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J. WILLIAM MCINTYRE v. SHERRILL S. CLARK AND RODNEY B. CLARK AND JOHN RICHARD BANNISTER (06/03/83)

filed: June 3, 1983.

J. WILLIAM MCINTYRE, ADMINISTRATOR OF THE ESTATE OF LORI ANNE CLARK, DECEASED, APPELLANT,
v.
SHERRILL S. CLARK AND RODNEY B. CLARK AND JOHN RICHARD BANNISTER, OKLAHOMA STATE UNIVERSITY EDUCATIONAL AND RESEARCH FOUNDATION, INC., AND OKLAHOMA STATE UNIVERSITY



No. 515 Philadelphia 1982, Appeal from the Judgment of the Court of Common Pleas, Civil, Bedford County at April Term, 1976, No. 22.

COUNSEL

Edward Silva, Philadelphia, for appellant.

Scott Alan Fleischauer, Hollidaysburg, for appellees.

Cercone, President Judge, and Johnson and Montemuro, JJ.

Author: Montemuro

[ 314 Pa. Super. Page 554]

This is an appeal from the Order of the Court of Common Pleas of Bedford County denying a new trial to the plaintiff-appellant, the Estate of Lori Anne Clark. Appellant raises only two issues on this appeal; one, that the jury award of no damages was inadequate, and two, that the defendant's attorney made prejudicial remarks in his closing statement. We need not address the second issue because we agree that the damages were inadequate.

The facts relevant to the present appeal are as follows: On March 25, 1975, defendant-appellee, Sherrill S. Clark, was driving her 1972 Plymouth Sedan southbound on U.S.

[ 314 Pa. Super. Page 555]

Route 220, outside St. Clairsville, Bedford County. Mrs. Clark was driving up Blue Knob, a steep upgrade, when her vehicle began to fishtail on the icy road. The vehicle crossed into the northbound traffic lane and struck a 1973 Dodge Van driven by John T. White. White's vehicle was subsequently struck from the rear by a 1974 Chevrolet Van driven by defendant, John Richard Bannister. Mr. White and his wife, a passenger in the van, sustained serious injuries in the collision; as did Mrs. Clark. Mrs. Clark's daughter, Lori Anne, a passenger in the Plymouth, died instantaneously.

Plaintiff-appellant brought a survival action against Mrs. Clark and her ex-husband,*fn1 and also Richard Bannister, and his employer, Oklahoma State University. The case proceeded to trial before a jury. The trial was bifurcated, with the issues of liability and damages considered separately.*fn2 In the liability determination, the jury found that only Mrs. Clark was negligent.

The estate filed a motion for a new trial which was denied by the trial court. It is from the order denying the motion for a new trial that the estate appeals.

Initially, we note that the decision of whether to grant a new trial is peculiarly within the competence of the trial court. This decision will not be disturbed on appeal except where there has been a clear abuse of discretion. Wilson v. Nelson, 437 Pa. 254, 258 A.2d 657 (1969); Hose v. Hake, 412 Pa. 10, 192 A.2d 339 (1963). As this court stated in Mueller v. Brandon, 282 Pa. Super. 37, 422 A.2d 664 (1980):

Where the trial court grants a new trial on the ground of inadequacy, the appellate courts will not interfere in the absence of a gross abuse of discretion . . . . When the trial ...


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