Reilly by Reilly v. Southeastern Pennsylvania Transp. Authority

• Court: Superior Court of Pennsylvania
• Citation: 330 Pa.Super. 420,479 A.2d 973
• Parties: Gerald J. REILLY, a minor, by William J. REILLY and Elizabeth C. Reilly, his parents and natural guardians, and William J. Reilly and Elizabeth C. Reilly, in their own right v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY and Vance Zieganfuss and William M. Baker and Bernice S. Baker. Appeal of SOUTHEASTERN TRANSPORTATION AUTHORITY and Vance Zieganfuss, Appellants
• Decision Date: 08 June 1984

Page 973

479 A.2d 973 330 Pa.Super. 420 Gerald J. REILLY, a minor, by William J. REILLY and
Elizabeth C. Reilly, his parents and natural
guardians, and William J. Reilly and
Elizabeth C. Reilly, in their own right
v.
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY and Vance
Zieganfuss and William M. Baker and Bernice S. Baker.
Appeal of SOUTHEASTERN TRANSPORTATION AUTHORITY and Vance
Zieganfuss, Appellants. Superior Court of Pennsylvania Argued Dec. 15, 1983.
Filed June 8, 1984.

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[330 Pa.Super. 427] David P. Bruton, Philadelphia, for appellants.

Robert C. Daniels, Philadelphia, for appellees.

[330 Pa.Super. 428] Before SPAETH, President Judge, and BROSKY and JOHNSON, JJ.

SPAETH, President Judge:

This is an appeal from the entry of judgment on a verdict of $9,815,525 for injuries suffered in an accident involving a bus owned by appellant Southeastern Pennsylvania Transportation Authority (SEPTA) and driven by appellant Vance Zieganfuss. For convenience, we shall generally refer to both appellants as "SEPTA." SEPTA argues: (1) that it is entitled to judgment notwithstanding the verdict because there was insufficient evidence of its negligence: (2) that it is entitled to a new trial because the trial judge should have recused himself; (3) that it is entitled to a new trial because the trial judge erred in his conduct of the voir dire and in the charge to the jury; and (4) that at least it is entitled to a new trial limited to the issue of damages. The first argument is without merit. On the second argument, the record is insufficient, for it shows only that recusal may have been required, not that it was required; we therefore remand for further hearing. On the third argument, we decline to review SEPTA's allegations of trial error prior to a resolution of the recusal issue. And on the fourth argument, we hold that there was error in the determination of damages that must be corrected either at a new trial limited to the issue of damages, or if a new trial is ordered after remand, at that trial.

This action arises from an accident that occurred on February 20, 1978. Gerald J. Reilly, then fourteen years old, and two of his friends were passengers in a SEPTA bus. When the bus stopped at the intersection of West Baltimore Avenue and Runnemede Street in Lansdowne, Pennsylvania, Gerald got off. While the bus waited, he walked in front of the bus to cross Baltimore Avenue, and was hit by an automobile passing the bus on the bus driver's side.

[330 Pa.Super. 429] Gerald's parents, William J. Reilly and Elizabeth C. Reilly, on Gerald's behalf and in their own right, ¹ sued SEPTA, the bus driver, Vance Zieganfuss, and the driver of the automobile that hit Gerald, William M. Baker, and his mother, Bernice S. Baker. The case was tried before the Honorable I. Raymond KREMER and a jury. The jury awarded damages totaling $7,875,000 and apportioned liability as follows: 65% to Baker, 30% to SEPTA, and 5% to Gerald. The trial court reduced the award by $15,000, the amount of wage loss benefits payable under the No-Fault Act. The court further reduced the award by 5% to reflect Gerald's negligence. Finally, the court added delay damages pursuant to Pa.R.C.P. 238, resulting in a molded award of $9,815,525. SEPTA and Zieganfuss filed a motion for judgment n.o.v. or in the alternative for new trial. ² The court en banc dismissed the motion, judgment was entered on the verdict as molded, and SEPTA and Zieganfuss filed this appeal.

-1-

SEPTA first argues that there was insufficient evidence of its negligence to

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support the verdict, and that it is therefore entitled to judgment n.o.v. This argument is without merit. SEPTA admitted that Zieganfuss, the bus driver, was its agent, and although some of the evidence was controverted, when viewed in the light most favorable to Gerald, Commonwealth v. Blevins, 453 Pa. 481, 309 A.2d 421 (1973), it was sufficient for the jury to find that the driver was negligent.

On the day of the accident snow along the sides of Baltimore Avenue prevented the driver from pulling the bus up to the curb when stopping to allow passengers to get on or off. N.T. Feb. 22, 1983, at 20-22. When the bus was [330 Pa.Super. 430] stopped to let Gerald off, its left wheels were on or over the center line of the road. Id. at 60. The bus driver testified that at the place he stopped the bus there was a path in the snow from the bus to the sidewalk. Id. at 21-22. He also testified that when he stopped the bus, a woman was standing in the path waiting to get on, so that in getting off, Gerald jumped onto the snow bank between the bus and the curb. Id. at 32.

Gerald was on the bus with two friends, Terry Ringler and William Boyce. Terry testified that Gerald got off the bus before he did, and that while he was still on the bus, he heard the bus driver beep his horn and saw the driver wave Gerald across the street. N.T. Feb. 11, 1983, at 519. Gerald started to cross the street, but just after he had passed the front of the bus he was hit by an automobile passing the bus on the bus driver's side. He was seriously and permanently injured. William testified that he heard the bus driver beep his horn before Gerald was hit. Id. at 574, 596. The bus driver testified that he did not blow his horn, and that although he may have pointed to the fare box, he did not make a hand signal to Gerald. N.T. Feb. 22, 1983, at 35, 115, 116. He further testified that he knew he was holding up traffic; that there were at least ten automobiles behind him; and that in such a situation, automobiles tended to pass, illegally, on the left side of the bus. Id. at 27, 71. He further testified that when he stopped, he put on his right turn signal but not his flashers, id. at 31; that he knew the bus was on or over the center line, id. at 60; and that he did not look in his rearview mirror to check the traffic while he was stopped and before Gerald was hit, id. at 77.

From this evidence the jury was entitled to find that while Gerald was on the snow bank, the bus driver beeped his horn and waved Gerald across the street in front of the bus, and that the driver took these actions without first checking his rearview mirror or putting on his flashers, and knowing that traffic was backed up behind him and that in such a situation, automobiles tended to pass the bus on the [330 Pa.Super. 431] left. From these findings the jury was entitled to proceed to the conclusion that the driver was negligent.

-2-

(a)

SEPTA's first argument for a new trial is that the trial judge should have recused himself. SEPTA assigns four reasons in support of this argument. The record is sufficient for us to determine the merit of the first two reasons, but not of the last two. We must therefore remand so that a judge other than the trial judge may receive further evidence and determine on the basis of a complete record whether the trial judge should have recused himself.

(i)

SEPTA argues that the trial judge should have recused himself because he was hostile to SEPTA's trial counsel, Stuart Schwartz. In support of this argument SEPTA cites statements the judge made to Mr. Schwartz during oral argument in another case, before this case was tried. We find that SEPTA has waived this argument. Mr. Schwartz first raised the judge's alleged hostility to him as a basis for recusal by oral motion made at a pre-trial conference on June 23, 1982. The judge denied any hostility but nevertheless granted SEPTA leave to file a written motion

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for recusal within five days. SEPTA, however, filed no such motion until the morning of trial, February 8, 1983. Not only has SEPTA offered no excuse for this delay but the record shows that it has no excuse, for its counsel had knowledge of the facts forming the basis of the motion when the motion was first made orally, on June 23, 1982.

In any event, SEPTA's argument is without merit. The trial judge assured Mr. Schwartz that although he had disagreed with him in the prior case, he bore him no antipathy, N.T. Feb. 8, 1983, at 27, and we find nothing in the judge's statements in the prior case that persuades us that we should reject this assurance. In this regard, we note that SEPTA's argument that the judge was so hostile as to require recusal is "confined to the court's participation [330 Pa.Super. 432] in the former trial," Commonwealth v. Boyle, 498 Pa. 486, 491 n. 6, 447 A.2d 250, 252 n. 6 (1982); it is not based on anything that occurred apart from that trial. As will appear, SEPTA's remaining arguments for recusal are not so confined.

(ii)

SEPTA also argues that the trial judge should have recused himself because counsel for Gerald and his parents, Robert Daniels, had represented the judge in a class action. According to SEPTA, Mr. Daniels's past representation of the judge required the judge to recuse himself because, in the words of Canon 3 C of the Code of Judicial Conduct, it created a situation "in which [the judge's] impartiality might reasonably be questioned." We are not persuaded by this argument.

We acknowledge that perhaps sometimes an attorney's past representation of a judge will be enough by itself to create such an appearance of impropriety that the judge may not preside in later cases in which that attorney appears. Cf. Bole v. Nationwide Insurance Co., 475 Pa. 187, 379 A.2d 1346 (1977) (when contract calls for disinterested arbitrators, past representation of one of parties by designated arbitrator disqualifies that arbitrator). In appraising the significance of past representation, however, the fact that it is past must be recognized. Thus, the appearance arising from the fact of past representation will ordinarily be much less disturbing than the appearance arising from concurrent representation. For it is more likely to appear to a reasonable person that the judge's conduct of the trial might not be impartial when one of the attorneys is, even as the trial is being held,...