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CARLSON MINING COMPANY v. TITAN COAL COMPANY (06/14/85)

filed: June 14, 1985.

CARLSON MINING COMPANY, APPELLANT,
v.
TITAN COAL COMPANY, INC., ENERGY SERVICES, CHARLES BARLETTO, ROBERT L. TODD, PETE MERCURIO AND WEST PENN POWER COMPANY



Appeal from the Order August 24, 1983 in the Court of Common Pleas of Lawrence County, Civil No. 896 of 1976.

COUNSEL

Charles W. Garbett, Ellwood City, for appellant.

John M. Silvestri, Pittsburgh, for appellees.

Olszewski, Hester and Shiomos,*fn* JJ.

Author: Olszewski

[ 343 Pa. Super. Page 366]

In this case, Carlson Mining Company, appellant-plaintiff below, appeals the grant of a new trial to Charles Barletto, appellee-defendant below. Appellant argues that the court improperly based its grant of a new trial on grounds not preserved by objection and brief; that the grounds are improper for the granting of a new trial; and that the trial court's original error, if any, was rendered harmless.

The facts are these. Appellant agreed to sell coal on credit to Robert Todd, one of the defendants in the original action.*fn1 Appellant was not paid and subsequently, sued Appellee Charles Barletto, among others, claiming that his misrepresentations induced Appellant to extend credit when he knew or should have known that the purchaser would not pay.*fn2

At trial, counsel for Appellant asked Appellee Barletto whether he had ever been convicted of a crime. After objection and sidebar, the court allowed the question; the answer was that Barletto had been convicted two years

[ 343 Pa. Super. Page 367]

    earlier of conspiracy to transport stolen goods in interstate commerce. Subsequently the president of Appellant, when cross-examined, admitted to a conviction for armed robbery in 1963. The court cautioned the jury that these convictions could be considered only on the issue of witness credibility. The jury returned a verdict for Appellant for $68,000; Appellant had demanded $135,000 in its complaint.

On Appellee's motion, the court granted a new trial, stating that allowing cross-examination of Barletto as to his conviction was error.*fn3 There were no other reasons given for the grant.

Our standard of review for the grant of a new trial requires us to examine the reasoning of the court: absent manifest abuse of discretion or an error of law, we will not disturb the decision of the lower court. Giambra v. Aetna Casualty and Surety Co., 315 Pa. Super. 231, 461 A.2d 1256 (1983). Finding no manifest abuse of discretion, we turn to whether the court below committed an error of law.

An examination of the record shows counsel for Appellee did not properly preserve, on the record, any objection to the question other than that of prejudice. Therefore, if the court relied on a reason other than prejudice in awarding a new trial, it erred, since a court may only rule on questions preserved and presented to it by a litigant. Carnicelli v. Bartram, 289 Pa. Super. 424, 433 A.2d 878 (1981). The court relied on two reasons: failure of Appellant to document the finality of the conviction, and prejudice to Appellee exceeding probative value of the evidence. The court could not properly hold on the first issue. Our ...


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