No. 489 Pittsburgh 1982, Appeal from the Judgment entered in the Court of Common Pleas of Allegheny County, Pennsylvania at No. G.D. 75-6101.
John Louis Vitsas, Pittsburgh, for appellants.
Theresa Homisak, Pittsburgh, for appellees.
Popovich, Montgomery and Van der Voort, JJ.
[ 312 Pa. Super. Page 450]
This is an appeal from the judgment entered by a court en banc of the Court of Common Pleas of Allegheny County denying appellants', Mildred and Carmen Brancato's, Motion For A New Trial. We affirm.
The instant case arose on April 28, 1973 as the result of an injury sustained by appellant, Mildred Brancato, when she was struck in the back by the opening of an automatic door as she reached for trading stamp books situated near the entrance to Kroger's Supermarket in Glannon's Shopping Center, Allison Park, Pa. After a trial by jury, a verdict was entered finding both parties (Mildred Brancato and Kroger) negligent.*fn1
On June 8, 1981, appellants' trial counsel filed a Motion For A New Trial, wherein he alleged that the verdict was
[ 312 Pa. Super. Page 451]
contrary to the evidence, against the weight of the evidence and contrary to the facts of the case. Additionally, counsel asserted that the trial court erred in denying his points for charge to the jury; in particular, counsel referred to Points # 1, # 3, # 6 and # 7. However, before the date set for the argument of post-trial motions, trial counsel for appellants filed a Petition To Withdraw As Counsel, which was granted. Thereafter, new post-trial counsel was secured by the appellants and, on April 2, 1982, an Amended Motion For A New Trial was submitted in which counsel alleged: "The verdict was tainted in that Juror Number 6 seated herself next to the Plaintiff, Mildred M. Brancato, during a court recess and twice inquired as to Plaintiff's physical condition, in response to all of which Plaintiff gestured with her hands and said, 'I cannot talk about it.'"
Following argument and consideration of briefs, the court en banc (per Judges Farino and Zappala) denied appellants' Motion For A New Trial by Order dated April 28, 1982. This appeal followed.
Appellants' counsel presents us with three issues to review; to-wit:
"I. THE JURY VERDICT WAS TAINTED IN THAT ONE OF THE JURORS COMMUNICATED WITH THE PLAINTIFF, MILDRED BRANCATO, DURING THE COURSE OF THE TRIAL.
II. THE TRIAL COURT ERRED IN FAILING TO CHARGE THE JURY THAT, WHERE A LATENT DANGER EXISTS, IT IS NEGLIGENT FOR A POSSESSOR OF LAND TO INDUCE A FALSE SENSE OF SECURITY IN ANOTHER.
III. THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY THAT WHERE EYECATCHING GOODS ARE DISPLAYED IN A STORE THEN A PATRON MAY BE EXCUSED FROM NOT NOTING AN UNGUARDED HAZARD."
[ 312 Pa. Super. Page 452]
Before addressing the merits of appellants' contentions, we wish to respond to appellee's, Kroger's, counsel's protestation that none of the issues raised by the appellants should be addressed by this Court, "for the Brancatos failed to preserve or raise the issues at the time of trial." (Appellee's Brief at 9) In support of such an assertion, appellee's counsel cites us to Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 225, 322 A.2d 114 (1974) (holding that failure to make a timely, specific objection to an alleged trial error results in waiver of that issue for post-trial and appellate purposes) and that portion of the transcript which reveals that after the instructions were read to the jury, appellants' counsel only objected to the court's failure to read a portion of Point # 2 of his requested points for charge.*fn2
To start with, our examination of the record reveals that appellants' trial counsel submitted 12 hand-written points for charge. Of these, Points # 1, # 3, # 6 and # 7 were specifically denied. (Record No. 54) However, as mentioned previously (see supra note 2), appellants' trial counsel took exception only to the ...