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JOHN FUDALA AND RUTH FUDALA v. MARY LEEDOM AND TUPPERWARE HOME PARTIES V. JANETTE BALL VOLLMER AND KENNETH BALL. APPEAL JOHN FUDALA (10/05/79)

filed: October 5, 1979.

JOHN FUDALA AND RUTH FUDALA, HIS WIFE AND JANETTE BALL VOLLMER AND ALBERT VOLLMER, HER HUSBAND, AND KENNETH BALL
v.
MARY LEEDOM AND TUPPERWARE HOME PARTIES V. JANETTE BALL VOLLMER AND KENNETH BALL. APPEAL OF JOHN FUDALA



No. 2709 October Term, 1978, Appeal from the Order of the Court of Common Pleas of Bucks County Criminal Trespass, Motor Vehicle No. 73-6776-07-2

COUNSEL

John F. X. Fenerty, Philadelphia, for appellant.

Glenn D. Hains, Morrisville, for appellees Mary Leedom and Tupperware Home Parties.

Guy T. Matthews, Langhorne, submitted a brief on behalf of appellee Janette Ball Vollmer.

Price, Hoffman and Dowling,*fn* JJ. Hoffman, J., concurs in the result.

Author: Dowling

[ 270 Pa. Super. Page 323]

Appellant sought damages for injuries sustained in an automobile accident. He felt the jury's award was too little and appeals to this court for a new trial limited to damages only. The main support for his claim of inadequacy is a personal colloquy engaged in by the trial court following the examination of one of the medical witnesses.

There was no real controversy as to liability; the critical issue being the extent of appellant's injuries. Appellant

[ 270 Pa. Super. Page 324]

    sustained a fractured clavicle, multiple right side rib fractures, a severely sprained wrist and a pneumothorax resulting when one of the fractured ribs punctured his lung. He was taken immediately to Abington Hospital, and was admitted from the emergency room as an in-patient and remained there for ten (10) days. Medical specials presented on his behalf totaled $3,948.36.

Appellant's medical evidence (if believed) established a permanent aggravation of a pre-existing pulmonary emphysema in that the already impaired respiratory function suffered the new and additional insults of pain on and restriction of motion secondary to the rib cage fractures sustained in the accident. Appellees' medical expert essentially acknowledged the previously outlined injuries, but (if believed), found no evidence of continuing lung restriction relating to chest wall trauma, and therefore, concluded there was no connection between his respiratory embarrassment and the trauma of the accident.

At the conclusion of his testimony, out of hearing but in view of the jury, the trial judge engaged in a private conversation with the good doctor. Court was then adjourned for noon recess. Immediately upon reconvening, counsel for appellant moved for a mistrial on the basis of the court's private talk with the doctor.

There is some controversy over whether appellant's objection to the colloquy was sufficiently timely to preserve the issue on appeal. In determining what is and is not a reasonable objection, it is necessary to remain mindful of the rule's underlying purpose: to afford the trial court an opportunity to take corrective action in rectification of its own trial error. In the present case, we fail to understand how a delay of approximately 90 minutes between the objectionable incident and the formal objection during which time the court was recessed, in any way impaired the trial judge's ability to review appellant's motion and order appropriate remedial measures. See D'Allura v. Perri, ...


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