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DENNIS RAYMOND RHOADS v. ERIC E. HEBERLING (10/22/82)

filed: October 22, 1982.

DENNIS RAYMOND RHOADS, TAMAR A. DOMBACH, JACOB E. LOPP AND SANDRA JEAN HELM
v.
ERIC E. HEBERLING, APPELLANT



No. 520 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas, Civil Division, of Cumberland County at No. 3608 Civil, 1979.

COUNSEL

John McCrea, III, Newville, for appellant.

John H. Broujos, Carlisle, for appellees.

Brosky, Popovich and Montgomery, JJ.

Author: Popovich

[ 306 Pa. Super. Page 36]

This is an appeal from judgments entered against appellant, Eric Heberling, who intentionally fired eight bullets from a semi-automatic rifle into an automobile occupied by the four appellees. We affirm.

On August 18, 1978, a vehicle which was owned and operated by appellee-plaintiff, Dennis Rhoads, was parked on a side road in Cumberland County, Pennsylvania. Appellant-defendant, Eric Heberling, while wearing a camouflage suit and brandishing a rifle, aimed and shot his rifle into Rhoads' automobile and continued shooting as the automobile was driven down the road. At this time, Rhoads' automobile was occupied by three other individuals. They were appellees, Sandra Helm, Jacob Lopp, and Tamar Dombach. Two of the appellees received physical injuries. Tamar Dombach was struck six times in the buttocks with fragments of a shattering bullet. Pieces of the metal still remain in her body. Sandra Helm suffered a slight scratch across her lower back, but received no medical attention.

[ 306 Pa. Super. Page 37]

As a result of the incident, appellees filed an action in trespass seeking both compensatory and punitive damages. A jury trial was held, and verdicts were returned in favor of all appellees. Tamar Dombach received $60.00 for medical expenses incurred, $600.00 for pain and suffering and mental anguish and $750.00 for punitive damages. Sandra Helm was awarded $400.00 for pain and suffering and mental anguish and $750.00 for punitive damages. The other two individuals were awarded no compensatory damages for pain and suffering or mental anguish; however, Dennis Rhoads received $446.47 for damages appellant caused to his vehicle. Both Dennis Rhoads and Jacob Lopp, however, received $750.00 for punitive damages. Post-trial motions were filed and denied by the court en banc, and this appeal followed.

In this appeal, appellant raises two issues. He first contends that the trial court erred when it instructed the jury that (1) it could award punitive damages to the appellees-plaintiffs even if no compensatory damages were awarded, and (2) the amount awarded as punitive damages need not bear any relationship to the actual damages awarded. We must reject appellant's contentions.

The pertinent portion of the complained of jury instruction reads as follows:

"The last thing that I have to define for you is this phrase called punitive damages. Each plaintiff has asked the jury in this particular case to include as part of the damages for each plaintiff punitive damages. If you find in this case that the defendant's conduct was a substantial factor in bringing about harm to the plaintiffs, and if you find that the conduct of the defendant was outrageous, you may award punitive damages as well as any compensatory damages in order to punish the defendant for his conduct and to deter the defendant and others from the commission of like acts.

There was also in the definition of mental anguish that I have given to you the word outrageous. The meaning of outrageous in that term is the same as is required for punitive damages.

[ 306 Pa. Super. Page 38]

A person's conduct is outrageous when he acts with a bad motive or when he acts with reckless indifference to the interests of others. If you decide in this case that any or all of the plaintiffs are entitled to an award of punitive damages, the amount of such damages then must be fixed by you.

In doing so, you may consider any or all of the following factors: One, you may consider the character of the defendant's act in this particular case. You may consider the nature and extent of the harm to the plaintiffs which the defendant caused or intended to cause.

The amount that you assess as punitive damages need not bear any relationship to the amount you choose to award as compensatory damages. It is not necessary that you award compensatory damages to the plaintiffs or any one of the plaintiffs in order to assess punitive damages against the defendant so long as you find in favor of the plaintiff and against the defendant on the question of liability.

The amount of punitive damages awarded must not be the result of passion or prejudice against the defendant on your part. The sole purposes of punitive damages, and the only purpose for which you may make an award and set an amount of punitive damages is to punish the defendant's outrageous conduct and to deter the defendant and others from the commission of like acts. Ordinary negligence as I have defined it to you will not support an award of punitive damages.

Just to go back over this with you again. I realize that hearing these phrases for the first time could cause lawyers difficulty. I will just go back over these with you again.

All of the damages and all of the four verdict slips are compensatory damages except punitive damages. The burden of proof is on the plaintiff in proving compensatory damages in all cases except the two men, where they are asking for damages for mental anguish, ...


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