Nigro v. Remington Arms Co., Inc.

• Decision Date: 25 February 1994
• Citation: 432 Pa.Super. 60,637 A.2d 983
• Parties: Nicholas John NIGRO v. REMINGTON ARMS COMPANY, INC., Appellant. (Two Cases)
• Court: Pennsylvania Superior Court

Page 983

637 A.2d 983

432 Pa.Super. 60

Nicholas John NIGRO v. REMINGTON ARMS COMPANY, INC., Appellant. (Two Cases)

Superior Court of Pennsylvania.

Argued July 22, 1993.

Filed Dec. 22, 1993.

Reargument Denied Feb. 25, 1994.

Robert S. Garrett, Pittsburgh, John W. Shaw, Kansas City, Mo., for appellant.

Jerome W. Kiger, Pittsburgh, for appellee.

Before CAVANAUGH, BECK and CERCONE, JJ.

CERCONE, Judge:

These are the consolidated appeals from the orders of the trial court dated July 10, 1992 and August 21, 1992, respectively. For the reasons that follow, we reverse the order of the trial court dated July 10, 1992, and quash the appeal from the order dated August 21, 1992.

On prior appeal, this court aptly summarized the underlying history of this case as follows:

On December 11, 1980, [appellant] Nigro went to friend John Abrams' residence to hunt deer. As Abrams stood near his friends unloading a Remington Model 700 30-06 BDL Bolt [rifle], the rifle accidently fired. The bullet struck Nigro in the right leg, seriously injuring him. Nigro brought an action against Remington alleging that, because the rifle was defective in design, Remington was liable for injuries under a strict liability theory pursuant to Restatement of Torts (Second) § 4202A. He claimed that the rifle was designed defectively because it had to be unloaded with the safety open, the same position as it is to be in when the rifle is fired.

Central to Nigro's design defect case was Abrams' testimony concerning how the rifle discharged as he was unloading. He testified that he opened the safety and twice fully cycled the rifle by opening and closing the bolt and ejecting two live cartridges without incident. Abrams testified that when he repeated these actions a third time, the rifle discharged without his having pulled the trigger. N.T., 9/14/87-10/2/87, pp. 135-136. However, there was also evidence that could have supported a conclusion that Abrams was negligent. He himself testified that he unloaded the rifle in the presence of a group of people, that he failed to point it away from the group, and that he had borrowed the rifle and thus was not familiar with its operation. N.T., 9/14/87-10/2/87, pp. 180-187. His testimony revealed specific functions of the rifle of which he was unaware. N.T., 9/14/87-10/2/87, pp. 153-158, 193. The owner of the rifle testified that he had owned and used the rifle for several years without incident.

On October 5, 1987, the jury returned a general verdict in favor of Remington. Nigro filed post-trial motions asking for a Judgment N.O.V. and, in the alternative, for a new trial. By order filed on July 19, 1988, the trial court granted Nigro's motion for a new trial on the basis that two of the trial court instructions to the jury were in error. On August 1, 1988, Remington appealed to this court at 1212 Pittsburgh 1988, and on August 12, 1988 Nigro cross appealed at 1212 Pittsburgh 1988.

Nigro v. Remington Arms Company, Inc., 395 Pa.Super. 662, 570 A.2d 595 (Nos. 1154 & 1212 Pgh. 1988 and No. 196 Pgh. 1989, filed October 10, 1989), slip opinion at 1-3 (Nigro I ). A panel of this court reversed the order of the trial court and reinstated the verdict. The Supreme Court remanded the case for disposition of those issues raised in Nigro's post-trial motions but not addressed by the trial court. Nigro v. Remington Arms Co., Inc., 528 Pa. 354, 598 A.2d 31 (No. 705 W.D.App.Dkt.1989, filed November 8, 1991).

Upon remand, however, this case became enmeshed in procedural difficulties. As expected, the trial court permitted the parties to submit additional briefs pertaining to the remaining post-trial motions. In addition, the trial court ordered parties to submit "a proposed Order and Opinion disposing of Plaintiff's remaining post trial issues which were not addressed by the trial court." Trial Court Order dated 6/24/92. Interestingly, on July 10, 1992, trial court adopted both the proposed order and the proposed opinion of appellee Nigro without change. Even more disturbing, the opinion adopted by the trial court granted relief on the basis of issues which the Superior Court previously deemed to be without merit in Nigro I.

In the July 10, 1992 order, the trial court granted judgment notwithstanding the verdict in favor of Nigro. In the alternative, the trial court granted a new trial on the basis of all issues raised by Nigro in his post-verdict motions, including those previously resolved by the Superior Court. The trial court additionally found that Remington failed to comply with the pre-trial discovery orders of June 6, 1986, and May 22, 1987. Although no order to compel discovery was outstanding, the trial court ordered Remington to produce the documents requested in Nigro's 1986 pre-trial discovery motions. Finally, the trial court stated that it would entertain an application from Nigro for sanctions against Remington on the basis of Remington's failure to comply with the 1986 pre-trial discovery motions.

Remington timely filed a notice of appeal from the trial court's order of July 10, 1992. Notwithstanding the pending appeal, on August 24, 1992, the trial court entered an order granting Nigro's Motion to Enforce Discovery Orders and for Sanctions. Pursuant thereto, the trial court entered a default judgment against Remington on the question of liability. The trial court cited Remington's failure to comply with its July 10, 1992, order as grounds for entering the default judgment. Remington's appeal of the August 24, 1992 order and its earlier appeal of the July 10, 1992 order were consolidated and both are before us for resolution.

Regarding its initial appeal of the July 10, 1992 order, Remington raises the following issues for our review:

I. Whether the trial court's order upon remand from the Pennsylvania Supreme Court is entitled to deference by this court.

II. Whether it was error to grant plaintiff's motion for judgment notwithstanding the verdict.

III. Whether it was error to grant a new trial based on the admission of industry standards.

IV. Whether it was error to grant a new trial based on admission of the military's use of the model 700.

V. Whether it was error to grant a new trial for the failure to issue a cautionary instruction.

VI. Whether it was error to grant a new trial based on the admission of passages of a treatise.

VII. & VIII. Whether it was error to grant a new trial based on two charges to the jury already found proper by this court.

IX. Whether it was error to direct a verdict for Remington on the issue of punitive damages.

X. Whether it was error to grant a new trial based on the [court's] response to jury questions.

XI. Whether the verdict was against the evidence, the weight of the evidence, and the law.

We will address these issues in order. ¹

Appellant Remington first argues that the order and opinion of the trial court should receive no deference by this court. In this regard, Remington contends that (1) the order and opinion violate the law of the case doctrine and exceeds the scope of the mandate from the Pennsylvania Supreme Court; and (2) the trial court, by its verbatim adoption of the proposed order and opinion prepared by Nigro, failed to exercise its own unfettered independent judgment. Certainly, we cannot comprehend or approve of the procedure utilized by the trial court. However, even affording the trial court opinion full weight, we find that Remington asserts meritorious claims in each of its allegations of error. In the interests of judicial economy, we will not discount the weight afforded to the trial court opinion, or remand for a new opinion.

In his second issue, appellant argues that the trial court erred in granting Nigro's motion for judgment notwithstanding the verdict. It is well-settled that a trial court must strictly comply with the mandate of the appellate court. Roskwitalski v. Reiss, 338 Pa.Super. 85, 90, 487 A.2d 864, 866-67 (1985), allocatur denied, 514 Pa. 619, 521 A.2d 933 (1987). In its opinion dated January 9, 1989, the trial court specifically stated that "[i]t is the opinion of this Court that plaintiff should be granted a new trial, but that the request for [judgment] n.o.v. be denied." Trial Court Opinion dated 1/9/89 at 9. Upon remand, our Supreme Court issued the following order:

This case is remanded to the Court of Common Pleas of Allegheny County, Civil Division at No. 82-20776 for disposition of plaintiff's remaining post-trial issues which were not addressed by the trial court.

Supreme Court Order filed 11/8/91 (emphasis added). 528 Pa. 594, 599 A.2d 972. Contrary to the trial court's analysis in this regard, we find that it had previously addressed the question of whether Nigro was entitled to judgment n.o.v. when it denied relief on this basis. Accordingly, the trial court could not consider this issue on remand.

If Nigro had been entitled to judgment n.o.v., it is inconceivable that the trial court would have denied his motion in favor of indefinitely delaying resolution of the liability question by granting a new trial. It strains all reasoning to believe that the trial court did not consider the merits of Nigro's motion for judgment n.o.v. when it issued its opinion of January 9, 1989. The grant of judgment n.o.v. would establish the liability of Remington for Nigro's injuries thus leaving only a question concerning the amount of damages. The grant of a new trial, on the other hand, would force the parties to relitigate the entire question of liability. We cannot envision that a trial court would ignore the merits of a motion for judgment n.o.v. in favor of granting a new trial. ²

It is clear from the trial court opinion of January 9, 1989 that the trial court considered and denied Nigro's motion for judgment n.o.v. It is equally clear that by reconsidering this motion on remand, the trial court exceeded the scope of the Supreme Court's remand order. Accordingly, we reverse that portion of the trial...