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MARCELLA JEAN MORGO AND EDWARD M. MORGO v. BOROUGH WEST MIFFLIN (06/07/88)

decided: June 7, 1988.

MARCELLA JEAN MORGO AND EDWARD M. MORGO, HER HUSBAND, APPELLANT
v.
BOROUGH OF WEST MIFFLIN, A MUNICIPAL CORPORATION, AND HAROLD W. HATHAWAY, AN INDIVIDUAL, APPELLEES



Appeal from the Order of the Court of Common Pleas of Allegheny County, in the case of Marcella Jean Morgo v. Borough of West Mifflin, a municipal corporation, Harold W. Hathaway, an individual, No. G.D. 80-17168.

COUNSEL

Todd Berkey, with him, Bernard M. Tully, Stokes, Lurie & Cole, for appellants.

Francis X. McTiernan, Jr., with him, Cathie J. Fagan, Wayman, Irvin & McAuley, for appellee, Borough of West Mifflin.

Judges MacPhail and Colins, and Senior Judge Kalish, sitting as a panel of three. Opinion by Senior Judge Kalish. Judge Colins dissents.

Author: Kalish

[ 116 Pa. Commw. Page 593]

Appellants, Marcella Jean Morgo and Edward M. Morgo, her husband, appeal from a judgment order by the Court of Common Pleas of Allegheny County denying a new trial after a jury, in a bifurcated trespass case, returned a verdict in favor of the Borough of West Mifflin and Harold W. Hathaway, appellees. We affirm.

Mrs. Morgo was operating a pickup truck and was stopped at a red light at the intersection of the entrance to the Allegheny County Airport and Lebanon Church Road in Allegheny County, Pennsylvania. She had intended to cross the road, and when the light turned green she started slowly across the road. At that time, the Borough's fire truck, driven by Harold W. Hathaway (driver), went through the red light and collided with

[ 116 Pa. Commw. Page 594]

Mrs. Morgo's truck. The fire truck was on an emergency call at the time of the accident.

Mrs. Morgo contends that she sustained personal injuries and damages when she was struck by the Borough's fire truck which was proceeding through the red traffic light without using the required emergency lights or siren before the impact. At the trial, Mrs. Morgo testified that she did not remember hearing or seeing any audible or visual signals used on the fire truck. Notes of Testimony (N.T.) at 30-31.

The trial court permitted into evidence, over the objection of appellants' counsel, the statement of police officer Ronald Darney, who did not appear at the trial, but appeared and testified at the arbitration hearing. Officer Darney testified that when he arrived at the scene of the accident Mrs. Morgo told him that she was about halfway through the intersection when she noticed a fire truck with its red lights on. N.T. at 7.

Mrs. Morgo contends that the trial court abused its discretion in allowing the testimony of Officer Darney to be read to the jury without establishing on the record a foundation for the unavailability of Officer Darney or any attempts made to secure his appearance at trial.

The admissibility of the testimony of a witness given at a prior proceeding involves the discretion of the trial judge and will not be disturbed absent an abuse of such discretion. Katz v. Montague, 181 Pa. Superior Ct. 476, 124 A.2d 506 (1956). Here, counsel for the appellees advised the court that she was not able to locate Officer Darney. N.T. at 3. Officer Darney ...


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