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LEE WERTZ v. ERNEST KEPHART (05/25/88)

filed: May 25, 1988.

LEE WERTZ, JR. AND FRAN S. WERTZ, HIS WIFE, APPELLANTS,
v.
ERNEST KEPHART, JR., ROBIN K. MILLER AND JOY BRUBAKER



Appeal from the Judgment entered in the Court of Common Pleas of Blair County, Civil Division, No. 338 C.P. 1981

COUNSEL

Frederick B. Gieg, Altoona, for appellants.

Michael W. Chorazy, Hollidaysburg, for Miller and Brubaker, appellees.

Tamilia, Popovich and Hoffman, JJ. Popovich, J., concurs in the result.

Author: Tamilia

[ 374 Pa. Super. Page 276]

On the evening of November 7, 1980, defendant Kephart and appellee Brubaker were at a tavern called Mr. Bill's drinking with some friends. After about an hour at Mr. Bill's, Brubaker and Kephart decided to go to a movie, following which Brubaker called her friend, Robin Miller, who was at John Volovski's apartment, and asked if they could borrow her car even though she did not have a driver's license. Miller apparently asked if Kephart had a license and Brubaker said he did. The two then walked to John Volovski's apartment and stayed approximately 10-15 minutes while they picked up the keys. Miller's only request was they be back by 11:30 p.m. so she could take John to work. After leaving the apartment at approximately 9:30 p.m., Brubaker gave Kephart the keys and he drove the car towards a movie theatre. Despite the fact it was raining that night, Kephart drove very fast and recklessly -- so recklessly that Brubaker became frightened and demanded

[ 374 Pa. Super. Page 277]

    that he stop the car and get out. He finally stopped but instead of him getting out, Brubaker got out and Kephart drove around her, yelling at her to get back in the car and coming close to hitting her with the car. It was about 9:50 p.m. when she ran into a supermarket to call for someone to come pick her up and Kephart drove away. Brubaker also called Miller to tell her what happened and Miller called the police. Kephart drove the car all night and had several beers during that time. The next morning he went to a cafe and had two or three more drafts within 15 minutes. At 3:30 that afternoon Kephart smashed into appellants' car causing it to sail through the air and flip over on its roof, resulting in severe injuries to appellants. Kephart then sped away. A couple, the Schweitzers, were travelling behind Kephart immediately prior to the collision and had noticed his erratic driving. After the collision the Schweitzers decided to follow Kephart even though he was speeding. Eventually both vehicles pulled off the road and Mr. Schweitzer pulled his car right in front of Kephart's so they were facing each other, the cars hood to hood. After observing Kephart for approximately 20 seconds, the Schweitzers pulled behind Kephart's car and got the license number. Mr. Schweitzer called the police while Kephart drove away.

At 9:30 that evening, Trooper Stanek and another officer went to Kephart's residence to question him about the hit and run. After ten minutes of knocking and calling out to him, Kephart opened the door. The officers identified themselves and advised Kephart of his rights. Kephart immediately became belligerent and denied any involvement in the accident. He ordered the officers to leave unless they had a warrant; since they did not have a warrant they left.

Appellants filed suit against Kephart, Miller, Brubaker and two others who received a grant of voluntary non-suit. The jury returned a verdict for appellants, finding Kephart and appellees Brubaker and Miller negligent. However, they attributed all the causal negligence to Kephart finding

[ 374 Pa. Super. Page 278]

    him 100% liable. Appellants filed a motion for post-trial relief which was denied. They appealed to this Court and we quashed sua sponte since it was interlocutory as the damages issue had not been resolved. Now that a verdict has been entered as to damages, appellants again appeal to this Court. For the reasons that follow, we reverse.

Appellant raises six issues on appeal: 1) Whether the trial court erred by allowing the telephonic deposition of John Volovski to be taken by appellees two days prior to trial*fn1 when Volovski had been available for deposition from the date of the accident until January 1985; 2) whether the trial court erred in bifurcating the trial on the first day of trial thereby requiring two separate juries to hear the issues of liability and damages; 3) whether the trial court erred in not allowing testimony regarding Kephart's condition at the time appellees entrusted the keys to him; 4) whether the court erred in ruling appellants could not introduce testimony regarding where Kephart was and how much he drank between the time he received the keys and the accident; 5) whether defense counsel waived the ruling of no intoxication testimony by putting sobriety at issue; and 6) whether the trial court erred in refusing all of appellants' points for charge.

Appellants claim the allowance and admission of Volovski's deposition prejudiced them because they had not anticipated his testimony and could not prepare evidence to discredit it. They also claim the telephonic deposition deprived them of the person to person confrontation with this witness which is necessary to properly pursue cross-examination. Since the deposition occurred so close to trial, appellants could not conduct any other type of ...


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