Dranzo v. Winterhalter
| Citation | 577 A.2d 1349,395 Pa.Super. 578 |
| Parties | Marlene DRANZO and John Dranzo, Her Husband, Appellants, v. Kenneth L. WINTERHALTER, Individually and Kevin Scott Wightman, Individually and as Agent for Gary Kossel, and Vicky Kossel, t/d/b/a Vic's Pizza, and Gary Kossel, and Vicky Kossel, t/d/b/a Vic's Pizza, a Business Entity and Individually. Marlene DRANZO and John Dranzo, Her Husband v. Kenneth L. WINTERHALTER, Individually and Kevin Scott Wightman, Individually and as Agent for Gary Kossel, and Vicky Kossel, t/d/b/a Vic's Pizza, and Gary Kossel, and Vicky Kossel, t/d/b/a Vic's Pizza, a Business Entity and Individually. (Two Cases) Appeal of Kevin Scott WIGHTMAN. (Two Cases) Appeal of Gary KOSSEL and Vicky Kossel, t/d/b/a Vic's Pizza, and Gary Kossel and Vicky Kossel t/d/b/a Vic's Pizza, a Business Entity and Individually. Sheri DRANZO, a Minor by John DRANZO, Her Parent and Natural Guardian, and John Dranzo, Individually v. Kenneth L. WINTERHALTER, Individually and Kevin Scott Wightman, Individually and as Agent for Gary Kossel, and Vicky Kossel, t/d/b/a Vic's Pizza, and Gary Kossel, and Vicky Kossel, t/d/b/a Vic's Pizza, a Business Entity and Individually. (Two Cases) Appeal of Gary KOSSEL and Vicky Kossel, t/d/b/a Vic's Pizza, a Business Entity and Individually. |
| Decision Date | 13 August 1990 |
| Court | Pennsylvania Superior Court |
Anthony J. Seneca, Washington, for Dranzo.
Timothy D. Appelbe, Pittsburgh, for Wightman.
John M. Giunta, Pittsburgh, for Kossel.
Before DEL SOLE, JOHNSON and FORD ELLIOTT, JJ.
This is a consolidated appeal from the judgment entered in favor of plaintiffs Marlene Dranzo and John Dranzo, her husband (Dranzo). We affirm on all issues raised by the appellants and cross-appellants.
The incident giving rise to this litigation was an automobile accident occurring shortly after 7 p.m. on December 22, 1986 in Somerset Township at or near the intersection of Route 917 and Circle Road. Defendant Kenneth L. Winterhalter was driving a truck west on Circle Road and approaching its intersection with Route 917, a through highway. Defendant Kevin Scott Wightman, who was employed by defendants Gary Kossel and Vicky Kossel, trading as Vic's Pizza, was driving north on Route 917 in a Chevrolet Nova. Marlene Dranzo was driving south on Route 917 with her daughter Sheri as passenger in her Chevrolet Celebrity. The truck driven by Winterhalter and the Chevrolet Nova driven by Wightman collided at the intersection. Immediately thereafter, the Wightman car veered into the southbound lane of Route 917 and collided with the Dranzo car. Both Marlene Dranzo and her daughter Sheri sustained injuries.
The complaint sought damages for Marlene and for Sheri Dranzo's injuries and for John Dranzo's loss of consortium as husband of Marlene Dranzo. The case was tried by jury in Washington County before the Honorable Samuel L. Rodgers. Prior to trial the court denied a motion brought by the Kossels for a change of venue because Dranzo was employed by the Court of Common Pleas of Washington County. The court granted the Dranzos' pre-trial motion to exclude testimony of an expert witness that the injuries would not have occurred had the Dranzos been wearing seat belts. Defendant Winterhalter failed to respond to the complaints, and default judgments were entered against him. Following trial the jury returned verdicts on December 16, 1988 in favor of Sheri Dranzo and her father John Dranzo in the amount of $40,070.90 and in favor of Marlene Dranzo and John Dranzo in the amount of $136,173.40. The jury attributed eighty per cent of the causal negligence to Winterhalter and twenty per cent to Wightman and his employer the Kossels. Wightman and the Kossels filed post-trial motions seeking a new trial on the issue of liability, which was denied by the court en banc on July 21, 1989. By the same order the court en banc also awarded the Dranzos delay damages pursuant to Pa.R.C.P. 238.
On appeal the Dranzos seek greater damages either by additur or by a new trial on the damage issue only. Defendants Wightman and the Kossels challenge the denial of the change of venue, the preclusion of seat belt evidence and assign error to aspects of the jury charge concerning assured clear distance, sudden emergency and circumstantial evidence. They also question the constitutionality of the delay damage rule. Finding no merit to these issues, we affirm the order appealed from in all respects.
First we address Dranzo's contention that the trial court abused its discretion in failing to order an additur to the verdict amount, or, in the alternative, in failing to set aside the jury's verdict and to order a new trial limited to the issue of damages. The duty to assess damages is squarely within the province of the jury, who as the finders of fact weigh the veracity and credibility of the witnesses and their testimony. Cree v. Horn, 372 Pa.Super 296, 539 A.2d 446 (1988), appeal denied 519 Pa. 660, 546 A.2d 621 (1988).
Our standard upon reviewing a trial court's decision that damages were adequate and that it should thus refuse to grant a new trial is extremely narrow:
It is well established law in the Commonwealth that a decision to grant a new trial because of any impropriety in the verdict is well within the discretion of the trial court and in the absence of a clear abuse of its considerable discretion will not be disturbed on appellate review. Reitz v. Donise Enterprise, 319 Pa.Super. 76, 465 A.2d 1060 (1983). Our court has set forth the following criteria to determine when a verdict can be set aside as inadequate:
A verdict is set aside as inadequate when it is so inadequate as to indicate passion, prejudice, partiality, or corruption, or where it clearly appears from uncontradicted evidence that the amount of the verdict bears no reasonable relation to the loss suffered by the plaintiff. If the verdict bears a reasonable resemblance to the damages proved, the appellate court will not disturb the verdict merely because the damages are less than the reviewing court might have awarded. (citations omitted).
Slaseman v. Myers, 309 Pa.Super. 537, 540-541, 455 A.2d 1213, 1215 (1983).
Smith v. Barker, 368 Pa.Super. 472, 475-476, 534 A.2d 533, 535 (1987), appeal denied 520 Pa. 577, 549 A.2d 137 (1988). To support the grant of a new trial for inadequacy of the damage award, the injustice of the verdict "should stand forth like a beacon." Cooley v. Jefferson Bank, 355 Pa.Super. 1, 4, 512 A.2d 713, 714 (1986) (citing numerous cases).
As the Honorable Samuel J. Rodgers wrote in his opinion of 7-21-89, Marlene Dranzo suffered severe injuries in this accident, primarily a fracture to her left hip and her left heel. She claimed that she still has pain, that she has a permanent limp and that her earning capacity has been permanently diminished. The parties stipulated to the amount of medical expenses and wage loss, amounting to a total of $23,416.01. The jury returned a total verdict of $118,736.01 for Marlene Dranzo, damages in the amount of $27,000.00 for daughter Sheri Dranzo, and damages in the amount of $5,000.00 for John Dranzo for loss sustained as Marlene's husband and in the amount of $13,070.90 for loss sustained as Sheri's father. N.T., February 9-15, 1989 at 636.
The trial court wrote:
No doubt the injuries suffered by Mrs. Dranzo may well have supported a considerably higher verdict, but the fact remains that all of this evidence was presented to the jury, and this court cannot say that the amount of the verdict shocks the conscience of the court. Generally, the consortium claim of her husband, John Dranzo, rests on the oral testimony of these plaintiffs, and essentially, the amount awarded must be determined by the good sense of the jury upon consideration of all the evidence.
Opinion, 7-21-89 at 17. We agree with the trial court. Our careful review of the record convinces us that no injustice has been done in this case. We conclude that the trial court did not abuse its discretion in refusing to grant a new trial on the issue of damages.
Dranzo's allegation that the court should have added to the jury verdict (additur) must fail. As we stated above, it is the jury's province to determine amount of damages. The court determined that the award of damages was acceptable. Therefore, it could not have been required to add to the verdict. Dranzo relies upon Svoboda et ux. v. City of Pittsburgh et al., 34 D. & C. 47 (1938) for the proposition that a court may add to a verdict in certain circumstances. That case held that, where a court decides that a new trial was warranted, and if the defendant then agrees to pay the additional damages, the court should not be prevented from allowing the defendant to pay in lieu of a new trial, for then a new trial would have no purpose. The present case does not fit this scenario. Here, the court decided that the damage award was proper, and Dranzo does not allege that the defendants had agreed to pay additional damages but were refused by the court. Hence, Dranzo's entire line of reasoning regarding additur is inapplicable to the present case.
Next we will address the issues raised by Wightman and adopted by the Kossels as their issues. Wightman alleges that the court abused its discretion in denying his motion for a change of venue. Wightman argues that because Dranzo was employed as the Deputy Clerk of Courts for the Court of Common Pleas of Washington County, because Barbara Gibbs, the Clerk of Courts, was to be called as a witness, and because Dranzo was acquainted with the judge, a fair trial could not be held in Washington County. This claim fails. Pa.R.C.P. 1006 provides:
(2) Where, upon petition and hearing thereon, the Court finds that a fair and impartial trial cannot be held in the County for reasons stated of record, the Court may order that the action be transferred....
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