Opinion
September 26, 1956.
November 13, 1956.
Practice — New trial — Appeal — Discontinuance — Subsequent reconsideration by court below.
Where it appeared that, following a finding for plaintiff in a trespass case heard before a judge without a jury, defendant's motions for a new trial and for judgment n.o.v. were dismissed and judgment was entered for plaintiff; that thereafter upon petition of defendant, reciting certain after-discovered evidence, the prior order of the court was vacated and a new trial was granted defendant, whereupon plaintiff appealed; and that plaintiff filed in the office of the prothonotary of the appellate court a certificate of discontinuance of his appeal, apparently without the knowledge of defendant, following which the court below entered an order vacating its order granting a new trial because the court in banc would not concur in the prior order; it was Held, in the circumstances, that a new trial should be granted that defendant might present all of his evidence.
Before RHODES, P.J., GUNTHER, WRIGHT, WOODSIDE, ERVIN, and CARR, JJ. (HIRT, J., absent).
Appeal, No. 164, Oct. T., 1954, from judgment and order of Municipal Court of Philadelphia County, Jan. T., 1951, No. 30, in case of Joseph A. Pescatore v. Samuel Sabato. Judgment and order reversed.
Trespass for property damage. Before JONES, J., without a jury.
Verdict for plaintiff; defendant's motion for new trial refused and judgment entered for plaintiff; order entered granting defendant new trial; appeal by plaintiff discontinued; order of court below granting new trial vacated, opinion by BONNELLY, J. Defendant appealed.
Benjamin H. Hellman, for appellant.
Vincent C. Veldorale, for appellee.
Argued September 26, 1956.
A recital of the procedure in this case is sufficient to require a new trial. The appeal is by defendant from an order of Judge BONNELLY of the Municipal Court of Philadelphia County dated January 15, 1954, vacating a previous order of November 5, 1953, granting defendant a new trial.
Plaintiff, on January 3, 1951, brought an action in trespass against defendant in the Municipal Court. In his complaint plaintiff averred that on November 11, 1950, his automobile was damaged by an automobile owned and operated by defendant. Defendant in his answer averred that his automobile had been stolen and at the time was being operated by a person other than defendant. The case was heard before a judge without a jury, who found for plaintiff in the sum of $257.75. On October 29, 1953, defendant's motions for new trial and for judgment n.o.v. were dismissed, and judgment was entered for plaintiff. On November 5, 1953, upon consideration of defendant's petition an order was made vacating the court's order of October 29, 1953, and granting defendant a new trial. On December 7, 1953, plaintiff appealed to this Court from the order of November 5, 1953, granting defendant a new trial. The order of November 5, 1953 (filed November 12, 1953) was signed as follows: "By the Court for the Court en banc, BONNELLY, J." Defendant had sought a new trial reciting, inter alia, in his petition that the local police records disclosed that his automobile had been reported stolen at the time of the alleged accident.
On January 5, 1954, counsel for plaintiff filed, in the office of the Prothonotary of the Superior Court, a certificate of discontinuance of plaintiff's appeal, apparently without the knowledge of defendant. The discontinuance of plaintiff's appeal was followed by this order in the Municipal Court: "Jan. 15, 1954. Upon reconsideration of order of Nov. 5, 1953, granting new trial is hereby vacated for reason Court en banc would not concur. BONNELLY, J." Thereupon defendant appealed to this Court on March 16, 1954, from that order.
It is unnecessary for us to discuss the argument of plaintiff which is to the effect that upon the discontinuance of his appeal the original judgment became absolute. Defendant's position seems to be that upon the discontinuance of the appeal by plaintiff the order granting a new trial from which it had been taken became effective. Ordinarily the grant or refusal of a new trial is within the discretion of the court below, and this applies to a request for a new trial on the ground of after-discovered evidence. Holt v. Pariser, 161 Pa. Super. 315, 317, 54 A.2d 89; Stewart v. Leiper, 142 Pa. Super. 429, 431, 16 A.2d 660. Defendant consistently sought a new trial, although he was not always diligent in doing so. We think the procedure has resulted in defendant's being improperly deprived of an opportunity to have had the action of the court below in granting a new trial reviewed. Moreover, discontinuance of the appeal by plaintiff was prejudicial to defendant in that the Municipal Court (apparently without notice to defendant) thereupon reversed the order from which the appeal had been taken by plaintiff. If plaintiff had not discontinued his appeal from the order granting a new trial defendant could have argued the validity and propriety of the order. Consequently, we think that, under the circumstances, a new trial should be granted that defendant may present all of his evidence. The procedural confusion in this case would not justify a denial of this opportunity.
Judgment and order reversed, and a new trial granted.