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MARY DISERAFINO v. BUCYRUS-ERIE CORPORATION (12/23/83)

filed: December 23, 1983.

MARY DISERAFINO, PERSONAL REPRESENTATIVE OF, FOR AND ON BEHALF OF THE ESTATE OF FRANK DISERAFINO, DECEASED, FOR THE MAINTENANCE OF AN ACTION UNDER THE PENNSYLVANIA SURVIVAL STATUTE AND MARY DISERAFINO, PERSONAL REPRESENTATIVE FOR AND ON BEHALF OF ALL ENTITLED TO RECOVER UNDER THE PENNSYLVANIA WRONGFUL DEATH STATUTE, APPELLANT,
v.
BUCYRUS-ERIE CORPORATION, HYDYNAMIC DIVISION AND H.T. SWEENEY & SON



No. 1415 PHILADELPHIA 1981, No. 1202 Philadelphia 1982, Appeal from the Order of the Court of Common Pleas, Civil Division of Delaware County at No. 75-12945.

COUNSEL

Joseph R. McFadden, Jr., Media, for appellant.

Joseph V. Pinto, Philadelphia, for Bucyrus-Erie, appellee.

Bryon L. Milner, Philadelphia, for H.T. Sweeney, appellee.

Hester, Wickersham and Popovich, JJ. Popovich, J., files a concurring opinion. Hester, J., concurs in the result.

Author: Wickersham

[ 323 Pa. Super. Page 249]

Plaintiff's decedent, Frank DiSerafino, died on January 16, 1975, in an on-the-job accident, when he was crushed beneath the boom and bucket of a front-end loader-backhoe manufactured by defendant Bucyrus-Erie Corporation. Decedent's widow, Mary DiSerafino, as personal representative of the estate, brought suit under the Pennsylvania Wrongful Death and Survival Act against Bucyrus-Erie

[ 323 Pa. Super. Page 250]

    alleging that the equipment was defectively designed and manufactured.

Defendant Bucyrus-Erie joined decedent's employer. H.T. Sweeney & Son, as an additional defendant*fn1 alleging that the operator of the backhoe was negligent in the operation of the equipment and that this negligence was the cause of DiSerafino's death. H.T. Sweeney & Son filed an answer and new matter to the complaint by Bucyrus-Erie. In its new matter, H.T. Sweeney & Son stated that its liability, if any, was limited to the liability provided by the provisions of the Pennsylvania Workmen's Compensation Act.

After a five-day trial, the jury returned a verdict in favor of the plaintiff and against additional defendant, H.T. Sweeney & Son, only, in the amount of $465,000.00. $275,000 was awarded under the Wrongful Death Act and $190,000 was awarded under the Survival Act.

Plaintiff moved for a new trial on the ground, inter alia, that the trial court committed reversible error in its charge to the jury. The trial court denied and dismissed plaintiff's Motion for a New Trial on September 29, 1980.

H.T. Sweeney & Son filed a Motion for Judgment Notwithstanding the Verdict or, in the alternative, to Mold the Verdict on March 16, 1979. H.T. Sweeney & Son averred that the Pennsylvania Workmen's Compensation Act barred any recovery by the plaintiff against H.T. Sweeney & Son, the employer. On January 15, 1981, plaintiff filed an Answer to additional defendant's Motion to Mold the Verdict, denying that the Workmen's Compensation Act barred recovery

[ 323 Pa. Super. Page 251]

    against H.T. Sweeney & Son. On July 13, 1981, the Honorable Robert A. Wright entered the following Order:

AND NOW, to wit, this 13th day of July, A.D. 1981, Additional Defendant's Motion for Judgment N.O.V. is hereby denied and dismissed, Additional Defendant's Motion to Mold the Verdict is hereby granted and the verdict is hereby entered in favor of Additional Defendant and against Plaintiff.

Brief for Appellant at 2.

This consolidated appeal was taken from the order granting additional defendant's Motion to Mold the Verdict and from the order dismissing plaintiff's Motion for a New Trial.

In the first of these consolidated appeals, appellant states the issue as follows:

Whether the charge of the court below on the law of product liability, when considered as a whole, was so erroneous, confusing and prejudicial that a new trial is required.

Brief for Appellant in No. 1415 Philadelphia 1981 at 3. The instruction to which appellant objects dealt with the law of strict liability. The Court charged the jury:

Now, the law of strict liability which is the law in Pennsylvania is set out in Section 402A of the restatement of ...


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