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BETTY LEWIS v. JOHN L. PRUITT (01/04/85)

filed: January 4, 1985.

BETTY LEWIS, APPELLANT,
v.
JOHN L. PRUITT



No. 278 Harrisburg, 1983, No. 279 Harrisburg, 1983, Appeal from the Order entered June 22, 1983, Court of Common Pleas, York County, Civil Division at No. 82-S 1883.

COUNSEL

William B. Anstine, Jr., York, for appellant.

Patricia A. Butler, York, for appellee.

Wickersham, Johnson and Watkins, JJ.

Author: Johnson

[ 337 Pa. Super. Page 422]

At the conclusion of a four-day trial, the jury awarded damages to plaintiff, Betty Lewis, of $110,000 in economic loss and $140,000 in non-economic loss. The trial court molded the verdict by deducting $15,000 from the verdict on economic loss. The deduction represented the possible wage loss benefits collectible by plaintiff from her no-fault insurance carrier.

Both parties filed post-trial motions. Plaintiff contended that she was entitled to counsel fees and costs in connection with a pretrial request for admissions. She further excepted to the court's refusal to permit the recovery of punitive damages, as well as the deduction of $15,000 work loss benefits from her $110,000 award for economic loss. Defendant,

[ 337 Pa. Super. Page 423]

John L. Pruitt, sought a new trial based upon the alleged excessiveness of the verdict and the admission into evidence of earnings of beauticians to determine plaintiff's earning capacity. Defendant also resisted the award of delay damages.

The trial court dismissed the exceptions of both parties, granted delay damages on the verdict as molded by the court, and directed the entry of judgment on the modified verdict. Both parties now appeal from the judgment as entered. We reverse so much of the trial court's order as sought to reduce the award for economic loss, affirm the balance, and remand for entry of judgment consistent with this opinion.

I. BACKGROUND

This case arose out of a two car, head-on collision which occurred on May 22, 1981. The defendant had been rendered unconscious by vehicle exhaust fumes which had collected in his unventilated car. His car crossed the center line and struck plaintiff's car in her lane of travel. Plaintiff suffered a traumatic cervical syndrome and other injuries. Prior to the accident, plaintiff had been employed as a bundle work binder at a dress manufacturing plant in York, Pennsylvania for some seventeen years. Prior to that she had been a beautician.

II. DISCOVERY SANCTIONS

Prior to trial, plaintiff had requested the admission of certain facts regarding the salary range for beauticians in the York County area. The request was in the form of an undated, handwritten statement by one Mae Van Tassel, which in its entirety set forth the following:

Mae Van Beauty Salon

20 N. Harrison Street

York, PA 17403

8432941

[ 337 Pa. Super. Page 424]

Having been a beautician and employer for 38 years I am familiar with payment in wages in the average Beauty Salon in the last five years in this area listed as follows.

Starting saleries [sic] are the minimum wage scale.

After about one year the average operator is paid by Commission only, which consists of 50% of all services performed. There are instances when 40% is payed [sic] and also 60%, however, the operator is then charged for some supplies. So I conclude in a 40 hour week with a full scedual [sic] of customers an operator can earn $200. to $300. weekly.

Mae Van Tassel

The defendant responded to the request by filing an objection thereto, pursuant to Pa.R.C.P. 4019(d)(3), on the basis that the statements of Mae Van Tassel "are not matters that relate to statements or opinion of fact or of the application of law to fact."

Pa.R.C.P. 4019(d) vests in the trial court authority to tax as costs the reasonable expenses of making proof on matters not previously admitted, unless the court finds that "the party failing to admit had reasonable ground to believe that he might prevail on the matter." The trial court, in its Opinion filed in disposing of post trial motions, found that the defendant had a reasonable belief that he did not have to admit the truth of the statement. The court noted its midtrial ruling that the statement itself was inadmissible without more expert testimony on plaintiff's aptitude and skills.

The imposition of specific sanctions for failure to obey a discovery order is largely within the discretion of the court. Brunetti v. Southeastern Pennsylvania Transportation Authority, 329 Pa. Super. 477, 478 A.2d 889 (1984). We are not inclined to disturb the trial court's finding regarding the respondent-defendant's reasonable belief given the difficulty encountered by the plaintiff in securing the ultimate admission of the testimony. We affirm that portion

[ 337 Pa. Super. Page 425]

    of the court's order refusing fees and costs in connection with the ...


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