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LILLIAN DALEY AND FRANK DALEY v. JOHN WANAMAKER (07/22/83)

filed: July 22, 1983.

LILLIAN DALEY AND FRANK DALEY, H/W (APPELLANTS AT NO. 236),
v.
JOHN WANAMAKER, INC. (APPELLANT AT NO. 407)



No. 236 Philadelphia 1982, No. 407 Philadelphia 1982, APPEAL FROM THE ORDER ENTERED JANUARY 5, 1982 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, CIVIL NO. 1687 NOV. TERM, 1978

COUNSEL

John F. Fenerty, Philadelphia, for appellants (at No. 236) and for appellees (at No. 407).

Daniel F. Monahan, Philadelphia, for appellant (at No. 407) and for appellee (at No. 236).

Cercone, P.j., and Rowley and Cirillo, JJ. Rowley, J., files a concurring and dissenting statement.

Author: Cirillo

[ 317 Pa. Super. Page 351]

On April 8, 1978, the appellant, Lillian Daley went to appellee's Northeast store to attempt to replace some denim pants of a three-piece suit belonging to her son. She had with her, in a bag, the vest to the suit and the pants, which were shrunken and faded. She was unsuccessful in finding a satisfactory replacement for the pants and was in the process of leaving the men's department when she was escorted off of the selling floor by two of appellee's store detectives. In a rather unpleasant scene she was accused of shoplifting the vest in the bag and then was released with her bag containing the pants and vest. She subsequently initiated this trespass action for intentional misconduct including Assault and Battery, Defamation and False Imprisonment. Just before testimony began, the court permitted the appellant to amend her addendum clause to include punitive damages.

The testimony and evidence presented at trial, concerning the incident, was contradictory in almost every respect. When the parties concluded their cases, the Honorable Judge Doty submitted the issue of probable cause to the jury, which returned a verdict in favor of the appellant as to

[ 317 Pa. Super. Page 352]

False Arrest and/or False Imprisonment and Assault and Battery, but in favor of appellee for slander and libel. The jury then rendered a verdict in favor of Lillian Daley in the amount of $20,000.00 for compensatory damages, and $30,000.00 for punitive damages. The jury also awarded $15,000.00 to appellant's husband, Frank Daley, for loss of consortium.

The appellee, John Wanamaker, filed post-trial motions for judgment notwithstanding the verdict; for a new trial; and a request for a remittitur. The Court denied appellee's motions, but granted in part the request for remittitur and reduced the verdict in favor of Lillian Daley for punitive damages from $30,000 to $15,000, and, as to Frank Daley, from $15,000 to $5,000 for compensatory damages. The verdict of $20,000 compensatory damages for Lillian Daley, was not reduced. Judgment was then entered on the above sums. Both sides appealed.

On appeal, the only issue raised by appellant was the impropriety of entering the remittiturs. The trial court has the authority to order a remittitur of excessive damages. Ready v. Motor Sport, Inc., 201 Pa. Super. 528, 193 A.2d 766 (1963). However, the trial court should not interfere with functions of the jury and undertake to determine facts, which is exclusively the province of the jury. When it is apparent that the jury has returned a verdict excessive in amount and clearly beyond what the evidence warrants, the trial court should set aside or reduce the verdict. Jones v. Stiffler, 137 Pa. Super. 133, 8 A.2d 455 (1939). Conversely, if the verdict is supported by evidence, it must be permitted to stand where there is nothing to suggest that the jury was in any way guided by partiality, prejudice, mistake or corruption. Stoughton v. Kinzey, 299 Pa. Super. 499, 445 A.2d 1240 (1982). Therefore, it is the duty of the court to enforce the jury's verdict unless the circumstances cry out for judicial interference. Prather v. H-K Corp., 282 Pa. Super. 556, 423 A.2d 385 (1980); Stoughton, supra.

Testimony concerning Mrs. Daley's treatment by appellee's employees was widely divergent. Appellee's store

[ 317 Pa. Super. Page 353]

    detectives stated that they were at all times pleasant, soft spoken, and mindful of embarrassing the appellant. Mrs. Daley testified that they were rough, rude, and yelled at her. Apparently the jury found the appellant's testimony more convincing.

The decision of whether to award punitive damages and the amount to be awarded are within the discretion of the fact finder. Focht v. Rabada, 217 Pa. Super. 35, 268 A.2d 157 (1970); Restatement of Torts § 908(2) (1939). In Pennsylvania, it has been held that the amount of punitive damages must bear a reasonable relationship to the award of compensatory damages. Hughes v. Babcock, 349 Pa. 475, 37 A.2d 551 (1944); Mitchell v. Randal, 288 Pa. 518, 137 A. 171 (1927). However, this Court has upheld an award of punitive damages where there was no award for compensatory damages. Rhoads v. Heberling, 306 Pa. Super. 35, 451 A.2d 1378 (1982).*fn1

In the case at bar, the award of punitive damages is only one and a half times the amount of compensatory damages awarded. We cannot say that such an award is improper by law since courts have upheld punitive damage awards proportionally greater than this. See, Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265 (3rd Cir.1979) (punitive damages six times that of compensatory damages held not excessive). The law in Pennsylvania has not established any fixed ratio between compensatory and punitive damages. Rather, the fact finder should be given broad discretion in assessing an amount which will be sufficient to punish the defendant and set an example to deter him and others from this type of conduct. Esmond v. Liscio, 209 Pa. Super. 200, 224 A.2d 793 (1966). Therefore, we cannot say that the jury's award was so excessive as to

[ 317 Pa. Super. Page 354]

    be an error of law. Pennsylvania subscribes to the Restatement of Torts, which in § 908 states as follows:

     e. Amount of damages. In determining the amount of punitive damages, as well as in deciding whether they shall be given at all, the trier of fact can properly consider not merely the act itself but all the circumstances including the motives of the wrongdoer, the relations between the parties, and the provocation or want of provocation for the act (see § 921).

Accordingly, the award of punitive damages was the prerogative of the finder of fact, in this case the jury. We must then determine if the trial judge's reduction of these damages was an abuse of his discretion.

When a trial court reduces the amount of damages awarded, it is of the utmost importance that the reasons for that reduction are clearly preserved in the record. The problem faced by an appellate court in reviewing the record in these situations was addressed by the Supreme Court in Sciafe Co. v. Rockwell-Standard Corp., 446 Pa. 280, 290, 285 A.2d 451, 456 (1971) as follows:

Recognizing the difficult task encountered by an appellate court in reviewing the record when a trial court merely assigns conclusory statements -- "interests of justice," "shocks the court's conscience" and "substantial justice" -- we have attempted to discourage this practice. See, Gilligan v. Shaw, 441 Pa. 305, 272 A.2d 462 (1971); Hilliard v. Anderson, 440 Pa. 625, 271 A.2d 227 (1970); Kralik v. Cromwell, 435 Pa. 613, 258 A.2d 654 (1969); Beal v. Reading Co., 370 Pa. 45, 87 A.2d 214 (1952); Bellettiere v. Philadelphia, 367 Pa. 638, 81 A.2d 857 (1951). In Hilliard, the defendant was granted a new trial upon the plaintiff's failure to file a remittitur solely because "the verdict was excessive and shocked the conscience of the court." Primarily concerned with the "shock the conscience" test, we noted, "[t]he court should state the reasons for this conclusion in order that we may have the opportunity of intelligently determining if an abuse of discretion occurred." 440 Pa. at 628, 271 A.2d

[ 317 Pa. Super. Page 355]

    at 229. We now add the "excessive verdict" conclusion to that list of judicial statements requiring additional ...


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