was granted without objection by plaintiff's counsel. The jury returned a verdict for the plaintiff in the amount of $20,000 and the case is now before the Court En Banc*fn1 on the plaintiff's motions for a new trial. The plaintiff, having dismissed his trial counsel, and opting to proceed pro se on appeal, argues that a new trial is required because his trial counsel acted negligently in acquiescing in the granting of the non-suit as to Buckeye and because the jury verdict is "palpably inadequate". We reject both of these arguments and therefore deny and dismiss plaintiff's motions for a new trial.

As to the first argument, we note that the plaintiff did not present any evidence concerning the liability of Buckeye. And, since the plaintiff has the burden of proving that the driver was engaged in the business of his employer and was acting within the scope of his authority at the time of the accident, Lanteigne v. Smith, 365 Pa. 132, 74 A.2d 116 (1950); Klovacs v. Bethlehem's Globe Publishing Company, 415 Pa. 95, 202 A.2d 46 (1964), the non-suit was properly granted and any objection plaintiff's counsel might have made would have been unfounded and fruitless.

Be that as it may, even assuming trial counsel was negligent in acquiescing in the granting of the non-suit, plaintiff's remedy does not lie in a new trial on the issue for "an aggrieved party in a civil case, involving only private litigants, unlike a defendant in a criminal case, does not have a constitutional right to the effective assistance of counsel." Dilliplaine v. Lehigh Valley Trust Company, 457 Pa. 255, 322 A.2d 114 (1974) (Manderino, J., concurring opinion). See also, Greco v. 7-Up Bottling Co. of Pittsburgh, 401 Pa. 434, 165 A.2d 5 (1960).

The plaintiff also challenges the adequacy of the verdict. In this regard, it has been stated that:

"A verdict in an action for a personal tort may be set aside as inadequate when, and only when, it is so inadequate as to indicate passion, prejudice, partiality or corruption or the jury disregarded the instructions of the court or where there was a vital misapprehension or mistake on the part of the jury, or where it clearly appears from uncontradicted evidence that the amount of the verdict bears no reasonable relation to the loss suffered by the plaintiffs, or where the award is so inadequate that it should not be permitted to stand or where otherwise there has been an evident failure of justice to the plaintiff." Rhoades v. Wolf, 207 Pa. Super. Ct. 104, at 107, 215 A.2d 332, at 333, 334 (1965).

"If a verdict bears a reasonable resemblance to the proven damages, it is not the function of the court to substitute its judgment for the jury's. The mere fact that a verdict is low does not mean that it is inadequate... (T)here should be nothing difficult about a decision to grant a new trial for inadequacy; the injustice of the verdict should stand forth like a beacon." Austin v. Harnish, 227 Pa. Super. Ct. 199, 323 A.2d 871 (1974).

As a result of the accident, the plaintiff spent two weeks in the hospital, required 250-300 sutures to close lacerations on his face and suffered several broken ribs. In addition, there was some testimony that plaintiff suffered a myocardial contusion (bruise of the heart), although subsequent tests showed that this had resolved itself within a few weeks of the accident without any residual effects. Finally, there was testimony that the defendant suffered a severed nerve in the forehead area which was characterized by the plaintiff's expert witness as a permanent injury.

The plaintiff, however, claims that his injuries far exceeded those recited above. Particularly, he points to the evidence presented that he was admitted to the hospital in May of 1974, 18 months after the accident, complaining of a virtual laundry list of ailments, including chest discomfort, fatigue, itching of the forehead where the nerve had been severed, and depression and nervousness which prevented him from working. The plaintiff attempted to show a causal relationship between all these ailments and the accident. If the parties had stipulated that all of these ailments had been caused by the accident, then the question of the adequacy of the award would be considerably closer. However, this causal relationship was strenuously contested. Indeed, plaintiff's own expert could not say, with reasonable medical certainty, that the second admission was a result of the accident. (See N.T.164) In passing, we note that during plaintiff's second hospital stay, he was diagnosed as having a peptic ulcer and an inflammed esophagus, both of which could account for some of the problems of which he was complaining.

Whether or not the second hospitalization was caused by the accident boiled down to whether the jury believed the testimony presented by the plaintiff, including that of the plaintiff himself. Since the jury was the fact finder, they were entitled to believe some, all, or none of the testimony presented by the plaintiff, even if it was uncontradicted. Cooper v. Columbia Gas of Pennsylvania, 433 Pa. 179, 248 A.2d 852 (1969). Accordingly, the jury could have chosen to disregard the testimony favorable to the plaintiff concerning the cause of the second hospitalization. The same holds true for the plaintiff's complaints of fatigue and nervousness which allegedly prevented him from working, and also for the plaintiff's testimony concerning the itching in the forehead where the nerve had been severed. Thus, since the jury could have disregarded all of this testimony, we have no hesitancy in concluding that the $20,000 verdict was not inadequate to compensate the plaintiff for the medical bills, physical injury, pain and suffering and other damages which the plaintiff proved, to the satisfaction of the jury, were a result of the trauma of the accident. Accordingly, the plaintiff's motion for a new trial based on the inadequacy of the jury's verdict is denied and dismissed.

In accordance with the foregoing, we enter the following:

Order OF THE COURT EN BANC

AND NOW, this 1st day of August, 1980, the plaintiff's motions for a new trial are denied and dismissed.


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