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LOUIS C. BOSCIA v. JOSEPH A. MASSARO (07/27/87)

filed: July 27, 1987.

LOUIS C. BOSCIA, II AND ROBIN BOSCIA, HIS WIFE
v.
JOSEPH A. MASSARO, JR., AND CAROLYN MASSARO, HIS WIFE: OLIVER REALTY, INC., A CORPORATION AND SCHINDLER-HAUGHTON ELEVATOR COMPANY, A CORPORATION. APPEAL OF SCHINDLER-HAUGHTON ELEVATOR COMPANY



APPEAL FROM THE JUDGMENT ENTERED MAY 21, 1986, IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, CIVIL DIVISION AT NO. GD 83-12749.

COUNSEL

S. Asher Winikoff, Pittsburgh, for appellant.

James A. Ashton, Pittsburgh, for Boscia, appellees.

Cirillo, P.j., and Rowley, and Popovich, JJ. Rowley, J. files a concurring statement. Popovich, J. concurs in result.

Author: Cirillo

[ 365 Pa. Super. Page 273]

This is an appeal challenging the grant of a new trial by the Court of Common Pleas of Allegheny County. We affirm.

On June 21, 1982, appellee Louis Boscia, was employed as an Investment Certificate Supervisor by the Signal Finance Corporation. He worked out of a newly constructed building owned by Joseph and Carolyn Massaro and managed by Oliver Realty Inc. The building was serviced by two hydraulic elevators which had been manufactured, sold and installed by appellant, Schindler-Haughton Elevator Company.

At trial, Mr. Boscia alleged that at 6:30 a.m. on that day, he entered the building and pressed the button to call an elevator. The elevator door opened and Mr. Boscia stepped forward expecting to enter the elevator car. Instead, he plunged into the elevator shaft, falling about four feet and striking his head and back on machinery in the elevator pit. Mr. Boscia suffered serious personal injuries as a result of his fall. He brought an action alleging strict liability and negligence, claiming that the elevator car had been stuck between floors at a higher level. The Massaros and Oliver Realty were removed from the case by joint tort-feasor release agreements and the case proceeded solely against appellant Schindler-Haughton Elevator Company. On February 5, 1985, after a three week trial, the jury entered a verdict for Schindler-Haughton. On February 12th, appellee filed post-trial motions alleging numerous instances of prejudice and requesting a new trial. Appellee complained that appellants improperly introduced evidence relating to Mr. Boscia's receipt of Workmen's Compensation benefits. Appellee later filed additional post-trial motions on July 30, 1985. The trial court considered these motions even though they were filed well beyond the ten day period mandated by Rule 227.1. See Pa.R.C.P. 227.1. In its opinion granting

[ 365 Pa. Super. Page 274]

    appellee a new trial, the trial court cited various prejudicial questions and remarks heard by the jury. However, the learned judge stated that he would have granted a new trial solely because the jury heard testimony concerning Boscia's Workmen's Compensation payments.

Appellant presents six issues for our review: (1) whether the trial court erred in granting a new trial for harmless error; (2) whether the court erred in considering issues not preserved through timely post-trial motions; (3) whether the court erred by considering issues which were not properly preserved at trial; (4) whether the court erred in ruling that certain questions presented to witnesses were improper; (5) whether any error was cured by the court's jury charge; and (6) whether the court abused its discretion by awarding a new trial. Based on the following discussion, we find it unnecessary to address each of these issues separately. We agree with the trial court that the interjection of Workmen's Compensation into evidence was sufficient reason to grant a new trial and we uphold the court's decision on that basis alone.

A trial judge may grant a new trial if he finds that improperly admitted evidence or improper statements made by counsel may have prejudiced the jury. Hilbert v. Katz, 309 Pa. Super. 466, 470, 455 A.2d 704, 706 (1983). An appellate court may only reverse in such a case if the trial judge is guilty of a gross abuse of discretion. Harvey v. Hassinger, 315 Pa. Super. 97, 106, 461 A.2d 814, 819 (1983).

In Thompson v. City of Philadelphia, 507 Pa. 592, 493 A.2d 669 (1985), our Supreme Court explained the process by which an appellate court must determine this issue. Id., 507 Pa. at ...


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