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CHERYL BOYLE VOLPONI v. BOROUGH BRISTOL (12/19/88)

decided: December 19, 1988.

CHERYL BOYLE VOLPONI, APPELLANT
v.
BOROUGH OF BRISTOL, MARIO BATTISTINI, VINCENT NORATO AND PHILIP DAVID VOLPONI, APPELLEES



Appeal from the Order of the Court of Common Pleas of Bucks County, in the case of Cheryl Boyle and James Boyle, individually and as the parent and natural guardian of Cheryl Boyle v. Borough of Bristol and Mario Battistini and Vincent Norato and Philip David Volponi, Nos. 82-393-03-2 and 82-2948-03-2.

COUNSEL

Larry E. Coben, with him, Eleanor D. Thomson, Litvin, Blumberg, Matusow & Young, for appellant.

Janet W. Mason, with her, Joseph Goldberg, Margolis, Edelstein, Scherlis, Sarowitz and Kraemer and James A. Downey, III, Begley, Carlin & Mandio, for appellee, Borough of Bristol.

Glenn D. Hains, Durben and Hains, P.C., for appellee, Philip David Volponi.

Judge Colins, and Senior Judges Barbieri and Kalish, sitting as a panel of three. Opinion by Judge Colins. Judge MacPhail did not participate in the decision in this case.

Author: Colins

[ 122 Pa. Commw. Page 194]

This appeal involves a personal injury action arising from an automobile accident which occurred on September 7, 1980. Cheryl Boyle Volponi (plaintiff) instituted this action in the Court of Common Pleas of Bucks County to recover monetary damages against the Borough of Bristol (Borough) and two individuals, Mario Battistini (Battistini) and Vincent Norato (Norato). The Borough joined as an additional defendant, Philip Volponi, alleging that he was negligent for parking illegally at the location on the roadway where the accident took place. Plaintiff argued that the accident was due to the concurrent negligence of Battistini, in his operation of Norato's vehicle and the Borough, by its failure to maintain a "no parking" restriction on the roadway at the scene of the accident.

Battistini, driving a vehicle owned by Norato and in which Norato was a passenger, collided with a parked vehicle owned by Philip Volponi. At the time of the accident, plaintiff was standing on the roadway to the rear of the parked car and was struck head-on by the oncoming car. Philip Volponi was seated on the trunk of the parked car, facing toward the on-coming vehicle and was injured by being thrown to the ground upon impact. The testimony revealed that the configuration of

[ 122 Pa. Commw. Page 195]

    the roadway at the location of the accident was odd. Parking is prohibited by ordinance at the location of the accident. However, the testimony indicated that the no-parking sign erected by the Borough had been removed by vandals numerous times and that the sign was not present at the time of the accident. Moreover, Philip Volponi testified that at no time had he seen a no-parking sign at that location.

Battistini testified that he had been drinking on the day in question and had pled guilty to a charge of driving while under the influence of alcohol. Plaintiff objected to the admission of this plea into evidence at trial. The trial court admitted the plea but precluded the testimony of several witnesses with reference to Battistini's blood alcohol level pursuant to a motion by plaintiff's counsel. The objection was based upon the fact that the names of these witnesses did not appear in the Borough's answers to interrogatories.*fn1

The jury returned a verdict in the amount of $850,000 against Battistini and Norato.*fn2 In response to special interrogatories, the jury found the Borough was negligent, but that its negligence was not a substantial contributing factor in causing plaintiff's harm. Philip Volponi was found to be neither negligent nor contributorily negligent.*fn3 Therefore, the jury assessed

[ 122 Pa. Commw. Page 196100]

% of the causal negligence against Battistini and Norato and found in favor of all other defendants.

Plaintiff's post-trial motion requesting a new trial was denied. A Notice of Appeal was filed with this Court on February 19, 1987. We affirm the trial court's order.

Issues

Plaintiff presents five issues for our review: (1) whether the trial court erred in admitting into evidence Battistini's plea of guilty to driving under the influence of alcohol; (2) whether the trial court erred in its charge to the jury by incorporating therein an impermissible presumption of intoxication; (3) whether the jury's verdict is against the weight of the evidence; (4) whether the trial court erred in its charge to the jury on the issue of substantial factor; and, (5) whether the verdict of the jury was inconsistent.

Admission of Plea

Plaintiff submits that absent other evidence with respect to Battistini's intoxication and unfitness to drive as a result thereof, his plea of guilty was not relevant to the issue of causation. Therefore, plaintiff alleges error on the part of the trial court in admitting the plea over counsel's objection and requests a new trial on that basis.

The trial court relied upon the case of Cromley v. Gardner, 253 Pa. Superior Ct. 467, 385 A.2d 433 (1978), in admitting the plea.*fn4 In Cromley the Superior

[ 122 Pa. Commw. Page 197]

Court reasoned that a plea carrying a significant penalty will be admitted as an admission against interest because a person will not acknowledge guilt of an offense if he believes he is innocent in light of the pending substantial penalty. Plaintiff attempts to distinguish the instant matter from that in Cromley, contending that Battistini pled guilty after realizing that the penalty would consist of the payment of court costs and a one year probation which was clearly preferable to the financial expense of a jury trial and the risk of some greater penalty by pleading otherwise.

When Battistini entered his guilty plea, the definition of and the penalty attached to the offense of driving under the influence were enumerated in Section 3731 of the ...


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