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MAURICE BELL AND HELEN SCHWEIKER v. CITY PHILADELPHIA AND POLICE COMMISSIONER JOSEPH O'NEILL AND OFFICER JAMES W. GAMBLE (04/19/85)

filed: April 19, 1985.

MAURICE BELL AND HELEN SCHWEIKER, APPELLANTS,
v.
CITY OF PHILADELPHIA AND POLICE COMMISSIONER JOSEPH O'NEILL AND OFFICER JAMES W. GAMBLE, APPELLEES



No. 2311 Philadelphia, 1982, Appeal from Judgment of the Court of Common Pleas, Civil Division, of Philadelphia County, No. 3920 October Term, 1977.

COUNSEL

Irwin L. Gross, Philadelphia, for appellants.

Gabriel L. Bevilacqua, Philadelphia, for appellees.

Wickersham, Wieand and Hoffman, JJ.

Author: Wieand

[ 341 Pa. Super. Page 539]

The principal issue in this appeal following a defense verdict in an action to recover damages for injuries caused by a shooting is whether it was error for the trial court to allow evidence of plaintiff's bad reputation for violence to show that he was probably the aggressor. Other issues raised in this appeal do not warrant lengthy discussion and will be disposed of summarily.

James W. Gamble, a police officer employed by the City of Philadelphia, completed his shift at the Juvenile Aid Division (JAD) about 3:30 a.m. and was standing on the corner at Castor and Frankford Avenues while waiting for his mother to pick him up and give him a ride home. Maurice Bell, who lived nearby, approached on foot after having spent several hours drinking at a neighborhood bar. He shouted a racial slur and told Gamble to get off his property. Gamble, in fact, was not standing on Bell's property. Bell entered his residence and Gamble returned to the place of his employment to call his mother and find out why she hadn't arrived. Learning that she was on her way, Gamble returned to the street corner to continue his wait. Bell emerged from his house, and an angry exchange between the men took place. Thereafter, Bell returned to his home, only to re-emerge. This time he picked up a shovel and approached Gamble. The succeeding events are in dispute. Bell testified that Gamble swung at him with his nightstick, which he, Bell, parried with the shovel. Gamble, on the other hand, said that Bell had swung his shovel and that when he, Gamble, blocked it with his nightstick, the nightstick had broken. In any event, the nightstick was broken and Gamble retreated to the JAD building, pulling out his service revolver as he did so. Gamble testified that Bell struck him on the head as he, Gamble, entered the door of the building. He said that as he fell, he shot Bell in the leg. Bell kept coming forward, however, and kept striking Gamble with the shovel as

[ 341 Pa. Super. Page 540]

Gamble crawled up a flight of steps. When Gamble reached and opened another door, he fired two shots into Bell's body. Bell's version of these events was different. He said that he had not struck Gamble with the shovel and that three shots had been fired at him when he reached the second door. There were no disinterested eyewitnesses to the events of that morning; and, therefore, the credibility of the parties was an important issue for the jury to decide.

Bell was arrested on charges of aggravated assault, but he was acquitted by a jury on March 29, 1977. The present action by Bell and his alleged common-law wife to recover damages for an alleged assault and battery was commenced on October 19, 1977. On March 27, 1978, the parties stipulated that plaintiffs, appellants herein, could file an amended complaint within ten days. Appellants did not file an amended complaint within the time stipulated. Thereafter, on April 10, 1978, they filed an amended complaint alleging an additional count for malicious prosecution. The trial court sustained preliminary objections to this count and caused it to be stricken because it was brought more than one year after Bell's acquittal.*fn1 We perceive no error. This was in accord with existing law. See: Act of July 1, 1935, P.L. 503, No. 196, 12 P.S. ยง 51 (repealed effective June 27, 1978); Sicola v. First National Bank, 404 Pa. 18, 170 A.2d 584 (1961).*fn2 We reject appellants' argument that appellees*fn3 waived the defense of the statute of limitations merely because they agreed that appellants could file an amended complaint within ten days.

[ 341 Pa. Super. Page 541]

The agreement was intended to comply with Pa.R.C.P. 1033, which required filed consent of the adverse party or leave of court to file an amended pleading. By agreeing to allow an amended pleading, appellees did not waive any defenses available to a new cause of action which appellants set forth in their amended complaint.*fn4

At trial on the complaint alleging an assault and battery, the trial court allowed each defendant three peremptory challenges. Appellants, who were given four peremptory challenges, complain that the two defendants received more peremptory challenges than they did. This was authorized by Pa.R.C.P. 221. There is no abuse of discretion evident. Moreover, appellants failed to argue this issue in the brief filed in the trial court in support of their motion for new trial. The issue, therefore, has not been preserved ...


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