Troncatti v. Smereczniak
235 A.2d 345
Pa.
1967
Check Treatment

*1 legal is therefore turned grand jury moot. writ is of the denial of the propriety contending Appellant interrogatories, also filed proce- civil under the rules of entitled to do so civil action. is classified as a corpus dure since habeas objec- attorney’s The court below sustained the district not lie An does appeal tions these interrogatories.1 from order. Mackowain v. Oil this interlocutory Gulf file Corp., (1952) (motion 369 Pa. 87 A. 2d Telephone interrogatories); Young Bradford to exam- (1943) (motion ine Railroad documents); Quinn 67 Atl. 949 (1907) produce (motion documents).2

1The record below leaves unclear whether the court sustained objections merely merits held that it would not con- objections proceeding. corpus sider the in the context of a habeas 2 Appellant that he denied effective assistance also asserts preliminary hearing (in case, at his this the coroner’s of counsel properly inquest inquest). as a critical can be classified this appeal stage, in an from conviction. can be voiced Appellant, Smereczniak. C. Mus- J., October 1967. Before

Argued O’Brien Roberts, manno, Jones, Eagen, Cohen, JJ.

Paul him A. with John W. Simmons, McIlvaAne, Tempest appellant. <& for Simmons,

Q-.S. with-him Lisle A. Weaver, Zehner and August L. for appellees. Sismondo, Mr. Justice Eagen, November 1967: Vincent P. plaintiff, while working for flagman highway De-

partment Highways, struck and injured an operated by automobile the defendant. He sued for at trial jury awarded him $9,846.94. filed The defendant motions for judgment notwith- or for the verdict trial. In support of mentioned the last following reasons were “1. The verdict was assigned: against the evidence. against 2. The verdict was of the evidence. against 3. The verdict the law. 4. The verdict against charge inter- of the Court. That 5. est of Justice a new allowed. 6. That trial should be grossly the verdict was excessive.” judg- The court en banc for dismissed the motion being grossly ment but set aside the n.o.v., verdict as ques- excessive and ordered a trial limited to the new damages. parties appealed Superior tion of Both to the subsequently which Court, set aside the awarding trial court a limited directed Superior generally, a new trial Ct. granted We allocatur. opinion Superior approv- Court indicates

al of the lower court’s order but ruled that our deci- sion in Berkeihiser v. precludes

A. 2d 314 *3 the of limited new trial in an concessivenesscase. is No other reason support in directing advanced of its order trial generally. granting

The of a new trial limited to of the issue damages permissible was not under the common law. (1st Farrar 1906); See v. May 145 F. 482 Wheeler, Cir. Dep’t (8th 1932) Stores Co. v. 61 F. Cir. ; 85 A.L.R. 2d Annot., in the However, justice expedite interest of in order to the final disposition litigation, of and most other jurisdictions adopted wisely permitting have a rule such specific limited new trials under certain circumstances. power While to the a limited new trial should be cautiously pointed as we exercised, out in Berkeihiser “ ‘ supra, question at “where the fairly liability of has been determined and defendant complaint respect in (hereto, no makes proper it is not im- negligence the of issue to eliminate from further ’ ” jury by the at the new consideration trial.” We see logical why or common-sense reason no the above rule in as as cases well in excessiveness not obtain inadequate, verdict is the jury’s

instances where indi in BerkeiMser decision did not intend our we in Gre in our orders implicit In cate otherwise. fact, 409 Pa. 578, Steel Safeway gorius Scaffolds Beal Estate A. 2d and Nakles Union (1963), the of approval 204 A. was cases, trial in excessiveness of a limited new determined fairly has the of been liability where issue the involves error complaint trial only of damages. issue the defendant

In of instant the liability case is of question determined.” “fairly In his of liability. from the issue readily separable con- no errors the defendant asserted is- the liability affect cerning rulings might sue. The aside from the excessiveness only of the award was that the verdict was against of of the evidence. This devoid is there to sustain a ample merit since ver: of circum- plaintiff.1 diet favor Under such it not of for the trial an abuse discretion stances, order a ac- court limited new trial. Moreover, in February disposi- cident occurred and a final of tion should be consonant litigation encouraged, fairness and principles justice. with the of of the Superior order Court is reversed and Court Common Pleas of Washington is re-instated. *4 by Dissenting Me. Chief Bell: Justice appellant contends that the Where verdict is against of the a trial excessive, testimony plaintiff testified and his 1The was corroborated he struck witnesses defendant’s other automobile while portion off the concrete high- way. Court should not limit its to dam- ages unless there only, was no real lia- dispute bility. there is a dispute substantial toas liability, then a generally granted. be

For this I reason, would affirm the decision of the Superior Court which set the Order aside of the lower Court which had awarded a new limited to dam- trial, ages only.

Penn Mutual Life Company Insurance Finkel

(et Appellant). al.,