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JOSEPH F. MALONEY v. CITY PHILADELPHIA (12/15/87)

decided: December 15, 1987.

JOSEPH F. MALONEY, APPELLANT
v.
CITY OF PHILADELPHIA, APPELLEE. CITY OF PHILADELPHIA, APPELLANT V. JOSEPH F. MALONEY, APPELLEE



Appeals from the Order of the Court of Common Pleas of Philadelphia County in the case of Joseph F. Maloney v. City of Philadelphia, No. 4040 November Term, 1981.

COUNSEL

Joseph F. Busacca, for appellant/appellee, Joseph F. Maloney.

John M. McNally, Jr., Naulty, Scaricamazza & McDevitt, for appellee/appellant, City of Philadelphia.

Judges Colins and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Palladino. Judge Colins dissents. Dissenting Opinion by Judge Colins.

Author: Palladino

[ 111 Pa. Commw. Page 635]

The City of Philadelphia (City) appeals from an order of the Court of Common Pleas of Philadelphia County in which the trial court denied the City's motion for judgment notwithstanding the verdict (JNOV). Joseph Maloney (Maloney) appeals from the same order in which the trial court granted the City's motion for a new trial.

Maloney was an employee of Curtis Bedwell, Inc. (Contractor). Contractor had been hired by the City to erect eight sludge digester tanks at its Southwest Water Pollution Control Plant. While working on this job,

[ 111 Pa. Commw. Page 636]

Maloney fell and was injured when an improperly secured stringer on the scaffolding he was climbing twisted.*fn1 Maloney filed suit against the City, alleging that the City's negligence in failing to insure that Contractor properly erected the scaffolding was the cause of his injuries.

The City filed preliminary objections in the nature of a demurrer,*fn2 claiming it was immune to suit pursuant to 42 Pa. C.S. § 8541 because (1) Maloney had failed to state a cause of action and (2) the alleged negligent acts complained of do not fall within any of the eight exceptions to immunity provided in 42 Pa. C.S. § 8542(b). The trial court dismissed the preliminary objections.

The case went to trial in October, 1985. The following pertinent facts were undisputed: the scaffolding had been erected by Contractor and was not secured as required; Maloney had participated in erecting the scaffolding from which he fell and knew it was not properly secured; the scaffolding was not owned by the City but was rented by Contractor from another company. The City's manager for the project testified that he had never been informed that the scaffolding was not properly secured and was not aware of any complaints about the scaffolding. The City inspector for the project did not testify.

[ 111 Pa. Commw. Page 637]

The jury returned a verdict finding the City 90% negligent and Maloney 10% negligent. It found total damages sustained by Maloney to be $1,032,000, which when reduced by 10% and increased by the addition of delay damages constituted a verdict for Maloney in the amount of $1,293,194.95.

The City filed post trial motions for JNOV and a new trial. The basis for these motions was the trial court's rejection of the City's request for (1) a binding instruction to the jury that the acts alleged and the evidence presented do not fall within the exceptions to immunity in 42 Pa. C.S. § 8542; (2) a binding instruction that the evidence showed Maloney's conduct in climbing a scaffolding he knew was not properly secured constituted assumption of the risk; and (3) a charge to the jury to consider assumption of risk as a complete defense to the City's liability. The trial court denied the motion for JNOV but granted the motion for a new trial because it concluded that the doctrine of assumption of the risk was still a viable defense in Pennsylvania and the jury should have been charged on that doctrine.*fn3

On appeal to this court, the City contends the trial court abused its discretion because, as a matter of law, based on the undisputed facts of this case (1) the City is immune from suit or, alternatively, (2) Maloney assumed the risk of his injury. In his appeal, Maloney contends the facts of the case establish a cause of action which falls within the real property exception to immunity provided for in 42 Pa. C.S. § 8542(b)(3). He further argues that the doctrine of assumption of the risk is not applicable to this case, making it an abuse of discretion for the trial court to have granted the City's motion for a

[ 111 Pa. Commw. Page 638]

    new trial. For the reasons which follow, we conclude that the City is immune from suit pursuant to 42 Pa. C.S. § 8541, and therefore, entitled to JNOV.

Initially, we note that an order denying JNOV is interlocutory and not appealable until reduced to judgment and docketed. Pa. R.A.P. 301. However, the superior court has held that "[w]hen a party to an action moves for judgment n.o.v. and also for a new trial, and the new trial is granted, he is not denied an appeal from the refusal of the judgment n.o.v., which is given independent review." Buck v. Scott Township, 325 Pa. Superior Ct. 148, 472 A.2d 691 (1984).*fn4 The Buck case persuades us to hold that an appeal from the denial of JNOV should be permitted. See Pa. R.A.P. 105.*fn5

Our scope of review of appeals from the refusal to enter JNOV is limited to determining whether the trial court committed an abuse of discretion. Beechwoods Flying Service v. Al Hamilton Contracting Corp., 317 Pa. Superior Ct. 513, 464 A.2d 440 (1983), aff'd, 504 Pa. 618, 476 A.2d 350 (1984). JNOV is an extreme remedy and should be entered only in a clear case after the evidence and all ...


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