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Drum v. Shaull Equipment and Supply Company

In personal injury action, judgment in favor of defendants vacated and new trial ordered; record was clear that verdict ultimately delivered by jury was inherently inconsistent and should not have been permitted to stand; court abused its discretion in denying plaintiffs' request for a new trial.

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� 1 In this action, James T. Drum (“Drum”) and Linda I. Drum appeal the judgment entered on a molded verdict against them and in favor of Appellees Shaull Equipment and Supply Company (“Shaull”), Larry Brown and Marlin Pentz in the Court of Common Pleas of Allegheny County. *fn1 This matter is before us on remand from the Supreme Court of Pennsylvania for reconsideration in light of the standard for review of the denial of a motion for a new trial recently enunciated by our Supreme Court in Harman v. Borah, 562 Pa. 455, 756 A.2d 1116 (2000). *fn2 Upon review under Harman, we vacate the judgment in favor of Appellees and remand this matter for a new trial.

� 2 The facts underlying this personal injury action sounding in negligence may be summarized as follows. Drum was employed as a heating and plumbing installer by George Roth Heating and Plumbing (“Roth”). In February 1996, Shaull contracted with Roth for the installation of an overhead radiant heating system to be suspended from the ceiling in the service garage area of Shaull’s facility north of Pittsburgh in Bakerstown, Pennsylvania. Roth assigned Drum to the Shaull project. Brown was Shaull’s Service Manger while Pentz was the branch manager of the Bakerstown branch.

� 3 Early in the project, Drum and his co-workers were discussing the equipment necessary to complete the project. Included in the discussion was the need for scaffolding to reach the ceiling area. Brown apparently overheard this discussion and volunteered the use of Shaull’s forklift. The parties dispute the precise nature and effect of this exchange. Drum testified that Brown said: “You can use the forklift there. You can put a pallet on it and lift yourself up and work off the pallet.” (N.T. Trial, 1/11/99, at 338.) Brown, however, testified that he had suggested that the Roth employees use the forklift in order to remove a piece of equipment, not for use as a work platform. Specifically, Brown testified that:

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