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GILDA MECCA v. FRANK LUKASIK AND ANTOINETTE LUKASIK (07/06/87)

filed: July 6, 1987.

GILDA MECCA, ADMINISTRATRIX OF THE ESTATE OF ELIZABETH HOPE MECCA, DECEASED
v.
FRANK LUKASIK AND ANTOINETTE LUKASIK, HIS WIFE, ADMINISTRATORS OF THE ESTATE OF ANTHONY LUKASIK, DECEASED, APPELLANTS. JOSEPH HAFICH AND CHARLOTTE HAFICH, HIS WIFE, ADMINISTRATORS OF THE ESTATE OF JODY HAFICH, DECEASED V. FRANK LUKASIK AND ANTOINETTE LUKASIK, HIS WIFE, ADMINISTRATORS OF THE ESTATE OF ANTHONY LUKASIK, DECEASED, APPELLANTS. RODNEY CIZIK AND JOAN CIZIK, HIS WIFE, ADMINISTRATORS OF THE ESTATE OF MICHELLE CIZIK, DECEASED V. FRANK LUKASIK AND ANTOINETTE LUKASIK, HIS WIFE, ADMINISTRATORS OF THE ESTATE OF ANTHONY LUKASIK, DECEASED, APPELLANTS. ARTHUR J. THOMAS, SR., AND HANNAH THOMAS, ADMINISTRATORS OF ESTATE OF DAVID J. THOMAS, DECEASED V. FRANK LUKASIK AND ANTOINETTE LUKASIK, HIS WIFE, ADMINISTRATORS OF THE ESTATE OF ANTHONY LUKASIK, DECEASED, APPELLANTS. LLOYD CHERESKO AND ANNETTE CHERESKO, HIS WIFE, ADMINISTRATORS OF THE ESTATE OF MICHAEL CHERESKO, DECEASED, AND LLOYD CHERESKO AND ANNETTE CHERESKO, HIS WIFE, INDIVIDUALLY V. FRANK LUKASIK AND ANTOINETTE LUKASIK, HIS WIFE, ADMINISTRATORS OF THE ESTATE OF ANTHONY LUKASIK, DECEASED, APPELLANTS



Appeal from the Order entered May 13, 1986 in the Court of Common Pleas of Lackawanna County, Civil Division Nos. 83 Civ. 907, 83 Civ. 588, 82 Civ. 4572, 83 Civ. 906, 83 Civ. 992.

COUNSEL

James A. Doherty, Scranton, for appellants.

Robert W. Munley, Scranton, for appellees.

Cirillo, President Judge, and Tamilia and Cercone, JJ.

Author: Cercone

[ 366 Pa. Super. Page 153]

This is an appeal from judgment entered on behalf of the estates of five deceased teenagers*fn1 who were killed when the car in which they were passengers plummeted from a

[ 366 Pa. Super. Page 154]

    roadway and landed some 200 feet below. Plaintiffs are the parent-administrators of their children's estates. Defendant-appellants are the parent-administrators of the estate of Anthony Lukasik, also a teenager who the jury found was the driver of the car, and who died the night of the accident.

After a jury trial, verdicts were returned in an average amount of $3.5 million for each of the plaintiffs. Following the denial of timely post-trial motions, this appeal followed. Appellants raise numerous allegations of error which we have carefully considered.

The evidence presented by the plaintiffs at trial established that on the evening of March 6, 1981, Anthony Lukasik borrowed his sister's car, a 1976 Chrysler Cordoba with a vinyl roof. He drove to Idle Hour Lanes, a bowling alley, in Dickson City, Lackawanna County. From there he drove seven other teenagers to a bonfire party. Around 11 p.m., those present began to arrange themselves in cars in order to go home. Jill Mecca, whose younger sister, Lisa Mecca, died that night, had originally been in the Lukasik vehicle, when, at the last minute, Lisa approached the car and asked Jill to trade places with her. Lisa's boyfriend was already in the ill-fated vehicle. Jill testified that Anthony Lukasik was in the driver's seat during this exchange. Eight teenagers were in the Lukasik vehicle and all died when, minutes later, traveling at a high rate of speed, it veered from side to side on a rural road and plunged through the guard rail into the chasm below. There were no eyewitnesses to the accident and details as to speed and measurement were presented in plaintiffs' case by an accident reconstruction expert and by various law enforcement personnel who investigated the scene. Those who arrived first at the scene of the accident either were not able to determine or did not take note of who was behind the wheel. That Anthony Lukasik was the driver at the time of the accident was decided by the jury based on the aforementioned testimony by Jill Mecca, and by that of Edward Smith and James Greavy, who stated that when the Lukasik car left the party, Anthony was the driver.

[ 366 Pa. Super. Page 155]

The first allegation of error which defendant-appellants argued vigorously and relentlessly during the trial and now on appeal concerns a statement which Jill Mecca made during a grand jury investigation. Appellants contend that this remark, which Jill attributed to Michelle Cizik, Anthony Lukasik's girlfriend and, one of the deceased teenagers, should have been allowed into evidence. During defense counsel's cross-examination of Jill Mecca, he asked her, "Now, when you got out of that car, did you hear Michelle Cizik ask Tony Lukasik if she could drive the car?" Counsel for the plaintiffs objected and a sidebar discussion ensued.*fn2

The appellants sought to enter the Michelle Cizik remark into evidence as establishing, not that Michelle was the driver, but only that Jill overheard Michelle's remark. However, appellants claim that the identity of the driver of the vehicle was the key issue in the case, highlighting the meaning which they hoped the jury would give to the offered statement. Appellant then offered other rationales in an attempt to extirpate the statement from its hearsay nature. The trial court was not persuaded and refused to admit the statement as inadmissible hearsay.

On appeal, appellants assert that the remark was a statement against a party interest or an admission, which would render it as an exception to the hearsay rule. However, the offered statement had neither minimal indicia of

[ 366 Pa. Super. Page 156]

    reliability, since as Jill related it, it was said in jest, nor was it capable of cross-examination, since the declarant was deceased. As the court explained in a case cited by appellants as authority, DeFrancesco v. Western Pennsylvania Water Co., 329 Pa. Superior Ct. 508, 522-3, 478 A.2d 1295, 1302 (1984),

Hearsay exceptions have historically been justified under two divergent theories. The first and most common justification for the admission of hearsay statements is that such statements exhibit a high degree of reliability, so that the denial of the right to cross-examination is minimized. Thus, a jumble of hearsay exceptions have sprung up on the basis that the circumstances surrounding the statement guarantee the requisite measure of reliability.

There exists, however, a very narrow second category of hearsay exception which does not deal with reliability at all. Instead, out-of-court statements may be admitted regardless of trustworthiness where the right to cross-examination is preserved. This category originates with the case of party admissions. The reason for the admission of a party's statement is not that it is especially reliable, but rather, because the right to cross-examination is not lost; i.e., the party is present to take the stand and explain his statement. See McCORMICK ON EVIDENCE § 262 (2d ed. 1972); 4 WIGMORE ON EVIDENCE § 1048 (Chadbourne rev. 1972). Thus, the hearsay rule is not a ground for objection when a party's extra-judicial opinions are offered against him, although it remains a ground for objection when a party attempts to offer his extra-judicial assertions in his own behalf. See 4 WIGMORE ON EVIDENCE, supra. The probative value of such statements derives, therefore, from satisfaction of the hearsay rule via retention of the right to cross-examination, rather than from any independent indicia of reliability.

The proffered statement was hearsay which did not fall within any exception. It was not a statement against

[ 366 Pa. Super. Page 157]

    interest or an admission as in Salvitti v. Throppe, 343 Pa. 642, 23 A.2d 445 (1942), in which plaintiffs properly testified as to defendant's statement that the accident in question was his fault. Absent any substantiating behavior, Michelle Cizik's joking comment reveals nothing about her conjectured offer to drive the Lukasik car, as appellants attempt to portray it. Therefore, appellants are not entitled to a judgment n.o.v., nor to a new trial because of the trial court's refusal to permit the Michelle Cizik remark into evidence.

The next issue concerns two newspaper articles which appeared during the trial in local papers. Defense counsel requested a mistrial or at least a polling of the jury to determine whether they had read the articles which reported Anthony Lukasik as the driver of the vehicle in the accident. Insurance coverage of the vehicle involved was mentioned in one of the articles. The defendant, Mr. Frank Lukasik, administrator, related however, to the court and all counsel, in chambers, that he heard three jurors referring to one of the articles and the fact that, once they recognized it as pertaining to the trial, they closed the paper. Nevertheless, appellants maintain that these jurors could have been influenced by mention of insurance companies in the articles in light of the large verdicts which they rendered. Appellants contend that the jury would not have awarded such generous verdicts if they had thought the Lukasiks were going to have to pay them. The action, if any, to be taken in such a situation rests in the discretion of the trial court. Nicholson v. Garris, 418 Pa. 146, 210 A.2d 164 (1965). In denying the defense motion at trial, the court emphasized its instructions to the jury after it had been sworn that they must consider only the evidence presented at trial. Before the jury retired, the court instructed the jurors to consider only the evidence in making its decision and nothing extraneous to the evidence. And, as the court stated in its opinion, Mr. Lukasik's report of the overheard conversation supported the court's conclusion that the jurors were aware of their role and were taking it seriously in closing the newspaper upon seeing reference to

[ 366 Pa. Super. Page 158]

    the trial. There was no evidence that the jurors had read about the insurance in the article but merely that as soon as they read that the article dealt with the case they closed the paper.

Appellants rely on cases in which the fact of insurance was brought to the attention of the jury at trial. At most, what was involved in the instant case was reference in one newspaper article as to the insurance policy limits involved but no evidence the jurors read that portion of the article dealing with insurance. This situation does not violate the well-recognized rule that evidence in a personal injury action which informs the jury that the defendant is insured against liability is inadmissible and an improper subject of cross-examination. See Price v. Yellow Cab Co., 443 Pa. 56, 63, 278 A.2d 161, 166 (1971) and cases cited therein. And, while the reason behind the rule is "the assumption that a knowledge of the fact of insurance against liability will motivate the jury to be reckless in awarding damages to be paid, not by the defendant, but by a supposedly well-pursed and heartless insurance company that has already been paid for taking the risk", II Wigmore on Evidence § 282a, at 133-34 (3d ed. 1940), it does not necessarily follow that under the facts of this case the large verdicts resulted from one of the articles that appeared during the trial. The trial court, in weighing all factors on balance in determining the least prejudicial path in light of the information before it, was correct in its ruling refusing a mistrial.

Appellants' next allegation of error involved the testimony of Dr. George Reavy as to the loss of earning power of the deceased adolescents. Dr. Reavy was presented as an economist and he projected certain dollar amount lost earnings based on the planned careers of the minors to which the respective parents testified. He included in his computations the children's life expectancies, minus a maintenance figure plus fringe benefits figures. Appellants argue that this testimony of the economist was speculative, citing Pratt v. Stein, 298 Pa. Superior Ct. 92, 444 A.2d 674 (1982),

[ 366 Pa. Super. Page 159]

    in which our Court in the context of the calculation of an injured employee's wage loss from the date of the accident until the time of trial, repeated the well-established principle that the law requires not merely conjecture, but rather sufficient data from which damages can be assessed with reasonable certainty.

In all survival actions, damages are to be properly measured for loss of earning power less personal maintenance expenses from the time of death through a decedent's estimated working life span. Incollingo v. Ewing, 444 Pa. 263, 299, 282 A.2d 206, 229 (1971). And, while expert testimony is not required to show loss of earning capacity, either party in a negligence action is entitled to introduce expert or other evidence to establish or refute actual expected future earning capacity of a particular plaintiff. Fish v. Gosnell, 316 Pa. Superior Ct. 565, 463 A.2d 1042 (1983). For example, in McClinton v. White, 497 Pa. 610, 444 A.2d 85 (1982), in which the issue concerned the amount to be deducted from an award of damages as personal maintenance, the Supreme Court related the procedure employed by the plaintiffs in presenting their case on future lost earnings damages to the jury. The expert, who was a professor of economics, calculated the earning potential of the two decedents, who were ages 16 and 18 at the time of their death in an automobile accident, both as college graduates and as high school graduates. He based these calculations on testimony of the decedent's interests, talents and ambitions. Thus, as in this case, experts are commonly used by plaintiffs to present their case regarding the future lost earnings.

Dr. Reavy, relying partly on figures from the United States Bureau of the Census calculations for earnings data, discussed each of the plaintiff's possible earning capacities in light of the testimony already of record regarding each of the plaintiffs. As for Michelle Cizik and Jodi Hafich, Dr. Reavy testified that future wage loss of all high school and college graduates ...


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