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GORDON S. SMITH v. JOSEPH BARKER AND NATIONAL CONSTRUCTION CO. (12/09/87)

filed: December 9, 1987.

GORDON S. SMITH, APPELLANT,
v.
JOSEPH BARKER AND NATIONAL CONSTRUCTION CO., APPELLEES



Appeal from the Judgment entered September 1, 1987, in the Court of Common Pleas of Philadelphia County, Civil Division, at No. 2981 Nov. 1978.

COUNSEL

Lee Albert, Philadelphia, for appellant.

Jeffrey H. Quinn, Philadelphia, for appellees.

McEwen, Olszewski and Del Sole, JJ.

Author: Del Sole

[ 368 Pa. Super. Page 474]

The instant action was commenced by the Plaintiff-Appellant Gordon Smith, to recover damages for personal injuries and pecuniary losses suffered as the result of an automobile accident which occurred on December 12, 1976. The Defendant-Appellee, Joseph Barker was the driver of the motor vehicle which struck Mr. Smith, Appellee was driving the motor vehicle as the servant of National Construction Co. A jury trial resulted in a verdict in Appellant's favor in the amount of $42,500 in damages. The Appellant filed post-verdict motions*fn1 seeking a new trial and he also

[ 368 Pa. Super. Page 475]

    sought Delay Damages pursuant to Pa.R.C.P. 238. On December 5, 1986, the trial court denied these motions and entered judgment in favor of Mr. Smith in the amount of $42,500. No Delay Damages were awarded.

Appellant presents us with five questions: (1) Whether the trial court erred in failing to award a new trial in that the verdict was so inadequate and should shock the conscience of the Court? (2) Did the trial court err in allowing Appellee to withhold testimony taken via video deposition for preparation at trial? (3) Should facts regarding liability relevant to the issue of damages be allowed at trial where liability is conceded by Appellee? (4) Did the Appellant suffer substantial irreparable harm as to warrant a mistrial, as a result of questions and comments made by defense counsel and the court concerning Appellant's case during trial? (5) Did the trial court err in failing to assess Rule 238 Delay Damages?

It is well established law in the Commonwealth that a decision to grant a new trial because of any impropriety in the verdict is well within the discretion of the trial court and in the absence of a clear abuse of its considerable discretion will not be disturbed on appellate review. Reitz v. Donise Enterprise, 319 Pa. Super. 76, 465 A.2d 1060 (1983). Our Court has set forth the following criteria to determine when a verdict can be set aside as inadequate:

A verdict is set aside as inadequate when it is so inadequate as to indicate passion, prejudice, partiality, or corruption, or where it clearly appears from uncontradicted evidence that the amount of the verdict bears no reasonable relation to the loss suffered by the plaintiff. If the

[ 368 Pa. Super. Page 476]

    verdict bears a reasonable resemblance to the damages proved, the appellate court will not disturb the verdict merely because the damages are less than the ...


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