Lopa v. McGee

• Decision Date: 13 April 1988
• Parties: Kalani J. LOPA, Appellant, v. Maureen McGEE and Charles J. McGee.
• Court: Pennsylvania Superior Court

Page 311

540 A.2d 311

373 Pa.Super. 85

Kalani J. LOPA, Appellant, v. Maureen McGEE and Charles J. McGee.

Superior Court of Pennsylvania.

Argued Feb. 9, 1988.

Filed April 13, 1988.

William M. Cowan, Fairless Hills, for appellant.

James J. Auchinleck, Jr., Newtown, for appellees.

Before CIRILLO, President Judge, and TAMILIA and HESTER, JJ.

CIRILLO, President Judge:

This is an appeal from a judgment entered in the Court of Common Pleas of Bucks County in favor of appellees Maureen and Charles McGee and against appellant Kalani J. Lopa.

On September 16, 1983, Mr. Lopa filed a complaint in trespass against Maureen and Charles McGee seeking to recover for personal injuries and property damage which he suffered as a result of a motor vehicle accident on October 17, 1982. Mr. McGee filed a counterclaim to recover property damages arising out of the same incident. The accident occurred at the intersection of Trenton Road and Forsythia Drive South in Levittown, Bucks County. Mr. Lopa and Ms. McGee were approaching the intersection from opposite directions on Trenton Road. As Mr. Lopa proceeded on his motorcycle through the intersection, he was struck by the car driven by Ms. McGee, as it made a left turn. The car was owned by Charles McGee. The accident occurred at dusk.

After a non-jury trial, the Honorable William Hart Rufe, III, found that Mr. Lopa was negligent because his motorcycle headlight was not illuminated so that he was not properly visible. In addition, Judge Rufe found Ms. McGee was negligent because there was sufficient light for her to have seen Mr. Lopa if she had looked carefully and properly. Then, applying the Comparative Negligence Act, 42 Pa.C.S. § 7102, Judge Rufe held that fifty percent of the causal negligence was attributable to Mr. Lopa and fifty percent attributable to Ms. McGee. Having made this assessment, Judge Rufe then found for Maureen and Charles McGee on Mr. Lopa's claim, and for Mr. Lopa on Mr. McGee's claim. Thus, neither party was awarded recovery from the other.

Mr. Lopa filed post-trial motions and amended post-trial motions requesting the trial court to mold the judgment to the findings of fact or to enter a judgment non obstante veredicto. The trial court denied these motions. It is from this denial that Mr. Lopa appeals.

Mr. Lopa raises the following issues for our review: (1) should the trial court reapportion liability under the doctrine of comparative negligence where the apportionment of liability does not logically flow from the trier's findings of fact; (2) should the trial court grant a judgment N.O.V. when, under the doctrine of comparative negligence, the apportionment of liability does not logically flow from the trier's findings of fact; and (3) under the Pennsylvania Comparative Negligence Act, 42 Pa.C.S. § 7102, is the appellant entitled to recover from the appellees.

In responding to the first issue Mr. Lopa raises on appeal, we note, as the trial court did, that in Burns v. City of Philadelphia, 350 Pa.Super. 615, 504 A.2d 1321 (1986), we enunciated the standard of review to be applied in reviewing a trial court's apportionment of negligence under the Comparative Negligence Act. We stated that "the standard to be applied is not whether the court would have come to a different conclusion, but whether there are 'evidentiary circumstances or incontrovertible facts of such weight as to convince the court that an injustice has been done.' " Id. at 626, 504 A.2d at 1326-27 (citation omitted).

Mr. Lopa does not dispute the trial court's findings of fact; rather, he argues that the only logical conclusion that flows from them is that Ms. McGee was more negligent than he was. We disagree with this contention. The facts as found by the trial court can undoubtedly support the trial court's apportionment of negligence between the parties. The trial court stated: "Although [Ms. McGee] did not maintain a careful and proper lookout, had [Mr. Lopa] been driving with his motorcycle headlight illuminated, he would have been more visible to [Ms. McGee]. In short, we find that the negligence of [Mr. Lopa] and [Ms. McGee] were substantial contributing factors to the accident and that ...