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filed: January 20, 1984.


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.

Author: Popovich

[ 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 inference. You may or may not consider the facts of this settlement significant in evaluating the position of the parties and the testimony of the witness. This will be entirely up to you." (Notes of Testimony, Jan. 19, 1981, pp. 98, 99).

Aside from permitting appellant to mention the amount of the settlement, the court also allowed Mr. Lippy to be cross-examined by both PECO and appellant, as if he were truly an adversary of both parties. The events immediately preceding the crash were testified to by Mr. Lippy during

[ 324 Pa. Super. Page 19]

    cross-examination by the attorney representing PECO. According to Mr. Lippy, appellant's decedent, as instructor, was in control of the throttle of the aircraft during the simulated engine failure. Mr. Lippy was to guide the plane to an emergency landing. It became immediately obvious to Mr. Lippy that they were too far out to make a safe landing at the airport unless Mr. Weingrad gave more power to the engine. Mr. Lippy told his instructor three times that they were too low and were not going to make it, but Mr. Weingrad insisted only that Mr. Lippy make as steep a turn as possible and did not give any more power to the engine. Mr. Lippy stated that with more power they would have had no problem in clearing the obstructions.

As we previously stated, appellant contends that the court erred in disclosing to the jury that Mr. Lippy had settled. We agree. The court below considered our decision in Cartmel v. Williams, 207 Pa. Super. 144, 215 A.2d 282 (1965), where we held that the trial court did not err in refusing to admit a joint-tortfeasor release into evidence. The trial court interpreted our holding in Cartmel, supra, as leaving resolution of this evidentiary question to the trial judge's discretion. Regardless of the correctness of the trial court's interpretation of Cartmel, that case is irrelevant to the case at bar because it predates the following statute, which provides in relevant part:

"§ 6141. Effect of certain settlements

(a) Personal injuries. -- Settlement with or any payment made to an injured person or to others on behalf of such injured person with the permission of such injured person or to anyone entitled to recover damages on account of injury or death of such person shall not constitute an admission of liability by the person making the payment or on whose behalf the payment was made, unless the parties to such settlement or payment agree to the contrary.

(b) Damages to property. -- Settlement with or any payment made to a person or on his behalf to others for damages to or destruction of property shall not constitute

[ 324 Pa. Super. Page 20]

    an admission of liability by the person making the payment or on whose behalf the payment was made, unless the parties to such settlement or payment agree to the contrary.

(c) Admissibility in evidence. -- Except in an action in which final settlement and release has been pleaded as a complete defense, any settlement or payment referred to in subsections (a) and (b) shall not be admissible in evidence on the trial of any matter."

42 Pa.C.S.A. § 6141.*fn2

Because the settlement in the instant case has not been pleaded as a complete defense, it "shall not be admissible in evidence on the trial of any matter." Clearly, the trial court erred in informing the jury of the settlement.*fn3

[ 324 Pa. Super. Page 21]

Nevertheless, this error does not necessarily require that a new trial be held. "To constitute reversible error, a ruling on evidence or an instruction to a jury must be shown not only to have been erroneous but harmful to the party complaining." Anderson v. Hughes, 417 Pa. 87, 92, 208 A.2d 789, 791 (1965). "It is axiomatic that 'the . . . admission of evidence[, even if erroneous,] is not considered a ground for a new trial where no harm or prejudice has resulted.'" Kolb v. Hess, 227 Pa. Super. 603, 611, 323 A.2d 217, 221-222 (1974). Appellant argues that introduction of the settlement created the risk of confusing the jury and causing speculation as to whether the liable party was still in the case, or whether the plaintiff had received all of the damages to which she was entitled. Appellant asserts that we can never know to what extent the jury considered the settlement.

Were it not for the special findings of the jury in this case, we would be persuaded by appellant's argument.

[ 324 Pa. Super. Page 22]

However, in response to special interrogatories, the jury found that Donald Lippy was not negligent, that PECO was not negligent, that the airport was not negligent, but that the deceased was negligent in that he failed to exercise reasonable care for his own safety and that such negligence was a substantial factor in causing his own death. "The special findings of the jury which served to resolve the factual dispute between the parties must be taken as a final adjudication of these factual questions, unless, for some proper reason, the court set [sic] them aside." Berliner v. Bee Em Manufacturing Co., 383 Pa. 458, 119 A.2d 65 (1956). Although we would envision that in most cases the improper admission of a joint-tortfeasor release would constitute reversible error, we fail to see how appellant could have been harmed in this case. In Jaski v. West Park Daily Cleaners and Dyers, 334 Pa. 12, 5 A.2d 105 (1939) the plaintiff's own testimony showed a want of care upon her part, thus allowing the Supreme Court to ignore her contentions of trial court error. Id., 334 Pa. at 15, 5 A.2d at 106. In the instant case, it is obvious that the factfinder believed Mr. Lippy's testimony that he had warned appellant's decedent that they were flying too low. Thus, the jury found that the deceased was contributorily negligent. Although Mr. Lippy was not the plaintiff, he was the only living eye-witness to the events inside the cockpit immediately preceding the crash. More importantly, because he had already settled, Mr. Lippy was not appellant's true adversary during the trial. Since the jury specifically found Mr. Lippy not to have been negligent, there is no basis in fact for appellant's fear that the jury might improperly have assumed that the party who had settled was the only liable party. For this reason, and because the jury found appellant's decedent to have been contributorily negligent, appellant's concern that the jury may have unfairly considered that appellant had received all of the damages to which she was entitled is also unfounded. Therefore, because of the unusual factual circumstances surrounding this case, we find that appellant was not prejudiced by the

[ 324 Pa. Super. Page 23]

    trial court's error. Accordingly, we must affirm the judgment of the court below.

Judgment affirmed.

MONTGOMERY, Judge, dissenting:

I must respectfully dissent. I believe that the lower court committed reversible error when it informed the jury that the Defendant, Donald Lippy, had reached a settlement with the Plaintiff. I find significant merit in the Appellant's contention that the jury may have unfairly considered that the Appellant had received all of the damages to which she was entitled in arriving at her settlement with Mr. Lippy.

The Act of July 9, 1976, P.L. 586, No. 142, § 2, 42 Pa.C.S.A. § 6141, recited in the Majority Opinion, is clear in declaring that no evidence of any settlement or payment should be admitted into evidence in a trial such as the one which took place in the instant case. I believe that the legislative rationale for that statute was that a jury, upon learning of a settlement, could decide to reduce or eliminate any award to an otherwise eligible plaintiff based upon the conclusion that the plaintiff had already received a recovery to the extent that he or she was entitled to or satisfied with in the settlement which had been reached. The jurors could conclude that to award further damages would create a windfall. Moreover, since the jury specifically found Mr. Lippy not to have been negligent in this case, it is reasonable to speculate that the jury members could have reached the conclusion that the Plaintiff had received some monies from that defendant to which she was not entitled, so that the jury would therefore think it fair to deny her any recovery from any other party, against whom an award might otherwise have been made. There is simply no way to determine whether or not such prejudicial considerations resulted from the disclosure of settlement to the jury in the instant case.

[ 324 Pa. Super. Page 24]

I believe that the manifest violation of the statute created the clear potential of serious and prejudicial error in the instant case and I therefore feel that the Appellant is entitled to a new trial at which any evidence of settlement would be excluded.

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