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CARMEN DEFAZIO AND FLORENCE DEFAZIO v. ALEXANDER LABE (06/01/88)

decided: June 1, 1988.

CARMEN DEFAZIO AND FLORENCE DEFAZIO, APPELLANTS,
v.
ALEXANDER LABE, M.D. AND ZASLOW, PORTNER, COHEN, LABE & JOSHI, M.D.'S, A PROFESSIONAL CORPORATION AND/OR ASSOCIATION AND/OR PARTNERSHIP, AND GAD GUTTMAN, M.D., KALLISH, KAUFFMAN, GUTTMAN & PUGLISI, M.D.'S, A PROFESSIONAL ASSOCIATION AND/OR CORPORATION AND/OR PARTNERSHIP, TRADING AS AND ALSO KNOWN AS ORTHOPEDIC SURGICAL ASSOCIATES, APPELLEES



Appeal from the Order of the Superior Court Entered on March 24, 1986, at Nos. 1653 and 1879 Philadelphia 1984, which Reversed and Remanded for Further Proceedings the Order of June 7, 1984, and Affirmed the Order of May 15, 1984, Entered in the Court of Common Pleas of Philadelphia County, Civil Division, at No. 4672 December Term, 1980.

COUNSEL

Anthony P. Baratta, Philadelphia, for appellants.

Barton L. Post, Allan C. Molotsky, Philadelphia, for Gad Guttman, M.D.

Jay Lambert, Philadelphia, for Alexander Labe, M.D.

Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. Nix, C.j., files an Opinion in Support of Affirmance in Part and in Support of Reversal in Part, joined by Zappala, J., and joined in part by McDermott, J. Papadakos, J., files an Opinion in Support of Reversal in which Larsen and Flaherty, JJ., join. McDermott, J., files an Opinion in Support of Affirmance.

Author: Per Curiam

[ 518 Pa. Page 391]

ORDER

It is ordered:

Five members of the Court being in agreement, the Order of the Superior Court entered at 352 Pa. Super. 120, 507 A.2d 410 (1986), No. 1879 Philadelphia 1984 is reversed, and the Order of the trial court is reinstated.

[ 518 Pa. Page 392]

The Court being equally divided, the Order of the Superior Court entered at No. 1653 Philadelphia 1984 is affirmed.

[ 518 Pa. Page 404]

OPINION IN SUPPORT OF AFFIRMANCE

McDERMOTT, Justice.

I agree with that part of the opinion of Mr. Chief Justice Nix which would deny appellant's claim of standing to file a motion for Judgment N.O.V.

Additionally, regarding Philadelphia Civil Rule 240, I agree with the Superior Court that the trial court effectively rewrote the rule. Rule 240 contains no mention of pre-payment. Although Rule 5000.6 of the Pa.Rules of Judicial Administration permits local rules requiring prepayment of transcription fees, such a requirement should be made explicit before the extreme sanction of peremptory dismissal of post-trial motions can be invoked.

I would affirm the order of the Superior Court.

Opinion IN SUPPORT OF AFFIRMANCE IN PART AND IN SUPPORT OF REVERSAL IN PART

NIX, Chief Justice.

While I concur in the opinion authored by Mr. Justice Papadakos as to the reversal of the Superior Court order entered at 1879 Philadelphia 1984 relating to the issue arising under Philadelphia Local Rule 240, I do not agree that the trial court was in error in determining that appellants, the DeFazios, were without standing. For the reasons that follow, it is my judgment that the trial court properly found that appellants were without standing to raise the issue of the jury's determination as to the allocation of negligence among the defendants.

In this instance, the plaintiffs do not seek to challenge the total verdict rendered by the jury. The thrust of their proffered objection is to the apportionment among the defendants for the payment of that obligation. Clearly this is the concern of no one other than the individual defendants, notwithstanding plaintiffs' decision to release one of the defendants, a decision which they in hindsight regret. I would affirm the order of the Superior Court with regard to the plaintiffs' motion for judgment notwithstanding the verdict.

The fallacy of the contrary view is the misconception that the plaintiffs have an interest in how the verdict is to be apportioned among the defendants responsible for plaintiffs'

[ 518 Pa. Page 393]

    injuries. Under our law where there are several defendants found to have been liable for plaintiffs' injuries, the plaintiffs can look to the combined resources of the defendants for the satisfaction of that award regardless of the jury's allocation of the damages between them.

Under the Comparative Negligence Statute, 42 Pa.C.S., ยง 7102(b), the appellants are entitled to full satisfaction and may draw from the resources of all of the defendants regardless of the ...


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