Jackson v. Spagnola

Decision Date24 January 1986
Docket NumberA-,A
Citation503 A.2d 944,349 Pa.Super. 471
Parties, Prod.Liab.Rep. (CCH) P 10,857 Daniel JACKSON, Shirley Jones and Frances McElroy Shannon, v. Harry SPAGNOLA, Martinique Restaurant and Cocktail Lounge, Volkswagen of America, Inc. and Volkswagenppellees. Appeal of Frances McElroy SHANNON. 01951 Phila. 1984
CourtPennsylvania Superior Court

Oscar S. Schermer, Philadelphia, for appellant.

David Richman, Philadelphia, for Volkswagen, appellee.

Before CAVANAUGH, CIRILLO and HESTER, JJ.

CAVANAUGH, Judge:

Frances McElroy Shannon was injured in a multi-vehicle collision on October 15, 1974. She subsequently filed suit against Harry Spagnola, the operator of the other vehicle; the Martinique Restaurant and Cocktail Lounge, which had served alcoholic beverages to defendant Spagnola; and Volkswagen of America, Inc. and Volkswagen A-G, distributor and manufacturer of the 1973 Volkswagen Beetle in which Ms. Shannon was a passenger. In December, 1982, a jury returned a verdict against Spagnola only in the amount of $350,000.00 for the appellant. Post-trial motions were filed and subsequently denied by the lower court. Ms. Shannon now appeals from the judgment in favor of Volkswagen of America, Inc. and Volkswagen A-G.

Appellant presents five questions for review:

(1) whether the trial court erred in allowing Volkswagen's expert witness to exhibit test crash films at trial; and whether such demonstrative evidence was unfairly prejudicial to appellant; (2) whether the trial court erred in refusing to strike the expert's testimony; (3) whether the trial court erred in admitting evidence of the Federal Motor Vehicle Safety Standards; (4) whether the trial court erred in refusing appellant's proposed charge to the jury on appellees' compliance or non-compliance with the Federal Safety Standards; and (5) whether the verdict in favor of Volkswagen is against the weight of the evidence.

The record as originally forwarded to this court did not contain the appellant's supplemental post-trial motions which raised the first four issues presented above. Accordingly, we filed an opinion on September 27, 1985 which was withdrawn by order of October 16, 1985 in which we held that the first four issues were waived as not having been raised in the court below in post-trial motions. Subsequent to our opinion of September 27, 1985, we learned that in fact supplemental post-trial motions were filed below under local Philadelphia Rule 240 which provides:

(C) Filing Procedure

(1) All exceptions and post-trial motions shall be filed in triplicate with the Post-Trial Motion Clerk and shall contain the name of the trial judge as well as the names, addresses and telephone numbers of all counsel involved in the trial of the case. In addition, said motions and exceptions shall contain a Certification of Service on all counsel named therein, and, if desired, should be accompanied by a written request for argument of the exceptions or motions before a court en banc. Any request by opposing counsel for argument before a court en banc shall be filed in writing within five (5) days of the service of the exceptions or motions.

(2) Under the direction of the Court Administrator, the Post-Trial Motion Clerk shall maintain an Individual Court Docket for each Judge of the Common Pleas Court.

The Post-Trial Motion Clerk shall docket exceptions and post-trial motions in the Individual Docket of the Trial Judge and in the General Appearance Docket and forward copies of same to the Trial Judge and to the court stenographer who was assigned to the trial of the case. The Trial Judge shall, upon receipt of the exceptions or motions, indicate to the Post-Trial Motion Clerk whether or not he desires the exceptions or motions to be heard by a court en banc by entering an order indicating such. The Post-Trial Motion Clerk will promptly forward a copy of the order to all interested counsel.

* * *

(Emphasis added.)

In the instant case supplemental post-trial motions were not docketed on the general appearance docket below as required by local Rule 240 and were not forwarded to this court until after the case was originally decided by us. Philadelphia Local Rule 240 is not in conflict with the Pa.R.A.P. 1921 which provides:

Rule 1921. Composition of Record on Appeal

The original papers and exhibits filed in the lower court, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the lower court shall constitute the record on appeal in all cases.

Nevertheless, the administration of Local Rule 240 has led to the situation we had in this case where the supplemental post-trial motions did not appear on the docket entries forwarded to the court and in fact the supplemental motions themselves were not timely forwarded to this court. We have no way of telling whether they were entered on the individual docket of the trial judge as required by Rule 240 as this docket was not a part of the record sent to us. We recognize that the dual docketing system may have been devised to fit the needs of the trial court, but must insist that it be conducted in a manner which will insure that all of the original papers, exhibits, docket entries and transcripts be transmitted to this court on appeal.

Turning to the appellant's argument on the merits, we find that the testimony of Volkswagen's expert witness, Dr. Warner, and his exhibition of test crash films at the trial was not prejudicial to the appellant. The appellant contended at trial that the injuries resulting from a very serious automobile accident were due to faulty design by Volkswagen of the seats in the Volkswagen automobile in which Frances McElroy Shannon was a passenger. The films introduced by Volkswagen illustrated the testimony given by Dr. Warner that the design of the car manufactured by Volkswagen was safe. Dr. Warner described the effect of a rear end collision such as was involved in this case, on the car seats designed by Volkswagen. The film used was that of federally conducted crash tests of automobiles of makes different than those involved in the instant case, and this was pointed out to the jury. The film was offered to show the operation of automobile seats in general, and in no way indicated the construction of the car seat involved in this accident. Demonstrative evidence is admissible if its probative value outweighs the likelihood of improperly influencing the minds of the jury. 1 Henry on Pennsylvania Evidence, § 421, 1978 Pocket Parts. The use of the films in this case was similar to that in Zurzola v. General Motors Corp., 69 F.R.D. 469 (E.D.Pa.1975) in which a film was used to explain certain principles of physics. The plaintiff contended in that case that the film did not accurately represent the accident in the case and was not listed as an exhibit by the defendant prior to trial, and was highly prejudicial to the plaintiff because it failed to show all of the physical factors operative in the instant collision. The court held that the film was admissible as no prejudice resulted to the plaintiff in the jury seeing the film and there was ample opportunity to cross examine the defendant's expert.

In Robinson v. Audi NSU Auto Union, 739 F.2d 1481 (10 Cir.1984) the court affirmed the use of a film in a products liability case which depicted a series of rear end collisions between various makes of 1973 automobiles. The court held that the admission of the film was within the discretion of the trial judge. It was further stated by the court at 739 F.2d 1485:

Accordingly, this matter should not be the basis for reversal. The film illustrated some relevant principles. It did not purport to recreate the accident at issue, including certain particulars of plaintiffs' accident.

We hold that the showing of the films did not unduly prejudice the appellants. As noted in House of Pasta, Inc. v. Mayo, 303 Pa.Super. 298, 313 n. 6, 449 A.2d 697, 704 n. 6 (1982): " 'Prejudice' does not mean 'detrimental to a party's case' but rather 'an undue tendency to suggest decision on an improper basis.' " In this case, the limited use of the film did not suggest a decision to the jury which would be made on an unjustified basis.

The appellant had proper notice that Volkswagen intended to use the film. On December 15, 1982 counsel for Volkswagen advised appellant's counsel by a hand delivered letter that it intended to use the film. Counsel for the appellants closed his case on December 16, 1982 and the film was shown on December 17, 1982. The December 15th letter advised counsel for the appellants that the films would be available for them to review if they so desired. 1

The appellant's next contention is that the testimony of Dr. Charles W. Warner and Vern L. Roberts, Volkswagen's expert witnesses, was inadmissible. The admission of expert testimony is within the sound discretion of the trial court whose decision will not be reversed in the absence of an abuse of discretion. Klyman v. Southeastern Pennsylvania Transportation Authority, 331 Pa.Super. 172, 480 A.2d 299 (1984). The weight to be accorded to the testimony of an expert is to be determined by the jury. Reardon v. Meehan, 424 Pa. 460, 227 A.2d 667 (1967). In this case, Dr. Warner had conducted an extensive investigation into the collision involved in this case in which a Cadillac travelling at a high rate of speed and operated by an intoxicated driver rear ended a Volkswagen sedan, known as a "Beetle", which was stopped for a red light. As a result, the Volkswagen crashed into the car in front of it, a Chevrolet Monte Carlo, and the second impact caused the Monte Carlo to strike another vehicle. One of the plaintiffs below, Frances McElroy Shannon, who was a passenger in the Volkswagen, claimed that her injuries were aggravated because of the failure of a bolt on the back seat of the Volkswagen. Dr. Warner testified concerning the design and function...

To continue reading

Request your trial
21 cases
  • Millard v. Nagle
    • United States
    • Pennsylvania Superior Court
    • 27 Febrero 1991
    ...post-trial motions presented these in a boilerplate fashion contrary to the requirements of Pa.R.C.P. 227.1(b). Jackson v. Spagnola, 349 Pa.Super. 471, 503 A.2d 944 (1986); Carnicelli, supra. 2 Additionally, appellants' failure to include issue seven in their statement of questions involved......
  • Havasy v. Resnick
    • United States
    • Pennsylvania Superior Court
    • 14 Julio 1992
    ...382 Pa.Super. 579, 586, 555 A.2d 1352, 1356 (1989), allocatur denied, 523 Pa. 633, 564 A.2d 1261 (1989); Jackson v. Spagnola, 349 Pa.Super. 471, 480-481, 503 A.2d 944, 949 (1986), allocatur denied, 514 Pa. 643, 523 A.2d 1132 (1987). We will not reverse merely because a trial court restated ......
  • Gingold v. Audi-NSU-Auto Union, A.G.
    • United States
    • Pennsylvania Superior Court
    • 20 Febrero 1990
    ...court decisions, has until now never come before the appellate courts of this Commonwealth. Some years ago, in Jackson v. Spagnola, 349 Pa.Super. 471, 503 A.2d 944 (1986), appeal denied, 514 Pa. 643, 523 A.2d 1132 (1987), this court stated that a manufacturer's compliance with a FMVSS did n......
  • Stecher v. Ford Motor Co.
    • United States
    • Pennsylvania Superior Court
    • 8 Mayo 2001
    ...near-side impact collisions were recreated to indicate how vehicles function under such conditions. Ford cites Jackson v. Spagnola, 349 Pa.Super. 471, 503 A.2d 944 (1986), appeal denied, 514 Pa. 643, 523 A.2d 1132 (1987), to support its contention that the videotapes were admissible because......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT