No. 66 W.D. Appeal Dkt. 1982, Appeal from the Order of the Superior Court dated August 27, 1982 at No. 693 Pittsburgh 1981, affirming the Order of the Court of Common Pleas of Allegheny County at No. GD 76-04242, Civil Action, Pa. Super. ; 450 A.2d 227 (1982).
Alan L. Carb, Seewald & Carb, P.C., Pittsburgh, for appellant.
John George Shorall, II, City Sol., Pittsburgh, for Blair Haynes, Bill McDoodle and City of Pittsburgh.
Barbara L. Clements, Pittsburgh, for South Hills Health System.
Louis Anstandig, Pittsburgh, for Dr. M.T. Martin.
James F. Israel, Pittsburgh, for Dr. David Van Theil.
Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Hutchinson, J., joins in the majority opinion and files a separate concurring opinion. Flaherty, J., files a dissenting opinion in which Roberts, C.j., and Larsen, J., join.
This is an appeal from an order of the Superior Court, affirming an order of the Court of Common Pleas of Allegheny County refusing to take off a compulsory non-suit.*fn1 Both lower courts held that plaintiff, appellant herein, failed to establish a prima facie case of negligence against the defendants. We granted allocatur with respect to the non-suit
entered in favor of defendants, Blair Haynes, Bill McDoodle and the City of Pittsburgh.
The case arose from the death of Nicola Morena who was shot through the chest by a would-be robber. Anthony Morena, as administrator of decedent's estate, brought this action against those parties who treated decedent immediately after the shooting incident, contending that they failed to provide proper care, and that said failure resulted in his death. At the close of plaintiff's case, the trial judge granted the motion for compulsory non-suit made on behalf of Bill McDoodle, Blair Haynes and the City of Pittsburgh. At the conclusion of the proceedings the trial judge also granted a directed verdict in favor of all other defendants.*fn2
The rules regarding a compulsory non-suit are well established. A judgment of non-suit can be entered only in clear cases, and a plaintiff must be given the benefit of all evidence favorable to him, together will all reasonable inferences of fact arising therefrom, and any conflict in the evidence must be resolved in his favor. Flagiello v. Crilly, 409 Pa. 389, 390-391, 187 A.2d 289, 290 (1963). See Tolbert v. Gillette, 438 Pa. 63, 260 A.2d 463 (1970). Thus an order granting a non-suit is proper only if the jury, viewing the evidence and all reasonable inferences arising from it, in the light most favorable to the plaintiff, could not reasonably conclude that the elements of the cause of action have been established. Ford v. Jeffries, 474 Pa. 588, 591-592, 379 A.2d 111, 112 (1977).
However, it is also well settled that a jury can not be permitted to reach its verdict on the basis of speculation or conjecture, Smith v. Bell Telephone Co., 397 Pa. 134, 153 A.2d 477 (1959); and that a judgment of non-suit is properly entered if a plaintiff has not introduced sufficient evidence to establish the elements necessary to maintain an action. Schofield v. King, 388 Pa. 132, 130 A.2d 93 (1957). See Yohe v. Yohe, 466 Pa. 405, 353 A.2d 417 (1976); Dornon v. Johnston, 421 Pa. 58, 218 A.2d 808 (1966); Goater v. Klotz, 279 Pa. 392, 124 A. 83 (1924). In addition, it is the duty of the trial judge ...