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JOAN G. THOMPSON v. CITY PHILADELPHIA AND WILLIAM SMITH AND SREIN FURNITURE CARRIERS (09/02/83)

filed: September 2, 1983.

JOAN G. THOMPSON, ADMINISTRATRIX OF THE ESTATE OF RAYMOND D. THOMPSON, DECEASED
v.
CITY OF PHILADELPHIA AND WILLIAM SMITH AND SREIN FURNITURE CARRIERS, INC. (FIVE CASES) APPEAL OF WILLIAM SMITH AND SREIN FURNITURE CARRIERS, INC. (THREE CASES) JOAN G. THOMPSON, ADMINISTRATRIX OF THE ESTATE OF RAYMOND D. THOMPSON, DECEASED V. WILLIAM SMITH AND SREIN FURNITURE CARRIERS, INC., APPELLANTS. JOAN G. THOMPSON, ADMINISTRATRIX OF THE ESTATE OF RAYMOND D. THOMPSON, DECEASED V. COMMONWEALTH OF PENNSYLVANIA. (FOUR CASES) APPEAL OF SREIN FURNITURE CARRIERS, INC., AND WILLIAM SMITH. APPEAL OF CITY OF PHILADELPHIA. (SIX CASES) JOAN G. THOMPSON, ADMINISTRATRIX OF THE ESTATE OF RAYMOND D. THOMPSON, DECEASED V. WILLIAM SMITH AND SREIN FURNITURE CARRIERS, INC. (THREE CASES) APPEAL OF COMMONWEALTH OF PENNSYLVANIA. (TWO CASES) JOAN G. THOMPSON, ADMINISTRATRIX OF THE ESTATE OF RAYMOND D. THOMPSON, DECEASED V. COMMONWEALTH OF PENNSYLVANIA, APPELLANT. JOAN G. THOMPSON, ADMINISTRATRIX OF THE ESTATE OF RAYMOND D. THOMPSON, DECEASED V. WILLIAM SMITH AND SREIN FURNITURE CARRIERS, INC., APPELLANT



No. 2296 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas, Trial Division, Philadelphia County, NO. 2859 September Term, 1977, No. 2297 Philadelphia 1981, Appeal from the order of the Court of Common Pleas, Trial Division, Philadelphia No. 4180 March Term, 1977, No. 2298 Philadelphia 1981, Appeal from the Order of the Court of Common Pleas, Trial Division, Philadelphia County, No. 1880, August Term, 1978, No. 2299 Philadelphia 1981, Appeal from the Order of the Court of Common Pleas, Trial Division, Philadelphia County, No. 2859, September Term, 1977, No. 2300 Philadelphia 1981, Appeal from the Order of the Court of Common Pleas, Trial Division, Philadelphia County. No. 4180, March Term, 1977, No. 2301 Philadelphia 1981, Appeal from the Order of the Court of Common Pleas, Trial Division, Philadelphia County. No. 1880, August Term, 1978, No. 2651 Philadelphia 1981, Appeal from the Order of the Court of Common Pleas, Trial Division, Philadelphia County. No. 2859, September Term, 1977, Mo. 2652 Philadelphia 1981, Appeal from the Order of the Court of Common Pleas, Trial Division, Philadelphia County, No. 4180, March Term, 1977, No. 2653 Philadelphia 1981, Appeal from the Order of the Court of Common Pleas, Trial Division, Philadelphia County. No. 1880, August Term, 1978, No. 2654 Philadelphia 1981, Appeal from the Order of the Court of Common Pleas, Trial Division, Philadelphia County. No. 2859, September Term, 1977, No. 2655 Philadelphia 1981, Appeal from the Order of the Court of Common Pleas, Trial Division, Philadelphia County. No. 4180, March Term, 1977, No. 2656 Philadelphia 1981, Appeal from the Order of the Court of Common Pleas, Trial Division, Philadelphia County. No. 1880, August Term, 1978, No. 2657 Philadelphia 1981, Appeal from the Order of the Court of Common Pleas, Trial Division, Philadelphia County. No. 2859, September Term, 1977, No. 2658 Philadelphia 1981, Appeal from the Order of the Court of Common Pleas, Trial Division, Philadelphia County. No. 4180, March Term, 1977, No. 2659 Philadelphia 1981, Appeal from the Order of the Court of Common Pleas, Trial Division, Philadelphia County. No. 1880, August Term, 1978.

COUNSEL

Michael W. Bolechowski, Deputy Attorney General, Philadelphia, for Commonwealth, appellant (at Nos. 2656, 2654 and 2655) and for Commonwealth, appellee (at Nos. 2298, 2301, 2653 and 2659) and for Commonwealth, participating party (at Nos. 2296, 2297, 2299, 2300, 2651, 2652, 2657 and 2658).

Sandra Mazer Moss, Assistant City Solicitor, Philadelphia, for City of Phila., appellant (at Nos. 2299, 2300, 2301, 2651, 2652 and 2653) and for appellee (at Nos. 2296, 2654 and 2657) and for participating party (at Nos. 2656, 2297, 2298, 2655, 2658 and 2659).

James M. Marsh, Philadelphia, for appellant (at Nos. 2296, 2297 and 2298) and for appellee (at Nos. 2299, 2300, 2651 and 2652) and for participating parties (at Nos. 2301, 2653).

Cirillo, Montemuro and Hoffman, JJ. Montemuro, J., files a concurring and dissenting opinion.

Author: Hoffman

[ 320 Pa. Super. Page 128]

In these appeals from an order granting a new trial solely on the issue of comparative negligence, the parties challenge this court's jurisdiction, the mootness of the appeal, the lower court's jury instructions, and the propriety of a grant of a new trial. We find that the appeal is properly before us, and that only the grant of a new trial was error. Accordingly, we reverse and enter judgment upon the jury's verdict.

On September 28, 1976, William Smith, an employee of Srein Furniture Carriers [Srein], drove his tractor-trailer through a guardrail at the end of the Spring Garden Street exit ramp and plunged onto the westbound lane of the Schuylkill Expressway, crushing the decedent's vehicle. Plaintiff, decedent's wife, sued Smith, Srein, the City of Philadelphia, and the Commonwealth in separate actions, alleging Smith's negligence in driving, Srein's vicarious liability, and the City's and Commonwealth's negligence in marking and maintaining their respective portions of the Expressway and exit ramp. Early during the consolidated trial Smith and Srein [hereinafter Smith] settled with the plaintiff for $400,000, but retained a right of contribution

[ 320 Pa. Super. Page 129]

    from the other defendants according to the jury's apportionment of liability. Following trial, the jury awarded damages totaling $500,000,*fn1 apportioning negligence 30% to Smith, 35% to the City, and 35% to the Commonwealth. Between the verdict and rulings on post-trial motions, the City and Commonwealth settled with the plaintiff for $32,500 each. In post-trial motions, the City and Commonwealth requested judgment n.o.v., or a new trial, remittitur, and molding of the verdict. Smith opposed and suggested the motions were moot because all defendants had settled with the plaintiff. The lower court denied Smith's request and granted a new trial solely on the issue of comparative negligence. All defendants then appealed to Commonwealth Court and the City and Smith also appealed to this Court. The Commonwealth Court transferred its appeals to this Court. In response to the Commonwealth's motion that we quash and re-transfer the appeals, we directed the parties to brief the question of jurisdiction.

[ 320 Pa. Super. Page 130]

The Commonwealth contends that this case should be transferred to the Commonwealth Court. We disagree. Although the Commonwealth Court generally has jurisdiction over civil actions pertaining to the Commonwealth, 42 Pa.C.S.A. § 762, both intermediate appellate courts may, on their own or a party's motion, "transfer any appeal to the other court for consideration and decision with any matter pending in such other court involving the same or related questions of fact, law or discretion." Id. § 705. Factors influencing the decision to transfer include: whether the case has already been transferred; whether it involves novel or well-settled questions; whether conflicting lines of authority might develop; and whether transfer would conserve judicial resources. Commonwealth v. 84 Quart Bottles of Bianco DiVerona Wine, 250 Pa. Superior Ct. 544, 378 A.2d 1282 (1977). Valley Forge Industries, Inc. v. Page 130} Armand Construction, Inc., 248 Pa. Superior Ct. 53, 374 A.2d 1312 (1977). Here, the case has already been transferred once, with attendant delay. Although the question of a grant of a new trial on the issue of comparative negligence is novel in Pennsylvania, the underlying principles of tort law are well-settled and traditionally within this Court's province. The appeal presents no issues requiring the Commonwealth Court's special expertise. Moreover, two of the parties, Smith and the City, are undeniably within this Court's jurisdiction. Accordingly, we retain jurisdiction of this appeal.

Smith contends that the City and Commonwealth's appellate issues are mooted by the settlements with the plaintiff. Although all defendants have settled with the plaintiff, they dispute the apportionment of liability among themselves. The jury's apportionment of negligence, as adjudicated in this appeal, will govern the defendants' percentage of liability in their contribution actions against each other. 42 Pa.C.S.A. § 7102; Slaughter v. Pennsylvania X-Ray Corp., 638 F.2d 639 (3d Cir.1981). To allow the apportionment to stand without reviewing whether the record supports it could substantially prejudice the City and Commonwealth. Moreover, neither affirmance nor reversal of the lower court order would force the plaintiff to relitigate her claims, and thus this appeal does not violate the integrity of the settlements. We therefore address the merits.

The City and Commonwealth argue that the lower court should have granted their motions for judgment n.o.v. because the evidence was insufficient in law to support the verdict. We disagree. In reviewing a trial court's denial of a motion for judgment n.o.v., the evidence, and all reasonable inferences, must be viewed in the light most favorable to the verdict-winner. Miller v. Checker Yellow Cab Co., 465 Pa. 82, 348 A.2d 128 (1975); Yandrich v. Radic, 291 Pa. Superior Ct. 75, 435 A.2d 226 ...


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