Mecca v. Lukasik, s. 1522-1526
| Decision Date | 28 August 1987 |
| Docket Number | Nos. 1522-1526,s. 1522-1526 |
| Citation | 366 Pa.Super. 149,530 A.2d 1334 |
| Parties | Gilda MECCA, Administratrix of the Estate of Elizabeth Hope Mecca, Deceased v. Frank LUKASIK and Antoinette Lukasik, his wife, Administrators of the Estate of Anthony Lukasik, Deceased, Appellants. Joseph HAFICH and Charlotte Hafich, his wife, Administrators of the Estate of Jody Hafich, deceased v. Frank LUKASIK and Antoinette Lukasik, his wife, Administrators of the Estate of Anthony Lukasik, deceased, Appellants. Rodney CIZIK and Joan Cizik, his wife, Administrators of the Estate of Michelle Cizik, Deceased v. Frank LUKASIK and Antoinette Lukasik, his wife, Administrators of the Estate of Anthony Lukasik, Deceased, Appellants. Arthur J. THOMAS, Sr., and Hannah Thomas, Administrators of Estate of David J. Thomas, Deceased v. Frank LUKASIK and Antoinette Lukasik, his wife, Administrators of the Estate of Anthony Lukasik, Deceased, Appellants. Lloyd CHERESKO and Annette Cheresko, his wife, Administrators of the Estate of Michael Cheresko, deceased, and Lloyd Cheresko and Annette Cheresko, his wife, individually v. Frank LUKASIK and Antoinette Lukasik, his wife, Administrators of the Estate of Anthony Lukasik, Deceased, Appellants. Phila. 1986. |
| Court | Pennsylvania Superior Court |
James A. Doherty, Scranton, for appellants.
Robert W. Munley, Scranton, for appellees.
Before CIRILLO, President Judge, and TAMILIA and CERCONE, JJ.
This is an appeal from judgment entered on behalf of the estates of five deceased teenagers 1 who were killed when the car in which they were passengers plummeted from a roadway and landed some 200 feet below. Plaintiffs are the parent-administrators of their children's estates. Defendant-appellants are the parent-administrators of the estate of Anthony Lukasik, also a teenager who the jury found was the driver of the car, and who died the night of the accident.
After a jury trial, verdicts were returned in an average amount of $3.5 million for each of the plaintiffs. Following the denial of timely post-trial motions, this appeal followed. Appellants raise numerous allegations of error which we have carefully considered.
The evidence presented by the plaintiffs at trial established that on the evening of March 6, 1981, Anthony Lukasik borrowed his sister's car, a 1976 Chrysler Cordoba with a vinyl roof. He drove to Idle Hour Lanes, a bowling alley, in Dickson City, Lackawanna County. From there he drove seven other teenagers to a bonfire party. Around 11 p.m., those present began to arrange themselves in cars in order to go home. Jill Mecca, whose younger sister, Lisa Mecca, died that night, had originally been in the Lukasik vehicle, when, at the last minute, Lisa approached the car and asked Jill to trade places with her. Lisa's boyfriend was already in the ill-fated vehicle. Jill testified that Anthony Lukasik was in the driver's seat during this exchange. Eight teenagers were in the Lukasik vehicle and all died when, minutes later, traveling at a high rate of speed, it veered from side to side on a rural road and plunged through the guard rail into the chasm below. There were no eyewitnesses to the accident and details as to speed and measurement were presented in plaintiffs' case by an accident reconstruction expert and by various law enforcement personnel who investigated the scene. Those who arrived first at the scene of the accident either were not able to determine or did not take note of who was behind the wheel. That Anthony Lukasik was the driver at the time of the accident was decided by the jury based on the aforementioned testimony by Jill Mecca, and by that of Edward Smith and James Greavy, who stated that when the Lukasik car left the party, Anthony was the driver.
The first allegation of error which defendant-appellants argued vigorously and relentlessly during the trial and now on appeal concerns a statement which Jill Mecca made during a grand jury investigation. Appellants contend that this remark, which Jill attributed to Michelle Cizik, Anthony Lukasik's girlfriend and, one of the deceased teenagers, should have been allowed into evidence. During defense counsel's cross-examination of Jill Mecca, he asked her, "Now, when you got out of that car, did you hear Michelle Cizik ask Tony Lukasik if she could drive the car?" Counsel for the plaintiffs objected and a sidebar discussion ensued. 2
The appellants sought to enter the Michelle Cizik remark into evidence as establishing, not that Michelle was the driver, but only that Jill overheard Michelle's remark. However, appellants claim that the identity of the driver of the vehicle was the key issue in the case, highlighting the meaning which they hoped the jury would give to the offered statement. Appellant then offered other rationales in an attempt to extirpate the statement from its hearsay nature. The trial court was not persuaded and refused to admit the statement as inadmissible hearsay.
On appeal, appellants assert that the remark was a statement against a party interest or an admission, which would render it as an exception to the hearsay rule. However, the offered statement had neither minimal indicia of reliability, since as Jill related it, it was said in jest, nor was it capable of cross-examination, since the declarant was deceased. As the court explained in a case cited by appellants as authority, DeFrancesco v. Western Pennsylvania Water Co., 329 Pa. Superior Ct. 508, 522-3, 478 A.2d 1295, 1302 (1984),
Hearsay exceptions have historically been justified under two divergent theories. The first and most common justification for the admission of hearsay statements is that such statements exhibit a high degree of reliability, so that the denial of the right to cross-examination is minimized. Thus, a jumble of hearsay exceptions have sprung up on the basis that the circumstances surrounding the statement guarantee the requisite measure of reliability.
There exists, however, a very narrow second category of hearsay exception which does not deal with reliability at all. Instead, out-of-court statements may be admitted regardless of trustworthiness where the right to cross-examination is preserved. This category originates with the case of party admissions. The reason for the admission of a party's statement is not that it is especially reliable, but rather, because the right to cross-examination is not lost; i.e., the party is present to take the stand and explain his statement. See McCORMICK ON EVIDENCE § 262 (2d ed. 1972); 4 WIGMORE ON EVIDENCE § 1048 (Chadbourne rev. 1972). Thus, the hearsay rule is not a ground for objection when a party's extrajudicial opinions are offered against him, although it remains a ground for objection when a party attempts to offer his extrajudicial assertions in his own behalf. See 4 WIGMORE ON EVIDENCE, supra. The probative value of such statements derives, therefore, from satisfaction of the hearsay rule via retention of the right to cross-examination, rather than from any independent indicia of reliability.
The proffered statement was hearsay which did not fall within any exception. It was not a statement against interest or an admission as in Salvitti v. Throppe, 343 Pa. 642, 23 A.2d 445 (1942), in which plaintiffs properly testified as to defendant's statement that the accident in question was his fault. Absent any substantiating behavior, Michelle Cizik's joking comment reveals nothing about her conjectured offer to drive the Lukasik car, as appellants attempt to portray it. Therefore, appellants are not entitled to a judgment n.o.v., nor to a new trial because of the trial court's refusal to permit the Michelle Cizik remark into evidence.
The next issue concerns two newspaper articles which appeared during the trial in local papers. Defense counsel requested a mistrial or at least a polling of the jury to determine whether they had read the articles which reported Anthony Lukasik as the driver of the vehicle in the accident. Insurance coverage of the vehicle involved was mentioned in one of the articles. The defendant, Mr. Frank Lukasik, administrator, related however, to the court and all counsel, in chambers, that he heard three jurors referring to one of the articles and the fact that, once they recognized it as pertaining to the trial, they closed the paper. Nevertheless, appellants maintain that these jurors could have been influenced by mention of insurance companies in the articles in light of the large verdicts which they rendered. Appellants contend that the jury would not have awarded such generous verdicts if they had thought the Lukasiks were going to have to pay them. The action, if any, to be taken in such a situation rests in the discretion of the trial court. Nicholson v. Garris, 418 Pa. 146, 210 A.2d 164 (1965). In denying the defense motion at trial, the court emphasized its instructions to the jury after it had been sworn that they must consider only the evidence presented at trial. Before the jury retired, the court instructed the jurors to consider only the evidence in making its decision and nothing extraneous to the evidence. And, as the court stated in its opinion, Mr. Lukasik's report of the overheard conversation supported the court's conclusion that the jurors were aware of their role and were taking it seriously in closing the newspaper upon seeing reference to the trial. There was no evidence that the jurors had read about the insurance in the article but merely that as soon as they read that the article dealt with the case they closed the paper.
Appellants rely on cases in which the fact of insurance was brought to the attention of the jury at trial. At most, what was involved in the instant case was reference in one newspaper article as to the insurance policy limits involved but no evidence the jurors read that portion of the article dealing with insurance. This situation...
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