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THOMAS FARELLI v. BRIAN MARKO (12/31/85)

filed: December 31, 1985.

THOMAS FARELLI, INDIVIDUALLY AND THOMAS FARELLI, ADMINISTRATOR OF THE ESTATE OF MARYBELLE FARELLI, DECEASED, APPELLANT,
v.
BRIAN MARKO



No. 01518 Pittsburgh, 1983, Appeal from the Order of November 21, 1983, in the Court of Common Pleas of Allegheny County, Civil Division, at No. GD 80-14331.

COUNSEL

Louis J. Krzemien, Jr., Pittsburgh, for appellant.

Louis C. Long, Pittsburgh, for appellee.

Del Sole, Hester and Feeney, JJ.*fn* Del Sole, J., joins in this opinion. Hester, J., files a dissenting opinion.

Author: Feeney

[ 349 Pa. Super. Page 103]

The facts of this case essentially presented the jury with the solitary issue of whether the appellee's explanation for his cross-over was credible. The jury obviously found it to be credible. Because we believe that decision on credibility to be reasonable, and the appellee's explanation sufficient to support the verdict, we affirm.

In the early evening of June 18, 1979, a Chevrolet Monte Carlo driven by the appellee, Brian Marko, crossed over from the northbound lanes of traffic on Route 51 near

[ 349 Pa. Super. Page 104]

Pittsburgh's Liberty Tunnels and struck a southbound Volkswagon Rabbit containing the appellants, Thomas Farrelli and his wife, Marybelle Farrelli. Eyewitness testimony proffered by the appellants show that the Monte Carlo suddenly shot across the center line which divided the four lanes and collided with the front left area of appellants' car. Brian Marko testified that he was travelling in the right-hand, northbound lane of Route 51 when he suddenly pulled to the berm on his right in order to avoid a collision with a car which was rapidly overtaking him from the rear. Unable to get his car to return to the highway with a little turn of his steering wheel and quickly approaching a telephone pole, the appellee jerked the wheel to the left and was propelled as from a "slingshot" across two lanes and into the oncoming southbound Volkswagon.

After the jury returned a defense verdict, the Honorable Marion K. Finkelhor denied appellants' motion for a new trial. Thomas Farelli brought this appeal individually and as the administrator of the estate of his deceased wife.*fn1

There are two questions for review:

1. Did the trial court commit reversible error by its use of the phrase "sudden emergency" in a memorandum accompanying the order denying the motion for a new trial after it had refused to instruct the jury on the sudden emergency doctrine?

2. In a cross-over case is a defendant's explanation of his presence on the wrong side of the road sufficient to support a defense verdict?

At trial, the court refused to instruct the jury that it could find that the defendant, Brian Marko, had been confronted with a "sudden emergency." Appellants, however, mistakenly believe that this refusal to so instruct and the jury's defense verdict are irreconcilable. The allegation that the trial court's memorandum which specifically mentions "sudden emergency" is inconsistent with its refusal to

[ 349 Pa. Super. Page 105]

    charge the jury on "sudden emergency" is of little significance.

Assuming arguendo that its inclusion of the reference to a "sudden emergency" was intentional and erroneous, the verdict may nonetheless stand if the record facts support it. The Superior Court in Cohen v. Jenkintown Cab Co., 300 Pa. Super. 528, 446 A.2d 1284 (1982) clearly noted:

"[i]t is the order, and not the opinion, which is controlling. The appeal is from the order, not the opinion." Id., 300 Pa. Superior Ct. at 538, n. 8, 446 A.2d at 1289, n. 8.

Appellants' other argument, that the defense verdict is against the weight of the evidence, in essence claims that the trial court's denial of appellee's request for an instruction on the sudden emergency doctrine removed as a matter of law the only obstacle to a verdict in favor of the plaintiffs. When considering a motion for a new trial on the grounds that the verdict was against the weight of the evidence, all evidence must be reviewed. Sperrazza v. Cambridge Mutual Fire Insurance Co., 313 Pa. Super. 60, 64 n. 3, 459 A.2d 409, 411, n. 3 (1983). The record discloses stories by the appellants and appellee. The jury apparently believed both stories. Does the evidence demand that the appellee's story not be believed? Witness credibility was the determinant. Brian Marko explained his actions and the jury believed him.

The distinguished Justice Musmanno once described, in very human terms, the circumstances where the grant of a new trial is in order:

"When a jury's finding is so opposed to demonstrated facts that, looking at the verdict, the mind stands baffled, the intellect searches in vain for cause and effect, and reason rebels against a bizarre and erratic conclusion, it can be said that the verdict is shocking and unjust, and that a new trial is imperative." Green v. Johnson, 424 Pa. 296, 298, 227 A.2d 644, 645 (1967).

This was not the case here. The mention of "sudden emergency" which accompanied the ...


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