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HOPE S. MINEO v. CHARLES D. TANCINI (01/03/86)

filed: January 3, 1986.

HOPE S. MINEO
v.
CHARLES D. TANCINI, J.E. SMITH, INC., PAUL KEVON MERMON, AND PENNSYLVANIA DEPARTMENT OF TRANSPORTATION. APPEAL OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION. HOPE S. MINEO, APPELLANT, V. CHARLES D. TANCINI, J.E. SMITH, INC., PAUL KEVON MERMON, AND PENNSYLVANIA DEPARTMENT OF TRANSPORTATION. HOPE S. MINEO V. CHARLES D. TANCINI, J.E. SMITH, INC., PAUL KEVON MERMON, AND PENNSYLVANIA DEPARTMENT OF TRANSPORTATION. APPEAL OF J.E. SMITH, INC. HOPE S. MINEO V. CHARLES D. TANCINI, J.E. SMITH, INC., PAUL KEVON MERMON, AND PENNSYLVANIA DEPARTMENT OF TRANSPORTATION. APPEAL OF PAUL KEVON MERMON



Appeal from the Judgment entered March 16, 1984, Court of Common Pleas, Montgomery County, Civil Division at No. 79-23086.

COUNSEL

Gary B. Gilman, Deputy Attorney Gen., Philadelphia, for Pa. Dept., appellant in No. 866 and appellee in Nos. 906, 1049 and 1050.

David S. Shrager, Philadelphia, for Mineo, appellant in No. 906 and appellee in Nos. 866, 1049 and 1050.

William H. Kinkead, III, Norristown, for Mermon, appellant in No. 1050 and appellee in Nos. 866, 906 and 1049.

Gilbert P. High, Jr., Norristown, for J.E. Smith, appellant in No. 1049 and appellee in Nos. 866, 906 and 1050.

Spaeth, President Judge, and Johnson and Shoyer,*fn* JJ. Spaeth, President Judge files a concurring opinion.

Author: Johnson

[ 349 Pa. Super. Page 119]

Hope S. Mineo, a Maryland resident, was seriously injured in a vehicular accident which occurred on Pa. Route 903 in Montgomery County on January 1, 1978 when a salt truck rammed into the rear of a station wagon in which she was a passenger. Ms. Mineo commenced an action against several defendants including Paul Mermon, the driver of the salt truck. Prior to trial an amicable settlement was reached by Ms. Mineo with one of the defendants, Charles D. Tancini.

After trial by jury Ms. Mineo was awarded $2,360,000.00 in damages. As part of its verdict the jury attributed 85% of the negligence to defendant Mermon and 15% to defendant Tancini. The jury also determined that Mermon, at the time of the accident, was in the joint employ of the two remaining defendants, J.E. Smith, Inc. and the Pennsylvania Department of Transportation (hereinafter "PennDOT"). Following the return of the jury verdict, judgment was entered in favor of Hope Mineo in the amount of $3,266,748.97.*fn1

After the appeals and cross-appeal were filed with this Court, J.E. Smith, Inc. filed a motion to reduce judgment or stay proceedings which sought to have the verdict reduced by 15% in light of the joint tort-feasor release of Charles D. Tancini, which was executed by Hope Mineo prior to trial. This motion was not opposed and, by order dated May 13, 1985, this Court remanded this question to the trial court for its consideration. On May 30, 1985 the trial court reduced the judgment from $3,266,748.97 to $2,777,273.58.

Also, prior to trial, Hope Mineo received medical payment benefits from the no-fault insurance carrier for the motor

[ 349 Pa. Super. Page 120]

    vehicle in which she was a passenger at the time of the January 1, 1978 accident. No claim was made to the jury for medical expenses, but it was agreed that $100,000, representing Ms. Mineo's accrued and future medical expenses, should be added to the verdict if it were later to be determined by the trial or appellate court that inclusion of these monies would be appropriate. The trial court's March 8, 1984 opinion [ Mineo v. Tancini, 114 Montg.Co.L.R. 16 (1984)] denied the motion to mold the verdict by the addition of $100,000 in medical expenses.

Defendants J.E. Smith, Inc., Mermon and PennDOT appealed raising collectively the following six separate issues which we must consider:

1. Did Hope Mineo settle her dispute with PennDOT prior to trial?

2. Should the jury have been instructed on the Sudden Emergency Doctrine?

3. Should the table of Hope Mineo's projected earnings have been sent out with the jury during deliberations?

4. Was the jury verdict excessive?

5. Should the verdict have been molded to limit PennDOT's liability to $250,000?

6. Should the trial judge have ruled that Mermon was solely the employee of PennDOT?

Hope Mineo in her cross-appeal seeks a double recovery for her accrued and future medical expenses.

For the following reasons we affirm.

I. ALLEGED SETTLEMENT AGREEMENT

PennDOT initially argues that the trial court erred in denying a request to amend its new matter to include a defense of settlement and to mold the verdict to reflect a settlement with Hope Mineo in the amount of $25,000. On November 2, 1981 the trial court had dismissed PennDOT's petition to have the case settled and discontinued with respect to PennDOT. Thereafter, PennDOT, which had answered Hope Mineo's complaint prior to the alleged settlement,

[ 349 Pa. Super. Page 121]

    sought leave to amend its new matter to include the affirmative defense afforded by the settlement. On September 14, 1982, following oral argument, PennDOT's petition was denied. No appeal was ever taken from the trial court's September 14, 1982 order.

An order of the trial court refusing to permit a defendant to assert an affirmative defense such as release or settlement is an appealable order. Grota v. LaBoccetta, 425 Pa. 620, 230 A.2d 206 (1967). In Grota, the defendants, like PennDOT in the instant case, sought the trial court's permission to amend the answers previously filed to include the affirmative defense of release based upon a prior settlement agreement. The trial court refused and an appeal was taken. The plaintiff in Grota attempted to have the appeal quashed on the ground that the appeal was interlocutory.

Justice Musmanno, in rejecting this contention, and speaking for the court, stated:

We cannot accept this argument. The defense sought to be injected by the amendment was an affirmative one and thus had to be pleaded, on the risk otherwise that it might be deemed to have been waived. Therefore, when the Court held that the amendment was not pleadable, the petitioners were, on that feature of the case, put out of court. From this it inevitably followed that the order below became final and appealable. In Posternack v. American Casualty Co., 421 Pa. 21, 218 A.2d 350, [1966] we stated that where the new proposed defense is affirmative in character, and thus must be pleaded or be deemed to have been waived, the order of the court denying the pleading precludes proof of such defense at the time of trial and, accordingly, as to that defense the order "puts the defendant out of court."

Id., 425 Pa. at 623, 230 A.2d at 207.

The clear holding in Grota was available to counsel for PennDOT in September 1982 when PennDOT failed to take an appeal. It was not enough for PennDOT to have

[ 349 Pa. Super. Page 122]

    filed a petition for review in the Commonwealth Court when a direct appeal should have been taken. Pa.R.A.P. 903 requires that the notice of appeal "be filed within 30 days after the entry of the order from which the appeal is taken." The failure of PennDOT to have taken a direct appeal from the September 14, 1982 order rendered the doctrine of res judicata applicable and precludes vacation of this order after the time for appeal has passed. Love v. Temple University, 422 Pa. 30, 220 A.2d 838 (1966); U.S. National Bank in Johnstown v. Johnson, 321 Pa. Super. 352, 468 A.2d 515 (1983). Where a new proposed defense is affirmative in character, such as the one PennDOT sought to advance instantly, it must be pleaded or it is deemed to have been waived. The September 14, 1982 order put PennDOT out of court with respect to the proposed affirmative defense of release or settlement. This order was, therefore, appealable. PennDOT cannot now challenge the trial court's decision not to permit amendment of PennDOT's new matter since it failed to appeal from the September 14, 1982 order.*fn2

II. SUDDEN EMERGENCY DOCTRINE

The next assignment of error by PennDOT challenges the trial court's failure to instruct the jury on the application of the sudden emergency doctrine. PennDOT asserts that there was sufficient evidence of record for the jury to have determined that Mr. Mermon was confronted with "the sudden interjection of a moving object into his path of travel" ...


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