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DANIEL JACKSON v. HARRY SPAGNOLA (01/24/86)

filed: January 24, 1986.

DANIEL JACKSON, SHIRLEY JONES AND FRANCES MCELROY SHANNON,
v.
HARRY SPAGNOLA, MARTINIQUE RESTAURANT AND COCKTAIL LOUNGE, VOLKSWAGEN OF AMERICA, INC. AND VOLKSWAGEN A-G, APPELLEES. APPEAL OF FRANCES MCELROY SHANNON



Appeal From Judgment Entered February 7, 1985, Court of Common Pleas, Civil Division, Philadelphia County No. 64 October Term, 1976

COUNSEL

Oscar S. Schermer, Philadelphia, for appellant.

David Richman, Philadelphia, for Volkswagen, appellee.

Cavanaugh, Cirillo and Hester, JJ.

Author: Cavanaugh

[ 349 Pa. Super. Page 473]

Frances McElroy Shannon was injured in a multi-vehicle collision on October 15, 1974. She subsequently filed suit against Harry Spagnola, the operator of the other vehicle; the Martinique Restaurant and Cocktail Lounge, which had served alcoholic beverages to defendant Spagnola; and Volkswagen of America, Inc. and Volkswagen A-G, distributor and manufacturer of the 1973 Volkswagen Beetle in which Ms. Shannon was a passenger. In December, 1982, a jury returned a verdict against Spagnola only in the amount of $350,000.00 for the appellant. Post-trial motions were filed and subsequently denied by the lower court. Ms. Shannon now appeals from the judgment in favor of Volkswagen of America, Inc. and Volkswagen A-G.

Appellant presents five questions for review:

(1) whether the trial court erred in allowing Volkswagen's expert witness to exhibit test crash films at trial; and whether such demonstrative evidence was unfairly prejudicial to appellant; (2) whether the trial court erred in refusing to strike the expert's testimony; (3) whether the trial court erred in admitting evidence of the Federal Motor Vehicle Safety Standards; (4) whether the trial court erred in refusing appellant's proposed charge to the jury on appellees' compliance or non-compliance with the Federal

[ 349 Pa. Super. Page 474]

Safety Standards; and (5) whether the verdict in favor of Volkswagen is against the weight of the evidence.

The record as originally forwarded to this court did not contain the appellant's supplemental post-trial motions which raised the first four issues presented above. Accordingly, we filed an opinion on September 27, 1985 which was withdrawn by order of October 16, 1985 in which we held that the first four issues were waived as not having been raised in the court below in post-trial motions. Subsequent to our opinion of September 27, 1985, we learned that in fact supplemental post-trial motions were filed below under local Philadelphia Rule 240 which provides:

(C) Filing Procedure

(1) All exceptions and post-trial motions shall be filed in triplicate with the Post-Trial Motion Clerk and shall contain the name of the trial judge as well as the names, addresses and telephone numbers of all counsel involved in the trial of the case. In addition, said motions and exceptions shall contain a Certification of Service on all counsel named therein, and, if desired, should be accompanied by a written request for argument of the exceptions or motions before a court en banc. Any request by opposing counsel for argument before a court en banc shall be filed in writing within five (5) days of the service of the exceptions or motions.

(2) Under the direction of the Court Administrator, the Post-Trial Motion Clerk shall maintain an Individual Court Docket for each Judge of the Common Pleas Court.

The Post-Trial Motion Clerk shall docket exceptions and post-trial motions in the Individual Docket of the Trial Judge and in the General Appearance Docket and forward copies of same to the Trial Judge and to the court stenographer who was assigned to the trial of the case. The Trial Judge shall, upon receipt of the exceptions or motions, indicate to the Post-Trial Motion Clerk whether or not ...


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