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GEORGE R.H. ELDER v. ADAM ORLUCK V. BOROUGH HARRISVILLE (09/14/84)

filed: September 14, 1984.

GEORGE R.H. ELDER
v.
ADAM ORLUCK V. BOROUGH OF HARRISVILLE, APPELLANT



NO. 1164 PITTSBURGH 1982, Appeal of the Judgment of the Court of Common Pleas of Allegheny County, Civil Division, at No. G.D. 78-20362.

COUNSEL

David B. Fawcett, Jr., Pittsburgh, for appellant.

Richard B. Tucker, III, Pittsburgh, for Elder, appellee.

Louis C. Long, Pittsburgh, for Orluck, appellee.

Daniel M. Berger, Pittsburgh, Carol Nelson Shepard, Philadelphia, on the brief, for the Pennsylvania Trial Lawyers' Association, amicus curiae.

Brosky, Del Sole and Montgomery, JJ. Montgomery, J., files a dissenting opinion.

Author: Del Sole

[ 334 Pa. Super. Page 334]

OPINION

This appeal arises from an action instituted by George R.H. Elder (Elder) against Adam Orluck (Orluck) to recover for personal injuries suffered when the motor vehicle which he was driving was "rear-ended" by a motor vehicle driven by Orluck. The Appellant is the Borough of Harrisville

[ 334 Pa. Super. Page 335]

(Harrisville) which was joined as an additional defendant by Orluck.

The motor vehicle accident in question occurred in the afternoon of Memorial Day, May 30, 1977 on Route 8, just outside the borough limits of Harrisville. Route 8 is a state highway which runs in a north-south direction through Harrisville. On the above day, Harrisville held its annual Memorial Day parade. Harrisville had secured permission from the Department of Transportation to close a portion of Route 8 located within the borough for approximately one hour in order to stage the parade. The record indicates that the permit was issued with the express condition that Harrisville would be responsible for "posting, policing, and maintenance of all highways and/or streets used as a detour so that no inconvenience would occur to the traveling public". There was at least one state policeman present at the parade site, however the record reveals that the policeman only led the parade and did not actively participate in traffic control.

Immediately prior to the start of the parade, at approximately 1:30 p.m., the Harrisville police completely halted all southbound traffic on Route 8 at a point within the borough limits so that parade units could enter onto the parade route. The point of the traffic stoppage was just before the designated parade detour turn-off. Traffic was then allowed to proceed onto the detour route after the stoppage which lasted for about five to ten minutes. The record further reveals that the stoppage of traffic caused some back-up of traffic on Route 8 although there was some dispute over the extent of said back-up.

It was apparently a short time after the traffic stoppage that the accident in question occurred. While the testimony of the two drivers, Elder and Orluck, conflicts on the facts surrounding the accident, it was never denied that Orluck's vehicle struck the rear-end of Elder's vehicle. Elder testified that he was traveling southbound on Route 8 towards Harrisville on the day of the accident. He stated that as he neared a hill on Route 8 just outside the Harrisville borough

[ 334 Pa. Super. Page 336]

    limits, he observed a truck traveling directly in front of his vehicle begin to abnormally slow near the crest of the hill. Elder then testified that he also began to slow down as he neared the crest of the hill and that he was struck from behind by another motor vehicle as he had just cleared the crest of the hill. Soon after, Elder learned that it was Orluck's vehicle that had struck his vehicle. Elder's basic contention against Orluck at trial was that Orluck had been negligent in failing to operate his motor vehicle so as to stop it within an assured clear distance.

Orluck's defense against Elder at trial was that the accident was in whole or at least in part due to the fact that the tail lights on Elder's vehicle were inoperable at the time of the accident. Orluck differed with Elder as to the time that he believed the accident occurred on the day in question. Elder testified that the accident occurred in the early afternoon, a fact confirmed by the other witnesses at trial. Orluck believed that the accident had occurred in the late afternoon. In addition, Orluck could not recall seeing a woman who testified at trial that she was attempting to signal traffic to slow at the time of the accident. Elder testified that he had seen the woman immediately prior to the accident.

Both Elder and Orluck contended at trial that the complete stoppage of traffic by Harrisville on Route 8 created a dangerous condition for traffic, which was a concurrent cause of the accident. The two parties contended that the accident could have been avoided with proper traffic planning. They argued that it would have been entirely feasible to have the parade units enter onto Route 8 at a point beyond the detour turn-off which would have eliminated the need for a traffic stoppage and consequently eliminated the resulting traffic back-up. It was also argued that with or without the traffic stoppage, Harrisville should have warned motorists approaching the hill on Route 8 that a parade was taking place so that the motorists could exercise more care when entering the borough. Elder and Orluck

[ 334 Pa. Super. Page 337]

    argued that flares, signs or even a policeman could have been used in this regard.

Harrisville's defense at trial was that the accident was caused solely through the negligence of one or both of the drivers and that its actions were not negligent. Alternatively, Harrisville argued that even if it had acted negligently its actions were not the legal cause of the accident.

The trial court submitted the case to the jury which returned a verdict for Elder in the amount of $250,000 and apportioned fault as follows: Elder -- 25%, Orluck -- 60%, and Harrisville -- 15%. The trial court then molded the verdict based on the jury's findings of comparative fault and later molded the verdict a second time to include delay damages. Harrisville then filed its own motion to mold the verdict to deny Elder any recovery from Harrisville on the grounds that Elder was found more negligent than Harrisville. The trial court denied that motion and also subsequently denied Harrisville's motion for judgment notwithstanding the verdict and/or new trial. Judgment was entered on the verdict and Harrisville filed this timely appeal. Orluck did not appeal although he has filed a brief with this Court.

Harrisville advances the following arguments for reversal of the verdict below: 1) The trial court erred in denying Harrisville's motion for compulsory non-suit and directed verdict; 2) The trial court erred in not submitting Harrisville's cross-claim against Orluck to the jury; 3) The trial court erred in not charging the jury on superseding and intervening cause and active-passive negligence; 4) The trial court erred in advising the jury that Elder had been awarded payment of all his medical expenses in connection with the accident and $15,000 in work loss benefits; 5) The trial court erred in its charge on the assured clear distance and sudden emergency doctrines; 6) The trial court erred when it instructed the jury that Harrisville had the duty to regulate the traffic caused by the parade, as a matter of law; 7) The trial court erred in charging the jury on the issue of the aggravation of a pre-existing condition suffered by Elder; 8) The trial court erred in denying Harrisville's

[ 334 Pa. Super. Page 338]

    point for charge on the duty of a driver to control his speed as he approaches the crest of a hill; and 9) Elder is barred from any recovery against Harrisville based on the language of the Pennsylvania Comparative Negligence Act (hereinafter "the Act") because the Act prohibits a more negligent plaintiff from recovering against a less negligent defendant.

The first issue raised by Harrisville pertains to the alleged error of the trial court in its denial of the motions for compulsory non-suit and directed verdict. Harrisville contends that the evidence fails to show that it was negligent in any way with regard to the accident in question and that a non-suit or directed verdict should have been granted accordingly. In support, Harrisville cites the testimony of Elder and Orluck and concludes that it was not negligent because neither driver explicitly stated that the traffic back-up was a contributing factor to the accident. Our review of the entire record shows this argument to be meritless.

We begin by noting that the issue as framed by Harrisville is not a proper subject for disposition on appeal. It is well settled that the trial court's failure to grant a compulsory non-suit is not appealable. Churilla v. Barner, 269 Pa. Super. 100, 409 A.2d 83 (1979); Muchow v. Schaffner, 180 Pa. Super. 413, 119 A.2d 568 (1956). Similarly, we find that the trial court's refusal of a point for binding instructions, or directed verdict, is also not appealable. What is appealable is the trial court's order denying a motion for judgment notwithstanding the verdict. Although Harrisville has failed to focus its appellate argument in terms of the j.n.o.v. issue, we note that the trial court opinion treats the issue in the context of its denial of Harrisville's motion for judgment notwithstanding the verdict. Accordingly, we will review Harrisville's first argument as alleging error in the denial of its motion for judgment notwithstanding the verdict.

[ 334 Pa. Super. Page 339]

It is well settled that in reviewing the trial court's denial of a motion for judgment notwithstanding the verdict, we must view the evidence in a light most favorable to the verdict winner, resolving all doubts in his favor and giving him the benefit of every reasonable inference arising from the evidence. Feld v. Merriam, 314 Pa. Super. 414, 461 A.2d 225 (1983); McDevitt v. Terminal Warehouse Co., 304 Pa. Super. 438, 450 A.2d 991 (1982). It is also well settled that judgment notwithstanding the verdict may only be granted in a clear case when the facts are such that no two reasonable men could fail to agree that the verdict was improper. Walsh v. Pennsylvania Gas & Water Co., 303 Pa. Super. 52, 449 A.2d 573 (1982). Our review of the record in light of the above standards shows that the verdict was supported by ample evidence and thus the refusal of judgment notwithstanding the verdict was proper.

In its brief, Harrisville exclusively concentrates on the testimony of Elder and Orluck but ignores the testimony of other witnesses which shows there to be sufficient evidence for a jury to find that Harrisville was negligent and that its negligence was a concurrent cause of the accident. For example, there was testimony from a woman, whose residence is located near the crest of the hill in question, that she attempted to warn motorists approaching Harrisville on Route 8 of the slowdown in traffic. In addition, she testified that there were no signs or flares in the vicinity of the crest of the hill or any police officers to warn motorists that a parade was in progress. These facts were confirmed by the testimony of the Harrisville police chief and a Harrisville police officer. There is also testimony in the record regarding the stoppage of traffic and parade control. Taken as a whole, the testimony of all the witnesses, including Elder and Orluck, shows that a jury could reasonably find that Harrisville was negligent in failing to exercise ordinary care in regulating the parade traffic. Further, the testimony taken as a whole would also support a finding that Harrisville's negligence was a contributing factor to the occurrence of the accident. We

[ 334 Pa. Super. Page 340]

    cannot say that such findings would be unreasonable in light of the record.*fn1

Harrisville's second contention is that the trial court should not have refused to submit its cross-claim against Orluck to the jury. In its cross-claim, Harrisville claimed contribution or indemnity from Orluck. The record reveals that the trial court found that the jury would have been confused by the issues in the cross-claim and that there was no evidence to support a finding of indemnity in favor of Harrisville. The trial judge instructed the jury that Harrisville was either solely negligent, concurrently negligent or not negligent. In its opinion, the trial court also noted that Harrisville still has the right to seek contribution from Orluck. We agree with the trial court.

The standard for a finding of indemnity in a negligence case can be found in the oft cited case of Builders Supply Co. v. McCabe, 366 Pa. 322, 77 A.2d 368 (1951). Our Supreme Court held in McCabe that a person is entitled to indemnity if that person, without active fault on his part, has been compelled, by some legal obligation, to pay for damages occasioned by the active negligence of another. The Court found that this standard does not relate to degree of negligence but rather to the character of the wrong which gives rise to liability. Further, the McCabe Court noted that there can be no indemnity between joint or concurrent tortfeasors. Since Harrisville has not been denied its right of contribution, the issue becomes whether the record would support a finding that Harrisville's liability was based solely on some legal obligation between it and Orluck. We hold that no such finding can or could be made.

The record is devoid of any evidence showing there to be any type of legal obligation between Harrisville and Orluck, and Harrisville has not expressly set forth any facts

[ 334 Pa. Super. Page 341]

    to support such a finding. The contention at trial was that Harrisville was actively negligent with regard to the accident and evidence was introduced in support of that argument. Harrisville presented its own evidence to counter that position. No evidence was ever offered by Harrisville which would have supported a finding of indemnity in its favor. The instant case is thus dissimilar to those cases in which indemnity has been permitted, See Burbage v. Boiler Engineering & Supply Co., 433 Pa. 319, 249 A.2d 563 (1969); Builders Supply Co. v. McCabe, supra; O'Malley v. Peerless Petroleum, Inc., 283 Pa. Super. 272, 423 A.2d 1251 (1980). In all the above cited cases there was liability imposed on a party solely because of another's active negligence and based on some legal obligation between the two parties. Such is not the case with Harrisville because its fault was based solely on its own actions in parade traffic control. Harrisville was not compelled to pay ...


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