Every attorney who regularly handles appeals will encounter this question sooner or later: What is the effect of a legally or factually unsupportable theory, when that theory was submitted to a jury along with one or more other, valid liability theories, and the jury returns a general verdict finding liability?
Gray-beard practitioners, such as myself, particularly need to pay attention to this point, because the law changed relatively recently. For many years, the answer to this question was an emphatic no. Numerous appellate decisions had held that a new trial was required whenever the verdict form was too vague to exclude the possibility that the jury might have based its verdict on an erroneous issue or instruction. The state Supreme Court, without giving the issue much thought, or at least ink, held in Izzi v. Philadelphia Transportation, 195 A.2d 784 (Pa. 1963), that a new trial was required because the trial court had submitted an inapplicable claim to the jury. The court held that, “since the [second theory] is inapplicable, this was basic error which necessitates a new trial.”
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