Com. v. Cathey

• Court: Superior Court of Pennsylvania
• Writing for the Court: Before ROWLEY; CIRILLO
• Citation: 435 Pa.Super. 162,645 A.2d 250
• Parties: COMMONWEALTH of Pennsylvania v. David CATHEY, Appellant.
• Decision Date: 14 July 1994

Page 250

645 A.2d 250 435 Pa.Super. 162 COMMONWEALTH of Pennsylvania
v.
David CATHEY, Appellant. Superior Court of Pennsylvania. Submitted April 27, 1994.
Filed July 14, 1994.

[435 Pa.Super. 163] Daniel J. Brabender, Jr., Erie, for appellant.

Marshall Piccinini, Asst. Dist. Atty., Erie, for Com., appellee.

Before ROWLEY, President Judge, and CIRILLO and OLSZEWSKI, JJ.

CIRILLO, Judge.

This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Erie County. We affirm.

While operating his motor vehicle in the westbound lane of Route 20, appellant David Cathey fell asleep, crossed over into the eastbound lane, and struck another vehicle operated by Joseph Sirak. Officer James Carson of the Fairview Borough Police questioned Cathey concerning the incident. Cathey told Officer Carson that he had two jobs. He arrived home from one job between midnight and 1:00 a.m., decided to stay awake throughout the night, and then proceeded to drive to his second job at 6:30 a.m. The accident occurred at 7:00 p.m. that evening, while Cathey was returning home from his second job. As a result of the accident, Officer Carson charged Cathey with reckless driving. Following a summary trial, Judge Stephanie Domitrovich acquitted [435 Pa.Super. 164] Cathey of the charge of reckless driving, but found him guilty of the "lesser included offense of careless driving." This appeal followed. Cathey raises the following two issues:

1. Whether the trial court erred in convicting the appellant of careless driving when the facts merely show that the appellant fell asleep at the wheel, causing an accident?

2. Whether the trial court erred in convicting the appellant of careless driving as a lesser included offense of reckless driving?

"Any person who drives a vehicle in careless disregard for the safety of persons or property is guilty of careless driving, a summary offense." 75 Pa.C.S. § 3714. The language "careless disregard," as used in this statute, set the level of culpability of the statutory offense at less than willful and wanton conduct, but more than ordinary negligence or the mere absence of care under the circumstances. See Commonwealth v. Podrasky, 250 Pa.Super. 57, 378 A.2d 450 (1977).

Cathey first contends that driving while asleep is conduct which merely equates to ordinary negligence and, thus, does not meet

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the "careless disregard" standard under 75 Pa.C.S. § 3714. We disagree.

While Cathey correctly notes that Commonwealth v. Bloom, 15 Pa.D. & C.3d 221 (1980) supports his contention, Bloom is not binding upon this court. Furthermore, in examining the Bloom court's decision, we find its application of relevant Pennsylvania law misplaced.

The learned judge in Bloom interpreted Bernosky v. Greff, 350 Pa. 59, 38 A.2d 35 (1944) as standing for the principle that driving while asleep equates to conduct manifesting only an "absence of ordinary care." A closer examination of the Greff decision does not support this interpretation.

In Greff, the plaintiff/passenger had brought suit against the defendant/driver for injuries sustained when the automobile in which they were traveling left the highway and collided with a pole. Upon review, the only issue before our Supreme Court was whether the fact that the driver had fallen asleep immediately prior to the accident was, in itself, proof of ordinary [435 Pa.Super. 165] negligence, i.e., "absence of ordinary care," necessary to sustain the plaintiff's tort claim. As such, the Greff court did not decide whether the driver's actions rose to conduct constituting "careless disregard."

Thus, when the Greff court found that driving while asleep was enough, in itself, to constitute an "absence of ordinary care," the court cannot be said to have further found that such conduct constituted only "absence of ordinary care" and nothing beyond. Failing to perceive this critical subtlety is where the Bloom court's analysis of Greff falls short.

Further, language contained within the Greff decision suggests that driving while asleep is, indeed, conduct which goes beyond mere ordinary negligence. In quoting the Massachusetts case of Blood v. Adams, 269 Mass. 480, 169 N.E. 412, 413 (1929), our Supreme court wrote:

Voluntarily to drive on a public street at any time of day or night with eyes closed, or to yield to sleep while operating such kind of dangerous machine as an automobile on a public highway, is to be guilty of a degree of negligence exceeding lack of ordinary care, and is a manifestation of recklessness which may be found by judge or jury to be gross negligence within any reasonable definition of that phrase.

350 Pa. at 60, 38 A.2d at 36.

Finally, the case of Commonwealth v. Fisher, 184 Pa.Super. 75, 132 A.2d 739 (1957) is helpful in our inquiry. In Fisher, the driver had fallen asleep and did not awake until after his vehicle had left the highway and knocked down several guard posts and guard rails. Consequently, he was charged with reckless driving under the Vehicle Code. ¹

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