No. 630 Philadelphia, 1982, Appeal from the Order of the Court of Common Pleas of Bucks County, No. 78-4663.
David F. Binder, Philadelphia, for appellant.
John J. Hart, Sellersville, for appellee.
Spaeth, President Judge, and Hester and Lipez, JJ. Spaeth, President Judge, files concurring statement.
[ 325 Pa. Super. Page 182]
Plaintiff in this negligence action obtained a judgment for $22,500. Plaintiff has taken this appeal, requesting a new trial on damages only on the grounds that: (1) the verdict was inadequate; (2) the amount of the verdict was against the weight of the evidence; and (3) the court below erred by instructing the jury not to consider income tax consequences in their verdict. Because we agree with plaintiff's third contention, we vacate the judgment and grant a new trial on damages only, and there is no need to consider the first two issues.
Defendant's only point for charge was granted by the trial judge, who instructed the jury in these words: "The award to the Plaintiff will not be subject to Federal Income Taxes and you should neither add nor subtract taxes in fixing the amount of the award." In Gradel v. Inouye, 491 Pa. 534,
[ 325 Pa. Super. Page 183]
421 A.2d 674 (1980), Justice Kauffman's opinion for a unanimous court stated:
The Superior Court further held that the trial court erroneously refused appellee's request to instruct the jury that an award would not be subject to federal income tax. We disagree.
The law of Pennsylvania plainly is that income tax consequences should not be considered by the jury. In Girard Trust Corn Exchange Bank v. Philadelphia Transportation Co., 410 Pa. 530, 538, 190 A.2d 293, 298 (1963), we noted:
The majority rule in the United States is that in fixing damages for the determination of decedent's earning capacity, the income tax consequences of the matter should not be taken into consideration . . . . This, in our opinion, is based upon sound legal reasoning and is now advanced as the rule to be followed in Pennsylvania.
Income tax as it relates to damages should be mentioned neither in argument nor in jury instructions. The trial court ...