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ANTHONY J. KUBIT v. JOHN WILLARD RUSS (05/08/81)

filed: May 8, 1981.

ANTHONY J. KUBIT, ADMINISTRATOR OF THE ESTATES OF JOSEPH CHARLES KUBIT, DECEASED, ANNA P. KUBIT, DECEASED, AND SUSAN KUBIT, DECEASED, AND JOANNE KUBIT, JOSEPH E. KUBIT AND TIMOTHY B. KUBIT, MINORS, BY ANTHONY J. KUBIT, THEIR PATERNAL UNCLE AND NATURAL GUARDIAN, APPELLANTS,
v.
JOHN WILLARD RUSS, JR., AND THE TOWNSHIP OF RICHLAND, A MUNICIPAL CORPORATION



No. 393 April Term, 1979, Appeal from the Order and Judgment of the Court of Common Pleas of Allegheny County, Civil Division, at No. 3639 July Term 1974.

COUNSEL

R. Kenneth Willman, Pittsburgh, for appellants.

Thomas A. Lazaroff, Pittsburgh, for appellees.

Spaeth, Wickersham and Lipez, JJ.

Author: Lipez

[ 287 Pa. Super. Page 31]

This is an appeal from the denial of the motion of appellants Kubit,*fn1 plaintiffs below, for a new trial following a jury verdict in favor of appellee Township of Richland.*fn2 The facts of the case as well as the issues are set forth in the lower court's en banc opinion as follows:

Shortly before 9:30 p. m., on October 6, 1973, there was a minor two-car collision on the southbound side of Route 8 (a four-lane highway running generally north and south) near its intersection with Dickie Road. Dickie Road intersects Route 8 on its west, or southbound side. The Richland Township police responded to a report of the accident, and found the two cars stopped in the curb lane of Route 8 and, partially, on Dickie Road. One of the drivers, Robert Miele, was using a flare to divert traffic into the southbound passing lane. While Lieutenant Hopper investigated the accident and directed the removal of the vehicles from Route 8, Officer Sciolla placed Mr. Miele's flare to the rear of the two police cars, which were parked behind the cars involved in the accident, and placed another flare approximately 90 feet farther back. A short time later, after all the cars had been moved off Route 8, Officer Sciolla moved the flares to the berm, but did not extinguish them.

Meanwhile, a car driven by Theodore Yannotti was proceeding toward the scene of the accident in the southbound curb lane of Route 8. According to his deposition, which was introduced at trial (Mr. Yannotti then being in Ecuador), he noticed the glow of the flares when he was

[ 287 Pa. Super. Page 32]

    some 500 yards away from them. "A couple hundred feet" later he moved into the passing lane to avoid the obstruction which he believed the glow indicated, and slowed down to about 35 miles an hour. "At least a couple hundred yards" after switching to the passing lane, near the scene of the initial accident, Yannotti was overtaken and struck by the car driven by defendant Russ. The Russ car glanced off the rear of Yannotti's vehicle and veered left into the northbound Kubit vehicle. A passenger in the Russ car testified in her deposition that she and another passenger had requested that Russ slow down -- she stated that the car was going as fast as 90 miles per hour at the time of, or immediately prior to, the collision. She also stated that she observed the Yannotti vehicle in the passing lane as it approached the top of the hill (the collision occurred at the top of the hill), when the Russ vehicle was near the Richland Restaurant. Another witness, Officer Martin, testified that the Richland Restaurant was located between 600 and 900 feet from the point where the flares appeared to be located. In light of the disastrous consequences of the collision, the court ruled that the liability and damage portions of the trial were to be bifurcated in order to avoid undue prejudice to the defendants. This ruling has not been raised in the motion for a new trial.

The trial court excluded portions of the proposed testimony of Ronald Monaca, a Pennsylvania state trooper, and James Crutchman, a Penn Hills, Pa., police officer. To summarize, plaintiffs' offers of proof with respect to both men (insofar as those officers relate to the present motion) stated that they would testify: (1) to the manner of lighting and extinguishing flares; (2) as experts in the use of flares at accident scenes; or alternatively, (3) as to their experience regarding the "practice and procedure" or "custom and usage" of police in using flares . . . . With respect to these three areas, the officers were permitted to testify only about the physical process of lighting and extinguishing of flares. The trial court sustained Richland Township's objection that Officer Monaca had not

[ 287 Pa. Super. Page 33]

    been listed as an expert witness pursuant to Pennsylvania Rule of Civil Procedure 212, and also indicated its doubts about the permissibility of allowing what it characterized as expert testimony via the second and third areas listed above. (T. 127). Later in ruling upon Richland Township's objection to Officer Crutchman's proposed testimony, the court resolved those doubts against plaintiffs. (T. 160). Plaintiffs continue to argue that these witnesses should either have been permitted to testify as experts in the ...


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