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decided: February 23, 1987.


Appeal from Judgment of Superior Court dated April 19, 1985, at No. 83 Philadelphia 1984, Affirming Order of Court of Common Pleas of Philadelphia, Trial Division, Civil Section, Dated December 13, 1983 at No. 2852, April Term, 1974. 345 Pa. Superior Ct. 632, 496 A.2d 860 (1985).


George J. O'Neill, Philadelphia, for appellants.

Harry A. Short, Jr., George J. Lavin, Jr., Gerard Cedrone, Thomas Finorelli, Philadelphia, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Zappala, J., files a concurring opinion. Larsen, J., files a dissenting opinion in which Papadakos, J., joins.

Author: Hutchinson

[ 513 Pa. Page 413]


Appellants Daniel L. Stevenson, Virginia A. Stevenson and Valerie Stevenson appeal by allowance a Superior Court order which affirmed the Court of Common Pleas of Philadelphia. Common Pleas granted appellee General Motors Corporation's motion for a new trial. Appellants claim that the trial judge abused his discretion in granting the motion based upon evidence offered in the second half of a bifurcated trial. Because the jury's finding of liability is not a verdict upon which final judgment can be entered or from which an appeal will lie, we hold that a trial court may properly examine all of the evidence in ruling on post-trial motions filed after the damage verdict ends the trial. Our consequent examination of the entire record also leads us to hold the trial judge did not abuse his discretion in granting a new trial. We therefore affirm Superior Court. 345 Pa. Super. 632, 496 A.2d 860 (1985).

Appellants, Daniel L. Stevenson, in his own right and as administrator of the Estate of Daniel L. Stevenson, Jr., Deceased, and the Estate of Delcita M. Stevenson, Deceased, Virginia A. Stevenson and Valerie Stevenson, brought suit in Philadelphia Common Pleas against appellee General Motors Corporation for damages stemming from an

[ 513 Pa. Page 414]

    accident occurring on May 6, 1973 on the New Jersey Turnpike. The trial was bifurcated into liability and damage portions at the direction of the court. Appellants, invoking the principles of § 402A of the Restatement (Second) of Torts, argued that a steering defect in the Vega Virginia Stevenson was driving led to the crash which killed two of the Stevenson children and injured the three surviving members of the family. The liability portion of the trial was held from April 15 to April 23, 1982. After a finding of liability, appellee filed a motion for judgment notwithstanding the verdict on May 5, 1982, and a motion for a new trial on May 26, 1982.*fn1 The trial on damages was held on January 4 to January 26, 1983 with a separate jury returning a verdict of $1,025,000 in favor of the appellants. On February 6, 1983, appellee filed a motion for a new trial.

Citing testimony during the damage phase by the appellants' personal psychiatrist that the appellants are "unreliable historians," the trial judge granted appellee's motion for a new trial. Noting that a products liability claim based wholly upon circumstantial evidence requires the absence of reasonable secondary causes of the accident,*fn2 the trial judge opined that the plaintiffs "incredible" testimony as to the absence of secondary causes warranted a new trial on both liability and damages.

Relying on the trial court's opinion, Superior Court affirmed. On appeal to this Court, appellants contend that the trial judge erred in granting a new trial on both liability and damages and that his upsetting of the liability verdict given in that portion of the bifurcated trial was predicated upon inadmissible after-acquired evidence.

[ 513 Pa. Page 415]

A jury's finding of liability in a bifurcated trial is not unassailable by the trial judge following the damage portion of the proceeding. We therefore hold that the trial judge acted properly and affirm the order of Superior Court remanding the matter for a new trial on both liability and damages. Our further review of this record leads us to believe that the trial judge properly exercised his discretion in ordering that the new trial not be bifurcated.


The various questions posed by the parties in this case come down to one issue: Whether the trial court may upset a finding of liability in a bifurcated trial based upon evidence adduced at the damage phase of the case? Put conversely, is the jury's finding of liability unassailable by the trial judge after the damage phase of the trial?

Should the trial judge have the power to act and properly set aside a finding of liability after the second phase on damages of a bifurcated trial is over, then appellants' arguments lose their vitality. The problem is best addressed by first considering whether the jury's finding of liability assumes the characteristics of a verdict on which judgment can be finally entered, subject to post-trial motions and appeal.

Rule 213(b) of the Pennsylvania Rules of Civil Procedure, upon which the trial judge relied in bifurcating the trial, states:

The court, in furtherance of convenience or to avoid prejudice, may, on its own motion or on motion of any party, order a separate trial of any cause of action, claim or counterclaim, set-off, or cross-suit, or of any separate issue, or of any number of causes of action, claims, counterclaims, set-offs, cross-suits, or issues.*fn3

Pa.R.C.P. 213(b). A number of policy considerations have been forwarded to support separating the trial on liability

[ 513 Pa. Page 416]

    from damages in the personal injury context. One advantage often mentioned is that this separation obviates the expense of preparing for trial on damages until liability has been found. Note, Implications of Bifurcation in the Ordinary Negligence Case, 26 U.Pitt.L.Rev. 99, 110 (1964). The stimulus to settle after the finding of liability is also perceived as an important advantage of bifurcation. Zeisel and Callahan, Split Trials and Time Saving: A Statistical Analysis, 76 Harv.L.Rev. 1606, 1608 (1963). Apparently, in the instant case, the appellants hoped to avoid procuring costly discovery on damages until needed and the appellee sought to secure an opportunity to re-evaluate its position upon a finding of liability but prior to the returning of a large judgment.

If a bifurcated trial were considered two distinct trials, rather than two halves of one trial, the finding of liability would be treated as a judgment, subject to post-trial review and appeal. This treatment does not withstand scrutiny under general principles relating to impermissible interlocutory appeals. A jury's finding of liability in a bifurcated trial is not a finding on which a final judgment can be entered. Indeed, in this case it was not even docketed.

42 Pa.C.S. § 5105(a) states, in pertinent part:

(a) General rule. -- There is a right of appeal under this subsection from the final order (including an order defined as a final order by general rule) of every:

(1) Court or district justice of this Commonwealth to the court having jurisdiction of such appeals.

42 Pa.C.S. § 5105(a) (emphasis supplied). The Pennsylvania Rules of Appellate Procedure buttress this approach. Rule 301(a) states, "[n]o order of a court shall be appealable until it has been entered upon the appropriate docket in the lower court." Rule 301(c) mandates that a direction by a lower court that a judgment, sentence or other order shall be entered ...

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