supplied with the necessary information." F.R.E. 201(d). These Rules also state that a "court shall exercise reasonable control over the mode and order of . . . presenting evidence." F.R.E. 611(a).
This Court declined to take judicial notice of the deed during Plaintiff's case in chief but was willing to take judicial notice of the deed during Defendants' case. Defendants, however, never put on their case. Moreover, Defendants were not injured by this Court's failure to take judicial notice of the deed because Defendants could have offered the deed into evidence themselves. Accordingly, Defendants' sixth argument is denied.
7. DID THE TRIAL JUDGE PROPERLY APPLY RULE 15(C) OF THE FEDERAL RULES OF PROCEDURE?
Defendants argue that this Court has misapplied Federal Rule of Civil Procedure 15(c). This issue was raised and specifically rejected in Defendants' Second Motion for Summary Judgment. A court will reconsider a prior decision to "correct manifest errors of law or fact or to present newly discovered evidence." Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985).
In our Order, we held that the claims asserted in the Amended Complaint arose out of the same conduct, transaction or occurrence set forth in the original pleading; that David Goldstein had received such notice of the institution of the action that he would not be prejudiced in maintaining a defense on the merits; and knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him. See Fed. R. Civ. P. 15(c). Accordingly, we held that the Amended Complaint properly related back and David Goldstein was properly a defendant in this action.
Defendants have not provided this Court with any additional facts or arguments that would support reversing our earlier decision. Accordingly, Defendants' seventh argument is denied.
8. ARE THE CLAIMS OF THE PLAINTIFF AS TO DAVID GOLDSTEIN BARRED BY THE STATUTE OF LIMITATIONS?
Defendants argue that because David Goldstein was formally sued after the statute of limitations had passed, he is not a proper defendant in this action.
As discussed above, this Court has previously held that the Amended Complaint related back to before the statute of limitations had run under Rule 15(c). Defendants have offered no additional evidence to make us reverse that decision. Accordingly, David Goldstein is a proper defendant, and Defendants' eighth argument is denied.
9. DID THE TRIAL JUDGE COMMIT ERROR IN FAILING TO CHARGE THE JURY ON CERTAIN CHARGES?
Defendants assert that this Court failed to properly charge the jury when it did not use certain points from Defendants' Proposed Points for Charge. In their Statement of Questions, Defendants list fifteen points that they claim should have been charged. Most of these points for charge have been addressed in other parts of this Memorandum. Specifically, Points for Charge 19, 38, 40, 41, 41(a), 44, 49, 50, 51, 52, 53, and 54 are addressed in the sections above. Accordingly, we need only examine proposed Points for Charge 2, 39 and 48.
Proposed Point for Charge number two instructs the jury that the Plaintiff has the burden of proof and must prove its burden by a preponderance of the evidence.
This Court routinely instructs a jury at the beginning of a trial that the burden of proof is on the plaintiff and that plaintiff must prove the case by a preponderance of the evidence. This Court repeated this instruction at the beginning of the jury charge. Accordingly, the information presented in Proposed Point for Charge Number two was given to the jury at least twice. Accordingly, Defendants' argument is denied.
Proposed Point for Charge number forty-eight directs the jury to find in favor of the Defendants. As is evident from the discussion above, a directed verdict for Defendants was inappropriate. Plaintiff produced evidence on each element of negligence and Defendants produced no evidence to rebut the evidence. Defendants twice moved for summary judgment, and each time this Court found material issues of fact that needed to be resolved, making a directed verdict inappropriate. Accordingly, Defendants' argument is denied.
Proposed Point for Charge number 39 reads "No recovery may be had merely for the emotion and anguish arising from the possibility of the development of disease." Defendants cite Higginbotham v. Fireboard Corp., 428 Pa. Super. 26, 630 A.2d 14 (1993) and Lubowitz v. Albert Einstein Medical Center, 424 Pa. Super. 468, 623 A.2d 3 (1993) as support for their position.
In Pennsylvania, a plaintiff may normally recover damages for all of her mental anguish resulting from a physical injury. Botek v. Mine Safety Appliance Corp., 531 Pa. 160, 166, 611 A.2d 1174, 1177 (1992). When a plaintiff suffers no physical injury, however, recovery solely for fear of developing a disease is unavailable. Defendants' cases address this point.
Plaintiff asserted at trial that she suffered mental distress as a result of the rape because she fears she may have been infected with HIV. Plaintiff produced evidence, accepted by the jury, that her mental anguish resulted from a physical injury. Because of this, Defendants' cases and their proposed point for charge are inapplicable. Accordingly, Defendants' ninth argument is denied.
Defendants raise nine issues that they claim warrant a judgment as a matter of law or a new trial. As discussed above, none of Defendants' arguments has merit. Accordingly, the Motion is DENIED.
AND NOW, this 23rd day of September, 1994, upon consideration of Defendants' Motion for Judgment as a Matter of Law Pursuant to Rule 50 and in the Alternative Motion for a New Trial Pursuant to Rule 59 of the Federal Rules of Procedure, and the responses thereto, the Motion is hereby DENIED.
BY THE COURT:
J. CURTIS JOYNER, J.
AND NOW, this 23rd day of September, 1994, upon consideration of Plaintiff's Motion to Mold Verdict to Add Delay Damages Pursuant to Pa.R.C.P. 238, and the response thereto, the motion is hereby GRANTED and delay damages in the amount of $ 9,350.00 are awarded.
It is further ORDERED that the judgment of Five Hundred Fifty Thousand Dollars ($ 550,000) is hereby modified, and accordingly, judgment is entered in the amount of Five Hundred Fifty-Nine Thousand, Three Hundred Fifty Dollars ($ 559,350) against defendants David Goldstein d/b/a and/or t/a Wayne Manor Apartments and d/b/a/ and/or t/a Lincoln Management Company and Irving Goldstein.
BY THE COURT:
J. CURTIS JOYNER, J.