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ALBERT A. MATULEVICH v. JOSEPH E. MATULEVICH (09/18/85)

filed: September 18, 1985.

ALBERT A. MATULEVICH, JR., APPELLANT,
v.
JOSEPH E. MATULEVICH, SR. ALBERT A. MATULEVICH, JR., APPELLANT, V. STEPHEN PERCHAK AND JOSEPH E. MATULEVICH, SR.



Appeal from the Order Entered on October 1, 1984, in the Court of Common Pleas of Luzerne County, Civil, at No. 8783 of 1978. Appeal from the Order Entered on October 1, 1984 in the Court of Common Pleas of Luzerne County, Civil, at No. 11685 of 1979.

COUNSEL

Duncan J. MacCallum, Philadelphia, for appellant.

Anthony B. Panaway, Wilkes-Barre, for Matulevich, appellee.

William F. Anzolone, Wilkes-Barre, for Perchak, appellee.

McEwen, Del Sole and Montemuro, JJ.

Author: Montemuro

[ 345 Pa. Super. Page 509]

This is an appeal from the trial court's denial of appellant's motion for a new trial. Appellant, the plaintiff below, filed an action in trespass against appellees, Joseph E. Matulevich, Sr. and Stephen Perchak, for injuries he suffered in a hunting accident. The case was tried before a jury which found no negligence on the part of either appellee and also found no comparative negligence on the part of appellant. Post-trial motions were filed and denied. Judgment was entered on the verdict, and this appeal followed.

As succinctly stated by the trial court, the pertinent facts are as follows:

The incident which gave rise to the instant law suit occurred on November 28, 1977. On that date, at approximately 4:00 P.M., a party of twenty-five hunters assembled in a wooded area of lower Luzerne County to conduct what is known as a drive, the purpose of which was to flush out white tailed antlered deer. The drive's direction was from east to west and the individual drivers were aligned from south to north. Immediately preceding the occurrence in question, the specific drivers and their relative positions were as follows: Joseph E. Matulevich, Sr., was the southernmost driver. To his immediate north and right was Steve Perchak, followed by Albert A. Matulevich, Jr., Robert J. Matulevich and Billy Sterling. It is undisputed that at approximately 4:30 P.M., a deer appeared to the north and in front of the line

[ 345 Pa. Super. Page 510]

    of drivers. This animal ran in a southerly direction and crossed through the line at a point between Mr. Perchak and Albert Matulevich. Shortly afterwards, a bullet from Joseph Matulevich's rifle struck Albert Matulevich in the upper left chest.

Lower Court Opinion, at 2.

Appellant's first assignment of error, that the jury's verdict was against the weight of the evidence, has not been preserved for our review. The lower court properly refused to address this issue because it had been presented in appellant's post-verdict motion in boilerplate form. Carnicelli v. Bartram, 289 Pa. Super. 424, 433 A.2d 878 (1981). Appellant now attempts to circumvent this obstacle by providing us with numerous arguments which are intended to support this claim. We, however, may not consider them, as it is now the established policy of this court not to ...


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