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KUNTZ v. FIRTH (03/19/70)

decided: March 19, 1970.

KUNTZ
v.
FIRTH, APPELLANT



Appeal from judgment of Court of Common Pleas of Montgomery County, No. 67-14070, in case of Martin L. Kuntz et ux. v. David W. Firth et al.

COUNSEL

Albert R. Subers, with him Bean, DeAngelis, Tredinnick & Giangiulio, for appellant.

Robert E. Slota, with him Haws and Burke, for appellee.

Wright, P. J., Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. (Watkins, J., absent). Opinion by Montgomery, J.

Author: Montgomery

[ 216 Pa. Super. Page 156]

In this trespass action arising out of a collision between two motor vehicles, Elizabeth C. Kuntz, plaintiff-appellee, received in a trial before a jury a verdict of $5,000.00 against David W. Firth, defendant-appellant. Motions for a new trial or judgment n.o.v. having been dismissed and judgment entered on the verdict, this appeal followed.

The only error assigned by appellant is that the trial judge erroneously sustained the plaintiff-appellee's objection to the use at trial of the deposition of Margaret Ann Carr, a passenger in appellant's car at the time of the accident. At the time of trial Miss Carr was a student at Shippensburg State College, which is 127 miles from Norristown, Montgomery County, where the trial was held on March 18, 1969. Her deposition as a "going" witness for use at trial was taken at Norristown, Pennsylvania, on March 3, 1969, under Pa. R. C. P. No. 4003(a)(1).

Although only a general objection to the use of this deposition appears in the record of the trial, the discussion of same having taken place in chambers off the record, the opinion of the court below reveals that the court so ruled for the reasons that (1) the deposition

[ 216 Pa. Super. Page 157]

    was improperly taken; (2) the deposition was merely corroborative of defendant's testimony and thus its inadmission was harmless; (3) the denial of its use was an appropriate exercise of judicial discretion; and (4) the criteria of Pa. R. C. P. No. 4020 were not satisfied.

There is nothing in the record to support appellee's argument that the deposition was improperly taken. The deposition, itself, reveals that at the time of its taking, Miss Carr was preparing to leave for Shippensburg State College, which appellee concedes is about 130 miles away from the Montgomery County courthouse. Although a "going" witness has been defined as ". . . a witness who is about to depart from the state or who is in the state only temporarily," 4 Standard Pennsylvania Practice 512, this definition is subject to question in light of Pa. R. C. P. No. 4020, which provides for the use of a deposition of a witness over 100 miles from the courthouse at time of trial. Furthermore, we find that the appellee has waived this issue in this case for the reason that no protective order was sought under Pa. R. C. P. No. 4012, which provides that "(a) After notice is served for taking a deposition by oral examination, upon motion seasonably made by any party or by the person to be examined, the court may make an order that (1) the deposition shall not be taken;". The general objection to the deposition made at the time of its commencement was an inadequate and ineffectual compliance with Pa. R. C. P. No. 4012.

It is incumbent on the proponent of a deposition at trial to show the unavailability of the witness or the exercise of due diligence on his part in attempting to locate the witness. Jerominski v. Fowler, Dick & Walker, 377 Pa. 458, 105 A.2d 320 (1954). However, Pa. R. C. P. No. 4020(a)(3) provides ...


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