No. 2129 October Term, 1979, Appeal from the Judgment Nunc Pro Tunc entered August 24, 1982 of the Court of Common Pleas of Philadelphia County, Civil Division, No. 1736 June Term, 1976.
Herbert Somerson, Philadelphia, for appellant.
Joseph L. London, Philadelphia, for appellee.
Price, Wieand and Hoffman, JJ. Wieand, J., files a concurring statement.
[ 306 Pa. Super. Page 218]
This is a negligence action in which appellant contends that appellee's evidence below was contrary to the "incontrovertible physical facts" doctrine of Lessig v. Reading Transit & Light Co., 270 Pa. 299, 113 A. 381 (1921). Since we conclude that appellant's facts were neither evidence nor
[ 306 Pa. Super. Page 219]
"incontrovertible", we have no occasion to consider the applicability of the aforesaid doctrine and affirm.
The basic facts are not disputed. Appellee went to a diner at 10th and Russell Streets in Philadelphia on July 8, 1975 and parked his car on the west side of 10th Street. When appellee was leaving, a truck was stopped and seemingly parked alongside appellee's car. As appellee walked in between the two vehicles to enter the driver's side of his own vehicle, the truck allegedly moved, striking appellee in the back.
Appellant contends that it was physically impossible for the right rear of the truck to strike appellee while the truck was in the act of making a left turn. Brief for appellant at 5. By way of explanation, appellant further states:
It is a basic law of physics that a vehicle with fixed rear wheels and sterring [sic] on the front wheels, that a vehicle turning left will never cross over the right axis.
Brief for appellant at 5.
It is, however, an equally basic law of evidence that statements by counsel in briefs are not themselves evidence and not of record.*fn1 That, however, is the only ...