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LAWRENCE CATINA v. ALFRED E. MAREE AND BURKE CHEVROLET SALES (06/28/82)

decided: June 28, 1982.

LAWRENCE CATINA, ROCCO CATINA AND ANITA CATINA, HIS WIFE, APPELLANTS,
v.
ALFRED E. MAREE AND BURKE CHEVROLET SALES, INC. LAWRENCE CATINA, ROCCO CATINA AND ANNA CATINA, HIS WIFE, APPELLANTS, V. ALFRED E. MAREE, SR., INC.



No. 80-3-469, Appeal from the Order of the Superior Court of Pennsylvania filed November 27, 1979 at Nos. 2311 and 2312 October Term, 1978, affirming the Order dated August 1, 1978 of the Court of Common Pleas of Luzerne County, in Trespass No. 1765 October Term, 1970 and No. 1766 October Term, 1970.

COUNSEL

Sandor Yelen, Wilkes Barre, for appellants.

Joseph A. Quinn, Jr., George A. Spohrer, Wilkes Barre, for appellees.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. Roberts, J., filed a dissenting opinion in which Hutchinson, J., joined. Nix, J., filed a dissenting opinion in which Hutchinson, J., joined.

Author: Larsen

[ 498 Pa. Page 445]

OPINION OF THE COURT

On November 19, 1968, appellant Lawrence Catina was struck by a motor vehicle (he was a pedestrian at the time) and suffered, as a result, severe and permanent personal

[ 498 Pa. Page 446]

    injuries. A suit in trespass was filed in the Court of Common Pleas of Luzerne County against the driver, Alfred E. Maree, Burke Chevrolet Sales, Inc., and Alfred E. Maree, Sr., Inc., appellees, and a jury trial commenced in May, 1976.*fn1 The jury returned a verdict in favor of appellees.

Appellants' motion for a new trial was denied by a court en banc on August 1, 1978 which denial was affirmed by the Superior Court on November 27, 1979. Catina v. Maree, 272 Pa. Super. 247, 415 A.2d 413 (1979), reargument denied February 19, 1980. This Court granted appellants' petition for allowance of appeal on March 20, 1980. We now reverse the decision of the Superior Court and remand for a new trial.

It has never been disputed that appellee Alfred Maree was the driver of the vehicle that struck appellant Lawrence Catina. The major point of contention at trial was whether Mr. Catina was on or off the surface of the road when impact occurred. Appellants attempted to demonstrate that he was on the berm and about five to six feet from the road; appellees attempted to demonstrate that he was on the road when he was struck by Mr. Maree's vehicle.

As the Superior Court observed, the actual details of the accident "are obscured in the haze of discordant recollections so common to this type of incident." 272 Pa. Super. at 253, 415 A.2d at 417. At issue in this appeal is the recollection of one of the witnesses for the defendants/appellees, Louis Jakubczyk. Both Mr. Catina and Mr. Jakubczyk were U.S. Army reservists on their way to a meeting at the U.S. Army Reserve Center in Plains Township. There were two parking lots located across the highway (Route 315) from the center. Mr. Jakubczyk testified he had parked his car and was waiting to cross the highway when he noticed a fellow reservist (not recognized at that time as Mr. Catina) standing about twenty feet to his left (north of him) about five to six feet from the road. He (the witness) turned to his right

[ 498 Pa. Page 447]

(south) to observe traffic and, as he turned back to the left, he heard a loud banging noise, observed a car (not identified as Mr. Maree's) pass in front of him on the roadway, and then saw Mr. Catina lying 100 feet south of him on the road.*fn2

On re-cross examination, counsel for plaintiffs/appellants attempted to impeach the credibility of the witness with respect to the location of the reservist vis-a-vis the witness through the use of a prior statement that Mr. Jakubczyk had rendered on the night of the accident. In that statement, the witness had placed the fellow reservist observed just prior to the accident as being to his right, or south, of him. This was the only area of the witness's recollections that counsel sought to impeach by use of the prior inconsistent statement.

On re-direct following re-cross, counsel for defendants/appellees then requested, and was granted, permission to have the witness read the entire statement. The following exchange took place:

RE-DIRECT EXAMINATION BY [DEFENSE COUNSEL]:

Q. Mr. Jakubczyk, would you read for us the entire statement that you gave on ...


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