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RODOLFO FOLINO AND LIDIA FOLINO v. HOWARD J. YOUNG (10/21/87)

filed: October 21, 1987.

RODOLFO FOLINO AND LIDIA FOLINO, APPELLANTS,
v.
HOWARD J. YOUNG, JR., JUDITH N. AGSTEN, AND KENDALL STITZEL, APPELLEES



Appeal from Order Entered October 28, 1986 in the Court of Common Pleas of Berks County, Civil No. 85 November 1982.

COUNSEL

John R. Badal, Reading, for appellants.

David M. Kozloff, Reading, for Young, appellee.

Olszewski, Del Sole and Beck, JJ. Del Sole, J., dissents with opinion.

Author: Olszewski

[ 368 Pa. Super. Page 221]

Appellants appeal from the trial court's order dismissing their motion for post-trial relief. In this appeal, we must decide: (1) whether the trial court, in a subsequent civil action, erred by excluding evidence of appellee Young's

[ 368 Pa. Super. Page 222]

    prior criminal conviction which arose out of the same facts that were the focus of the civil action; and (2) whether appellants are entitled to a directed verdict against appellee Young on the issue of negligence.*fn1 For the reasons stated below, the order of the trial court is reversed and the case remanded for a new trial. Trial court to enter a directed verdict for appellants on the issue of negligence. Jurisdiction is relinquished.

The present action arose out of a collision which occurred in the early afternoon of December 15, 1980, on U.S. Route 22, a three-lane highway, in Maidencreek Township, Berks County. Appellee Young was driving in a southerly direction in the southbound lane and upon entering a left-hand curve, crossed into the right-hand northbound lane where a collision occurred with appellants' northbound vehicle. Subsequently, two additional northbound vehicles were involved in the collision. A passenger in appellee Young's vehicle died in the collision and, in a prior criminal jury trial, Young was convicted of homicide by vehicle (75 Pa.C.S.A. § 3732) based on his conviction for driving at an unsafe speed (75 Pa.C.S.A. § 3361).

Appellants thereafter initiated the instant civil action against appellee Young for damages arising out of the same collision.*fn2 The jury found that appellee Young was not negligent and entered a verdict in his favor. Appellants filed a post-trial motion requesting a new trial or, in the alternative, a partial directed verdict against Young on the issue of liability. The trial court denied appellants' motion and this timely appeal followed.

[ 368 Pa. Super. Page 223]

Central to this appeal is appellants' contention that the trial court erred by excluding evidence of Young's prior criminal conviction which arose out of the same facts that were the focus of the subsequent civil action. Appellants contend that Young's prior conviction should have been admitted as conclusive evidence that Young was operating his vehicle at an unsafe speed and was, therefore, negligent at the time of the collision.*fn3

It is well established that questions concerning the admission or exclusion of evidence are within the sound discretion of the trial court and will be reversed on appeal only where a clear abuse of discretion exists. See Camp Construction Corp. v. Lumber Products Co., 311 Pa. Super. 381, 457 A.2d 937 (1983). We agree with appellants that the trial court abused its discretion in excluding evidence of Young's conviction for driving at an unsafe speed.

The leading Pennsylvania case concerning the admissibility of a criminal conviction in a subsequent civil trial is Hurtt v. Stirone, 416 Pa. 493, 206 A.2d 624 (1965) cert. denied, 381 U.S. 925, 85 S.Ct. 1561, 14 L.Ed.2d 684, in which our Supreme Court found that proof of an extortion conviction was conclusive evidence of the fact of extortion in a subsequent civil suit against the convicted extortioner. In Hurtt, our Supreme Court recognized that "in Pennsylvania, judgments in criminal cases for years were held inadmissible to establish the facts in a civil ...


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