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FLORENCE B. KOBYLINSKI v. DR. JOHN G. HIPPS AND DR. WILLIAM SCHMIDT V. DR. WILLIAM SCHMIDT V. DR. JOHN G. HIPPS. APPEAL DR. WILLIAM SCHMIDT (12/22/86)

filed: December 22, 1986.

FLORENCE B. KOBYLINSKI, EXECUTRIX OF THE ESTATE OF JOSEPH A. KOBYLINSKI, SR., DECEASED
v.
DR. JOHN G. HIPPS AND DR. WILLIAM SCHMIDT V. DR. WILLIAM SCHMIDT V. DR. JOHN G. HIPPS. APPEAL OF DR. WILLIAM SCHMIDT



Appeal from the Judgment entered October 23, 1985 in the Court of Common Pleas of Forest County, Civil Division, No. 156-A-1980.

COUNSEL

Paul H. Millin, District Attorney, Tionesta, for appellant.

T. Warren Jones, Erie, for Hipps, appellee.

Brosky, Del Sole and Montgomery, JJ.

Author: Del Sole

[ 359 Pa. Super. Page 550]

On the evening of November 26, 1979, Plaintiff's Decedent had been visiting a residence, owned by Appellant-Schmidt, who had leased it to Appellee-Hipps. Decedent, along with his family, was on the premises because Decedent's son had lacerated a finger and wanted Appellee, a physician, to examine the injury. Appellee was Decedent's

[ 359 Pa. Super. Page 551]

    son's father-in-law. Decedent accompanied Appellee and Decedent's son to Appellee's residence, Decedent stepped out of the automobile which had stopped adjacent to an unguarded exterior stairwell attached to the home, and plunged to his death. The record shows that the stairwell was equipped with an outside light positioned over a basement door; however, it was not illuminated that evening. In addition it was further pointed out during trial that Decedent was not familiar with the stairwell's unprotected condition.

Following the accident, Plaintiff, executrix of Decedent's estate, lodged a wrongful death and survival action against Appellant and Appellee who later joined each other as additional defendants. A jury trial was conducted after which negligence was apportioned as follows: Decedent -- 5%, Appellee -- 20%, Appellant -- 75%. Decedent's estate was awarded a net amount of $30,000.

Subsequently, Appellant filed a Motion for Judgment Non Obstante Veredicto or in the Alternative for a New Trial. On October 21, 1985, Appellant's post-trial motion was denied and Judgment was entered on the verdicts. This appeal follows.

Appellant cites three instances of error allegedly committed by the trial court. First, it is claimed that the trial judge improperly instructed the jury on the law concerning the liability of a landlord out of possession. Second, Appellant posits the trial court erred in its instruction to the jury concerning an exculpatory clause found in the lease. Third, it is advanced that the trial court committed error by failing to instruct the jury on the question of primary/secondary, active/passive negligence and the law concerning intervening efficient or superseding cause.

By his brief, Appellant correctly points out that neither a Motion for Directed Verdict nor Binding Instructions were filed by Appellant at the close of evidence. We note that under prior statutory authority in effect at the time of trial, a written and filed request for binding instructions was a condition precedent to the filing of a motion for

[ 359 Pa. Super. Page 552]

    judgment n.o.v. See 12 P.S. § 681. (Repealed effective June 27, 1980). See also 42 P.S. § 20003(b) (provisions of statute remained effective as part of common law under failsafe provisions of JARA).*fn1

While it is true that Appellant did not comply with these directives, we find, from an independent review of materials supplied to this court, a bundle of documents designated by the trial court Prothonotary as "papers . . . sent directly to the Judge and not filed in the Prothonotary's office." Contained within this collection is a Motion for Directed Verdict, signed by Appellant's counsel. A directed verdict was requested on the ground that, with some exceptions, a lessor is not liable for injuries sustained by third parties while on the owner's property when the owner was out of possession. The requested Points for Charge presented to the trial court before jury ...


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