483 F2d 81 Mascuilli v. United States

483 F.2d 81

Helen MASCUILLI, Administratrix of the Estate of Albert
Mascuilli, Deceased, Appellant,
v.
UNITED STATES of America,

No. 72-1615.

United States Court of Appeals,
Third Circuit.

Argued May 22, 1973.
Decided July 31, 1973.

Milton M. Borowsky, Martin J. Vigderman, Freedman, Borowsky & Lorry, Philadelphia, Pa., for appellant.

Harlington Wood, Jr., Asst. Atty. Gen., Washington, D. C., Robert E. J. Curran, U. S. Atty., Philadelphia, Pa., Alan S. Rosenthal, Michael Kimmel, Walter H. Fleischer, Attys., Dept. of Justice, Washington, D. C., for appellee.

Before KALODNER, ALDISERT and ADAMS, Circuit Judges.

OPINION OF THE COURT

PER CURIAM:

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1

The instant appeal arises out of the death of a longshoreman on May 1, 1959 while employed on the USNS Marine Fiddler in the Port of Philadelphia.

2

We remanded the case for a new hearing and determination of the issue of damages some four years ago when it came before us for the third time. In doing so we directed the district court to compute earnings of the deceased longshoreman and to "employ when applicable and relevant the actual figures rather than estimates." Mascuilli v. United States, 411 F.2d 867, 873-874 (1969).

3

The district court, 343 F.Supp. 439, in calculating loss of earnings used "estimates" instead of "actual" figures, despite the fact that salary figures for longshoremen from the date of death to the date of hearing were adduced in evidence. In doing so it disrgearded our explicit directions.

4

For the reason stated the judgment of the district court will be reversed and the cause remanded with directions to proceed forthwith in accordance with our stated prior instructions to use actual figures, and not estimates, in calculating loss of earnings.

5

We deem without merit other contentions advanced by the appellant.