Clark v. Rutecki

182 A.2d 687, 408 Pa. 25

• Court: Supreme Court of Pennsylvania
• Decided: June 28, 1962
• Docket: Appeal, 223
• Status: Published

Opinions

Opinion by

Mr. Justice Benjamin B. Jones,

A jury in a trespass action in the Court of Common Pleas No. 2 of Philadelphia County on May 9, 1960 returned a verdict in favor of Walter Rutecki, defendant, and against Andrew Clark, plaintiff. On May 11, 1960, Clark’s counsel filed a motion for a new trial averring that the verdict was (a) against the law, (b) against the evidence, (c) against the law and evidence, (d) against the weight of the law, (e) against the weight of the evidence and (f) against the weight of the law and evidence. At the same time Clark’s counsel reserved the right to file additional reasons for a new trial after the transcription of the notes of evidence.¹

For a period of approximately sixteen months Clark’s counsel did nothing about the motion for a new trial, neither filing additional reasons for a new trial nor ordering the motion on the argument list. Finally, on September 29, 1961, Rutecki’s counsel filed a motion to dismiss the motion for a new trial for lack of prosecution and to that motion an answer was filed. The motion to dismiss came up for hearing before Judge Vincent Carroll on October 31, 1961 and at that time Clark’s counsel filed no brief nor did lie appear at the hearing. On that date Judge Carroll dismissed the motion for a new trial for lack of prosecution.²

Almost ten weeks later Clark’s counsel entered a judgment on the verdict in favor of Rutecki and against Clark.³ About ten days later Clark’s counsel took an appeal from that judgment.⁴

On this appeal Clark seeks to raise three questions: (1) that the court below erred in permitting the introduction into evidence of certain Unemployment Compensation and Workmen’s Compensation payments to Clark; (2) that the court below erred in referring to an Act of God in its charge to the jury; (3) that the court below was prejudiced against Clark. Tlie motion for a new trial made no reference whatsoever to these questions nor were they raised in or presented for the consideration of the court below.

Time and again we have stated that questions which are not raised in the court below will not be considered on appeal: Bechler v. Oliva, 400 Pa. 299, 303, 161 A. 2d 156; Robinson v. Philadelphia, 400 Pa. 80, 89, 161 A. 2d 1; Rosenfeld v. Rosenfeld, 390 Pa. 39, 133 A. 2d 829; Sherwood v. Elgart, 383 Pa. 110, 117 A. 2d 899. Since the only questions sought to be argued on this appeal were not raised in the court below we have no alternative than to affirm the judgment in the court below.

Judgment affirmed.

1 Forty days after the new trial motion was filed — June 20, 1960 — the transcribed notes of evidence were filed.

2 Apparently Clark’s counsel did contact Rutecki’s counsel asking that the motion to dismiss be withdrawn. According to Kutecki’s counsel, he agreed that if Clark’s counsel would file a j)etitiori to reinstate the motion for a new trial he would not oppose such a petition. No such petition was filed and Rutecki’s counsel heard nothing further until he was served some months lates1 with a notice of this appeal.

3 Rutecki’s counsel knew nothing of this until after the appeal was taken.

4 In violation of Rule 63 of this Court, Clark’s counsel failed to notify the court below of the appeal and did not serve a statement of the matters to be complained of on appeal.