Folino v. Young

dissenting.

The majority holds that a conviction for a summary offense is conclusive in a subsequent civil proceeding when the summary offense is found to be a necessary operative fact in a non-summary conviction. The majority concludes that such a result is not inconsistent with this Court’s prior decisions in Loughner v. Schmelzer, 421 Pa. 283, 218 A.2d 768 (1966) and Hurtt v. Stirone, 416 Pa. 493, 206 A.2d 624 (1965). I must dissent because I view the majority’s holding as a significant departure from our prior case law. Even if I were to agree with the majority’s unwarranted extension of those cases, I would dissent because the majority has erred in affirming the Superior Court’s order requiring the trial court to enter a directed verdict for the Appellants on the issue of negligence.

In Hurtt, .this Court overruled prior case law which had held that judgments in criminal cases were inadmissible to establish the facts in a civil case. This change was precipitated largely by the Court’s perception that the modern trend was moving away from enforcing a rigid rule. The precise issue raised in Hurtt was whether proof of a criminal conviction of extortion was conclusive evidence of the fact of extortion in a civil suit against the convicted extortioner to recover the extorted money. The Court’s holding that the conviction was conclusive evidence of the fact of extortion in the civil suit was based upon the fact that the criminal conviction after a jury trial arose from the same facts that were urged as the basis for his civil liability. The Court reasoned that the defendant should not be permitted a second opportunity to deny that which was established by his prior criminal conviction without proof that his conviction was procured by fraud, perjury, or some error that would affect the conviction itself.

In the instant case, the conviction was for the summary offense of driving at an unsafe speed. Even assuming, arguendo, that the summary offense conviction was admissible as conclusive evidence that the Appellant was driving at an unsafe speed, that fact alone would not be sufficient to sustain a directed verdict on liability in favor of the Appellees. The Appellees must still establish that the Appellant’s conduct was the proximate cause of their injuries. The liability of the Appellant cannot be established without a showing that the injuries were causally related to the Appellant’s operation of the vehicle at an unsafe speed.

By directing that the trial court enter a directed verdict in favor of the Appellees on remand, the Superior Court eliminated the need for any proof that the Appellant’s conduct caused the injuries. This violates the most basic principle of establishing liability for negligent conduct— that the conduct must be the cause of the injuries. Introduction of the summary offense conviction does no more than establish that there was a breach of the duty of due care.

As we stated in Congini v. Portersville Valve Co., 504 Pa. 157, 470 A.2d 515 (1983),

A finding of negligence per se does no more than satisfy plaintiff’s burden of establishing that a defendant’s conduct was negligent. See Section 288B of the Restatement of Torts Second; Prosser, Torts Ch. 5 § 36 pp. 200-201 (4th ed. 1971). However, the burden remains upon plaintiff to establish that his complaint of injuries were proximately caused by the statutory violation.

504 Pa. at 163, 470 A.2d at 518 (footnote 4). The Superior Court’s analysis, and the majority’s affirmance thereof, eliminates the burden of proof on a plaintiff to establish liability when there has been a prior criminal conviction.

It is apparent that the Superior Court’s error emanates from its improper consideration of the homicide by vehicle conviction. The instant action is not one on behalf of the deceased victim whose death was the basis for the homicide by vehicle conviction. The deceased victim was a passenger in the Appellant’s automobile, not of the Appellees’ automobile. The Appellees must establish the claimed negligence of the Appellant as the cause of their injuries. For this reason, I would find the Superior Court erred in requiring that a directed verdict must be entered in the Appellees’ favor.

I must depart also from the majority’s willingness to extend Hurtt to permit the introduction of summary offense convictions in a subsequent civil proceeding. The majority’s extension of Hurtt injects an element of uncertainty into the determination of the admissibility of summary offense convictions. The majority’s analysis requires consideration of whether the summary offense was vigorously defended to resolve the question of the admissibility of that evidence. I agree with Judge Del Sole’s analysis in his dissenting opinion, in which he stated:

I disagree with the [Superior Court] majority’s approach insofar as a determination of whether or not Young indeed took “advantage of his day in court” raises an issue collateral to the case at bar. Further, I do not believe that a decision of this nature can be simply based on a review of the record. Rather, if this Court were to utilize this analysis each time the preclusion of a prior minor conviction occurred, we would need to order a hearing to ascertain whether or not the defendant asserted his/her best defense.

368 Pa.Super. at 229, 533 A.2d at 1038.

Finally, I agree with Judge Del Sole’s observation that even if the Appellant’s prior conviction was to be considered admissible, its preclusion was harmless error because the Appellees were permitted to introduce evidence of Appellant’s driving at an unsafe speed. The trial court also charged on the Motor Vehicle Code violation for driving at an unsafe speed. The jury was instructed that if they found the Appellant violated that section of the Code, they were required to find that the Appellant was negligent as a matter of law. The jury’s verdict in favor of the Appellant indicated that the jury had concluded that the rate of speed was not the cause of the accident. Any error, therefore, was harmless.