in holding that trial court erred in refusing jury instruction, plurality stated, “However, in view of the fact that this ruling is a departure from previous practice, it should not be regarded as mandatory in any cases tried before this date.”
How later courts described this case
- in holding that trial court erred in refusing jury instruction, plurality stated, “However, in view of the fact that this ruling is a departure from previous practice, it should not be regarded as mandatory in any cases tried before this date.”
Written by the judges who cited it.
The opinion
PRICE, Judge,
concurring:
I join and support the majority opinion in its conclusions as to (1) Negligence (2) Causal connection between negligence and amputation and (3) Metastasis. I cannot, however, agree with its conclusion on (4) Taxability of award. Defense attorneys have pressed for years for the adoption of the majority’s conclusion that juries be permitted to consider the federal tax exclusion in fixing personal injury damages. Their argument primarily is that such advice to a jury would tend to eliminate the assumed windfall that they claim damage recipients presently enjoy under the exclusion. It seems to me that there is no validity to this claim, and further that the whole tax matter is peripheral to the litigation. It is not persuasive to me that the Court of Appeals for the Third Circuit has, in Domeracki v. Humble Oil & Refining Co., 443 F.2d 1245 (3rd Cir. 1971) opined to the contrary. Indeed, the Court of Appeals for the Fifth Circuit, in Greco v. Seaboard Coast Line Railroad Co., 464 F.2d 496 (5th Cir. 1972) has reached a directly contrary conclusion to Domeracki, supra.
And regardless of the conflicting federal decisions, I believe in Girard Trust Corn Exchange Bank v. Philadelphia Transportation Co., 410 Pa. 530 , 190 A.2d 293 (1963), the Pennsylvania Supreme Court has clearly placed Pennsylvania with the majority view in the United States that in fixing damages the income tax consequences are peripheral matters that should not be taken into consideration. It is true that there is not a holding that a trial court should not mention income tax consequences, but to me such a conclusion is inescapable from that portion of the Girard Trust case quoted by the majority. The clear import, and thus the law in Pennsylvania, is that income tax consequences are not *414 to be considered in fixing damages and that the incidence of income tax as it relates to such damages should not be mentioned at all in the instructions to the jury, nor in argument of counsel.
I therefore conclude, contrary to the majority, that in this respect the lower court was correct in refusing the requested charge.