*1 466 already supporting probable cause
The facts recited independent legality arrest, also establish and the probable the automobile. See for a search of cause (1970) (“... as 42, Maroney, n.6 v. 399 46 Chambers U.S. justifying many cases, the circumstances will be true in furnishing probable cause the arrest are also those search.”) description car, num- license ber, occupants, prox- number and race of the imity both in the crime time and location to the scene of person warrants a of reasonable caution to believe that an was itself the automobile contained contraband and instrumentality of the crime. appeal reasons, facts in this
For these
we find
police
justify
finding
officers
are sufficient to
appellant,
probable
had
to arrest and search
cause
and, therefore,
judgment of sentence.
affirm the
ordinary
an
an
made for
the automobile when
arrest
search
Termine,
Superior
224 Pa.
v.
traffic offense. See also Commonwealth
Burgos,
163,
(1973);
v.
223 Pa.
Commonwealth
Joseph Zoffer, with him & M. appellants. appellee, Weis, for Weis, with him Daniel J. Weis Eakin. 31, March 1975:
Opinion Voort, J., der Van Gladys evening February 18, 1969, one On the secondary driving westerly on a Eakin was a direction sign stopped stop an intersection at road. She at Pittsburgh). highway (Route She south of main feet right left; she traffic 800 looked to the left saw negotiate highway. proceeded down the She then right passing the north lane of Route turn into bound *3 high- preparatory making prompt from the left turn lengths way. Route After had traveled four car on she Polimeni she became of the vehicle of one Michael aware bearing car her in the lane. The Polimeni down on same lane, passing car swerved the Eakin into slower curb striking going right, on out of control. its the latter and curb, rebounded, then Polimeni’s car veered into the bound crossed the and came to rest in south highway, passing whereupon by struck the automobile lane was wife, traveling of one Marvin Caldwell and his south- passengers wardly. Appellants in Poli- were herein meni vehicle.
Litigation having been with suits been has extensive, brought Polimeni, by (1) against and Caldwells Eakin (2) against Caldwell, Polimeni with Eakin Eakin passengers counter-claiming, (3) appellant three against of Polimeni Caldwell, Eakin and with Eakin bringing in Polimeni as an additional defendant. Thus assuming posture there plaintiffs, were six Polimeni that being case, in one as well as defendant in Eakin’s coun- appellants’ ter-claim and additional defendant in cause action. begun May
Trial was Monday, on 1972. Verdicts were against rendered as follows: cases Eakin and Caldwell, wherein Polimeni is additional de- fendant, “guilty”, Eakin, guilty” Polimeni “not and Cald- well guilty”; against “not in the case Caldwells’ Eakin Polimeni, guilty” “guilty”; Eakin “not and Polimeni against Caldwell, Polimeni’s case Eakin and each guilty”; defendant “not and in Eakin’s counter-claim against Polimeni, “guilty”. defendant did Counsel not jury polled. wish the The Court molded the verdict and plaintiffs the case of Caldwells as for deter- severed damages. Appellants timely mination of herein moved judgment new trial and n.o.v., both which denied were by opinion Judges Ap- an able Fiok Finkelhor. pellants appeal judgment from the in favor of entered Eakin in the case in she which is one of defendants.
Appellants first raise the the Court permitted should have not of Eakin’s merits counter- against claim Polimeni to reach the inasmuch contributorily negligent Eakin should be held to be as a clearly matter of law.1 The raised issue is one to be by they parties appellant-passengers, were gave interest in the cause of action which rise said standing They counter-claim. have no to contest the ver- against ques- dict in case of Polimeni Eakin. Such appealed. tion be could raised has not Polimeni, but he the trial court second refused to the law of “The Vehicle on Code”, by reciting specific sections thereof.2 This is indeed *4 1. The five tried to- cases and Eakin’s counter-claim were gether, obtaining It remembered the same facts for all. must be argument, appellants referring that in to the case their first are Caldwell, counter-claiming. v. of Polimeni Eakin and Eakin 1014(c) Specifically, 1011(a) 2. of “The Vehicle sections and Code,” 1014(c). (a) and 75 P.S. §§1011 appel- 1) light the that spurious in of fact
a charge request a and the 2) not such lant’s counsel did accurately fully paraphrased charge given, which judge A limited applicable is not the law of statute. charge reading simple a of statute. in his to improp- that the Court third is contributory negligence it erly as of defined the doctrine argue Appellants doctrine applied to now that said Eakin. charge part it related to have a of the as should been counter-claim, should have and that Court Eakin’s explained jury Eakin contrib- could have found that charge utorily negligent in The did that action. Court law, appellants a not be found that, as matter of could appellants contributory negligence, guilty this of to argument by object. cannot an did We now entertain appellants challenging of which, a as a matter regarding apply which is law, did not to them and raised part part case to of case but of a an issue a their they parties. Therefore, which were not brought against Caldwell, with case Polimeni Eakin defendant, being any question of additional there no contributory negligence part appellants, on the of which agreeable appellants, appellants cannot statement was now what to them is a collateral issue. raise argue
Appellants next that lower court erred failing by the to read to the the verdicts as molded following jury’s Friday, immediately On read- Court. ing rejection poll its of the verdict and counsel’s jury, inquired that record shows the Court “in whether was their each case there verdict finding plaintiffs plaintiffs, for the each one of or these against defendant Polimeni?” Of course excludes plaintiff against the case wherein Polimeni was Eakin there have been no confusion Caldwell, but could there each of defendants had been because the other reply adjudged guilty”. jury’s question this “not question light In was in affirmative. Court’s
471 quoted reply together above and the of the the jury, appellants fact that any objec- counsel for did not raise following tion Monday, until the after the trial moved had on subsequent considerations, to correctly the Court re- request the poll fused to re-read the molded verdicts and jury. the
Appellants’
fifth
is that
trial
erred
the
court
charging
in
jury
negli
superseding
the
on
of
the issue
gence.
judge’s charge
language
The trial
followed the
in
Rutkowski,
509, 513-514,
9,
Klena v.
482
248
11
Pa.
A.2d
liability 1)
(1968),
third-party
as it defines
of a
tortfeasor
independent
original
tortfeasor,
whose action is
of the
by
being “merely
the condition created
him
a circum
cause”;
proximate
stance of the accident and not its
2)
original
third-party
of both the
their
tortfeasors,
being “contributing
proximate
action
causes
factors”.
case, reading
charge
whole,
the
In
instant
the
we
as a
complies
Pennsylvania
that it
with the law of
on
believe
liability
of
in the
this
tortfeasors
circumstances of
charge
may
jury
case. The
advises the
that it
find Eakin
guilty.
language
Or,
Klena, swpra,
alone
similar to
jury may
negligent
find that Polimeni’s action
to
superseding
harm,
such an extent
to be
thus
a
cause of
allowing
liability.
again
finding
Or,
a
of Polimeni’s sole
language
jury
may
find
Klena,
similar
supra,
action, together
Polimeni,
Eakin’s
with that
were
of
contributing causes,
damage,
one with the
other,
allowing
finding
liability.
joint
thus
We hold
adequately
findings
stated
which the
Hargrove
al.,
Frommeyer
Co.,
could make. See
et
v.
&
Superior
(1974).
Ct.
Said then refused Mr. During by counsel for the witness was called Caldwells. jury, his to the counsel for the Caldwells told Quillan jury the that it infer from the that could fact Mr. by was not called Polimeni as he had counsel Mr. they he he announced would do that could infer that was stopped not the south bound lane when the Caldwell him, he, that Polimeni was car collided but Mr. moving. improper still This comment had no influence upon jury Quillan the and because Mr. had examined been thoroughly questioned was and what he testified to squarely jury. jury before the The had facts as Mr. Quillan them its related from which facts could draw Quillan inferences. Had Mr. not been called as a wit- oym problem might ness a different arise. urges final was that
prejudiced when it became known coun- represented previous sel’s law firm had Polimeni litigation arising Appel- from the instant set of facts.3 following day lants’ motion for mistrial was denied. The the Court instructed the consideration identity attorney may pleading of an who file a is irrele- captioned 3. It had been a cause of action v. Eakin “Caldwell Polimeni,” hung jury, appealed, and resulted in a was not part proceedings. allowing is not of of these An order withdrawal signed said by Judge law firm was Silvestri. liability. adequately
vant of issue hold that this We explained objection day uttered the appellants, before, prejudice against appellants and that no opened jurors. in the misrepre- minds of the No fact was jury, sented to jury’s dowe how the delib- see fact-finding legal interrupted by erations as to were technicality transpired. which
Judgments affirmed.
Dissenting Opinion J.: Price, majority opinion quite adequately prop- has erly background procedural reviewed factual and appeal they this as well pro- cases related to it as gressed through my It lower court. how- opinion, ever, majority adequately weigh that the does not the full appellants’ argument thrust at least its conclu- sion that adequately charged the trial court to the applicable provisions Upon of The Vehicle Code. a com- plete acknowledg- review charge, of the lower court’s ing that the lower court need read the of The sections *7 opinion charge Vehicle I am of the that the Code, pertains adequate responsibilities as it to the duties and appellee my alone, in would entitle view, Eakin. This appellants to newa trial. charge further
I believe that the court lower did properly contributory negligence on the it doctrine applied appellee majority points to out that Eakin. contributory negligence properly germane more plaintiff. action the lower court Eakin was a wherein majority perceive This is where I believe the fails to appellants’ argument. appellant argues thrust of me, To charge improper that the combination of an invalid negligence plus contributory on improper on negligence prejudiced appellants’ so case before impossible properly as to make against consider case Eakin. agree and, therefore, appellants
I would award newa against trial in their action Eakin and Caldwell wherein Polimeni is the additional defendant. Appellant.
Commonwealth v. Scheetz, J., Submitted November 1974. Before P. Watkins, Jacobs, Hoffman, Cercone, Price, Voort, der Van Spaeth, JJ. *8 Marrmla, appellant.
Michael M.