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JOSEPH F. CERVONE AND CHERYL A. CERVONE v. MICHAEL A. READING AND SCHWANS SALES ENTERPRISES V. JOSEPH F. CERVONE (01/12/88)

filed: January 12, 1988.

JOSEPH F. CERVONE AND CHERYL A. CERVONE, HIS WIFE
v.
MICHAEL A. READING AND SCHWANS SALES ENTERPRISES V. JOSEPH F. CERVONE, APPELLANT. JOSEPH F. CERVONE AND CHERYL A. CERVONE, HIS WIFE V. MICHAEL A. READING AND SCHWANS SALES ENTERPRISES, APPELLANTS, V. JOSEPH F. CERVONE



Appeal from the Judgment entered in the Court of Common Pleas of Crawford County, Civil Division, No. A.D. 1981 - 394.

COUNSEL

T. Warren Jones, Erie, for Cervone, appellant in No. 1478 and appellee in No. 1569.

Yolanda G. Barco, Meadville, for Cervone, appellees in Nos. 1478 and 1569.

William C. Wagner, Erie, for Reading, appellees in No. 1478 and appellants in No. 1569.

Brosky, Tamilia and Kelly, JJ.

Author: Tamilia

[ 371 Pa. Super. Page 282]

Appellants, Michael A. Reading (Reading), Schwan's Sales Enterprises, Inc. (Schwan's) and Joseph F. Cervone, appeal from the judgment entered following the October 6, 1986 Order of the trial court which denied all motions for post-trial relief.

Procedurally, the history surrounding the appeal is as follows: Joseph F. Cervone was operating a motorcycle on July 26, 1980, which was involved in a collision with a truck owned by Schwan's and operated by Reading. Cervone's passenger, his wife, Cheryl A. Cervone, sustained leg injuries. On June 18, 1981, the Cervones filed a summons in trespass against Reading and Schwan's, and later, on January 18, 1982, the Cervones filed a complaint against Reading and Schwan's seeking damages for Mrs. Cervone's injuries. Schwan's and Reading filed an answer and counterclaim on February 9, 1982, which denied the allegations of the complaint, and joined Joseph F. Cervone as an additional defendant. The cases were consolidated and went to trial before a jury on February 11, 1985. On February 14, 1985, the jury rendered a verdict in the amount of $600,000 in favor of Cheryl A. Cervone. The jury found Cheryl A. Cervone was not negligent, her husband was 80 per cent negligent and Reading was 20 per cent negligent.

[ 371 Pa. Super. Page 283]

Joseph F. Cervone filed a timely motion for new trial on February 25, 1985. Reading and Schwan's filed a motion for post-trial relief on March 4, 1985, which requested a new trial on the issue of damages.*fn1 Joseph F. Cervone filed a supplemental motion for post-trial relief on August 6, 1985. On October 6, 1985, the trial court entered the Order in question, denying all motions for post-trial relief. Additional defendant Joseph F. Cervone and the original defendants, Reading and Schwan's, filed separate appeals which have been consolidated.

The facts of the case are as follows. On July 26, 1980, the Cervones were traveling north on Route 19 en route to Edinboro, Pennsylvania, when their motorcycle collided with a delivery truck owned by Schwan's and operated by Reading. Appellant Cervone admits in his brief at No. 1478 Pittsburgh, 1986, that the collision occurred in a two-lane section of that highway which was marked with a double yellow line but was not designated by any signs as a "no passing zone" at that time. Reading had pulled off to the side of the road to make a delivery to a customer, and he then reentered the north bound lane. Cervone, who observed the truck's re-entry to the north bound lane, attempted to go around the truck. Cervone testified he crossed the yellow lines and continued to travel about two feet west of the western most yellow line when the truck decided to make a left turn so it could make its next delivery. At that point, the truck and the motorcycle collided and appellee's leg was severely injured upon impact with the truck. Reading testified he did not see the motorcycle until after the impact.

I. LIABILITY

The trial court notes in its Opinion there were a number of factual disputes going to the matter of liability which had to be resolved by the jury; for instance, whether the truck

[ 371 Pa. Super. Page 284]

    suddenly pulled out from the private drive onto the highway or whether there had been ample time for appellant Cervone to have seen it and, also, whether appellant Cervone was negligent in attempting to pass or whether Cervone had, rather, been forced to move over by the truck's sudden entry to the roadway.

On appeal, Cervone argues the court erred in charging the jury with respect to the no-passing zone law, 75 Pa.C.S.A. § 3307, because 1) absent the statutorily required signs, a no-passing zone did not exist and 2) even if § 3307 had been violated, the section was not enacted to protect against the type of harm which resulted. We find the jury instruction was proper. The jury was not instructed that if they determined Cervone was passing the truck in a nopassing zone at the time of the accident that they should find him liable. To the contrary, the judge stressed that the crossing of the double yellow lines would not be negligence per se. He said:

I read that only because of another section that sort of ties in, which says in addition to those things, the intersections where you're not supposed to pass on the crest of a hill and curve, and so on, and so forth, the Department, meaning the Department of Transportation, may determine those portions of any highway where overtaking and passing or driving on the left side of the roadway would be especially hazardous and shall by appropriate signs or markings on the roadway indicate the beginning and end of such zones and when the signs or markings are clear and visible to an ordinary and observant person, every driver of a vehicle shall obey the directions of the signs or markings.

Now I explain that to you for two reasons. Number one is sort of a negative. You will recall that in the tape you saw of the scene, there are some "No Passing" signs. But you will also recall that everybody agrees they weren't there in July of 1980. So do not assume from those signs that are there now or were there last fall ...


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