Boscia v. Massaro

529 A.2d 504, 365 Pa. Super. 271, 1987 Pa. Super. LEXIS 8721
CourtSupreme Court of Pennsylvania
DecidedJuly 27, 1987
Docket721
StatusPublished
Cited by24 cases

This text of 529 A.2d 504 (Boscia v. Massaro) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boscia v. Massaro, 529 A.2d 504, 365 Pa. Super. 271, 1987 Pa. Super. LEXIS 8721 (Pa. 1987).

Opinions

CIRILLO, President Judge:

This is an appeal challenging the grant of a new trial by the Court of Common Pleas of Allegheny County. We affirm.

On June 21, 1982, appellee Louis Boscia, was employed as an Investment Certificate Supervisor by the Signal Finance Corporation. He worked out of a newly constructed building owned by Joseph and Carolyn Massaro and managed by Oliver Realty Inc. The building was serviced by two hydraulic elevators which had been manufactured, sold and installed by appellant, Schindler-Haughton Elevator Company.

At trial, Mr. Boscia alleged that at 6:30 a.m. on that day, he entered the building and pressed the button to call an elevator. The elevator door opened and Mr. Boscia stepped forward expecting to enter the elevator car. Instead, he plunged into the elevator shaft, falling about four feet and striking his head and back on machinery in the elevator pit. Mr. Boscia suffered serious personal injuries as a result of his fall. He brought an action alleging strict liability and negligence, claiming that the elevator car had been stuck between floors at a higher level. The Massaros and Oliver Realty were removed from the case by joint tort-feasor release agreements and the case proceeded solely against appellant Schindler-Haughton Elevator Company. On February 5, 1985, after a three week trial, the jury entered a verdict for Schindler-Haughton. On February 12th, appel-lee filed post-trial motions alleging numerous instances of prejudice and requesting a new trial. Appellee complained that appellants improperly introduced evidence relating to Mr. Boscia’s receipt of Workmen’s Compensation benefits. Appellee later filed additional post-trial motions on July 30, 1985. The trial court considered these motions even though they were filed well beyond the ten day period mandated by Rule 227.1. See Pa.R.C.P. 227.1. In its opinion granting [274]*274appellee a new trial, the trial court cited various prejudicial questions and remarks heard by the jury. However, the learned judge stated that he would have granted a new trial solely because the jury heard testimony concerning Boscia’s Workmen’s Compensation payments.

Appellant presents six issues for our review: (1) whether the trial court erred in granting a new trial for harmless error; (2) whether the court erred in considering issues not preserved through timely post-trial motions; (3) whether the court erred by considering issues which were not properly preserved at trial; (4) whether the court erred in ruling that certain questions presented to witnesses were improper; (5) whether any error was cured by the court’s jury charge; and (6) whether the court abused its discretion by awarding a new trial. Based on the following discussion, we find it unnecessary to address each of these issues separately. We agree with the trial court that the interjection of Workmen’s Compensation into evidence was sufficient reason to grant a new trial and we uphold the court’s decision on that basis alone.

A trial judge may grant a new trial if he finds that improperly admitted evidence or improper statements made by counsel may have prejudiced the jury. Hilbert v. Katz, 309 Pa.Super. 466, 470, 455 A.2d 704, 706 (1983). An appellate court may only reverse in such a case if the trial judge is guilty of a gross abuse of discretion. Harvey v. Hassinger, 315 Pa.Super. 97, 106, 461 A.2d 814, 819 (1983).

In Thompson v. City of Philadelphia, 507 Pa. 592, 493 A.2d 669 (1985), our Supreme Court explained the process by which an appellate court must determine this issue. Id., 507 Pa. at 599, 493 A.2d at 673. As Justice McDermott stated:

In reviewing the entire record to determine the propriety of a new trial, an appellate court must first determine whether the trial judge’s reasons and factual basis can be supported. Unless there are facts and inferences of record that disclose a palpable abuse of discretion, the trial judge’s reasons should prevail. It is not the place of [275]*275an appellate court to invade the trial judge’s discretion any more than a trial judge may invade the province of a jury, unless both or either have palpably abused their function.

Id., 507 Pa. at 599-600, 493 A.2d at 673.

In the instant case, the trial judge stated that: “[t]he injection of Workmen’s Compensation into the case was itself sufficiently damaging to warrant relief.” We agree.

In Lobalzo v. Varoli, 409 Pa. 15, 185 A.2d 557 (1962), a truckdriver employed by United Parcel Service was injured in a collision with another truck. He brought suit for alleged negligence and at trial evidence was introduced concerning his receipt of Workmen’s Compensation. The jury returned a verdict for the defendants and plaintiff appealed. Our Supreme Court reversed, holding that the introduction of evidence concerning Workmen’s Compensation required that a new trial be granted. The court stated that such evidence has traditionally been inadmissible because it may cause the jury to believe that a plaintiff is seeking double payment for one injury. Id., 409 Pa. at 20, 185 A.2d at 560-61.

In the instant case, appellant’s counsel continuously attempted to bring Mr. Boscia’s receipt of Workmen’s Compensation before the jury. Appellant twice mentioned the subject by implication. These passing references were probably unnoticed by the jury and were unobjected to. The next instance was hardly so innocent. In cross-examining Mr. Boscia’s employer, James Shearer, counsel asked whether Shearer was cooperating with Boscia “because your company has a Workmen’s Compensation lien that they can collect in this case.” Appellee objected to counsel’s line of questioning and the court ruled the queries stricken from the record. Even so, during recross examination of Dr. Donna Knupp, appellee’s family physician, appellant’s counsel asked: “You are aware, are you not, that all of these future costs will be paid by his Workmen’s Compensation carrier?”

[276]*276Again, Mr. Boscia’s counsel vigorously objected. In his excellent opinion, the learned trial judge concluded that such remarks were so inherently prejudicial that a new trial was warranted. Applying the standard enunciated in Thompson we must uphold this determination.

As demonstrated above, the record shows that evidence of Workmen’s Compensation was clearly but improperly placed before the jury. As discussed in Lobalzo, such evidence is prejudicial because a jury may conclude that a litigant is seeking double redress for one injury. See Lobalzo, 409 Pa. at 20, 185 A.2d at 560-61. Therefore, the trial judge’s reasons for granting a new trial are supported by the record and we find no “palpable abuse of discretion.” Thompson, 507 Pa. at 600, 493 A.2d at 673.

We note that this issue was preserved for post-trial review as required by Rule 227.1 of the Pennsylvania Rules of Civil Procedure. Counsel objected to introduction of the evidence at trial and also raised the issue in a timely post-trial motion filed seven days after the jury returned its verdict.1 Appellant argues that Mr.

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Bluebook (online)
529 A.2d 504, 365 Pa. Super. 271, 1987 Pa. Super. LEXIS 8721, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boscia-v-massaro-pa-1987.