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JAMES KEARNS v. PAUL J. DEHAAS (08/24/88)

filed: August 24, 1988.

JAMES KEARNS, A MINOR BY HIS PARENTS AND NATURAL GUARDIANS JAMES KEARNS AND MARY ALICE KEARNS, AND JAMES KEARNS AND MARY ALICE KEARNS, INDIVIDUALLY
v.
PAUL J. DEHAAS, JOAN MARIE TIMKO, CITY OF SCRANTON AND SCRANTON SCHOOL DISTRICT. APPEAL OF PAUL J. DEHAAS



Appeal from Order of the Court of Common Pleas, Civil Division, of Lackawanna County, No. 85-Civil-104.

COUNSEL

John J. Byrne, Scranton, for appellant.

John B. Beemer, Clarks Summit, for Kearns, appellees.

Wieand, McEwen and Beck, JJ. Beck, J., files a concurring opinion.

Author: Wieand

[ 377 Pa. Super. Page 203]

On March 1, 1983, at or about 8:00 a.m., thirteen year old James Kearns, Jr. was struck by a car and severely injured while crossing Moosic Street in the City of Scranton while on his way to school. The car that struck Kearns was operated by Paul DeHaas.*fn1 DeHaas had been traveling in an easterly direction on Moosic Street when Kearns ran directly into his path. In order to recover for the injuries which Kearns had sustained, his parents, James and Mary Alice Kearns, brought an action against DeHaas*fn2 on behalf

[ 377 Pa. Super. Page 204]

    of their son and individually in their own right. The trial of this action was held before a jury which found that the causal negligence of defendant DeHaas was fifty-seven percent and that the causal negligence of the minor plaintiff was forty-three percent. Damages were assessed by the jury in the amount of $1.5 million; and, thereafter, the trial court molded the jury's findings into a verdict for the plaintiffs in the amount of $855,000.00. DeHaas filed post-trial motions for judgment n.o.v. and/or new trial, and the Kearnses petitioned for the assessment of delay damages. The trial court denied DeHaas's post-trial motions and awarded the Kearnses delay damages in the amount of $153,197.25. On appeal DeHaas raises numerous allegations of error on the part of the trial court. We will consider his contentions seriatim.

Following the accident in which the minor plaintiff was injured, criminal charges were brought against appellant, but these charges were dismissed following a preliminary hearing. Appellant asserts that these criminal charges were unwarranted, motivated by a desire to gain an advantage in the civil action, and supported by fabricated evidence.*fn3 At the trial of this civil action, appellant offered to cross-examine several of plaintiffs' witnesses regarding the criminal charges in order to demonstrate bias. The trial court sustained objections to such questions and disallowed all questions regarding the criminal prosecution. Appellant contends that this ruling was erroneous. He argues that he should have been allowed to cross-examine plaintiffs' witnesses about the criminal proceedings in order to show bias, prejudice and interest. We disagree.

It is true that, as a general rule, evidence of interest or bias on the part of a witness is admissible and a proper

[ 377 Pa. Super. Page 205]

    subject for cross-examination. Panczak v. Commonwealth, Unemployment Compensation Bd., 48 Pa. Commw. 279, 283, 409 A.2d 929, 931 (1980). See also: Downey v. Weston, 451 Pa. 259, 301 A.2d 635 (1973). However, "[i]t is well established that the scope and limits of cross-examination are within the trial court's discretion and the court's rulings thereon will not be reversed in the absence of a clear abuse of discretion or an error of law." Kemp v. Qualls, 326 Pa. Super. 319, 324, 473 A.2d 1369, 1371 (1984). See also: Brennan v. St. Luke's Hospital, 446 Pa. 339, 285 A.2d 471 (1971); McGowan v. Devonshire Hall Apartments, 278 Pa. Super. 229, 420 A.2d 514 (1980). Moreover, it is within the trial court's sound discretion to limit cross-examination which touches on collateral matters. Chiorazzi v. Commonwealth, Dept. of Highways, 411 Pa. 397, 400, 192 A.2d 400, 401 (1963). See also: McGoldrick v. Pennsylvania R.R. Co., 430 Pa. 597, 241 A.2d 90 (1968); Berkley v. Jeannette, 373 Pa. 376, 96 A.2d 118 (1953); Walley v. Iraca, 360 Pa. Super. 436, 520 A.2d 886 (1987). In the instant case, the trial court did not abuse its discretion by precluding appellant from delving into, on cross-examination, the collateral matter of the criminal charges which had been brought against appellant and dismissed. Cf. Eastern Express, Inc. v. Food Haulers, Inc., 445 Pa. 432, 285 A.2d 152 (1971) (in action arising from automobile collision, it was reversible error to admit testimony of police officer on cross-examination as to fact that he had arrested one of the parties for reckless driving); Gatling v. Rothman, 267 Pa. Super. 566, 407 A.2d 387 (1979) (in action arising from automobile collision, trial court abused its discretion in admitting testimony of investigating police officer on cross-examination as to fact that defendant had not received a motor vehicle citation).

At trial, plaintiffs called Scranton Police Officer William Donovan to testify regarding the observations which he had made upon inspecting the car which had struck the minor plaintiff. Specifically, Donovan's testimony focused on the condition of the brakes of the car immediately

[ 377 Pa. Super. Page 206]

    following the accident. As part of his testimony, Donovan said that he had found no resistance when applying pressure to the brake pedal and had found no brake fluid in the master cylinder. Prior to giving this testimony, Donovan explained his familiarity with and experience in inspecting automobile brakes. The trial court ruled that the officer was competent to testify to these observations. As a further part of his testimony, Donovan described the presence of fluid on the floor mat of the car in question, and he opined that this fluid was brake fluid. Appellant objected on the grounds that, since no tests had been performed by Donovan to confirm the nature of the fluid, he was incompetent to render such an opinion. The trial court overruled appellant's objection after inquiring of Donovan as to whether he had had any prior experience with brake fluid. The officer responded that he had had a similar experience with a vehicle which he had owned. Apparently satisfied that the officer was competent to render his opinion as to what the fluid in question was, the trial court allowed Donovan to continue. Appellant argues that the officer was not qualified to render an opinion as to the nature of the fluid found on the floor of the car and contends that the trial court abused its discretion by allowing such testimony. We disagree.

The general rule in this Commonwealth is that an investigating police officer, who was not actually a witness to an accident, is not competent to render an opinion as to the cause of that accident. Reed v. Hutchinson, 331 Pa. Super. 404, 409, 480 A.2d 1096, 1099 (1984). See also: Brodie v. Philadelphia Transportation Co., 415 Pa. 296, 203 A.2d 657 (1964); Smith v. Clark, 411 Pa. 142, 190 A.2d 441 (1963); Lesher v. Henning, 302 Pa. Super. 508, 449 A.2d 32 (1982). This rule is based on the fact that the officer has no firsthand knowledge of the accident, and, thus, his conclusions would be speculative at best. Reed v. Hutchinson, supra, 331 Pa. Superior Ct. at 410, 480 A.2d at 1099. Strictly speaking, however, Donovan was not offered as an expert and did not give expert opinion testimony. He testified as a fact witness, and the only issue for the trial

[ 377 Pa. Super. Page 207]

    court was whether he was sufficiently familiar with the nature of brake fluid to be able to recognize and identify it. The trial court did not err when it allowed Donovan to identify as brake fluid the substance found on the floor mat of the vehicle driven by appellant.

Appellant also contends that the trial court erroneously permitted Donovan to express an opinion regarding the cause of the accident. Specifically, appellant alleges that the officer was permitted to state an opinion that appellant may have seen the minor plaintiff but was unable to stop because he had no brakes. We agree with appellant that Donovan was not competent to give such testimony. He was not a witness to the accident and did not have knowledge of facts necessary to render such an opinion. However, our review of the record reveals that the trial court sustained appellant's objection to such testimony. This, as we have observed, was a correct ruling. Appellant requested no further relief. Therefore, there is no basis for this complaint.

Appellant next challenges the testimony of Mary Alice Kearns, the mother of James Kearns, Jr., on grounds that she improperly relied upon hearsay statements made by various persons when she described her son's condition. We disagree. After carefully reviewing the testimony of Mrs. Kearns, we conclude, as did the trial court, that her testimony regarding her son's physical condition was based on her own observations. The references to which appellant objects as being hearsay were insignificant. We find nothing in the testimony of Mrs. Kearns which would entitle appellant to a new trial.

In cross-examining Mrs. Kearns, defense counsel used a medical report to assist him in phrasing questions. Following an objection, the trial court ruled that defense counsel could not use medical reports, which were not in evidence, in framing his questions. The court explained its ruling by stating: "You can't ask a witness something on cross-examination in a positive way and then not produce

[ 377 Pa. Super. Page 208]

    your own testimony so that the jury can test the credibility of it." Keeping in mind the wide discretion over the scope of cross-examination which the trial court possesses, we find no abuse of that discretion with respect to the cross-examination of Mrs. Kearns.

In Commonwealth v. Lobel, 294 Pa. Super. 550, 440 A.2d 602 (1982) this Court said "[w]hen the obvious purpose of cross-examination is to develop defendant's own case, a ruling by the trial judge to limit cross-examination is not an abuse of discretion." Id., 294 Pa. Superior Ct. at 556, 440 A.2d at 605. See also: Commonwealth v. Schmidt, 437 Pa. 563, 263 A.2d 382 (1970); Okotkewicz v. Pittsburgh Railways Co., 397 Pa. 303, 155 A.2d 192 (1959); Kline v. Kachmar, 360 Pa. 396, 61 A.2d 825 (1948); Greenfield v. City of Philadelphia, 282 Pa. 344, 127 A. 768 (1925). Furthermore, when a trial court so limits cross-examination, its ruling should only be reversed when it precludes the cross-examiner from affirmatively producing such evidence during his own case-in-chief. See: Packel & Poulin, Pennsylvania Evidence, Ch. VI, § 611.2, at 464 (1987). See also: Commonwealth v. Lobel, supra. In the instant case, the trial court did not preclude appellant from cross-examining Mrs. Kearns concerning her son's physical condition. Rather, the court prevented appellant only from covertly introducing medical records into evidence under the guise of cross-examination. Moreover, the trial court's ruling did not prevent appellant from producing affirmative evidence to show the minor plaintiff's medical condition during his own case-in-chief. Indeed, it was defense counsel's concession that no such evidence would be forthcoming, made in response to the court's inquiry, which prompted the trial court to limit the cross-examination of Mrs. Kearns. Apparently it was appellant's choice not to produce medical evidence during his case-in-chief. We find no abuse of discretion in the trial court's decision to preclude appellant from indirectly producing such evidence during cross-examination.

[ 377 Pa. Super. Page 209]

Plaintiffs called Timothy Bruffey as a vocational expert at trial. Bruffey stated that he had relied on various medical, psychological and psychiatric reports in forming his opinion about the minor plaintiff's future employment prospects. Appellant contends that Bruffey's testimony was improper because an expert witness may not base his opinion on hearsay documents which have not been admitted into evidence. In Commonwealth v. Thomas, 444 Pa. 436, 282 A.2d 693 (1971), however, a limited exception was created to the general rule that an expert's opinion must be based on facts in the record. See: Packel & Poulin, Pennsylvania Evidence, Ch. VII, § 703 (1987). This exception has been explained by this Court as follows:

Following the guidance of the federal rules of evidence, our courts have liberalized the permissible bases for an expert's opinion testimony. Federal Rule of Evidence 703 permits an expert to base his opinion on facts or data not admissible in evidence if those facts or data are "of a type reasonably relied upon by experts in the ...


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