*1 defined in properties ordinance. were used for industrial purposes were either abandoned be- came uses when the ordinance was nonconforming At that promulgated. time, appropriate legislative cognizance of the economic body, taking many social established classifications adjustments, zoning most thought would conform they appropriately with the conditions in the present borough. Certainly the legislative to have ought authority recognized as at changes existed time ordinance they was enacted. To have recognized previously existing conditions would resulted in a scheme zoning reflective of the truly borough’s We cannot changes. now say legislative indulged in the for- body mulation or unreasonable classification arbitrary present view of nature of the can borough nor we re-zone or zone the spot parcel of land industrial as appellants urge. That is a purposes, peculiar- matter the province within ly legislative determination. The action of the lower the refusal affirming permit applicant building proper for the “commercial” area order question ac- is, affirmed. cordingly,
Order affirmed. Appellant.
Elza v. Chovan, *2 Before Argued 1959. March C. Jones, J., Bell, Bok JJ. Jones, Musmanno, Cohen, McBride,
reargument re- fused 1959. July 1, with him Edward 0.
Theodore M. Tracy, Bpotts, appellant. é for appel- with him Weis
Thomas F. Weis, Weis, lee. 1959: May 28, Opinion Me. Justice Boic, Fol- a motorcycle. passenger
Plaintiff was the on both automobile a held its collision with lowing drivers and awarded negligent plaintiff $950. trial for inade- court
The lower gave entered reversed and Superior but quacy, to this verdict. An allocatur judgment was allowed. the court for its action reason below given by *3 are here a difficult deci-
is this: “We
confronted with
The court
well
either side
the
accept
sion.
of
may
to tell
coin.
failed
the truth as to his
plaintiff
The
the
not
him.
injuries and
did
believe
jury apparently
fact
But
and
any
notwithstanding
eliminating
the
the
pain
award for
and
and
amount
suffering
for
of
services
Dr.
who treated his
the
Strassley,
back,
prove damages
did
in the
of
amount
$1375.
him
This sum is
awarded
not
adequate
$950.
trial will be granted.”
and
new
rule
cases
in such
is:
generad
“The
or
granting
of a
of
refusal
because
of
inadequacy
verdict
is a matter
within the
peculiarly
discretion
it is the
the trial
and
rule in this
court,
State that an
court
not reverse the
appellate
will
action of the court
so
the verdict is
below unless
unreasonable as to bring
that it was
conviction
influenced by
or
partiality
preju
misconception
dice or some
or the
law
evidence
in the case . . . and establish
clear case of
wrong
in the court below”:
injustice
Zamojc v.
127 Pa.
Fisher,
115
province
It is the
assess
worth
accept
reject
testimony
or
estimates
given by
reasonable
If the verdict bears a
witnesses.
proven damages,
it is
resemblance
func
judgment
of the court to
its
tion
substitute
jury’s: Paustenbaugh
Baking
Pa. 418,
v. Ward
374
Co.,
Supe
(1953)
A. 2d 816
Perzak
171 Pa.
;
v. Coulter,
(1952).
rior Ct.
Merely
less
tbe
because
verdict
Superior
Pa.
163
criterion.
v. Deems,
no
Crow
grant
(1949),
of new
119
63 A. 2d
Ct. 591,
the ex
verdict
and
was
affirmed when
$900
was
Superior
penses
cited Pre
about
and
$2900,
sup
(1937) in
It that the below in is clear was out-of-pocltet proven “Judged solely it said: from jury any expenses award sum and failure is in- suffering, pain, inconvenience, adequate.” judgment solely the cannot be The basis plethora expenses: other there is a ratio of verdict plaintiff’s proven in such as the untruths factors, the amount of them concerned case at bar. One jury since the could that he time lost from work, actually lose felt time he did have what that misspoke it said the court when due the accident prove damages “plaintiff flatly that did amount of $1375.” During back.
Plaintiff also lied about his tes- his previous timony records with but he denied it, trouble July, showed the Veterans’ Administration complained years. trouble for several he of back liberty either that at find he lied were government get pen- to cheat 1946 in order in order to cheat that he on the stand sion or lied damages. might get And the defendant and Strassley’s sixty-eight bill for visits believed Dr. away years, work from over four was exorbitant. eleven weeks,
117 jury a compromise. obviously This verdict “Albert saying: to the trial judge note sent written is negligence our verdict Chovan, N. Elza versus Joseph Joseph versus W. Elza In Hansford both sides. receiv- of court?” After this out can we throw Ohovan back and came retired proper instructions, ing final as recorded. its verdict with uphold courts tend appellate While of review: their abdicate powers do not courts, they 413 85 A. 2d (1952); Decker 369 Pa. v. 259, Kulesza, 137 A. 2d 185 522, Pa. Ct. Ropele v. Stewart, Superior the evidence It their to review (1958). duty 895 injustice: a clear case of Nikisher there was see whether 281 (1954). 377 Pa. 105 A. 2d v. 564, Benninger, ap- some trademark must In discharging duty injustice cases of clear distinguish pear by ousted court has those merely from in which below into their seats. Certainly and moved do when trial courts reasons for what give they should the interests is the of the evidence or weight issue Pa. 81 Belletiere 367 justice: 638, v. Philadelphia, A. 2d (1951). 857 cannot
Trial courts avoid abuses discretion gross low is so unreasonably or us verdict convince using injustice as to clear case of without present and decisiveness. appropriate urgency words of 2d 223 In v. 381 Pa. 113 A. Crouse 431, Smith, called verdict “miserly” judge (1955), Pa. v. 324 insufficient”. Schwartz Jaffe, “patently A. 295 we called the “patently 188 (1936), 324, (139 supra In Bradwell v. insufficient”. Railway Co., were described as “incon Pa. nominal damages 404), “a sistent and unreasonable” travesty justice”. Beaver Traction Pa. Valley In Richards v. 105 Su Co., 161 A. spoke Ct. perior (1932), court, injustice clear cases of which the wrong “very should have remedied”. below *6 opinion trial nothing court the of the
There speaks only case the ideas. It of here that reflects such accept “may being says it either difficult and well nothing difficult coin”. side of the There should inadequacy: grant a a trial for about decision new injustice a the stand forth like the of verdict should may weighing a re- beacon. difficulties, Nor, a overturn the result solve them with coin, of a of the reached on dubious evidence damages. grant a that the conclude of
We was gross abuse of discretion. Superior judgment the Court is affirmed. McBride dissents.
Mr. Justice Dissenting by Opinion Mr. Justice Musmanno: April the On defendant in this 23, 1953, Jo- case, seph negligently violently A. so Ohovan, and drove his path motorcycle into automobile aof that Hans- years age, ford W. passenger Elza, who catapulted top on latter vehicle, over the cycle and the landing summit of the automobile, highway, sustaining injuries on concrete such hospital he had to be removed ambulance where days. 'hospital he remained seven He left crutches medical care underwent at his home where he was immobilized for an undetermined number weeks. He was so disabled that he could not resume occupation his period of structural iron worker for a brought against of from 11 to 13 weeks. He suit automobile owner, and returned verdict in his favor sum of The lower court $950. declared inadequate this verdict under the evidence and ordered appealed trial. Superior The defendant to the and we court’s order, the lower which reversed Court allocatur. allowed the decision affirmed
This has now the reversal sustaining thus Superior Court, sub- I respectfully in doing so, court’s and, lower order, it has the applicable law, has disregarded mit, treated cavalierly has over facts, glossed were who judges of three considerate judgment in- personalities closer realities, locale, appellate through ever approach than we can volved en banc of the court judges The three binoculars. *7 trial jurists, no amateur the which ordered were the newness the tailor’s art. their robes shining with experience totaled 60 judicial Their combined the case and the tried who wrote The judge w'ho years. the en banc has the for bench opinion graced 28 for the County years. expressing Allegheny banc the court en the judge unanimous view of said:
“The he injuries plaintiff] sustained which [the the expenditures resulted in medical following and losses: earning
Citizens General ................ Hospital 113.25 $ Dr. L. J. Fronduti ...................... 85.00 $ Dr. C. M. 367.00 Strassley...................... $ 2 ................ Lumbo Sacral 20.00 Supports $ at lost weeks ............ earnings $1,375.00 $125
$1,960.25 the hospital “Dr. as well as Dr. Fronduti, surgeon, that a period testified Strassley, family physician, in excess of eleven weeks would been reasonable absence structural iron from for a work man had who plaintiff’s injuries. sustained The expert, defendant’s Dr. cross-examined about Epstein, though this matter, attempt deny that
made absence no such an was well warranted. hospital Elm
“The bill for-Hansford W. inwas sum attended Dr. who bill Fronduti, $113.25. plaintiff during hospitalization, his Con- $85. expenses following immediately sequently, medical $198.25, accident sum of disre- totalled the Even garding the further treatment which was rendered charges Strassley, disregard- Dr. were and $367, whose ing supports, the cost of the lumbo-sacral two the out- of-pocket absolutely about there could be losses, no more totalled than doubt, $1,573.25, $623.25 accept testimony is so if verdict. This even we expert. Epstein, plain- Dr. defendant’s That the pain directly solely tiff suffered attributable period least at for of several weeks 'accident, follow- disputed. ing cannot accident, be did not plaintiff negligent. eonti’ibutorily find the Therefore, plaintiff compensated fairly be entitled injuries adequately directly for attributable to the ac- cident.”
Surely it cannot be denied is en- compensated fairly adequately titled “to in- juries directly attributable to the accident.” *8 what On does this Court reverse the basis, lower therefore, up Court? haveWe said with here, mo- metronomic, repetition notonous that- we will not trial reverse a. judge granted who has trial the new on basis anof inadequate judge usurped the unless au- verdict has an thority not with he is vested. The of writers Opinions of this have strained for rhetorical emphasis proclaiming in the faith that this Court cher- ishes,in judicial knowledge, and of wisdom, acumen They judges trial matters- of this kind. have said that: refusal, grant inadequacy “The of trial for of new is a matter for sound discretion of
121 appeal trial court whose action will not he on reversed except (Takac a clear abuse discretion.” Bamf v. for of 389.) 370 Pa. ord,
They awarding said that: “An order a new have appeal palpable trial not will on reversed unless part abuse discretion on the is court- below clearly (Crouse 431). shown.” v. Pa. Smith, They power “The a ver said that: to set aside ground inadequacy may dict be exercised appears whenever to the court amount that the below appellate patently in insufficient; will terfere its exercise with this un of discretion in matter appears.” gross (Schwartz less abuse* v. Jaffe, 324). Pa. today, although, assertedly,
Yet loath'to reverse awarding judge aof trial unless the has-clear- ly, palpably, grossly and abused his discretion, doing spite very Court is here thing this,— palpably, clearly, the reversed verdict fact, inadequate. grossly case of Ber- Todd v. judge 371 Pa. the trial cini, ordered inadequate. ap- because the verdict was The defendant pealed, asserting judge pal- clearly, that the trial had pably, grossly abused his discretion. We were ¿ffirmed impressed argument. granting his We systematized, said: “A trial new'trial and ais organized procedure determining truth justice awarding precision, pre- to the with extent that through ageib cision can be ascertained fallible human approxima- cies. trialA is not'to be a mere conscious reality. province tion It is not the of a to de- presented generally cide the issue to it for decision, (cid:127)the-spirit of generosity boundless or restrained benevo- lencé. If Mrs. Todd was to a entitled verdict from the
* emphasis supplied. All negligence, entitled she was of his because
defendant provides a case. in such And all that the law as suffering, as pain, well and inconvenience, items of impairment earning power, are wages loss injuries grave suf- when concomitants with inevitable pain jury may wage-earner. not eliminate by A fered experience proves ex- all when human from wounds wages pain, may lost it not withhold istence of uneontradictedly case estab- in the evidence negligence wages as result the loss of lishes adjudicated against jury, the re- they, the apparent sponsible it that a defendant. When responsible the defendant holds its verdict neglectfully, may in- not then it loaf of bread, whole portion capriciously differently, of that cut off plaintiff.” it to the as loaf hands Has decision was rendered 1952. bread This intervening that it does time lost nutritive value so of a loaf is much withheld from a de- not matter how plaintiff? serving injured plaintiff that an without
To admit wholly at to concede that the defendant was fault, acknowledge that the lost at least fault, ig- completely Mm and then hand $1960.25, $950, noring pain, suffering, the item of and inconvenience, pawn shop the standards of a is to introduce into the justice. temple of sacred over this Court has said that
Over if the ver- judicial excessive shocks dict is so our con- verdict must reduced or trial or- science, inadequate? if the dered. What Should our judicial conscience also then be shocked? I do great understand an attitude which maMfests shock excessive utter over an verdict and an indifference to inadequate my opinion dissenting verdict. spoke of Takac v. case 370 Fa. I Bamford,
123 subject inadequate causes “If too much verdicts: equal why a too little awaken shouldn’t revulsion, is a verdict which abhorrence? If recoil from we why indifferent to verdict which we be should bloated, gaunt? Why our overfull larder shock is should an Why empty or one? conscience more than an half-full disturbing than should an extra loaf of be more bread crust?” desiccated accept reject jury may testimony A or it can- but ignore piles arithmetic. Once two bricks on two accept other it must the total of the bricks to be bricks, authority challenge four. this And has Court no to integrity reality. undisputed that mathematical The plaintiff evidence in is that below lost currency in countable and coin the amount of $1960.25. say can that How we are not we shocked that is sum into tran'smuted $950? up- this case this opportunity Court had an to judge
hold decision of the trial in a matter in which judge we have so often said that the trial is better speak qualified appellate than an does parties not see the and the witnesses. in- However, considering opinion stead of the well-reasoned of the judge in the case at bar, Court has set itself up punitive punish as tribunal be- alleged transgressed cause he in the trial. April
One of the results of the accident of 1953, 23, weakening plaintiff’s a back. At the trial he asked whether he had any ever before had trou- ble negative. his back with and he in answered defendant then introduced record to show that July, prior years plain- seven to accident, ap- who had in the Army, served tiff, United States plied pension for a because of a “back condition.” The Opinion says Majority liberty that: “The were at to find either that he lied order cheat the lied on that he pension
government get dam- the defendant and get order to cheat stand in ages.” un-
This, is not an uncharitable I submit, has but one which of the situation analysis warranted evidence whatsoever fact. There no no basis in Majority to “cheat the government.” Elza tried it is in the although record, fails Opinion state, *11 the gov- receive from did not any money X-rays after taking government ernment. The found, that that Elza did not have other tests, and making ato pension. of a disablement which entitled him kind is to the Majority Opinion it be which noted, Moreover, was that claim for a pension also to Elza’s failed state, claim alone on an back. alleged ailing not based con- condition of back “fungus predicated ears, 1945, stomach condition dition November 1943, October, the so- athlete’s foot 1943.” and Thus, hernia, 1946, a in list condition one item called back was only complaints. well have thought
Elza could mistakenly his there was with wrong that something seriously to be If he first one back. he would be did, fret and and concerned over an “aching back”, worry tests infinite after with only learn, relief, over it, ephemeral that that his were but and pains and X-rays, indisposition a passing back was only aching so Elza was mankind has many. Thus, which had trouble whether he had with any asked at that he not. The he said did States back United his his said that back normal, had Government “musculo-skeletal” that he had no defect. Was found dispute into a of the gov- to enter with finding he he another to be- had reason good ernment? Moreover, a evanescent spite had back of an strong he lieve felt seven before. years he discomfort which employment as army he After he left the obtained No one has had a structural erector. who iron acquaintances slightest aof structural with the work can- a fail to that such worker iron worker can know safely, job certainly at not do his if all, and well, iron if he has weak A structural worker must back. space girders, swing out into scale over climb beams, dangle “shinny up at the end of over cable, columns”, emptiness abyss driving rivets bolts. while closing eyes reality It could one’s dangerous, say ardu- one could that so strenuous, job by one could be back was ous done less than whose pain. strong, and free from durable, years preceding immediately For four the accident April, iron aas structural worked Elza, then, years prior to the erector. for four accident he Thus, required the had and had back, back, strength, suppleness a black- combined health, relevancy, I smith and acrobat. Of what therefore, inquire, like to back would is whether he had weak *12 prior years good to accident? He had back seven April is on 1953. That the back which the defend- 23, injured, Thai the back ant disabled. is strained, plaintiff hospitalized, to caused the be that which him to the back which caused on crutches walk compelled many the back and that is which him weeks, (None this to braces. evidence dis- wear back was defendant.) puted by Thus it that was back responsible, 1953 for which the defendant back 1946. Superior this
The said Court, Court affirms, tell the that Elza “did truth about the date of his plaintiff to The that return work.” stated lost he had to weeks from twelve thirteen records intro- work; by the defendant that he showed lost duced eleven April, The accident occurred in weeks work. Because did not take until 1957. place November, re- makes a two in workman mistake of or week is he to what 43 months
calling happened before, this a liar? to over characterized haggle Moreover, one the lower waste time week’s sheer because pay the basis court, ordering trial, proceeded that he to lost wages, was entitled eleven weeks’ only the period wrangle admitted defendant. over whether eleven plaintiff was disabled weeks water- thirteen weeks amounts to seeds in a counting since melon own medical testi- expert defendant’s fied even a incapacitation after fifteen-week injuries described would not be an pe- unreasonable riod for the remain from work. away the Superior defendant, Court which reversed the lower court’s of a awarding trial, Court which sustains have all demon- reversal, strated an attitude of seems fault-finding which, aims at a me, and misses the ocean. ship The fact that the plaintiff was from work eleven instead away weeks, of twelve or thirteen as he de- should not recollected, prive lost him of wages for those eleven weeks proved incapacitation. Even if we assume that had the right Elza jury deny compensation for pain, suffering had no to reim- inconvenience, right burse him for three weeks’ lost wages when defendant’s own as above records, demonstrate stated, that he lost eleven weeks’ wages.
The Majority Opinion, endeavoring explain “the jury’s says: action, could have felt that what time he lose did actually not due to the accident.”
Of there is no limit to course, what the “could if it *13 have felt” wanted to soar into the heights of fan- tasy. Drawing imagination, instead of facts, “could have felt” that jury the plaintiff was absent because from work of having consumed too much whis- key, house, roof fallen of his that he from or had no out of a There or that had fallen balloon. he jury if it boundary to have felt” “could what right perverse, to has no to be but wanted say felt that the time the on the record that plaintiff to accident.” lost “was not due There jury simply to made as much reason assume that the say arithmetic as there is to that the mistake in actually felt the lost certain amount had of time from work. complains Majority
The in because the court below, ordering indignant sufficiently did use trial, language. Majority suggests to as- in order that, ordering really it sure us that itWhat meant said in the trial court that the trial, should said “miserly” “patently verdict was insufficient” that it was “inconsistent and as had unreasonable,” argu- been in cases. extraordinary said other So replied ment deserves to with the that bromide speak “facts says louder than words.” If a man only buy he ten has cents with which to he dinner, does not need add that he is “dead he or if broke”, only buy has with which to a house he does not $50 up sky-filling offer “filthy lamentations that he is poor.” experienced three If estimable judges pleas specify common Elza Hansford proved, undisputed received penses when his $950 ex- judges amount to do $1960, these need shout capital from the letters, courthouse that such towers, a verdict is Patently Are we now Insufficient? adjectives, decide cases on adverbs, colorful rheto- objective proved, ric and not on Majority truths? Opinion, my opinion, leaves much to be desired way convincingness, but nowhere does it falter complains so as it does much because the lower language, court is modest in its speaks though even *14 the facts of it' the italics states uncontradicted case. language, complaining court’s about the lower
Still Opinion says Majority that the trial court did the jus “travesty say of that the of the a verdict presented very of say clear case it a nor did tice,” “wrong injustice.” Majority observes: the And then opinion nothing the trial court here of “There speaks only the case It of that reflects such ideas. accept says being 'may either that it well difficult and nothing difficult side the coin.’ There should be of inadequacy: grant trial a to a for about decision injustice like a forth of the should stand Arerdiet beacon.” suggests that the court Avas
This observation below equities parties were that the of between view evenly to reach so well toss a coin divided could But', right. court said its and still decision be nothing reading language em- A of the of kind. very ployed by the trial court that it Avas shoAV avüI judge reaching its likes conscientious in decision. No upset jury. judge Every to of a should verdict ponder long taking action. and Avellbefore such drastic judge here It an The did so. would have been judge easy Mai to “The matter for the have said: spoken Avky one has I interfere?” should' Thus, spoke gravity solemnity side of the coin -jury’s But there of verdict. was another side of the legend: That side to consider. carried the “Has coin justice judge done?” The did not toss coin. been long After deliberation consultation with two other judge justice judges, Mai concluded could ordering by trial. served be Opinion Majority said that in order' aAvard “injustice of stand should neAVtrial, injustice A like beacon forth beacon.” would sea open of much use mariners bardly seeking and truth. lower safety guided, the beacon justice. beacon but by injustice, the beams that bea- And for ignore for con is substitute picayune theory precedent, *15 for penalty pain; doing tabulation, and, so, write on the an illustration books law how court can produce good-sized straining gnats, camel of injustice.
I dissent. Appellant, Commonwealth ex rel. Bolish, v. Banmiller.