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MICHAEL POWELL v. CITY PHILADELPHIA AND JOHN JONES (03/18/83)

filed: March 18, 1983.

MICHAEL POWELL
v.
CITY OF PHILADELPHIA AND JOHN JONES, APPELLANTS



NO. 1416 PHILADELPHIA, 1980, Appeal from the Order of May 13, 1980 in the Court of Common Pleas of Philadelphia County, Civil Division, at No. 4101 June Term, 1973.

COUNSEL

Pamela L. Perry, Chief Assistant City Solicitor, Philadelphia, for appellants.

Myron H. Deutsch, Philadelphia, for appellee.

Beck, Johnson and Montemuro, JJ.

Author: Beck

[ 311 Pa. Super. Page 528]

Appellants, City of Philadelphia and John F. Jones, appeal from a May 13, 1980 order entered by the Court of Common Pleas of Philadelphia County sitting en banc which dismissed appellants' timely filed motion for a new trial and affirmed the trial judge's order of April 18, 1979 in favor of appellee, Michael Powell, in the amount of $150,000.00.

In this appeal, appellants do not contest liability; rather, they argue that the lower court erred in awarding excessive damages to appellee for injuries he sustained in an altercation with a City fireman, appellant-Jones. We reject this claim and therefore affirm.

The record reflects that a group of City firemen responded to a false alarm and apprehended two boys who they thought had pulled the alarms. Appellee, who had observed the perpetrators pulling the alarm, yelled to the firemen that they had apprehended the wrong children. Jones then crossed the street to question appellee and an argument followed during which Jones struck appellee's left knee with a wrench knocking him to the steps. Jones then grabbed appellee by the shirt and threw him to the curb. That distance was estimated to be approximately eight feet. Appellee did not, and apparently could not, stand after being thrown to the pavement; he was carried off on a police stretcher.

In its opinion, the en banc trial court rejected appellants' claim that Jones was acting in self defense and found that he was acting in the scope of his employment and that both he and the City therefore were liable. Appellants do not question those findings on appeal; they merely attack the award as being excessive.

Our oft-cited scope of review in evaluating this claim was reiterated in Christides v. Little, 274 Pa. Super. 343, 347, 418 A.2d 438, 440 (1980) (quoting Skoda v. West Penn Power Co., 411 Pa. 323, 338, 191 A.2d 822, 830 (1963)):

Appellate courts are properly reluctant to interfere with jury verdicts in personal injury cases, which verdicts

[ 311 Pa. Super. Page 529]

    are supported by the opinion and approval of the trial judge and the court en banc. Roadman v. Bellone, 379 Pa. 483, 108 A.2d 754 (1954). The granting or refusal of a new trial because of excessiveness is peculiarly within the discretion of the court below and we will not interfere, absent a clear abuse of discretion. Hall v. George, 403 Pa. 563, 170 A.2d 367 (1961). We will not hold that a verdict is excessive unless it is 'so ...


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