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THOMAS J. MCMEEKIN v. HARRY M. STEVENS (08/20/87)

filed: August 20, 1987.

THOMAS J. MCMEEKIN
v.
HARRY M. STEVENS, INC., APPELLANT, V. DOUGLAS FURNITURE CORPORATION



Appeal from the Order entered in the Court of Common Pleas of Washington County, Civil Division, No. 176 JUNE TERM 1981, A.D.

COUNSEL

William P. Boyer, Canonsburg, for appellant.

Stephen P. McCloskey, Washington, for Douglas, appellee.

Cirillo, President Judge, and Montemuro and Tamilia, JJ.

Author: Tamilia

[ 365 Pa. Super. Page 582]

Appellant, Harry M. Stevens, Inc. (Stevens), appeals from an Order of judgment entered against him, contending the trial court erred in instructing the jury as to the application of the Comparative Negligence Act (Comparative Act), 42 Pa.C.S.A. § 7102 et seq.

In 1980, Stevens operated a restaurant facility near Harrisburg. Plaintiff, in the original action, brought suit against Stevens alleging that a chair upon which he was sitting at the establishment had collapsed. Stevens joined Douglas Furniture Corporation (Douglas), the manufacturer of the chair, as an additional defendant, on both negligence and strict liability counts. On September 9, 1985, trial proceeded against Stevens in negligence, and against Douglas on a strict liability theory only. At the close of the evidence, the court charged the jury that it could assess the percentage of causal liability between Stevens and Douglas.*fn1 Stevens objected, arguing that comparative apportionment applies only to situations involving multiple negligence tortfeasors; it does not apply to situations where an alleged negligence tort-feasor and an alleged strict liability tortfeasor are involved. In effect, Stevens maintains the court improperly applied the Comparative Act.

On September 20, 1985, the jury returned a verdict in the amount of $355,000 against appellant/Stevens and appellee/Douglas,

[ 365 Pa. Super. Page 583]

    assessing percentages of liability at seventy per cent (70%) attributable to Stevens and thirty per cent (30%) attributable to Douglas.*fn2

On September 30, 1985, Stevens filed a motion for posttrial relief, in which it argued that the trial court erred in giving the instruction on "comparative fault", that it had preserved this issue by way of exception to the trial court's charge and that such error warranted a new trial.

Later, on November 21, 1985, Stevens and Douglas entered a stipulation and agreed the jury verdict would be paid by the two defendants at the percentages determined by the jury, but that Stevens could pursue its motion for post-trial relief. (The plaintiff is not included in this appeal.) The stipulation also said Stevens desired to shift twenty percent (20%) of the jury verdict to Douglas, leaving Stevens responsible for fifty percent (50%) instead of seventy percent (70%) and Douglas responsible for fifty percent (50%) instead of thirty percent (30%) of the damages. An appeal was timely filed with this Court.

The issue before us for review is whether comparative liability may be applied so as to apportion liability between defendants where one defendant is responsible for negligent conduct and the other is responsible under a strict products liability theory and, if comparative liability is not applicable, whether the Uniform Contribution Among Joint Tort-Feasors Act, 42 Pa.C.S.A. §§ 8321 et seq. (Uniform Act) may be applied in such a situation.

While there is no Pennsylvania case law directly addressing the first question, a careful review of the Comparative Act*fn3 leads us to conclude it was never the intention of our legislature to extend the scope of that Act to any actions except those grounded in negligence.

[ 365 Pa. Super. Page 584]

The doctrine or rule of comparative negligence, which . . . has usually been established by a statute providing that . . . the contributory negligence of the person injured will not be a complete bar to recovery, but that there shall be an apportionment of responsibility, or of damages, in accordance with the relative fault of the parties concerned, is designed to eliminate the rigors of the common-law contributory negligence rule, and, in particular, the "all or nothing" effect of that rule . . . .

57 Am.Jur.2d § 426.

We said in our recent Opinion, Krivijanski v. Union R.R. Co., 357 Pa. Super. 196, 515 A.2d 933 (1986):

Words used in legislation are to be accorded their common meaning and usage. Brinkley v. Pealer, 341 Pa. Super. 432, 491 A.2d 894 (1985). 'Statutes are not presumed to make changes in rules and principles of the common law or prior existing law beyond what is expressly declared in their provisions.' Harka v. Nabati, 337 Pa. Super. 617, 624, 487 A.2d 432, 435 (1985) citing. [sic] Commonwealth v. Miller, 469 Pa. 24, 27-28, 364 A.2d 886, 887 (1976).

Id., 357 Pa. Superior Ct. at 205, 515 A.2d at 938.

A review of the Comparative Act reveals the Act is aimed only at "all actions brought to recover damages for negligence"

[ 365 Pa. Super. Page 585]

(42 Pa.C.S.A. § 7102(a)). Further, section 7102(b) deals with apportionment among defendants in the ratio of their "causal ...


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