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TOLENTINO v. BAILEY (09/23/74)

decided: September 23, 1974.

TOLENTINO
v.
BAILEY, APPELLANT, ET AL.



Appeal from order and judgment of Court of Common Pleas, Trial Division, of Philadelphia, Dec. T., 1962, No. 5020, in case of Vincent Tolentino v. Robert E. Bailey and Continental Transportation Company.

COUNSEL

Edward R. Paul, with him Joseph G. Manta, James M. Marsh, and LaBrum and Doak, for appellant.

Marvin I. Barish, with him Freedman, Borowsky and Lorry, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Cercone, J. Dissenting Opinion by Hoffman, J. Price, J., joins in this dissenting opinion.

Author: Cercone

[ 230 Pa. Super. Page 10]

This appeal arises from a jury verdict and judgment for the plaintiff, Mr. Tolentino, in the amount of $225,000. The facts of this suit in trespass, cast in the light most favorable to the verdict winner, are as follows:

In October, 1962, the plaintiff and several other co-workers, while in the course of their employment with Continental Transportation Company, were told to unload the freight from the defendant Bailey's truck. The men routinely backed the truck up to the loading dock, put on the emergency brake, put the truck in reverse gear, and placed blocks of wood (chocks) in front of its rear wheels. They then laid a metal ramp from the docks to the inside of the truck, a distance of mere inches, and began to unload the 14,000 pounds of freight on board with a forklift. As the forklift proceeded up the ramp to the truck, the truck rolled forward approximately eight feet. The forklift, with the plaintiff operating it, fell between the truck and the loading dock pinning the plaintiff's right arm underneath the steering column. The plaintiff lay in great pain for nearly ten minutes before the forklift could be removed and the plaintiff taken to the hospital.

Two operations and several months in a cast proved only moderately successful, since the plaintiff thereafter experienced severe pain whenever he attempted strenuous work. Although the plaintiff returned to work at

[ 230 Pa. Super. Page 11]

Continental when his condition improved, he was unable to perform many functions of that arduous job because of the pain he experienced. The pain became so severe that he had to quit. Since that time he has only been sporadically employed. His difficulty apparently is that he cannot perform any task which requires rotation of his right arm and the application of pressure simultaneously.

The testimony indicated that the defective conditions of the hand brake and transmission, which the defendant had failed to repair or replace after due notice, caused the truck to roll forward under the momentum of the forklift rolling up the ramp.

Although the defendant alleges that many errors occurred at the trial which, either singly or cumulatively, require our granting him a new trial, we find no reversible error committed by the learned trial court below during the hotly contested litigation of this case. However, especially in light of the dissent by our Brother, Judge Hoffman, we do feel that one point raised by the defendant merits some discussion.

During the trial the defendant introduced Pennsylvania state inspection records which indicated that one month prior to the accident Bailey's truck passed inspection with only minor repairs. The truck's brakes were listed therein as "100%." In rebuttal, Tolentino called as a witness a former state inspection officer who testified, that as a result of his surveillance of that inspection station from April to May of 1963, it was decertified and its owner prosecuted for five separate instances of issuing inspection stickers without having conducted an inspection ("paperhanging"). Bailey strenuously objected to the admission of this testimony as irrelevant and highly prejudicial insofar as there was no evidence, he argued, that any fraud was involved in the inspection in question. Tolentino countered that the credibility of a business record could be impeached

[ 230 Pa. Super. Page 12]

    by showing that its recorder had made fraudulent entries therein. See Huffman Estate, 349 Pa. 59 (1944); Funk v. Ely, 45 Pa. 444 (1863); Weamer v. Juart, 29 Pa. 257 (1857).

In his brief the defendant, Bailey, refers to the fact that the prosecutions involved in the decertification of the service station related to trucks much larger than his which could not have fit into the proprietor's garage to be properly inspected. Therefore, he argues, the decertification was irrelevant to the propriety of his inspection, and improperly implied without foundation that the defendant had received an inspection sticker without an inspection.*fn1

First, we are not here concerned with an offer of affirmative evidence to prove a collateral issue for which no proper foundation has been laid. Rather, we are concerned with rebuttal evidence offered to diminish, by impeachment, the credibility or veracity of a business record in which a relevant entry appears. The law does not require that there be a direct relationship between the proved entry and those offered for impeachment. As the Supreme Court has stated:

"The only error we see upon the record is in excluding from the jury all evidence tending to impeach Ely's books, except such as related to the account against Funk. Such a rule of evidence ...


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