Opinion
Argued January 10, 1973
April 4, 1973.
Trial — Nonsuit — Motion to dismiss — Burden of proof — Sufficient evidence.
1. A request for nonsuit is predicated on the fact that the defendant offers no evidence, and such may not be granted once the defendant introduces evidence. [225]
2. A motion to dismiss may be granted at the conclusion of a case where the plaintiff has not only failed to prove the allegations of the complaint but has introduced evidence tending to support contrary conclusions. [225-6]
Argued January 10, 1973, before President Judge BOWMAN and Judges CRUMLISH, JR., KRAMER, WILKINSON, JR., MENCER, ROGERS and BLATT.
Original jurisdiction, No. 563 C.D. 1971, in case of Ivo Omrcanin v. William W. Hassler, President of Indiana University of Pennsylvania, and Joseph W. Serene, John B. Cutler, Edwin L. Snyder, Sam R. Light, Henry Mitchell, James M. Stroker, James M. Wyant, Patrick F. McCarthy, Members of the Board of Trustees of Indiana University. Complaint in equity in the Commonwealth Court of Pennsylvania charging discriminatory treatment by employer. After trial, motion of defendants for nonsuit granted. Order of nonsuit challenged. Held: Order of nonsuit vacated; nonsuit granted as to a portion of complaint, motion to dismiss granted as to balance of complaint.
Marjorie Hanson Matson, for plaintiff.
Edward A. Miller, Assistant Attorney General, for defendants.
In this complaint prosecuted under the original jurisdiction of this Court, plaintiff alleges that the defendants committed discriminatory and prejudicial acts against him in the course of his employment as a professor at Indiana University of Pennsylvania. The facts are detailed in the opinion reported in 6 Pa. Commw. 220 (1972).
A hearing was held before this writer sitting as a trial judge. At the close of plaintiff's case, which he presented pro se, the Court granted a motion for nonsuit with respect to the allegations contained in certain paragraphs of the complaint. The Court also at that time denied a motion for nonsuit with respect to the allegations in other paragraphs, specifically those in which plaintiff alleged: (1) a campaign of harassment with the intention of forcing plaintiff's resignation; (2) malicious and vindictive actions against him; (3) refusal of defendants to afford plaintiff the status that he enjoyed prior to the termination of his employment and his subsequent reinstatement.
Defendants presented testimony on these issues and at the close of the case the Court issued an order of nonsuit as to the complaint in toto. It was error to do so.
Under Pennsylvania procedure, a request by a defendant for a nonsuit is based on his offering no evidence and once the defendant does introduce evidence a court may not grant a nonsuit. Act of March 11, 1875, P. L. 6, § 1, 12 Pa.C.S.A. § 645; Wise, Inc. v. Beech Creek Railroad Co., 437 Pa. 389, 263 A.2d 313 (1970); Highland Tank and Manufacturing Company v. Duerr, 423 Pa. 487, 225 A.2d 83 (1966).
However, close re-examination of the record here convinces us that plaintiff has failed to prove his case. We also remain convinced that the original granting of nonsuit as to specified paragraphs was proper. The plaintiff here not only has not supported his allegations but has elicited testimony from witnesses called on his behalf which tends to support contrary propositions. We do not believe that the prior decision on the merits of the case was erroneous, only that it was improper for the Court to issue an order of nonsuit to the complaint in toto. It would have been proper to grant a motion to dismiss at the end of the case.
It is significant to note that plaintiff in the prior proceeding was afforded the benefit of a more exacting review of the evidence. There he was given the benefit of all reasonable inferences of fact arising from the evidence and also the benefit of any conflicts in the evidence that had arisen. See Engle v. Spino, 425 Pa. 254, 228 A.2d 745 (1967). In considering a motion to dismiss, a judge need only decide the case on its merits without favoring either party in the interpretation of the evidence.
Contrary to plaintiff's contention, Rule 1517 of the Pa. Rules of Civil Procedure does not require a written adjudication with numbered findings of fact and conclusions of law but in fact allows an adjudication and discussion in narrative form.
Accordingly, we issue the following
ORDER
AND NOW, this 4th day of April, 1973, the order of the court of July 26, 1972, is vacated; nonsuit is granted to the complaint excluding paragraphs 9, 10, 11, 11 (a), 11(b) and 11(c); motion to dismiss the complaint with respect to the remaining allegations is granted; costs to be paid by plaintiff.