Musumeci v. Penn's Landing Corp.
| Citation | 433 Pa.Super. 146,640 A.2d 416 |
| Parties | Ann MUSUMECI and Salvatore Musumeci, H/W v. PENN'S LANDING CORPORATION, Port of History Museum, Chandris Fantasy Cruises, Chandris, S.A., Ajax Navigation Corporation, Philadelphia Port Corp., and International Terminal Operations. Appeal of CHANDRIS, S.A. and Ajax Navigation Corporation. Ann MUSUMECI and Salvatore Musumeci, Appellants, v. PENN'S LANDING CORP., Port of History Museum, Chandris Fantasy Cruises, Philadelphia Port Corp. International Terminal Operations, Chandris, S.A., and Ajax Navigation. Loretta Anne MANNINO and Vincent Mannino v. PORT OF HISTORY MUSEUM, Chandris Fantasy Cruises, Philadelphia Port Corporation International Terminal Operations, Chandris, S.A. and Ajax Navigation. Loretta Anne MANNINO and Vincent Mannino v. PENN'S LANDING CORPORATION, Chandris Cruise Line Corporation. Appeal of PENN'S LANDING CORPORATION. Loretta Anne Mannino and Vincent Mannino, Appellants, v. PORT OF HISTORY MUSEUM, Chandris Fantasy Cruises, Philadelphia Port Corporation International Terminal Operations, Chandris, S.A. and Ajax Navigation. Loretta Anne Mannino and Vincent Mannino, Appellants, v. PENN'S LANDING CORPORATION, Chandris Cruise Line Corporation. Loretta Anne MANNINO and Vincent Mannino, H/W v. PENN'S LANDING CORPORATION, Port of History Museum Chandris Fantasy Cruises, Chandris, S.A., Ajax Navigation Corporation, Philadelphia Port Corp., and International Terminal Operations. Appeal of CHANDRIS, S.A. and Ajax Navigation Corporation. |
| Decision Date | 11 May 1994 |
| Court | Pennsylvania Superior Court |
Matthew P. Harrington, Philadelphia, for Chandris, S.A. and Ajax.
James R. Kahn, Philadelphia, for Mannino.
Stewart Bernstein, Philadelphia, for Musumeci.
Angelo L. Scaricamazza, Jr., Philadelphia, for Penn's Landing.
Gino Zonghetti, pro se.
Before BECK, TAMILIA and HESTER, JJ.
The issue we decide, inter alia, is whether delay damages pursuant to Pennsylvania Rule of Civil Procedure 238 are recoverable in a case under the federal maritime law. We hold that Rule 238 damages are not recoverable.
This appeal involves the claim of Ann Musumeci for injuries sustained when the ramp used to exit a cruise ship collapsed, and the claim of her husband, Salvatore, for loss of consortium. The defendants, Penn's Landing Corporation, Chandris S.A., and Ajax Navigation Corporation, conceded liability, and the Musumecis' lawsuit was consolidated for trial on the issue of damages only with that of Loretta Anne and Vincent Mannino. 1 After hearing the evidence, a jury returned a verdict in favor of Ann Musumeci, in the amount of $167,000, and made no award to Salvatore on his consortium claim. The jury also awarded Mrs. Mannino $35,000, but denied any recovery to her husband on his consortium claim. The trial court denied post-trial motions filed by all parties, and granted the plaintiffs' petition for delay damages in accordance with Pa.R.Civ.P. 238.
The Musumecis raise several issues on appeal: (1) did the trial court err in consolidating the Musumeci and Mannino cases where a prior order of a judge of coordinate jurisdiction denied such consolidation; (2) did the consolidation of the two cases prejudice the Musumecis' case; (3) was a new trial or additur required because Salvatore Musumeci was awarded no damages on his loss of consortium claim; (4) was a new trial or additur required because the award to Ann Musumeci was inadequate; (5) did the trial court err in giving an "adverse inference" charge with respect to the plaintiffs' decision not to call one of their treating physicians to testify; (6) did the trial court err in failing to give an adverse inference charge where the defendants failed to call their orthopedic surgeon who examined Mrs. Musumeci.
The Manninos also challenge the consolidation order, and argue that the verdict amounts were inadequate. Defendants filed cross-appeals, arguing that the trial court erred in applying Rule 238 to award delay damages to the plaintiffs in this maritime law case.
This action originally involved the separate lawsuits of four different couples, who allegedly sustained injuries on the cruise ship exit ramp. The four cases were consolidated for discovery and trial on liability by the Honorable Nicholas D'Alessandro on March 28, 1990. At the same time, however, Judge D'Alessandro ordered separate trials on the issue of damages.
By the time the cases came to trial, two of the four cases had been settled, and the defendants had conceded liability. Only the Mannino and Musumeci cases remained, and the Honorable Alfred J. DiBona ordered that the damage trials be consolidated. 2 In challenging the consolidation order, the appellants argue that Judge DiBona violated the general rule that judges of concurrent jurisdiction should not overrule the decisions of one another. Okkerse v. Howe, 521 Pa. 509, 556 A.2d 827 (1989). However, there is an exception to the rule which provides that the second judge is authorized to overrule the first if new evidence or newly decided legal authorities compel him or her to do so. Golden v. Dion & Rosenau, 410 Pa.Super. 506, 600 A.2d 568 (1991). In this case, we agree with the trial court's decision to grant the consolidation in view of certain changed circumstances, or "new evidence": the settlement of two of the four cases and the defendants' concession of liability.
Nor are we persuaded by the appellants' argument that they were prejudiced by the consolidation, because the jury was confused about the various injuries of the two wife-plaintiffs. As previously noted, Mrs. Musumeci was awarded $167,000 and Mrs. Mannino was awarded $35,000. It is clear from the sizable difference in verdicts that the jury readily distinguished between the two women and their respective damages.
Next, the Musumecis claim that the trial court erred in charging the jury that they could draw an adverse inference from the Musumecis' failure to call a treating physician, Dr. Mogil. They also contend that the court erroneously refused to give the adverse inference charge on the defendants' failure to call one of their own doctors, Dr. Lee. The rule for the appropriate use of the adverse inference charge is stated as follows:
In Pennsylvania, a party who fails to call a witness whose testimony, presumable [sic], would be favorable to his cause is subject to an "adverse inference" instruction, permitting the jury to infer that the witness' testimony would be unfavorable. However, the rule does not apply where the witness is equally available to both sides.
Hinton v. Waste Techniques Corp., 243 Pa.Super. 189, 364 A.2d 724 (1976) (citing Bentivoglio v. Ralston, 447 Pa. 24, 288 A.2d 745 (1972)). Applying this rule to this case, we note that the Musumecis' witness Dr. Mogil was not available to the defendants' subpoena, and the plaintiffs' failure to call him to testify properly justified an adverse inference charge. Bentivoglio, supra.
On the other hand, because the Musumecis could have subpoenaed defense witness Dr. Lee, the defendants' failure to call him should not be held against them through an adverse inference charge. Id. We therefore affirm the trial court's decision on this issue.
The appellants next argue that the jury's verdict against the husband-plaintiffs on their consortium claims was against the weight of the evidence, as their claims were unrefuted. However, we note that the husbands still had the burden of proving the nature and extent of their damages, and that the veracity and credibility of the witnesses is for the jury to determine. Cree v. Horn, 372 Pa.Super. 296, 539 A.2d 446 (1988), alloc. den., 519 Pa. 660, 546 A.2d 621 (1988). It is obvious that the jury simply did not believe the husband-plaintiffs' evidence as to loss of consortium. Our review of the record does not persuade us that their finding should be vacated. Therefore we affirm the trial court's decision on this issue.
The wife-plaintiffs, too, argue that additur should have been granted because their awards were inadequate based on the evidence. A verdict should be set aside as inadequate only when it is so unjust as to "stand forth like a beacon." Elza v. Chovan, 396 Pa. 112, 118, 152 A.2d 238, 241 (1959).
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.
Slaseman v. Myers, 309 Pa.Super. 537, 455 A.2d 1213, 1215 (1983) (citations omitted). After our review of the record and the briefs, we see no reason to set aside the jury's verdict, or to grant additur. The trial court correctly concluded that there was no evidence that the verdicts resulted from passion, prejudice, partiality or corruption, nor does the verdict "stand forth like a beacon." We therefore affirm the trial court's denial of additur.
Finally, we turn to the claim on the cross-appeals that the trial court's award of delay damages pursuant to Pa.R.Civ.P. 238 was improper. Rule 238 provides for an award of pre-judgment interest, except for any period during which the plaintiff has caused delay or after which the defendant has made an adequate written settlement offer. 3 The trial court correctly found that there was no written offer of settlement by the defendants and, if Rule 238 were to apply, delay damages would have been proper.
However, the trial court did not address the second argument raised on the cross-appeal 4: this case was brought under the federal maritime law, and therefore, Rule 238 delay damages are not recoverable. We note that the availability of pre-judgment...
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