Troncatti v. Smereczniak

Dissenting Opinion by

Hoffman, J.:

I respectfully dissent.

I cannot agree with the conclusion of the majority that “[ujnder Berkeihiser [v. DiBartolomeo, 413 Pa. 158, 196 A. 2d 314 (1964),] we cannot sustain the granting of a limited new trial.”

Berkeihiser relied on earlier decisions in which the damages awarded to the plaintiff were concededly inadequate. In those cases, because of the likelihood of a jury compromise on the issue of liability, fairness to the defendant forbade the granting of a new trial limited to the issue of damages alone. Berkeihiser extended that prohibition to a case, like the present one, in which the damages awarded were not inadequate, but excessive, and in which there was no likelihood of a compromise verdict.

Nevertheless, Berkeihiser does not preclude the granting of a limited new trial in all cases where it is alleged that the jury awarded excessive damages. The Court, in Berkeihiser did note that “ ‘. . . where the question of liability has been fairly determined and defendant makes no complaint in respect thereto, it is not improper to eliminate the issue of negligence from further consideration by the jury at the new trial.’” (p. 162) The Supreme Court has apparently adopted this standard in later cases. See, e.g., Nakles v. Union Real Estate Company of Pittsburgh, 415 Pa. 407, 411, 204 A. 2d 50 (1964).

Applying the above standard to the controversy before us, it is clear that defendant’s negligence was fairly determined and fully established by the evidence. The defendant, in fact, does not complain of any trial errors affecting the matter of liability. In his brief on appeal, he argues: (a) that the verdict was excessive, (b) that the trial court improperly charged the jury on the measure of damages relating to plaintiff’s loss of earning power, (c) that the trial court improperly permitted a medical witness to state his opinion concerning the plaintiff’s reduced earning capacity, and (d) that the trial court erred in its charge on “present worth” by failing to instruct the jury on the legal rate of interest.

All of these errors, if errors they were, can be corrected in a new trial limited to the issue of damages alone. I see, therefore, no compelling reason in policy or precedent which requires the granting of a new trial generally.

I would affirm the order of the court en banc granting a new trial limited solely to the issue of damages.