Polumbo v. Destefano

• Decision Date: 14 August 1984
• Citation: Polumbo v. Destefano, 478 A.2d 828, 329 Pa.Super. 360 (Pa. Super. Ct. 1984)
• Parties: John M. POLUMBO, Administrator of the Estate of Charles G. Leshko, Sr. v. Angelo DESTEFANO, Joseph Cavalleri, Richard Nelson and Safeway Truck Co., a/k/a Safeway Trucking Company v. CADILLAC MOTOR CAR DIVISION OF GENERAL MOTORS CORP. (Two Cases) Appeal of Richard NELSON and Safeway Truck Co., a/k/a Safeway Trucking Company. (Six Cases) Ann Louise LESHKO v. Angelo DESTEFANO, Joseph Cavalleri, Richard Nelson and Safeway Truck Co., a/k/a Safeway Trucking Co. v. CADILLAC MOTOR CAR DIVISION OF GENERAL MOTORS CORP. v. John M. POLUMBO, Administrator of the Estate of Charles G. Leshko, Sr. George SAGAN and Evelyn Sagan, his wife, v. Angelo DESTEFANO, Joseph Cavalleri, Richard Nelson and Safeway Truck Co., a/k/a Safeway Trucking Company v. CADILLAC MOTOR CAR DIVISION OF GENERAL MOTORS CORP. Ann Louise LESHKO v. Angelo DESTEFANO, Joseph Cavalleri, Richard Nelson and Safeway Truck Co., a/k/a Safeway Trucking Co. v. CADILLAC MOTOR CAR DIVISION OF GENERAL MOTORS CORP. v. John M. POLUMBO, Administrator of the Estate of Charles G. Leshko, Sr. George SAGAN and Evelyn Sagan, his wife v. Angelo DESTEFANO, Joseph Cavalleri, Richard Nelson and Safeway Truck Co., a/k/a Safeway Trucking Company v. CADILLAC MOTOR CAR DIVISION OF GENERAL MOTORS CORP., and John M. Polumbo, Administrator of the Estate of Charles G. Leshko, Sr.
• Court: Pennsylvania Superior Court

Page 828

478 A.2d 828

329 Pa.Super. 360

John M. POLUMBO, Administrator of the Estate of Charles G. Leshko, Sr. v.Angelo DESTEFANO, Joseph Cavalleri, Richard Nelson andSafeway Truck Co., a/k/a Safeway Trucking Company v.CADILLAC MOTOR CAR DIVISION OF GENERAL MOTORS CORP. (Two Cases)

Appeal of Richard NELSON and Safeway Truck Co., a/k/a

Safeway Trucking Company. (Six Cases)

Ann Louise LESHKO v.Angelo DESTEFANO, Joseph Cavalleri, Richard Nelson andSafeway Truck Co., a/k/a Safeway Trucking Co. v.CADILLAC MOTOR CAR DIVISION OF GENERAL MOTORS CORP. v.John M. POLUMBO, Administrator of the Estate of Charles G.

Leshko, Sr.

George SAGAN and Evelyn Sagan, his wife, v.Angelo DESTEFANO, Joseph Cavalleri, Richard Nelson andSafeway Truck Co., a/k/a Safeway Trucking Company v.CADILLAC MOTOR CAR DIVISION OF GENERAL MOTORS CORP.

Ann Louise LESHKO v.Angelo DESTEFANO, Joseph Cavalleri, Richard Nelson andSafeway Truck Co., a/k/a Safeway Trucking Co. v.CADILLAC MOTOR CAR DIVISION OF GENERAL MOTORS CORP. v.John M. POLUMBO, Administrator of the Estate of Charles G.

Leshko, Sr.

George SAGAN and Evelyn Sagan, his wife v.Angelo DESTEFANO, Joseph Cavalleri, Richard Nelson andSafeway Truck Co., a/k/a Safeway Trucking Company v.CADILLAC MOTOR CAR DIVISION OF GENERAL MOTORS CORP., andJohn M. Polumbo, Administrator of the Estate of

Charles G. Leshko, Sr.

Superior Court of Pennsylvania.

Argued Oct. 12, 1983.

Filed June 1, 1984.

Reargument Denied Aug. 14, 1984.

James P. McKenna, Jr., Pittsburgh, for appellants.

Richard G. Fine, Scranton, for Destefano, appellee(at Nos. 1073and2631).

Thomas J. Sharkey and Joseph J. Ustynoski, Hazleton, for Leshko, appellee(at Nos. 1074and2632).

Joseph J. Ustynoski, Hazleton, for Sagan, appellee(at Nos. 1075and2633).

Before SPAETH, President Judge, and POPOVICH and HOFFMAN, JJ.

POPOVICH, Judge:

This is an appeal from the Order of the en banc Court of Common Pleas of Luzerne County, which was reduced to a judgment on August 9, 1982, denying defendants-appellants' (Richard Nelson and Safeway Truck Company's)motions for a judgment non obstante veredicto or a new trial.¹We reverse.

The measuring stick against which the grant or denial of a judgment n.o.v. is to be assessed has been stated to be the following:

In reviewing the trial court's denial of appellant's motion for judgment n.o.v., the evidence, together with all reasonable inferences therefrom, must be viewed in the light most favorable to the verdict winners.Flickinger Estate v Ritsky, 452 Pa. 69, 305 A.2d 40(1973);Kresovich v. Fitzsimmons, 439 Pa. 10, 264 A.2d 585(1970);Cerino v. Philadelphia, 435 Pa. 355, 257 A.2d 571(1969).All conflicts in the evidence, moreover, must be resolved in favor of the prevailing party.Moyer v. Ford Motor Co., 205 Pa.Super. 384, 209 A.2d 43(1965);Metts v. Griglak, 438 Pa. 392, 264 A.2d 684(1970);Axilbund v. McAllister, 407 Pa. 46, 180 A.2d 244(1962).However, where the evidence is insufficient to sustain a verdict against the losing party, a court will enter judgment n.o.v. in favor of the appellant despite a verdict to the contrary.Kolb v. Hess, 227 Pa.Super. 603, 323 A.2d 217(1974);Eldridge v. Melcher, 226 Pa.Super. 381, 313 A.2d 750(1973).

Mike v. Borough of Aliquippa, 279 Pa.Super. 382, 388-89, 421 A.2d 251, 254(1980).AccordMcDevitt v. Terminal Warehouse Co., 304 Pa.Super. 438, 450 A.2d 991(1982), petition for allowance of appeal denied October 29, 1982[No. 447 E.D. Allocatur Docket 1982].

Viewing the evidence in a light most favorable to the non-moving partyplaintiffs-appellees, the following appears of record: At approximately 6:00 p.m. on the 5th of June, 1975, Angelo DeStefano was driving a conventional tractor (meaning, the engine was out in front of the cab) pulling an empty 33-foot, flatbed trailer in a westerly direction on Interstate 80.It was not dark, and DeStefano was moving at about 45 m.p.h., on a 55 m.p.h. posted highway, because the road surface was wet.(N.T. 391)

DeStefano had just come off a bridge and could see, some 250 feet ahead, that a Cadillac had stopped on the berm of the road, just past the exit for White Haven, Pennsylvania.He slowed and, with the Cadillac about 100 feet away, applied his brakes.When he did so, however, the tractor trailer started to jackknife.(N.T. 394)At this point, he looked in his left rear mirror and saw that another tractor trailer, later determined to be driven by Richard Nelson and leased to Safeway Truck Company, "was coming up on" him.(N.T. 420)This prevented DeStefano from moving into the left lane, so he started to pull off to the right.As he attempted to do so, he struck the rear of the Cadillac.This impact caused the Cadillac to veer to the left, and, in a counter clockwise motion, back onto the highway surface with the front end facing south.(N.T. 131 & 132)Before DeStefano was able to get off the highway and stop by driving up an embankment to his right, the Cadillac traveled "say sixty, seventy feet."(N.T. 189)Thereafter, the Cadillac crossed into the southerly portion of the westbound lane of Interstate 80 at an angle and was struck by Nelson's tractor trailer while in the passing lane.The two vehicles traveled for some 400 or 500 feet before coming to rest in a ditch on the right hand side of the westbound lane of Interstate 80.(N.T. 138 & 190)

The driver of the Cadillac, Charles Leshko, was killed and the two passengers, Mrs. Ann Louise Leshko in the front seat and a Mr. George Sagan in the back, survived.

The case proceeded to trial and a jury found the defendants, which included Richard Nelson and Safeway Truck Company, negligent.Post-verdict motions were denied and judgment was entered for the plaintiffs and against the defendants-appellants.

On appeal, appellants present three issues for our review, ² but, because of the result reached instantly, we need only respond to appellants' complaint that the evidence (or, more appropriately, the lack thereof) warranted the entry of a judgment n.o.v.

Appellants urge that the testimony on the question of negligence was so inadequate that it should not have been submitted to the jury for resolution.Rather, they contend that Nelson, faced with a sudden emergency not of his own making, could not have done anything to avoid the accident.

In response, appellees argue that "[a] review of the record shows that Nelson's position is untenable and not supported by the credible evidence."In particular, they direct our attention to the inconsistency in Nelson's deposition, trial and appellate accounting as to when he first saw the Leshko Cadillac.

Before examining the allegations of both sides, we find it prudent to set forth some of the precepts that have emerged in regard to the sudden emergency doctrine, and, then, see how they affect the case at bar.

To begin with:

The purpose of the sudden emergency doctrine is to relieve a victim from the sometimes stringent reasonable man standard when he is confronted with an occurrence that permits no opportunity to apprehend the situation and act accordingly.The doctrine is applied most often in automobile cases in which a driver is confronted with an occurrence requiring some form of immediate, evasive action.

Carpenter v. Penn Central Transportation Co., 269 Pa.Super. 9, 16, 409 A.2d 37, 40(1979).Further, the presence of a sudden emergency negates the applicability of the "assured clear distance" rule; viz.:

Originally a common law principle, the "assured clear distance ahead" rule is a part of The Vehicle Code, Act of May 1, 1929, P.L. 905, § 1002, as amended, 75 P.S. § 1002(1971)[now recodified in essentially the same format at 75 Pa.C.S.A. § 3361], which provides, inter alia, that "no person shall drive any vehicle, upon a highway ... at a speed greater than will permit him to bring the vehicle to a stop within the assured clear distance ahead."The assured clear distance ahead rule has been held to require that a driver operate his vehicle in such a manner that he can always stop within the distance he can clearly see.Otherwise stated, the rule requires that such control be maintained as will enable a driver to stop and avoid obstructions that fall within his vision.

It is apparent that this distance, the range of a driver's vision, may vary according to the visibility at the time and other attendant circumstances[.]

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When an obstacle is encountered by a driver which is within his line of travel, the distance to the obstacle becomes the time and distance limitation at the moment that the obstacle comes into view.The "driver must carefully watch so that he can see, if this is reasonably possible, any obstacle in his way, and can stop before a collision with it."

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[W]here a sudden and clear emergency arises inside the range of the previously assured clear distance, the rule has been held inapplicable.A sudden and clear emergency may be a dust cloud, a moving object, a sudden blocking of the road, the sudden swerving of other vehicles or the aforementioned blinding lights.(Citations omitted)(Emphasis added in part)

Unangst v. Whitehouse, 235 Pa.Super. 458, 464, 344 A.2d 695, 698-699(1975).

Thus, based on the preceding, we need to determine if, initially, a sudden emergency was proven by Nelson, and, then, if the facts giving rise to the emergency "leave no room for doubt, [so that] the issue becomes a matter of law for the judge."(Citation omitted)Rohay v. Breyak, 409 Pa. 568, 571 n. 1, 186 A.2d 913, 915 n. 1(1963).On this point, we find the case of Moore v. Meyer & Power Co., 347 Pa. 152, 31 A.2d 721(1943) instructive.

In Moore, a truck belonging to Meyer & Power Company was being driven south on Route 68, a two-lane highway.The appellee was a passenger in a Ford sedan owned and operated by a Mr. Young, which was traveling south on the same roadway.At a distance of about 200 feet, both drivers observed each other.Young,...