¶1dissenting.
¶2I would reverse the order of the Superior Court and remand this matter to the common pleas court for a new trial. I would apply the general rule that an appellate court may not conduct the initial review of a weight of the evidence claim in cases, such as this, where the trial judge is not available to address the claim.
¶3A litigant seeking review of a weight of evidence claim should not be disadvantaged by the absence of the trial judge, a circumstance not within the control of the litigant. When an intermediate appellate court conducts the initial review of the litigant’s weight of the evidence claim under such circumstances, the litigant is effectively deprived of his or her right of appellate review. Where the trial judge who presided over the trial is available to dispose of the litigant’s weight of evidence claim, the litigant is assured of initial review of the claim as well as the right to appellate review of that claim. Where, as here, the trial judge is not available, the litigant is deprived first of the opportunity for review of the weight of the evidence by the jurist who observed the proceedings, and then is deprived of the right to appellate review of the weight of evidence claim. Such litigants will have to file a petition for allowance of appeal with this Court, which is discretionary rather than automatic.
¶4In balancing the competing interests addressed by the majority, I would strike the balance so that a litigant will receive review of weight of evidence claims initially by a trial judge who has presided over the case and thorough appellate review of the disposition of those claims. This would preserve the distinct roles that the trial courts and appellate courts serve, as we explained in Thompson v. City of Philadelphia, 507 Pa. 592, 493 A.2d 669 (1985).
¶5*16An appellate court by its nature stands on a different plane than a trial court. Whereas a trial court’s decision to grant or deny a new trial is aided by an on-the-scene evaluation of the evidence, an appellate court’s review rests solely upon a cold record. Because of this disparity in vantage points an appellate court is not empowered to merely substitute its opinion concerning the weight of the evidence for that of the trial judge. Rather our court has consistently held that appellate review of the trial court’s grant of a new trial is to focus on whether the trial judge has palpably abused his discretion, as opposed to whether the appellate court can find support in the record for the jury’s verdict. In that regard the Superior Court must review a trial court’s decision to grant a new trial in the same manner as we have required review of the denial of a new trial.
¶6In reviewing the entire record to determine the propriety of a new trial, an appellate court must first determine whether the trial judge’s reasons and factual basis can be supported. Unless there are facts and inferences of record that disclose a palpable abuse of discretion, the trial judge’s reasons should prevail. It is not the place of an appellate court to invade the trial judge’s discretion any more than a trial judge may invade the province of a jury, unless both or either have palpably abused their function.
¶7To determine whether a trial court’s decision constituted a palpable abuse of discretion, an appellate court must “examine the record and assess the weight of the evidence; not, however, as the trial judge, to determine whether the preponderance of the evidence opposes the verdict, but rather to determine whether the court below in so finding plainly exceeded the limits of judicial discretion and invaded the exclusive domain of the jury.” Where the record adequately supports the trial court, the trial court has acted within the limits of its judicial discretion.
¶8Id. at 672-73 (citations omitted; emphasis supplied).
¶9■ The separate functions served by the trial court and by the intermediate appellate court when reviewing a weight of the *17evidence claim should not be merged, especially where to do so would deprive a litigant of appellate review of the claim. For this reason, I dissent.