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filed: February 13, 1981.


No. 1245 October Term, 1979, Appeal from the Order of the Court of Common Pleas, Civil Division, of Delaware County at No. 79-14200.


George Martin, Philadelphia, for appellant.

Michael L. Murphy, Media, for Mattiace, appellee.

Andrew Forbes, Media, for Gillespie, appellee.

Spaeth, Cavanaugh and O'Kicki, JJ.*fn*

Author: Cavanaugh

[ 284 Pa. Super. Page 275]

The dispute in this case centers around a two-vehicle accident which occurred on the evening of October 25, 1976. The appellant, Anna Mazza, was a passenger in the car driven by Carl Mattiace, appellee. John Gillespie, also an appellee, was the driver of the other vehicle. Mrs. Mazza, who was injured in the accident, filed suit against both drivers.

Undisputed testimony indicated the following facts: Mattiace and appellant were traveling westward on West Chester Pike, Newtown Township, Delaware County, toward the Drexel Lodge. Mattiace missed the crossover to the Drexel Lodge and stopped his car. He then proceeded to place his

[ 284 Pa. Super. Page 276]

    car in reverse, back up, cross the two westerly lanes and drive through the crossover leading to the driveway of the Drexel Lodge. Meanwhile the Gillespie vehicle was heading eastward. The cars collided as Mattiace was attempting to cross the eastbound section of the highway. The impact to the Gillespie vehicle was to the front. The impact to the Mattiace vehicle was to the passenger side in the vicinity of the door.

In presenting her evidence, Mrs. Mazza testified first. She remembered the car backing up on the highway and commencing the left turn, but did not remember the actual impact. She testified on cross examination that it was drizzling and foggy that night in the area where the accident occurred. Appellee Gillespie, called on cross examination, stated that he had no recollection of the accident (Mr. Gillespie suffered head injuries as a result of the accident.) Appellant called Officer Welch of the Newtown Police Department who testified that both cars came to rest on the eastbound section of the highway. He also stated that visibility was clear for three-tenths of a mile in both an easterly and westerly direction, and that the road was dry. He found no skid marks in the eastbound lanes. He ascertained that the Gillespie vehicle came to rest approximately sixty to seventy feet east of the driveway to the Drexel Lodge; and that the Mattiace vehicle was partially on the medial strip and partially in the eastbound section of the highway on an angle. At the time of the accident Mattiace told Officer Welch that he did not see the Gillespie vehicle prior to the collision. At the close of plaintiff's case, the lower court granted a compulsory non-suit as to John Gillespie.

During the presentation of his case defendant Mattiace testified that he was hit by the Gillespie vehicle as he was turning onto the eastbound section of the highway. He did not stop before turning into the eastbound lane even though the medial strip was wide enough to permit his car to stop and be out of the lanes of traffic. Prior to the impact he did not see any lights, hear any horn, hear any brakes screech or

[ 284 Pa. Super. Page 277]

    hear any tires screech. He further testified as to the weather conditions as intermittent drizzle and patchy fog.

After testimony presented by the defendant Mattiace, the jury rendered a verdict in favor of him. The lower court refused the motion to take off the compulsory non-suit as to Gillespie, and a motion for a new trial as to Mattiace. From these determinations Mrs. Mazza appeals. We reverse.

Appellant argues that the lower court erred in granting the non-suit at the close of the plaintiff's case.*fn1 In Frank v. W. S. Losier & Company, 361 Pa. 272, 64 A.2d 829 (1949), it was held that the proper practice before entering a non-suit in favor of one or more defendants is to allow the other defendants to present their testimony on the question of liability of each and all of them. See also Loch v. Confair, 372 Pa. 212, 93 A.2d 451 (1953); Smith v. Lit Brothers, 174 Pa. Super. 102, 100 A.2d 390 (1953).

We think this principle as to the grant of nonsuits in multi-defendant litigation is sound and reaffirm its applicability. In support of this reaffirmation we note that a non-suit is an extraordinary intervention into the jury process and as such is properly entered only in a clear case. Hader v. Coplay Cement Manufacturing Company, 410 Pa. 139, 189 A.2d 271 (1963); Frangis v. Duquesne Light Company, 232 Pa. Super. 420, 335 A.2d 796 (1975). A non-suit may not be granted unless the jury, viewing all the evidence and all reasonable inferences arising from it, in the light most favorable to the plaintiff, could not reasonably conclude that the elements of the cause of action have been established. Ford v. Jeffries, 474 Pa. 588, 379 A.2d 111 (1977); Reuther v. Fowler & Williams, Inc., 255 Pa. Super. 28, 386 A.2d 119

[ 284 Pa. Super. Page 278]

(1978). Further, experience has shown that in multi-defendant litigation the evidence of one defendant may inculpate another the same as if introduced as part of plaintiff's case. See Smith v. Lit Brothers, supra; Jinks v. Currie, 324 Pa. 532, 188 A. 356 (1936). If a non-suit has already been granted as to that defendant there is a serious risk that the case will not be disposed of on its merits. Finally, if the whole record is devoid of evidence from which a jury might find a defendant liable there is time enough to eliminate that defendant by granting an appropriate motion for a directed verdict.

However, as the lower court noted in rejecting appellant's argument that a non-suit had been improperly granted, our courts have recognized that there are situations in which a non-suit is properly entered in favor of one of multiple defendants at the conclusion of plaintiff's case. For this proposition the lower court cited Brazel v. Buchanan, 404 Pa. 188, 171 A.2d 151 (1961); Liuzzo v. McKay, 396 Pa. 183, 152 A.2d 265 (1959); and Himmelreich v. Beidler, 55 Berks Co. 185, aff'd. 413 Pa. 464, 198 A.2d 562 (1964). The court misapplied these cases, however, for they are readily distinguished from the situation before us.

In Brazel v. Buchanan, supra, the plaintiff was injured in two accidents separated by a period of several minutes. The court approved the grant of a non-suit at the close of plaintiff's case in favor of a defendant who was directly involved in the first accident only, noting that the inebriated plaintiff's contributory negligence in bringing about the first accident was clear. The court distinguished Frank v. Losier & Co., Inc., Loch v. Confair and Smith v. Lit Brothers, all supra, on the ground that each of those three cases involved the more common factual situation in which the plaintiff is injured in a single accident and sues multiple defendants.

In Liuzzo v. McKay, supra, a wrongful death suit arising out of a three-vehicle collision, a non-suit was granted in favor of one defendant, Bucks Rental Co., at the close of plaintiff's case. The Supreme Court, in affirming the grant

[ 284 Pa. Super. Page 279]

    of the non-suit, stated, "There is no testimony in the case whatsoever, from any source, to connect the defendant Bucks Rental Co. in this matter . . . ." 396 Pa. at 187, 152 A.2d at 268.

In Himmelreich v. Beidler, supra, plaintiff exited his place of employment into a darkened outdoor area and fell into an unguarded excavation. The sole connection of the dismissed defendant with the occurrence was that he had rented a power shovel together with an operator to the excavating company. The trial court explained that it would not have granted the non-suit had there been any indication that the excavating company would implicate the dismissed defendant. 55 Berks Co. at 188.*fn2

In short, in an action in tort there is authority for granting a non-suit at the close of plaintiff's case in favor of one defendant, but only when it is clear that the other defendants cannot or will not tortiously implicate the dismissed defendant.

In the instant case there was a significant possibility that defendant Mattiace could and would present evidence tortiously implicating co-defendant Gillespie, the driver of the vehicle with which he had collided. It would be difficult to hypothesize a situation more suited to the application of the principle that the plaintiff is entitled to the benefit of all the defendants' evidence before absence of liability on the part of any defendant is judicially determined. See Frank v. Losier & Co., supra.

In holding that the non-suit was proper because defendant Mattiace did not present evidence "sufficient to raise an inference that defendant Gillespie was negligent," the court below was in error. Even if Mattiace's evidence, when offered, was not sufficient to raise an inference that Gillespie was negligent, a point upon which we defer ruling, this would not retrospectively justify the non-suit. Mattiace lost significant incentive to prove that Gillespie was at fault

[ 284 Pa. Super. Page 280]

    after Gillespie was dismissed from the case. Gillespie, of course, lost all opportunity to present evidence that Mattiace was at fault. The error of the court below in granting a non-suit to Gillespie tainted the verdict since the jury did not have the benefit of all the evidence which might have been submitted in the absence of the improperly granted non-suit. Thus, we cannot justify the untimely removal of Gillespie as a defendant on the basis of harmless error.

Moreover, the record discloses no reasonable explanation for the happening of this two-car collision that does not involve some negligence on the part of at least one of the driver-defendants. Therefore, a verdict depriving the innocent passenger-plaintiff of a recovery for her injuries is against the weight of the evidence. See Fair v. Snowball Express, Inc., 226 Pa. Super. 295, 310 A.2d 386 (1973).

Consistent with the foregoing discussion, the only appropriate remedy is the grant of a new trial as to both Gillespie and Mattiace. Due to this disposition it is not necessary to discuss plaintiff's remaining arguments.

*fn* Judge JOSEPH F. O'KICKI of the Court of Common Pleas of Cambria County, is sitting by designation.

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