Appeal from the Judgment of the Court of Common Pleas of Philadelphia County, Trial Division, Law Division at No. 647 September Term, 1968. No. 1662 October Term, 1976.
John Rogers Carroll, Philadelphia, for appellant.
Arnold H. Winicov, Philadelphia, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., dissents.
[ 244 Pa. Super. Page 494]
Appellant raises three contentions: 1) the lower court erred in refusing to grant a continuance so that a bench warrant could be executed and a material witness produced, 2) the lower court erred in refusing to allow the introduction into evidence of a deposition of that witness, and 3) the lower court erroneously excluded the testimony of a police officer concerning the declarations of two ladies who may have witnessed the accident which gave rise to this litigation. We reject these conditions and affirm.
On September 11, 1968, appellee filed a complaint in trespass alleging that a bus operated negligently by an employee of the Philadelphia Transportation Co. (hereinafter SEPTA) struck appellee, pedestrian, on July 7, 1968. On February 7, 1969, appellee deposed Leroy Barber, an employee of SEPTA and allegedly the driver of the bus involved in the accident. On March 5, 1975, appellant
[ 244 Pa. Super. Page 495]
served a subpoena on Barber, no longer a SEPTA employee, requiring that he appear as a witness for appellant on March 13, 1975. Trial started before a judge sitting without a jury on March 12. Appellee presented his case on the issue of liability and appellant countered with one witness, a police officer. On March 13, Barber did not appear in court. Appellant requested a continuance to secure Barber's presence, and the court granted a one day recess. On March 14, the witness again did not appear. At this point, appellant asked that the lower court issue a bench warrant for the witness. Appellant also requested that a transcript of Barber's deposition be introduced into evidence. The court issued the bench warrant. Appellee then presented his case on the issue of damages; appellant cross-examined appellee's witnesses, but did not call any witnesses. At the end of this testimony, the court granted a continuance until March 20, the return date of the warrant. The lower court did not rule on appellant's request that Barber's deposition be introduced into evidence.
On March 20, 1975, Barber again did not appear in court. A deputy sheriff testified that he had visited Barber's house earlier that morning. While inside the house, the deputy sheriff received a telephone call from Barber telling the deputy to leave his house. Barber refused to divulge his location. Appellant requested another continuance, but the court refused, stating that, "the case is closed so far as testimony is concerned." Appellant did not renew its request that the deposition be introduced.
On March 27, 1975, Barber was arrested and brought before the court for contempt proceedings. The court discharged Barber on April 1, 1975. On April 4, the lower court determined that appellant was liable to appellee in the amount of $27,500 damages. After the lower court denied appellant's exceptions, it entered judgment on April 27, 1976. This appeal followed.
[ 244 Pa. Super. Page 496]
Appellant first contends that the lower court erred in refusing to grant a continuance on March 20, 1975, so that the bench warrant could be executed and Barber's testimony secured. In Carey v. Philadelphia Transportation Co., 428 Pa. 321, 324, 237 A.2d 233, 235 (1968), the Supreme Court enunciated the controlling legal principles on this issue: ". . . while it is the policy of the law that the parties to an action have the benefit of the personal attendance of material witnesses wherever reasonably practicable, it necessarily lies within the discretion of the trial court to determine, in the light of all the circumstances of each case, whether or not a cause before it should be continued on the ground of absence of material witnesses. Such a continuance will be granted only where it is shown that their expected testimony is competent and material, and not merely cumulative or impeaching; that it is credible and would probably affect the result, that it probably can be obtained at a future trial, and that due diligence has been exercised to secure it for the trial, including efforts to subpoena the absent witnesses and to take their depositions." The Supreme Court also required that the ...