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JERRY M. BEARY v. CONTAINER GENERAL CORPORATION (12/01/89)

filed: December 1, 1989.

JERRY M. BEARY, APPELLEE,
v.
CONTAINER GENERAL CORPORATION, A CORPORATION, APPELLANT, V. EDWARDS TANK ERECTION, INC., APPELLEE



Appeal from the Order entered November 4, 1988, in the Court of Common Pleas of Clarion County, Civil Division, at No. 604-1978.

COUNSEL

Chester S. Fossee, Pittsburgh, for appellant.

John R. Gavin, Oil City, for Beary, appellee.

Brosky, Popovich and Montgomery, JJ.

Author: Montgomery

[ 390 Pa. Super. Page 55]

The instant appeal arises from the trial court's denial of a Motion by the Defendant-Appellant, Container General Corporation, (hereinafter referred to as "Container") to mold a verdict. After thorough review, we find no basis for a reversal of the Order of the trial court.

This case has a long and complicated history. In September, 1976, the Plaintiff-Appellee, Jerry M. Beary, was an employee of Additional Defendant-Appellee, Edwards Tank Erection, Inc. (hereinafter referred to as "Edwards"). In the course of that employment, Beary was involved in the erection of a steel storage tank at Container's plant. On September 13, 1976, Beary suffered significant injuries in the course of that work. He instituted the instant personal injury action against Container and against Pennsylvania Electric Company, contending that they were responsible for his injuries. Edwards, the employer, was joined as an Additional Defendant in the action by Container. Container sought such joinder on the basis of an alleged contract of indemnification between Container and Edwards.

The case was first tried before a jury in October, 1981. The trial court had severed the issue of negligence from the issue of any right of indemnification between Container and Edwards. At the conclusion of that first trial, the trial court directed a verdict in favor of Container, and Plaintiff Beary filed an appeal to our Court. After consideration, our Court issued an Opinion on November 18, 1983, reversing the trial court's verdict, and remanding the matter for a new trial. Beary v. Pennsylvania Electric Company, 322 Pa. Super. 52, 469 A.2d 176 (1983). In that decision, our Court ruled that the indemnification issue should be severed and tried separately, after the resolution of the Plaintiff's negligence claims.

A second trial was held in November, 1984. A bifurcated procedure was followed and the issue of liability was first submitted to the jury. It rendered a verdict that Beary and Container were each equally negligent in the accident. Thereafter, the matter of damages was submitted to the

[ 390 Pa. Super. Page 56]

    same jury. However, the trial court declared a mistrial because members of the jury had read a newspaper article in violation of the instructions of the court.

Another jury was selected which considered the issue of damages during trial proceedings in February, 1985. That jury returned a verdict in the amount of $500,000.00 in favor of the Plaintiff. The trial court molded the verdict to $250,000.00, in accordance with the apportionment of negligence by the jury which had considered the issue of liability in November, 1984. The court also ordered delay damages to be added to the verdict in favor of the Plaintiff.

Thereafter, Container filed a timely motion for post-trial relief. The trial court denied the motion approximately one year later, on March 5, 1986. An appeal was then ...


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