matter of mccormick v eastport manor constr., 19 ad3d 826, 828 [2005]

33 of the Jones Act and upon statutes traceable to the Judiciary Act of 1789 which in 'all civil causes of admiralty and maritime jurisdiction' saves to suitors 'the right of a common-law remedy where the common law is competent to give it.' 5 These statutes authorize Pennsylvania courts to try cases coming within the defined category. Jurisdiction of the state court to try this case rests solely upon Sec. The petitioner's suit rested on asserted rights granted by federal law and the state courts so treated it.

We do not have in this case an effort of the state court to enforce rights claimed to be rooted in state law. Under the Pennsylvania rule one who attacks the validity of a written release has the burden of sustaining his allegation by 'clear, precise, and indubitable' evidence meaning evidence 'that is not only found to be credible but of such weight and directness as to make out the facts alleged beyond a reasonable doubt.' Witnesses who testify against the release must not only be credible, but 'distinctly remember the facts to which they testify and narrate the details exactly.' The court held that since the petitioner had not sustained this burden of proof, the trial judge should have withdrawn the case from the jury. It conceded that 'in Admiralty cases, the responsibility is on the defendant to sustain a release rather than on a plaintiff to overcome it', but concluded that since petitioner had chosen to bring his action in a state rather than in an admiralty court, his case must be governed by local, rather than admiralty principles. 4 That court gave judgment to the defendant non obstante veredicto, not upon an appraisal of disputed questions of fact concerning the accident, but because of a conclusion that petitioner had failed to sustain the burden of proof required under Pennsylvania law to invalidate the release. Respondent made a motion for a new trial and judgment non obstante veredicto which under the Pennsylvania practice was submitted to the trial court enbanc.

Matter of mccormick v eastport manor constr., 19 ad3d 826, 828 [2005]