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decided: June 22, 1979.


No. 2491 October Term, 1977, Appeal from the Order and Judgment in the Court of Common Pleas of Luzerne County, Civil Action -- Law, No. 194 of 1973.


James S. Palermo, Hazleton, for appellants.

John J. Aponick, Jr., Wilkes-Barre, submitted a brief on behalf of appellee Reichert.

Joseph J. Heston, Wilkes-Barre, for appellee Palmer.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Spaeth, J., files a concurring statement. Jacobs, former President Judge, did not participate in the consideration or decision of this case.

Author: Price

[ 267 Pa. Super. Page 248]

This appeal arises out of an automobile accident occurring on January 16, 1971, in the City of Hazleton, Luzerne County. On that date, appellant Dolores Cusatis was operating her automobile in a southerly direction on James Street. James Street intersects Diamond Avenue at a right angle; the intersection being controlled by a flashing amber light on Diamond Avenue and a flashing red light on James Street. Appellant testified that she stopped at the red light and edged out into the intersection until her vehicle was struck violently in the left side by another car. The second vehicle was travelling west on Diamond Avenue and was driven by appellee James N. Reichert, who was accompanied

[ 267 Pa. Super. Page 249]

    by the vehicle's owner, appellee William Palmer, Jr. Reichert testified that appellant's vehicle failed to stop before entering the intersection. The impact carried both automobiles some 100 feet west of the impact point.

Appellants instituted the present action against appellees and the matter was tried before a jury on September 23 and 24, 1976. A verdict was returned in favor of appellees, and a subsequent motion for a new trial was denied by the court en banc. For the reasons stated herein, we reverse the order and judgment of the court below and remand for a new trial.

The sole question presented on appeal is whether the court below erred in excluding evidence tending to show the intoxicated condition of appellee Reichert. At the commencement of trial, testimony was presented outside the hearing of the jury relative to Reichert's alleged intoxicated state at the time of the accident. Appellants presented five witnesses during the hearing. Hazleton City Police Officer Eugene Riley, the first officer at the scene of the accident, testified that Reichert's gait at the time of the incident was "rather poor and there was an odor of alcohol about him." Pennsylvania State Trooper Lawrence Cordisco testified that approximately one hour following the incident, he performed a breathalyzer test on Reichert which showed a blood alcohol content of .14. City Magistrate Joseph Marsit testified that Reichert pleaded guilty to a charge of reckless driving. Finally, both Reichert and Palmer admitted that they had been drinking during the evening. Specifically, they both consumed approximately three-quarters of a quart of Boone's Farm Apple Wine between 7:30 p. m. and the time of the accident. Additionally, at some time between 10:30 and 11:30 p. m., they had two bottles of beer apiece at a local tavern. At the conclusion of this hearing, the trial judge ruled that any testimony on the question of Reichert's intoxication must be excluded. We disagree.

Since Critzer v. Donovan, 289 Pa. 381, 137 A. 665 (1927), it has been the policy of the appellate courts of this Commonwealth that when recklessness or carelessness is at

[ 267 Pa. Super. Page 250]

    issue, proof of intoxication is relevant, but the mere fact of consuming alcohol is not admissible, being unfairly prejudicial, unless it reasonably establishes intoxication. See Billow v. Farmers Trust Company, 438 Pa. 514, 266 A.2d 92 (1970); Morreale v. Prince, 436 Pa. 51, 258 A.2d 508 (1969); Cook v. Philadelphia Transportation Company, 414 Pa. 154, 199 A.2d 446 (1964); Wentworth v. Doliner, 399 Pa. 356, 160 A.2d 562 (1960); Fisher v. Dye, 386 Pa. 141, 125 A.2d 472 (1956); Schwarzbach v. Dunn, 252 Pa. Super. 454, 381 A.2d 1295 (1977); Selby v. Brown, 250 Pa. Super. 134, 378 A.2d 862 (1977); Sentz v. Dixon, 224 Pa. Super. 70, 302 A.2d 434 (1973); Kriner v. McDonald, 223 Pa. Super. 531, 302 A.2d 392 (1973). Inspection of these cases discloses both the rationale and the parameters of this rule. In Billow v. Farmers Trust Company, supra, a case relied on by both the court below and appellees, the driver of an automobile was killed when his vehicle collided with a meat truck being driven by one of the defendants. The trial court refused the defendants' offer to prove that the decedent's blood had a significant alcohol content, and a non-suit was consequently entered against the defendants in their countersuit. Central to the defendants' offer was testimony to the effect that the decedent had a blood alcohol content of .14 at the time of the accident; a level which, in the opinion of a medical expert, would have been sufficient to affect his driving. The supreme court held that the evidence as to the decedent's alleged intoxication had been properly excluded:

"This statement fails to meet the standards we recently set forth in Morreale v. Prince, 436 Pa. 51, 258 A.2d 508 (1969), where we said: '". . . while proof of intoxication is relevant where reckless or careless driving of an automobile is the matter at issue, the mere fact of drinking intoxicating liquor is not admissible, being unfairly prejudicial, unless it reasonably establishes a degree of intoxication which proves unfitness to drive. . . ." Fisher v. Dye, 386 Pa. 141, 148, 125 A.2d 472, 476 (1956), (citations omitted).' 436 Pa. at 53, 258 A.2d at 508." Id. 438 Pa. at 516-17, 266 A.2d at 93.

[ 267 Pa. Super. Page 251]

    intoxication. 75 Pa.C.S. § 1547(d)(3). While it is true that the supreme court in Billow, when confronted with a defendant having this same amount of blood alcohol -- .14 -- ruled the testimony inadmissible, it is crucial to note that the breathalyzer result was there the sole evidence presented to support an inference of intoxication. Such a reading on a breathalyzer might be caused by legitimate medication or chemical substances. Instantly, however, appellants also proffered testimony that Reichert had consumed a considerable amount of alcohol prior to the incident, and had the odor of alcohol about him when the investigating officer arrived at the scene. Taken in its totality, this evidence reveals far more than the mere hint of intoxication condemned as prejudicial in Morreale and Vignoli.*fn1 As the evidence presented could reasonably support a conclusion

[ 267 Pa. Super. Page 253]

    that Reichert was intoxicated, the question should have been placed before the jury.

Because this case must be retried, we believe that we should also address the admissibility of Reichert's guilty plea to reckless driving. Under the former Vehicle Code, reckless driving was an offense punishable by summary conviction. See Act of April 29, 1959, P.L. 58, § 1001, 75 P.S. § 1001, repealed, Act of June 17, 1976, P.L. 162, No. 81, § 7. Pursuant to former section 1211 of the Vehicle Code, a guilty plea entered in a summary proceeding was not admissible in a civil proceeding arising out of the same facts or circumstances. See Act of April 29, 1959, P.L. 58, § 1211, 75 P.S. § 1211, repealed, Act of June 17, 1976, P.L. 162, No. 81, § 7.*fn2 Thus, the instant plea would then have been inadmissible.

Although, as noted, that section has been repealed and not replaced by a comparable section in the new Vehicle Code, the guilty plea is nevertheless inadmissible. In Loughner v. Schmelzer, 421 Pa. 283, 218 A.2d 768 (1966), the defendant in an automobile accident case introduced evidence that the plaintiff had been convicted of failure to drive on the right side of the highway. Citing its prior decision in Hurtt v. Stirone, 416 Pa. 493, 206 A.2d 624 (1965), the supreme court reversed the conviction and remanded for a new trial on the basis that "evidence of the conviction of a traffic violation or of small misdemeanors is not admissible in a civil suit for damages arising out of the same traffic violation or lesser misdemeanors." Loughner v. Schmelzer, supra 421 Pa. at 284-85, 218 A.2d at 769. We therefore hold that upon re-trial, while evidence of Reichert's intoxication may be

[ 267 Pa. Super. Page 254]

    introduced, the evidence of his guilty plea to reckless driving may not be admitted.*fn3

The order and judgment of the court below are therefore reversed, and the case is remanded for proceedings consistent with this opinion.

SPAETH, Judge, concurring:

I wish only to note that the Court in Billows did not discuss the statutory presumption issue, and on that issue the decision therefore does not bind us.

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