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decided: November 16, 1983.


Appeals from the Order of the Court of Common Pleas of Butler County in the case of David A. Darr v. Robert Christy, No. A.D. 77-224, Book 109, Page 306.


Herbert L. Olivieri, Chief, Tort Litigation Unit, with him Frank J. Micale, Deputy Attorney General, and LeRoy S. Zimmerman, Attorney General, for appellant/appellee, Robert J. Christy.

Alexander H. Lindsay, Jr., for appellee/appellant, David Allen Darr.

President Judge Crumlish, Jr. and Judges Barry and Barbieri, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 78 Pa. Commw. Page 355]

These cross-appeals*fn1 result from an order dated July 16, 1982, of the Court of Common Pleas of Butler County which ordered entry of judgment on a verdict in favor of David Allen Darr (plaintiff) but refused to allow any delay damages under Pa. R.C.P. No. 238 (Rule 238).

[ 78 Pa. Commw. Page 356]

On October 25, 1975, the plaintiff, his twin brother, Douglas, and three other friends drove from State College to Slippery Rock to visit a friend, Jill Gardner, who was attending school at Slippery Rock State College. The visitors carried a half-keg of beer to Ms. Gardner's dormitory room. Because of the noise, the campus police were called to investigate. Robert J. Christy (defendant), a campus police officer, was admitted to the dormitory room where the beer was located. When the defendant discovered that some of the people present were not twenty-one years of age, he began issuing citations for underage drinking. Defendant also told Ms. Gardner that she would have to come with him since the beer was found in her room. Plaintiff and his brother attempted to intercede on Ms. Gardner's behalf, explaining to Officer Christy that Ms. Gardner knew nothing about the beer and that they would accept responsibility for it being in her room. Although there was some dispute concerning plaintiff's actions at this point, there is no question that Officer Christy struck plaintiff in the chest

[ 78 Pa. Commw. Page 357]

    with his forearm, causing plaintiff to stagger backwards and strike his head on a piece of furniture in the room.

Plaintiff was first taken to the campus infirmary, as striking his head had left him dazed and disoriented. He was then taken to Grove City Hospital. The doctors there were informed that the plaintiff had had a malignant brain tumor removed in 1970, so plaintiff was immediately transferred to Mercy Hospital in Pittsburgh.

Immediately after the incident, plaintiff began experiencing severe headaches, double vision, severe loss of balance and complete loss of hearing in one ear. Plaintiff was diagnosed as having a severe concussion, problems with the muscles and nerves relating to the eyes and hearing loss. The treating physicians also discovered that a ventriculoatrial shunt placed in plaintiff's skull following removal of the brain tumor in 1970 was malfunctioning.*fn2 Plaintiff remained hospitalized for approximately two weeks.

On March 14, 1977, plaintiff filed a complaint in trespass, alleging that the defendant had intentionally struck the plaintiff with unusual force, thereby causing the aforementioned injuries. Alternatively, plaintiff alleged that Officer Christy had been either negligent or grossly negligent. Plaintiff sought both compensatory and punitive damages. The jury found for plaintiff and awarded him $100,000 in compensatory damages but refused to award punitive damages. Subsequently, the defendant filed timely post-verdict motions seeking judgment n.o.v. or a new trial. Plaintiff filed a timely petition to award delay damages pursuant to Pa. R.C.P. No. 238. The trial court denied

[ 78 Pa. Commw. Page 358]

    both defendant's post-verdict motions and plaintiff's petition for delay damages. Both parties appealed.

Officer Christy first argues that the trial court erred in refusing to exclude evidence of both plaintiff's malfunctioning shunt and brain tumor. In defendant's view, allowing references to these two problems was an improper attempt to garner sympathy for plaintiff from the jury to the extreme prejudice of defendant. We do not agree.

Dr. George H. Gray, a neurosurgeon, testified on plaintiff's behalf. In his testimony, he described all of the aforementioned problems from which plaintiff was suffering. Dr. Gray testified that, to a reasonable degree of medical certainty, it was his opinion the concussion, double vision and loss of hearing were all the direct result of the blow to plaintiff's head which occurred when Officer Christy pushed plaintiff. Dr. Gray also testified that he could not state with a reasonable degree of medical certainty that the trauma caused the shunt to malfunction. We do not believe that the admission of this testimony was error.

While there always exists the possibility that a past medical history, unrelated to the lawsuit at issue, may generate sympathy for a plaintiff, a trial court's paramount concern is to allow a jury to hear all evidence relevant to the issue being decided, excluding only that evidence which is unduly prejudicial. Plaintiff argues, and quite persuasively in our view, that exclusion of the questioned testimony could well have resulted in a larger verdict for plaintiff, since a jury being unaware of the pre-existing problems could reasonably have concluded that all of the plaintiff's injuries and symptoms were caused by the incident in question. Any possibility of prejudice is thus ...

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