Appeal from the Order of the Court of Common Pleas of Philadelphia County, in case of Arta, Inc., t/a Arthur's Catering v. Ryan Corporation and City of Philadelphia, No. 1848 October Term, 1980.
Daniel Arshack, with him, Bruce S. Luckman, Of Counsel: Sidkoff, Pincus & Green, P.C., for appellant.
Barbara R. Axelrod, Divisional Deputy in Charge of Appeals, with her, Handsel B. Minyard, City Solicitor, Norma S. Weaver, Chief Deputy City Solicitor, and Claudia M. Tesoro, Chief Assistant City Solicitor, for appellees.
Judges Colins and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Colins.
Arta, Inc., t/a Arthur's Catering (appellant), appeals an order of the Court of Common Pleas of Philadelphia County which (1) reduced the jury verdict obtained by appellant against the City of Philadelphia (City) from $81,427.00 to $70,841.40 to reflect the jury's apportionment of liability; (2) further reduced the verdict by $69,000, the amount of insurance proceeds received by
appellant, in accordance with Section 8553(d) of the Judicial Code (Code),*fn1 such provisions commonly referred to as the Political Subdivision Tort Claims Act; and (3) denied appellant's Motion for a New Trial as well as the Motion for Judgment N.O.V. filed on behalf of the City.
The events precipitating the underlying litigation in this matter are as follows. In the summer of 1980, appellant, who operates a catering business and restaurant in the City, began construction upon an addition to its existing building, ultimately to consist of a new banquet room. A construction crew unearthed a six-inch water line and halted excavation while appellant contacted the City Water Department. Department employees, after visiting the site, reported that the water line had been turned off. However, when the line was ruptured during the course of construction, water surged from the line, flooding appellant's existing facility and carrying in mud and debris.
In its resolution of appellant's ensuing litigation against the City, the jury apportioned liability in the following percentages: the construction crew,*fn2 50%; the City, 37%; and appellant, 13%. In that portion of the trial concerned with damages, appellant attempted to demonstrate that it had sustained losses of damaged inventory and business property valued at $75,288.00 and lost profits in the amount of $51,230.00, consisting of (1) actual losses incurred as a result of the forced closing of the establishment during the weekend subsequent to the accident; and (2) estimated losses purportedly occasioned by the postponement of the opening of the banquet
room, then under construction at the time of the flood.
Upon completion of the testimony, the trial court determined that appellant's evidence of damages was too speculative to submit to the jury and, sua sponte, issued a binding instruction limiting, as a matter of law, any recovery of lost profits to $7,527.00, such amount equaling the difference between appellant's before tax earnings as reported on its 1979 tax return, the year preceding the incident ...