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

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) ...


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