No. 2982 Philadelphia 1981, Appeal from the Judgment of the Court of Common Pleas, Civil Division, of Philadelphia County at No. 4491 February Term, 1975.
Keith S. Erbstein, Philadelphia, for appellant.
Patrick W. Kittredge, Philadelphia, for Phila. Electric, appellee.
Ronald C. Scott, Philadelphia, for Lippy, appellee.
Martin W. Bashoff, Philadelphia, for Montgomeryville, appellee.
Rowley, Popovich and Montgomery, JJ. Montgomery, J., files a dissenting statement.
[ 324 Pa. Super. Page 17]
On the afternoon of October 19, 1974, Richard Weingrad, a flight instructor, was administering a bi-annual flight review of the owner and pilot of an aircraft. As part of this review, the instructor requested that the pilot, Donald Lippy, demonstrate his ability to land the plane at an airport during a simulated low altitude engine failure. During the course of this exercise, the aircraft hit a pole owned by the Philadelphia Electric Company (hereinafter referred to as PECO), which resulted in the death of Mr. Weingrad. Thereafter, Shirley H. Weingrad, administratrix of the estate of the deceased, instituted an action in trespass against both Mr. Lippy and PECO.*fn1 On January 23, 1981, the jury rendered a verdict against the plaintiff and in favor of all defendants. The trial court denied plaintiff's motion for a
[ 324 Pa. Super. Page 18]
new trial, and ordered that judgment be entered on the verdict. This appeal followed. We affirm.
Appellant raises several questions for our review. However, only one of these issues merits discussion, i.e., whether the court below committed reversible error by informing the jury that Donald Lippy had settled with appellant prior to trial. The remaining issues were adequately disposed of by the lower court in its opinions of October 28, 1981, and January 22, 1980, and need no further comment.
Before any testimony was given, and after hearing the arguments of counsel on the settlement issue, the trial court made the following statement to the jury:
"THE COURT: Ladies and gentlemen of the jury, before we commence the testimony there is an aspect of this case by which I believe I should advise you. The plaintiff's claim against the defendant, Lippy, has been settled. I shall not mention the amount of the settlement, although plaintiff is free to mention it if she wishes. That means that the amount Lippy is obliged to pay has been fixed, regardless of what action the jury may take. This settlement, however, in no way reduces your responsibility, as you must still determine what defendant, or defendants, under the law is liable to the plaintiff. If you find one or more defendants liable to the plaintiff, you must still determine what sum of money would be fair and adequate compensation for the decedent's death. I am not asking you to draw any inference from the facts of the settlement, though various Counsel may wish to ask you to draw an ...