author: FEENEY, Judge: HESTER, Judge,

text:
    502 A.2d 1293
    Thomas FARELLI, Individually and Thomas Farelli, Administrator of the Estate of Marybelle Farelli, Deceased, Appellant, v. Brian MARKO.
    Superior Court of Pennsylvania.
    Argued March 13, 1985.
    Filed Dec. 31, 1985.

      Louis J. Krzemien, Jr., Pittsburgh, for appellant.
    Louis C. Long, Pittsburgh, for appellee.
    Before DEL SOLE, HESTER and FEENEY, JJ.

       The Honorable John M. Feeney, Judge of the Court of Common Pleas of Allegheny County, is sitting by designation.

   FEENEY, Judge:

The facts of this case essentially presented the jury with the solitary issue of whether the appellee’s explanation for his cross-over was credible. The jury obviously found it to be credible. Because we believe that decision on credibility to be reasonable, and the appellee’s explanation sufficient to support the verdict, we affirm.

In the early evening of June 18, 1979, a Chevrolet Monte Carlo driven by the appellee, Brian Marko, crossed over from the northbound lanes of traffic on Route 51 near Pittsburgh’s Liberty Tunnels and struck a southbound Volkswagon Rabbit containing the appellants, Thomas Farrelli and his wife, Marybelle Farrelli. Eyewitness testimony proffered by the appellants show that the Monte Carlo suddenly shot across the center line which divided the four lanes and collided with the front left area of appellants’ car. Brian Marko testified that he was travelling in the right-hand, northbound lane of Route 51 when he suddenly pulled to the berm on his right in order to avoid a collision with a car which was rapidly overtaking him from the rear. Unable to get his car to return to the highway with a little turn of his steering wheel and quickly approaching a telephone pole, the appellee jerked the wheel to the left and was propelled as from a “slingshot” across two lanes and into the oncoming southbound Volkswagon.

After the jury returned a defense verdict, the Honorable Marion K. Finkelhor denied appellants’ motion for a new trial. Thomas Farelli brought this appeal individually and as the administrator of the estate of his deceased wife.

There are two questions for review:

1. Did the trial court commit reversible error by its use of the phrase “sudden emergency” in a memorandum accompanying the order denying the motion for a new trial after it had refused to instruct the jury on the sudden emergency doctrine?
2. In a cross-over case is a defendant’s explanation of his presence on the wrong side of the road sufficient to support a defense verdict?

At trial, the court refused to instruct the jury that it could find that the defendant, Brian Marko, had been confronted with a “sudden emergency.” Appellants, however, mistakenly believe that this refusal to so instruct and the jury’s defense verdict are irreconcilable. The allegation that the trial court’s memorandum which specifically mentions “sudden emergency” is inconsistent with its refusal to charge the jury on “sudden emergency” is of little significance.

Assuming arguendo that its inclusion of the reference to a “sudden emergency” was intentional and erroneous, the verdict may nonetheless stand if the record facts support it. The Superior Court in Cohen v. Jenkintown Cab Co., 300 Pa.Super. 528, 446 A.2d 1284 (1982) clearly noted:

“[i]t is the order, and not the opinion, which is controlling. The appeal is from the order, not the opinion.” Id., 300 Pa.Superior Ct. at 538, n. 8, 446 A.2d at 1289, n. 8.

Appellants’ other argument, that the defense verdict is against the weight of the evidence, in essence claims that the trial court’s denial of appellee’s request for an instruction on the sudden emergency doctrine removed as a matter of law the only obstacle to a verdict in favor of the plaintiffs. When considering a motion for a new trial on the grounds that the verdict was against the weight of the evidence, all evidence must be reviewed. Sperrazza v. Cambridge Mutual Fire Insurance Co., 313 Pa.Super. 60, 64 n. 3, 459 A.2d 409, 411, n. 3 (1983). The record discloses stories by the appellants and appellee. The jury apparently believed both stories. Does the evidence demand that the appellee’s story not be believed? Witness credibility was the determinant. Brian Marko explained his actions and the jury believed him.

The distinguished Justice Musmanno once described, in very human terms, the circumstances where the grant of a new trial is in order:

“When a jury’s finding is so opposed to demonstrated facts that, looking at the verdict, the mind stands baffled, the intellect searches in vain for cause and effect, and reason rebels against a bizarre and erratic conclusion, it can be said that the verdict is shocking and unjust, and that a new trial is imperative.” Green v. Johnson, 424 Pa. 296, 298, 227 A.2d 644, 645 (1967).

This was not the case here. The mention of “sudden emergency” which accompanied the denial of appellants’ motion for a new trial is of no importance since the record contains facts which make the defense verdict supportable.

It is beyond peradventure that: (1) a driver who crosses the center line of a roadway thereby causing a collision is negligent per se, Bohner v. Stine, 316 Pa.Super. 426, 463 A.2d 438 (1983); (2) unless such driver proves by the fair weight of the credible evidence that his vehicle was there through no negligence on his part, Kenworthy v. Burghart, 241 Pa.Super. 267, 361 A.2d 335 (1976). By the denial of the “sudden emergency” instruction request, the jury was prevented from utilizing that specific doctrine in its deliberations. Nevertheless, since this is a negligence case the fact finder is permitted to formulate the parameters of the duty of care and decide whether appellee’s actions constituted a breach of that duty.

In its brief, appellants alleged that appellee’s explanation for being on the wrong side of the road was insufficient to support a defense verdict as were those in the cases of Denman v. Rhodes, 206 Pa.Super. 457, 214 A.2d 274 (1965), allocatur denied (1966); Blockinger v. Schweitzer, 419 Pa. 342, 214 A.2d 244 (1965); Herrold v. Waddington, 394 Pa. 635, 148 A.2d 923 (1959); and Bohner v. Stine, 316 Pa.Super. 426, 463 A.2d 438 (1983). For the following reasons, these cases do not require a finding that the verdict in the instant case is against the weight of the evidence.

In Denman v. Rhodes, supra, three defense witnesses gave testimony which presented the jury with a prior inconsistent statement by the defendant and his admission of fault, both of which were absent in the instant case. The investigating police officer testified that Rhodes stated at the scene that he was travelling north and all of a sudden the road narrows down and he struck what he thought was a pothole, lost control of his car, veered across and hit a car travelling southbound. 206 Pa.Super. at 459, 214 A.2d at 275. The defendant then testified that the operator of the vehicle preceding the Denman automobile did not dim his lights and “I pulled off the edge of the road and I fell into a rut ... and I pulled on my steering wheel to come up out of that rut and when I did it started to slide sideways.” 206 Pa.Super. at 459, 214 A.2d at 275. Finally, one of the plaintiffs testified that the defendant said “that he was terribly sorry but it was his fault.” 206 Pa.Super. at 459, 214 A.2d at 275. Had the jury in the instant case been faced with such facts its defense verdict would be less reasonable.

Blockinger v. Schweitzer, supra, involved the “assured clear distance” rule since the defendant’s car skidded when a slower moving vehicle darted into the left lane in front of the defendant’s car. The court also cautioned that the defendant must be on the alert for this act when the right lane of traffic is at a standstill. Unlike Blockinger, in the instant case the disrupting force was to Brian Marko’s rear, and the traffic was not at a standstill. Finally, the plurality opinion by Justice Musmanno lacks precedential value as three justices dissented on the basis that the verdict was not against the weight of the evidence, and two justices concurred in the result but filed no opinion.

In Herrold v. Waddington, supra, the Supreme Court in affirming the grant of a new trial referred to a part of the trial court’s opinion:

“We feel that the testimony of the defendant in this case is so weak, vague and contradictory that the verdict was clearly against the weight of the evidence and that the plaintiff is, therefore, entitled to a new trial.” Id., 394 Pa. at 639, 148 A.2d at 925.

There the total absence of credibility in the defendant’s testimony easily constitutes a factual distinction which precludes application of the Herrold court’s reasoning to the instant case. One of the plaintiffs testified that the defendant, Mr. Waddington, came to her hospital room the day after the accident and told her that he did not remember how the accident happened and requested her to assist him in making his police report of the accident. 394 Pa. at 637, 148 A.2d at 924. Thereafter, Mr. Waddington testified at a justice of the peace’s hearing that he did not know how the accident happened nor how fast he was going. 394 Pa. at 637-38, 148 A.2d at 924. The defendant’s incredible trial testimony is described by the court in the following excerpt:

“He testified that the plaintiff drove his car over into the defendant’s lane of travel right in front of him and that the front of the Herrold car struck his car. He states that he began to get his memory back the day after the accident, that he had regained it somewhat by the time of the hearing before the justice of the peace ... and had regained it completely when he testified at the trial. Although he testified that the front of his car and the front of the Herrold car struck each other, his own exhibits show that this is not so. He stubbornly insisted on saying that the bumper on the Herrold car and the front end of the Herrold car were damaged when his own exhibits contradicted this. The exhibits show that the Waddington car was damaged in front and that the Herrold car was struck from the side. Taken in connection with his own exhibits the testimony of the defendant is incredible and should not be allowed to stand.” 394 Pa. at 638, 148 A.2d at 925.

The testimony of Brian Marko in no fashion approaches that of Mr. Waddington which, in itself, supports Hie finding that the Herrold verdict was against the weight of the evidence.

Finally, Bohner v. Stine, supra, is not applicable to the instant case. There, the Superior Court commenting on the defendant’s testimony stated:

“The sudden slowing or stopping of a vehicle ahead must be anticipated.” 316 Pa.Super. at 437, 463 A.2d at 443. (emphasis added).

Brian Marko’s evasive maneuver is not within the purview of the assured clear distance rule as one is not required to anticipate that a vehicle might suddenly clip his rear fender as it overtakes him. Additionally, unlike Marko, the defendant in Bohner “admitted to panicking [sic] and hitting his brakes harder than he had to thereby losing control of his automobile on the wet roadway.” 316 Pa.Super. at 437, 463 A.2d at 443.

This verdict is supported by credible evidence. Accordingly, the judgment of the lower court is affirmed.

DEL SOLE, J., joins in this opinion.

HESTER, J., files a dissenting opinion.

HESTER, Judge,

dissenting:

I respectfully dissent. My review of the record and consideration of the applicable case law compels my agreement with appellant, Thomas Farrelli, that the trial court erred in denying his motion for a new trial.

Thomas and Marybelle Farrelli were traveling south on Route 51, a four-lane highway, at about 6:30 P.M. on June 18, 1979. Appellee, Brian Marko, and a passenger were traveling north on Route 51 at the same time. It is undisputed that appellee’s automobile “shot like a slingshot” across the two northbound lanes of traffic and across the center line, striking the Farrellis in their southbound lane.

Brian Marko explained his presence in the Farrellis’ lane as follows. He testified that he was driving in the extreme right lane of Route 51. He observed an automobile in his rearview mirror, also heading north in the far right lane, traveling “fast.” As the automobile proceeded to move into the left northbound lane to pass him, Marko feared the overtaking automobile would strike him. He therefore drove onto the berm on the right. He attempted to return to the highway, but his automobile did not respond to the turn of the steering wheel. Seeing a telephone pole in his path, Marko “jerked the [steering] wheel a lot harder and when both wheels came up on the road ... shot like a slingshot across the lanes____” The Farrellis sustained substantial injuries.

As noted by the majority, trial by jury culminated in a verdict in favor of Appellee Marko on December 10, 1982. The trial judge denied appellant’s motion for a new trial and this appeal followed.

The cumulative effect of two aspects of this case convinces me that a new trial is required. First, as noted by the majority, the trial judge determined that the sudden emergency rule was inapplicable to the facts of this case, and accordingly denied appellee’s points for charge based on this rule. However, the judge supported her denial of Mr. Farrelli’s motion for a new trial with the very doctrine she had previously ruled could not be supported by the facts. The relevant portion of the court’s opinion states, “[Wjhere the defendant is confronted with a sudden emergency which was in no way due to his own misconduct, such evidence will support a defense verdict.” Appellant does not argue that the trial court’s refusal to instruct the jury on the sudden emergency doctrine is irreconcilable with a defense verdict, as the majority states, but rather asserts that since the facts of this case preclude the applicability of the sudden emergency rule, it was an error of law for the trial court to base its denial of appellant’s motion for a new trial on that doctrine. I agree.

However, that aspect of this case, though not insignificant, is not the crucial issue to be resolved. The majority states that assuming the court’s reference to a sudden emergency was intentional and erroneous, the verdict may stand if the facts support it. It is my view that the facts do not.

I am convinced that the jury’s verdict in this case is against the weight of the evidence. In Pennsylvania, a driver who crosses the center line of a roadway thereby causing a collision is negligent per se. Bohner v. Stine, 316 Pa.Super. 475, 463 A.2d 438 (1983). See also 75 Pa.C.S. § 3301 (“Upon all roadways of sufficent width, a vehicle shall be driven upon the right half of the roadway____”). The burden then shifts to the driver to “prove by the fair weight of the credible evidence that his vehicle was there through no negligence on his part.” Kenworthy v. Burghart, 241 Pa.Super. 267, 361 A.2d 335 (1976). The only evidence offered by appellee, in an attempt to meet his burden of proof, was that he feared an overtaking automobile would strike him. He therefore drove onto the berm and “jerked” the steering wheel to the left in an attempt to reenter the highway before striking a telephone pole.

Denman v. Rhodes, 206 Pa.Super. 457, 214 A.2d 274 (1965), supports the grant of a new trial in this case, and the majority’s reference to it does not adequately distinguish its applicability. In Denman a collision occurred on the appellants’ proper side of the highway. The only evidence offered by the defendant/appellee was that the vehicle preceding the Denman automobile failed to dim its lights thereby causing the appellee to pull onto the berm of the road where he fell into a rut. When he tried to reenter the highway, he jerked the steering wheel and the automobile began to slide sideways. This court held that the weight of the evidence warranted a verdict for the plaintiffs/appellants, reversed and granted a new trial.

Appellee attempts to distinguish Denman by suggesting the defendant therein had a safe alternative course of action: stopping his vehicle and waiting until he could safely reenter the highway. This court could also engage in such imaginative speculation and suggest that Brian Marko, too, could have stopped his vehicle and waited to reenter the highway safely. Further, as noted supra, the parties herein were traveling on a four-lane highway. The phantom automobile, which Mr. Marko asserts prompted his hasty maneuvering onto the berm of the highway was, by appellee’s own testimony, following the rules of the road.

[By appellee]

I looked ahead of me to see where I was going ... and I looked in the rear view mirror again and the car was a lot closer____ He was just making his pass into the left hand lane, and I believed that he would have hit me in the back if I did not move over.

(R.58a). The above testimony merely establishes that when the overtaking automobile neared a slower moving vehicle, it properly moved into the left northbound lane to pass. Although Marko described the automobile as “coming fast,” there was no testimony concerning its speed or the lawful speed limit on Rte. 51.

The majority also erroneously dismisses the applicability of Bohner v. Stine, supra, to the instant case. In Bohner this court determined that the evidence offered by the appellee was insufficient to sustain a finding of no negligence. In that case, the defendant/appellee, explaining why his automobile crossed the center line and collided with the vehicle properly there, stated that the automobile in front of him suddenly slowed to make a turn and there were wet leaves on the road’s surface which caused his vehicle to skid.

Appellee attempts to distinguish Bohner by claiming that the appellee therein was not confronted with an emergency, as was Mr. Marko in the instant case. This reasoning is faulty in two respects. First, the trial court held that a sudden emergency defense was not applicable to the facts of this case. Therefore, reliance upon that doctrine in support of the verdict is precluded. Second, it is certainly within the scope of experience that berms along highways do not offer the same surface conditions as roadways, and are frequently peppered with obstacles, much as it is within the scope of driving experience that sudden stopping on wet leaves might precipitate skidding and a loss of control. I disagree that Bohner is significantly distinguishable from the instant case so as to preclude its applicability.

The majority suggests that since the Marko vehicle drove onto the berm to avoid an overtaking automobile, as opposed to one traveling ahead, Bohner is not applicable. However, Brian Marko testified that the act which led to his automobile “[shooting] like a slingshot” across the center line was his jerking of the steering wheel to avoid a telephone pole, a telephone pole which appeared in the path ahead. Also significantly, much like the defendant in Bohner, Marko testified to subsequently jerking the steering wheel much harder than he did initially. I disagree that the applicability of Bohner to the facts of this case can be dismissed with this faulty reasoning by the majority.

I am firmly convinced, in light of Bohner v. Stine, supra, and Denman v. Rhodes, supra, that the verdict is against the weight of the evidence in this case. I call attention to appellee’s testimony, surprisingly not underscored by appellant, that when Mr. Marko drove onto the berm he actually increased the speed of his vehicle.

Q Now, at the time you began moving over to the right side of your lane to permit that vehicle to pass did you have any estimate as to the speed of your vehicle?
A Thirty miles per hour.
Q What about the speed of your vehicle throughout the episode? In other words, from the point that your right front steering [sic] wheel went into the berm, and thereafter. Can you tell the Jury anything about the speed of your car? In other words, did it decrease, increase—
A There was an increase, I believe.
Q You mean your car speeded up?
A Yes, I believe just a little bit.

(R' 59a-60a).

When reviewing a weight of the evidence question, we must consider all of the evidence presented. Bohner v. Stine, supra. Although an order refusing to grant a new trial is within the discretion of the trial court, that discretion is not absolute. Carnicelli v. Bartram, 289 Pa.Super. 424, 433 A.2d 878 (1981), citing Decker v. Kulesza, 369 Pa. 259, 85 A.2d 413 (1952). “[T]he trial judge may not hide behind the jury’s verdict; he has a duty to grant a new trial when ... the judicial process has resulted in the working of an injustice upon any of the parties.” Denman v. Rhodes, supra, 206 Pa.Superior Ct. at 459, 214 A.2d at 275, quoting, Kiser v. Schlosser, 389 Pa. 131, 132 A.2d 344 (1957). “[A] new trial should be awarded when the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail.” Thompson v. City of Philadelphia, 507 Pa. 592, 598, 493 A.2d 669, 672 (1985) (citation omitted). Indeed, in such a case the court has the duty to grant a new trial. Denman v. Rhodes, supra.

My review of the evidence, in light of the pertinent law, compels the conclusion that the jury’s verdict was against the weight of the evidence in this case.

I would reverse the judgment and grant a new trial.

      . Her death was unrelated to the accident.

      . The propriety of the trial judge’s determination that the sudden emergency rule is inapplicable in this case is not before us in this appeal.

      . Appellee’s suggestion that the trial court’s choice of language was an inconsequential faux pas fails to adequately recognize the plain meaning of the language of the opinion. The trial court’s use of the phrase "sudden emergency,” in the context of the opinion, was obviously not inadvertent and cannot be so characterized.

      . As in Bohner v. Stine, supra, the other driver was not located in order to corroborate appellee’s testimony. Further, appellee failed to call as a witness the passenger in his automobile at the time of the collision.


source: Caselaw Access Project

author: JOHNSON, Judge: SPAETH, President Judge,

license: Public Domain

text:
    502 A.2d 1300
    Hope S. MINEO v. Charles D. TANCINI, J.E. Smith, Inc., Paul Kevon Mermon, and Pennsylvania Department of Transportation. Appeal of PENNSYLVANIA DEPARTMENT OF TRANSPORTATION. Hope S. MINEO, Appellant, v. Charles D. TANCINI, J.E. Smith, Inc., Paul Kevon Mermon, and Pennsylvania Department of Transportation. Hope S. MINEO v. Charles D. TANCINI, J.E. Smith, Inc., Paul Kevon Mermon, and Pennsylvania Department of Transportation. Appeal of J.E. SMITH, INC. Hope S. MINEO v. Charles D. TANCINI, J.E. Smith, Inc., Paul Kevon Mermon, and Pennsylvania Department of Transportation. Appeal of Paul Kevon MERMON.
    Superior Court of Pennsylvania.
    Argued March 27, 1985.
    Filed Jan. 3, 1986.

      Gary B. Gilman, Deputy Attorney Gen., Philadelphia, for Pa. Dept., appellant in No. 866 and appellee in Nos. 906, 1049 and 1050.
    David S. Shrager, Philadelphia, for Mineo, appellant in No. 906 and appellee in Nos. 866, 1049 and 1050.
    William H. Kinkead, III, Norristown, for Mermon, appellant in No. 1050 and appellee in Nos. 866, 906 and 1049.
    Gilbert P. High, Jr., Norristown, for J.E. Smith, appellant in No. 1049 and appellee in Nos. 866, 906 and 1050.

      Before SPAETH, President Judge, and JOHNSON and SHOYER , JJ.

       Judge SHOYER, Senior Judge of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   JOHNSON, Judge:

Hope S. Mineo, a Maryland resident, was seriously injured in a vehicular accident which occurred on Pa. Route 903 in Montgomery County on January 1, 1978 when a salt truck rammed into the rear of a station wagon in which she was a passenger. Ms. Mineo commenced an action against several defendants including Paul Mermon, the driver of the salt truck. Prior to trial an amicable settlement was reached by Ms. Mineo with one of the defendants, Charles D. Tancini.

After trial by jury Ms. Mineo was awarded $2,360,000.00 in damages. As part of its verdict the jury attributed 85% of the negligence to defendant Mermon and 15% to defendant Tancini. The jury also determined that Mermon, at the time of the accident, was in the joint employ of the two remaining defendants, J.E. Smith, Inc. and the Pennsylvania Department of Transportation (hereinafter “PennDOT”). Following the return of the jury verdict, judgment was entered in favor of Hope Mineo in the amount of $3,266,-748.97.

After the appeals and cross-appeal were filed with this Court, J.E. Smith, Inc. filed a motion to reduce judgment or stay proceedings which sought to have the verdict reduced by 15% in light of the joint tort-feasor release of Charles D. Tancini, which was executed by Hope Mineo prior to trial. This motion was not opposed and, by order dated May 13, 1985, this Court remanded this question to the trial court for its consideration. On May 30, 1985 the trial court reduced the judgment from $3,266,748.97 to $2,777,273.58.

Also, prior to trial, Hope Mineo received medical payment benefits from the no-fault insurance carrier- for the motor vehicle in which she was a passenger at the time of the January 1, 1978 accident. No claim was made to the jury for medical expenses, but it was agreed that $100,000, representing Ms. Mineo’s accrued and future medical expenses, should be added to the verdict if it were later to be determined by the trial or appellate court that inclusion of these monies would be appropriate. The trial court’s March 8, 1984 opinion [Mineo v. Tancini, 114 Montg.Co.L.R. 16 (1984) ] denied the motion to mold the verdict by the addition of $100,000 in medical expenses.

Defendants J.E. Smith, Inc., Mermon and PennDOT appealed raising collectively the following six separate issues which we must consider:

1. Did Hope Mineo settle her dispute with PennDOT prior to trial?
2. Should the jury have been instructed on the Sudden Emergency Doctrine?
3. Should the table of Hope Mineo’s projected earnings have been sent out with the jury during deliberations?
4. Was the jury verdict excessive?
5. Should the verdict have been molded to limit Penn-DOT’s liability to $250,000?
6. Should the trial judge have ruled that Mermon was solely the employee of PennDOT?

Hope Mineo in her cross-appeal seeks a double recovery for her accrued and future medical expenses.

For the following reasons we affirm.

I. ALLEGED SETTLEMENT AGREEMENT

PennDOT initially argues that the trial court erred in denying a request to amend its new matter to include a defense of settlement and to mold the verdict to reflect a settlement with Hope Mineo in the amount of $25,000. On November 2, 1981 the trial court had dismissed PennDOT’s petition to have the case settled and discontinued with respect to PennDOT. Thereafter, PennDOT, which had answered Hope Mineo’s complaint prior to the alleged settlement, sought leave to amend its new matter to include the affirmative defense afforded by the settlement. On September 14, 1982, following oral argument, PennDOT’s petition was denied. No appeal was ever taken from the trial court’s September 14, 1982 order.

An order of the trial court refusing to permit a defendant to assert an affirmative defense such as release or settlement is an appealable order. Grota v. LaBoccetta, 425 Pa. 620, 230 A.2d 206 (1967). In Grota, the defendants, like PennDOT in the instant case, sought the trial court’s permission to amend the answers previously filed to include the affirmative defense of release based upon a prior settlement agreement. The trial court refused and an appeal was taken. The plaintiff in Grota attempted to have the appeal quashed on the ground that the appeal was interlocutory.

Justice Musmanno, in rejecting this contention, and speaking for the court, stated:

We cannot accept this argument. The defense sought to be injected by the amendment was an affirmative one and thus had to be pleaded, on the risk otherwise that it might be deemed to have been waived. Therefore, when the Court held that the amendment was not pleadable, the petitioners were, on that feature of the case, put out of court. From this it inevitably followed that the order below became final and appealable. In Posternack v. American Casualty Co., 421 Pa. 21, 218 A.2d 350, [1966] we stated that where the new proposed defense is affirmative in character, and thus must be pleaded or be deemed to have been waived, the order of the court denying the pleading precludes proof of such defense at the time of trial and, accordingly, as to that defense the order “puts the defendant out of court.”

Id., 425 Pa. at 623, 230 A.2d at 207.

The clear holding in Grota was available to counsel for PennDOT in September 1982 when PennDOT failed to take an appeal. It was not enough for PennDOT to have filed a petition for review in the Commonwealth Court when a direct appeal should have been taken. Pa.R.A.P. 903 requires that the notice of appeal “be filed within 30 days after the entry of the order from which the appeal is taken.” The failure of PennDOT to have taken a direct appeal from the September 14, 1982 order rendered the doctrine of res judicata applicable and precludes vacation of this order after the time for appeal has passed. Love v. Temple University, 422 Pa. 30, 220 A.2d 838 (1966); U.S. National Bank in Johnstown v. Johnson, 321 Pa.Super. 352, 468 A.2d 515 (1983). Where a new proposed defense is affirmative in character, such as the one PennDOT sought to advance instantly, it must be pleaded or it is deemed to have been waived. The September 14, 1982 order put PennDOT out of court with respect to the proposed affirmative defense of release or settlement. This order was, therefore, appealable. PennDOT cannot now challenge the trial court’s decision not to permit amendment of Penn-DOT’s new matter since it failed to appeal from the September 14, 1982 order.

II. SUDDEN EMERGENCY DOCTRINE

The next assignment of error by PennDOT challenges the trial court’s failure to instruct the jury on the application of the sudden emergency doctrine. PennDOT asserts that there was sufficient evidence of record for the jury to have determined that Mr. Mermon was confronted with “the sudden interjection of a moving object into his path of travel” at the time of the accident (i.e., the station wagon in which Hope Mineo was a passenger).

Counsel for PennDOT suggested, in his opening statement to the jury, that the evidence would show that Mr. Mermon was faced with a sudden emergency situation on the evening of January 1, 1978. At trial, however, no evidence of a sudden emergency was presented. The trial court, in its summary of Paul Mermon’s recollection of the accident, stated:

Mermon stated that he could have stopped his truck within a distance of 50 to 60 feet. (N.T., Oct. 19, 1982, p. 108). Mermon further testified that he observed the station wagon carrying the plaintiff when it put its brake lights on and that he made this observation from a distance of 100 feet from the station wagon. (N.T., Oct. 19, 1982, p. 128 and N.T., Oct. 25, 1982, p. 775).

Mineo v. Tancini, 114 Montg.Co.L.R. 210, 218 (1984).

Since Mermon had a full 50 to 60 feet within which to stop after he realized that the station wagon was 100 feet away, a sudden emergency doctrine charge would have been inappropriate. On the facts of the instant case the trial court properly charged the jury on the “assured clear distance” rule which requires a driver to operate his vehicle in such a manner that he can always stop within the distance that he can clearly see — a distance that will vary according to the visibility and attending circumstances such as icy road conditions. Fish v. Gosnell, 316 Pa.Super. 565, 580, 463 A.2d 1042, 1050 (1983); see also Bohner v. Stine, 316 Pa.Super. 426, 463 A.2d 438 (1983).

Counsel for PennDOT also complains about the trial court’s instruction that the jury was not to consider the doctrine of sudden emergency with respect to Mr. Mermon’s actions. We find no abuse of discretion on the part of the trial court in light of the fact that PennDOT’s counsel suggested, in his opening statement to the jury, that the evidence would show that “Mr. Mermon was faced with a sudden emergency situation.”

III. PROJECTED EARNINGS TABLE

PennDOT next asserts that the trial court erred in allowing a table of Hope Mineo’s projected earnings to be sent out with the jury during deliberations. The table in question was contained in an October 6, 1982 letter sent to plaintiff’s counsel by Ronald S. Kaiser, Ph.D., Ms. Mineo’s expert witness. The table lists the projected earnings for Hope Mineo, as a Ph.D. level psychologist, from ages 26-70 and indicates that, during this time period, she could expect to receive a total of $2,353,945.

PennDOT argues that the table contains “no more than speculative, subjective opinion testimony by plaintiffs hired expert concerning lost wages during a work life expectancy of a Ph.D. level psychologist” and suggests that the figures sent out with the jury unfairly highlighted the testimony of plaintiffs expert witness.

The table of projected earnings, which PennDOT claims was offered only for “reference of counsel,” was later offered and accepted for “only so much of it as refers to figures.” When the exhibit went out with the jury, the textual material in the exhibit was deleted leaving only the table for the jury’s consideration. The table itself was compiled from exhibit P. 33, a report entitled “Salaries in Psychology — 1982” by the American Psychological Association.

The table of projected earnings does not appear to be highly prejudicial or misleading in any way. Cf. Lancaster Redevelopment Authority Appeal, 425 Pa. 36, 227 A.2d 827 (1967). We do not accept PennDOT’s argument that the reliability of the table is in question because only 40% of the American Psychological Association’s membership responded to the survey that was used to develop the table. Moreover, the determination of what documents should go out with the jury is within the discretion of the trial judge. Reichman v. Wallach, 306 Pa.Super. 177, 452 A.2d 501 (1982). We find no abuse of discretion in the instant case.

Arguments are also advanced by J.E. Smith, Inc. and Paul Kevon Mermon that the trial court erred in permitting the table of projected earnings to be sent out with the jury without a cautionary instruction. This issue has been waived, however, since none of the defendants below requested a cautionary instruction from the trial court. It is not enough that the parties objected to the submission of the table of prospective earnings and raised this issue in post-trial motions. Counsel must always give the court the opportunity to correct itself and this was not done in the instant case. Tagnani v. Lew, 493 Pa. 371, 426 A.2d 595 (1981); Dilliplaine v. Lehigh Valley Trust Company, 457 Pa. 255, 322 A.2d 114 (1974).

Tagnani involved a trespass action for damages arising out of the death of Elizabeth Tagnani. At trial defense counsel attempted to raise the possibility of the remarriage of the husband of the decedent. An objection to the question was promptly sustained, but there was no request for cautionary instructions. On appeal it was asserted that the mere sustaining of the objection to the improper question was inadequate to protect Tagnani’s interest. However, the court, in Tagnani, rejected that argument and stated:

If this asserted inadequacy had been called to the trial court’s attention at the time of the occurrence, that court would have had the option of giving a cautionary instruction which could have removed any prejudice which may have resulted from the asking of the improper question. Appellee’s failure to pursue further relief after the court sustained the objection justified the court in concluding that no further action with reference to that complaint was necessary.

Id. 493 Pa. at 375, 426 A.2d at 597. The Tagnani decision precludes relief when there is no request for a cautionary instruction in the trial court.

IV. EXCESSIVENESS OF VERDICT

PennDOT raises an additional argument that the $2,360,000 verdict rendered by the jury was excessive. The granting or refusal of a new trial because of excessiveness of the verdict is within the discretion of the trial court. Hall v. George, 403 Pa. 563, 170 A.2d 367 (1961). A verdict should not be set aside unless it is so grossly excessive as to shock the court’s sense of justice. Kane v. Scranton Transit Co., 372 Pa. 496, 94 A.2d 560 (1953).

This Court, in Kemp v. Philadelphia Transportation Company, 239 Pa.Super. 379, 361 A.2d 362 (1976), reviewed the various factors courts have considered in determining whether a particular verdict was excessive. We cautioned, however, that it is difficult to compare the facts of any one case with those which preceded it because each case is unique and dependent on its own special circumstances, and a court should apply only those factors which it finds to be relevant in determining whether or not the verdict was excessive. In determining whether or not a particular verdict is excessive, a court may consider the following factors, inter alia, as set out in Kemp, supra: (1) the severity of the injury; (2) whether plaintiff’s injury is manifested by objective physical evidence or whether it is only revealed by the subjective testimony of the plaintiff (and, herein, the court pointed out that where the injury is manifested by broken bones, disfigurement, loss of consciousness, or other objective evidence, the courts have counted this in favor of sustaining a verdict); (3) whether the injury will affect the plaintiff permanently; (4) whether the plaintiff can continue with his or her employment; (5) the size of plaintiff’s out-of-pocket expenses; and (6) the amount plaintiff demanded in the original complaint;

In the instant case Hope Mineo was the victim of a severe injury as a result of the January 1, 1978 accident. She suffered considerable pain and has undergone numerous operations on her back. She has been forced to wear several plaster casts and at time of trial was required to wear a plastic cast to protect and support her spine. She also has experienced constant pain in her lower back. Her doctor testified that as time passes her condition will worsen.

The accident has substantially impaired Hope Mineo’s future earning power. At time of trial her physician limited her physical activities by recommending that she lift no more than ten pounds, not sit or stand for more than two hours without changing positions, be able to lie down for a period during the work day and not participate in rigorous sports of any kind.

We believe that the application of the Kemp factors to the instant case demonstrates no abuse of discretion on the part of the trial court in determining that the verdict was not excessive. Ms. Mineo’s projected lost earnings, standing alone, could support such a verdict.

V. RETROACTIVE APPLICATION OF 42 Pa.C.S. § 8528.

PennDOT next argues that the trial court should mold the verdict to $250,000 against PennDOT and deny Hope Mineo’s request for delay damages. This contention is based upon a 1980 statute which limits the potential liability of the Commonwealth, 42 Pa.C.S. § 8528. This statute provides in pertinent part:

(a) General rule. — Actions for which damages are limited by reference to this subchapter shall be limited as set forth in this section.
(b) Amount recoverable. — Damages arising from the same cause of action or transaction or occurrence or series of causes of action or transactions or occurrences shall not exceed $250,000 in favor of any plaintiff or $1,000,000 in the aggregate.

This argument has no merit, however, since a cause of action which arises prior to the effective date of this section is not subject to its limitations. Ehehalt v. Nyari O’Dette, Inc., 85 Pa.Commw. 94, 481 A.2d 365 (1984); Richardson v. LaBuz, 81 Pa.Commw. 436, 474 A.2d 1181 (1984). Instantly, the cause of action arose on January 1, 1978 and 42 Pa.C.S. § 8528 did not become effective until December 4, 1980.

VI. MERMON’S EMPLOYMENT STATUS

Having disposed of each of the arguments raised by PennDOT and Paul Kevon Mermon as Appellants, we now turn to the remaining issues raised by J.E. Smith, Inc. on appeal. J.E. Smith, Inc. asserts that the trial judge should have ruled as a matter of law that Paul Kevon Mermon was the employee solely of PennDOT at the time of the accident on January 1, 1978. Both PennDOT and Hope Mineo disagree.

The jury, by its verdict and response to special interrogatories, found causal negligence on the part of the truck driver, Mr. Mermon. It further determined that Mermon was, at the time of the accident, in the employment of both Smith and PennDOT in the respect that both parties retained the right to control his conduct at the time of the occurrence.

J.E. Smith, Inc. was in the trucking business and, during the winter season, in the snow removal business as well. At the time of the accident Mermon was in the general employ of Smith, but both Mermon and the vehicle he was driving were under lease to PennDOT and PennDOT’s employees had the right to control the manner in which Mermon performed his duties.

Under Section 226 of the Restatement of Agency, Second:

A person may be the servant of two masters, not joint employers, at one time as to one act, if the service to one does not involve abandonment of the service to the other.

See Coleman v. Board of Education of School District, 477 Pa. 414, 422-23, 383 A.2d 1275, 1279 (1978). Not only can a person be the servant of two masters, but both of those masters can be held liable for the conduct of the servant under appropriate circumstances. Franceschino v. Mack, 174 Pa.Super. 518, 102 A.2d 217 (1954); Lindenmuth v. Steffy, 173 Pa.Super. 509, 98 A.2d 242 (1953); Stephanelli v. Yuhas, 135 Pa.Super. 573, 7 A.2d 124 (1939).

Under the facts of record in the instant case, we cannot say as a matter of law that Mermon, who was driving J.E. Smith, Inc.’s dump truck at the time of the accident, was solely an employee of PennDOT.

VII. JOINT TORT-FEASOR RELEASE

The Appellant’s brief filed by J.E. Smith, Inc. asserts that the trial judge should have molded the verdict in order to reduce the amount of the verdict against all defendants other than Charles D. Tancini by virtue of the joint tort-feasor release executed prior to trial. We need not deal with this issue as it has been resolved by the trial court in its order of May 30, 1985.

VIII. DOUBLE RECOVERY FOR MEDICAL EXPENSES

The final issue which we must address was raised by Hope Mineo in her cross-appeal. She complains that the trial court erred in denying her motion to mold the verdict and add $100,000 representing her accrued and future medical expenses plus delay damages thereon.

Prior to trial Hope Mineo had already received payment for incurred medical expenses from the no-fault carrier for Anthony Cafara. Now, in effect, Ms. Mineo is asking us to reverse the trial court and award her a second recovery for her incurred and anticipated medical expenses. Section 201(a) of the recently repealed Pennsylvania No-fault Motor Vehicle Act provided:

If the accident resulting in injury occurs in this Commonwealth, any victim or any survivor of a deceased victim is entitled to receive basic loss benefits in accordance with the provisions of this act.

Since Hope Mineo was a resident of Maryland at the time of the accident, we must also consider Section 110(c)(1) and (c)(2) of the Act which dealt with interstate travel. Those sections provided:

(1) The basic loss benefits available to any victim ... shall be determined pursuant to the provisions of the state no-fault plan for motor vehicle insurance in effect in the state of domicile of the victim on the date when the motor vehicle accident resulting in injury occurs. If there is no such state no-fault plan in effect ..., then basic loss benefits available to any victim shall be determined pursuant to the provisions of the state no-fault plan for motor vehicle insurance, if any, in effect in the state in which the accident resulting in injury occurs.
(2) The right of a victim ... to sue in tort shall be determined by the law of the state of domicile of such victim.....

Because Maryland is a state where there is no state no-fault plan in effect, we must look to Pennsylvania law to determine if Hope Mineo is entitled to a double recovery even though we look to the state of Maryland to determine whether Hope Mineo can sue in tort. Just because Hope Mineo has the right to bring a tort action in the instant case under Maryland law according to Section 110(c)(2), that does not mean that this Court is bound by Maryland law regarding Hope Mineo’s right to such basic loss benefits. That determination must be made under Pennsylvania law according to Section 110(c)(1).

In the case of Toter v. Knight, 278 Pa.Super. 547, 420 A.2d 676 (1980) this Court held that the right of a non-resident to sue in tort was determined by the law of the state in which the victim was domiciled. In Toter, the $200.00 threshold under the New Jersey no-fault act was found applicable to a suit brought in Pennsylvania by a New Jersey domiciliary injured in Pennsylvania rather than the $750.00 threshold applicable under the Act. Therefore, the right to sue in tort is determined by the victim’s home state law. Under Toter, the victim’s expectations are fulfilled and the victim has not been penalized for interstate travel. The holding of Toter v. Knight only determined which state’s no-fault threshold would apply to limit a victim’s right to sue in both states. It does not address the extent of the recovery. Only an interpretation of Section 110(c)(2) of the Act was necessary to the opinion, and the result was consistent with this Court’s prior result in Dubose v. McCoy, 277 Pa.Super. 149, 419 A.2d 705 (1980).

Neither Toter v. Knight, nor Dubose v. McCoy, addressed the question presented here of' whether the non-resident victim is entitled to double recovery of medical expenses. In his majority opinion in Toter, Judge Spaeth intimates that a non-resident “may receive liberal treatment” by receiving Pennsylvania no-fault benefits and yet retain the right to sue in tort. However, Judge Spaeth’s opinion does not endorse, or even suggest, that such a non-resident should be entitled to double recovery of medical expenses. Further, in Toter he examined the New Jersey no-fault scheme, not Maryland’s statutory plan.

The question of whether the non-resident victim is entitled to double recovery of medical expenses has recently been, addressed by Judge Mencer of the U.S. District Court for the Western District of Pennsylvania in Gyulay v. Aiuppy, 603 F.Supp. 1156 (W.D.Pa.1985).

Under the facts in Gyulay:

[t]he plaintiffs, Ohio residents, brought suit against the defendant, a Pennsylvania resident, to recover damages for injuries sustained by them in a motor vehicle accident which occurred on March 26, 1982, in Crawford County, Pennsylvania. The plaintiffs alleged negligence on the defendant’s part in the operation of her vehicle. The accident occurred at a time when Pennsylvania, but not Ohio, had a no-fault motor vehicle insurance act in effect. 40 P.S. § 1009.101 et seq. (1984-85 Supp.) The plaintiffs made claims for and received benefits pursuant to the Pennsylvania act from the Ohio Casualty Group for medical expenses and work loss.

Id. at 1157.

After giving deference to the views expressed by this Court in Toter, the District Court held that plaintiff can recover under both the Pennsylvania No-fault Act and Ohio law. Judge Mencer specifically limited his holding by addressing the question of double recovery in the following manner:

However, the plaintiffs are not entitled to a double recovery. The plaintiffs have chosen to take their assured basic loss benefits, which are payable regardless of fault, under the Pennsylvania No-fault Act. Having made this choice, the plaintiffs should not be able to recover the amounts paid under the Act a second time in their tort action, even though they have the right to bring this tort action under Ohio law. Flowers v. Smith, 12 Pa.D. & C.3d 434 (1979). The plaintiffs, having received the benefit of the Pennsylvania No-fault Act, have no right to the benefits of a second recovery of those amounts from the defendant.

Gyulay, supra at 1158.

We concur with Judge Mencer’s analysis and hold that a nonresident, who has already received payment for medical expenses under the now repealed Pennsylvania No-fault Act, is precluded from securing a second recovery for those same medical expenses when suit is brought pursuant to Section 110(c)(2) of this Act. We believe that the trial court properly denied Hope Mineo’s motion to mold the verdict by the addition of $100,000 in medical expenses.

The judgment entered on March 16, 1984 as modified by the trial court’s order of May 30, 1985 is affirmed.

SPAETH, President Judge files a concurring opinion.

SPAETH, President Judge,

concurring:

I join in Parts I through VII of the majority’s opinion. I agree with the result reached by the majority in Part VIII.

With respect to Part VIII of the majority’s opinion: The majority states that “a non-resident, who has already received payment for medical expenses under the now repealed Pennsylvania No-Fault Acts, is precluded from securing a second recovery for those same benefits when suit is brought pursuant to Section 110(c)(2) of this Act.” Majority op. at 132. This statement, I suggest, is dictum because unnecessary to our decision, and is in error.

The legislature recognized that when a non-resident victim of an automobile accident brings suit in Pennsylvania, one of two situations will arise: the victim’s own state either does or does not have its own no-fault act. Section 110(c) was enacted in anticipation of these situations. If the victim’s own state has a no-fault act, then the victim may not recover benefits under the Pennsylvania no-fault act but may recover only under the no-fault act of the victim’s own state. If, however, the victim’s own state does not have a no-fault act, then the victim may recover benefits under the Pennsylvania no-fault act. 40 P.S. § 1009.-110(c)(1); Toter v. Knight, 278 Pa.Super. 547, 420 A.2d 676 (1980). Here, the victim’s own state, Maryland, does not have a no-fault act. See Ropka, et al. v. Government Employees Insurance Co., 347 Pa.Super. 507, 500 A.2d 1171 (1985). Accordingly, the victim is entitled to recover, and she has recovered, benefits under the Pennsylvania no-fault act.

The victim is not, however, entitled to recover those benefits twice — once under the no-fault act and once as part of his damages for trespass. This is settled if the victim is a resident of Pennsylvania. 40 P.S. § 1009.301. The fact that here the victim is a resident of Maryland does not alter this conclusion. Section 110(c)(2) provides that “[t]he right of a victim ... to sue in tort shall be determined by the law of the state of domicile of such victim.” Here, looking to Maryland law, one sees that the victim does have a right to sue in tort — in other words, Maryland does not have a no-fault act extinguishing her right to sue in tort. Cf. Toter v. Knight, supra (New Jersey resident allowed to sue in tort in Pennsylvania because under New Jersey no-fault act, resident’s right to sue in tort was not extinguished, although if Pennsylvania’s no-fault act were applicable, it would be extinguished). The fact that the victim was therefore entitled to maintain her action in Pennsylvania, however, does not by itself entitle her to recover double damages in Pennsylvania. To provide that one may maintain an action in Pennsylvania is not to say that in that action one may recover double damages. Since under Pennsylvania law double damages may not be recovered, the trial court properly refused to mold the verdict to permit such recovery.

Appellee argues, however, that had she brought her action in Maryland, she would have been able to recover double damages, and that therefore she should be able to recover them in her action in Pennsylvania. However, she did not bring her action in Maryland. If she had, the Maryland court might, or might not, have permitted her to recover double damages. In Toter, we said that if the victim’s state did permit recovery of double damages, that was not precluded by the Pennsylvania no-fault act. I believe this statement was correct.

      . This figure reflects the jury’s verdict, plus delay damages, interest and costs.

      . Because of our disposition of this issue, we take no position on the merits of PennDOT’s claim that the trial court erred in denying PennDOT’s motion to amend new matter and to mold the verdict to reflect the alleged settlement.

      . Act of July 19, 1974, P.L. 489, No. 176, repealed by Act of February 12, 1984, P.L. 26, No. 11, § 8(a), effective October 1, 1984; 40 P.S. § 1009.101 et seq.

      . The limited holding in Toter has been acknowledged by this Court in Miller v. Gay, 323 Pa.Super. 466, 472-73 n. 7, 470 A.2d 1353, 1356 n. 7 (1983) and by Judge Spaeth, the author of Toter, in his dissent in Miller v. Gay, supra, 323 Pa.Superior Ct. at 475, 470 A.2d at 1357.


author: SPAETH, President Judge: JOHNSON, Judge,

text:
    502 A.2d 1310
    Alfred R. BOETTGER v. Thom LOVERRO and Easton Publishing Company. Appeal of EASTON PUBLISHING COMPANY. Alfred R. BOETTGER, Appellant, v. Thom LOVERRO and Easton Publishing Company.
    Superior Court of Pennsylvania.
    Argued March 13, 1985.
    Filed Jan. 3, 1986.

      April L. Cbrdts, Easton, for appellant in No. 984 and for appellee in No. 1035.
    Before SPAETH, President Judge, and JOHNSON AND SHOYER , JJ.

      The Honorable Kendall H. SHOYER, Senior Judge of the Court of Common Pleas of Philadelphia County, is sitting by designation.

   SPAETH, President Judge:

This appeal is from a judgment awarding damages to appellee under Section 5725 of the Pennsylvania Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. §§ 5701 et seq. Appellant, a newspaper, published an article containing quotations from the transcript of appellee’s wiretapped conversations. The transcript was attached to the Commonwealth’s answer to a motion for discovery, filed incident to the prosecution of appellee, and was given to one of appellant’s reporters by the clerk of the court. In addition to statutory and constitutional arguments, appellant argues that it is exempt from liability for publishing information of legitimate public concern obtained from court records accessible to the public. We agree that when enacting section 5725, the General Assembly intended such an exemption. We therefore reverse and enter judgment for appellant.

I

The trial court has summarized the facts, which it noted were largely undisputed, as follows:

On November 17, 1981, the state police secured a wiretap permit from the Attorney General. Under the permit, a private citizen named Wayne Dickinson consented to a phone tap. On November 19, 1981, the state police intercepted a telephone conversation between the plaintiff [appellee] and Dickinson. During the conversation, plaintiff revealed his involvement in the acceptance of illegal bets on college football games. On December 12, 1981, the state police raided plaintiffs home. After the search, he was arrested on charges of bookmaking, pool selling and conspiracy. A preliminary hearing resulted in the charges being bound over for criminal court. On February 9, 1982, a motion for discovery was filed in the criminal case. The motion included a request for production of a transcript of the wiretap. Inadvertently,□ the district attorney attached a copy of the transcript to his answer and filed it with the clerk of court. To make matters even worse, the district attorney did not direct the clerk to impound the file.
With these highly sensitive records lying outside the court’s direct supervision, the stage was set for the unusual happenings which subsequently took place. On March 31, 1982, a suppression hearing was held in the criminal case. The hearing was open to the public. Among the observers was Thom Loverro, a reporter for the Easton Express. He covered the hearing because he expected that the evidence would disclose the contents of the wiretaps. But, he did not get his story in the courtroom. As he sat there, the hearing judge disposed of the motion to suppress without ever getting into the contents of the tapes. When the hearing ended, Loverro went to the office of the clerk of court; and, he asked to see the case file. Not being subject to impoundment, it was made available to him. In the file, Loverro discovered a transcript of the wiretaps. He made extensive notes of its content. Later that same day, he returned to his office and began writing a story based upon the excerpts taken from the transcript of the wiretaps. However, the story was withheld for approximately seven days. In the meantime, Loverro discussed the running of the story with his superiors. On April 7, 1982, the managing editor approved publication. The newspaper article contained quotations from the transcript of the wiretaps.

Slip op. of tr. ct. at 2-3.

Appellee’s complaint, which was filed on April 13, 1982, named as defendants both appellant, as the publisher of the Easton Express, and its reporter, Loverro. Appellee sought to recover on two grounds: the common law tort of invasion of privacy, and the cause of action for unlawful disclosure or use created by section 5725. During the trial, in September 1983, Loverro was dropped as a defendant, N.T. 130-31, and the action for invasion of privacy was withdrawn, id., 91. The trial court denied appellant’s requested points for charge and directed a verdict in favor of appellee on the issue of liability for unlawful disclosure or use, appellant excepting to the direction. The jury then returned a verdict of $1,000 actual damages (the statutory minimum), no punitive damages, and $17,409.43 for attorney’s fees. Appellant filed a timely motion for judgment n.o.v. or new trial. On March 6, 1984, the court en banc, composed of the trial judge alone, denied the motion. Judgment was entered and this appeal followed.

II

We may first consider appellant’s argument that when read literally, section 5725 does not make unlawful appellant’s publication of a newspaper article containing quotations from the transcript of appellee’s wiretapped conversations. The argument may be disposed of summarily-

Section 5725 creates a cause of action against “any person who intercepts, discloses or uses” the communication of another person when that communication has been “disclosed ... in violation of this chapter.” 18 Pa.C.S. § 5725(a). The disclosure by the clerk of court of the transcript of appellee’s wiretapped conversations was in violation of the Act, for the transcript was required by the Act to be sealed, 18 Pa.C.S. § 5715, and had it been sealed, appellant would have had no right to see it, Commonwealth v. Frattarola, 336 Pa.Super. 411, 485 A.2d 1147 (1984). In publishing the newspaper article containing quotations from the transcript, appellant both “disclose[d]” and “use[d]” appellee’s intercepted communication.

Appellant argues that it acted “with a subjective good faith belief that they [appellant and its reporter] acted legally pursuant to a court order and that the belief was reasonable.” Brief for Appellant at 24. Subsection (c) of section 5725 does provide that “good faith reliance on a court order” is a defense to an action for unlawful disclosure or use. Had there been a court order directing the clerk to unseal the transcript of appellee’s wiretapped conversations, this defense might have been available to appellant, but there was no such order.

Ill

We may consider appellant’s remaining two arguments together. These arguments are: that appellant is exempt from liability under section 5725 because the information it published was of legitimate public concern and was obtained from court records accessible to the public; and that if section 5725 does seek to impose liability on appellant, it is unconstitutional as a violation of the freedom of the press protected by the First and Fourteenth Amendments of the United States Constitution.

Appellant has from the outset, in its answer, and throughout, in its motion for summary judgment, requested points for charge, and motion for judgment n.o.v., argued that it is exempt from liability under section 5725. In making this argument, appellant has cited the Fair Report Privilege recognized in the Restatement (Second) of Torts § 611 (1976). Appellant has not, however, presented its constitutional argument with equal consistency; although making the argument in its motion for judgment n.o.v., appellant did not make it in either its pleadings or its requested points for charge. Accordingly, as such, the constitutional argument has not been preserved. The argument is nevertheless before us indirectly, or, so to speak, by the back door.

As we have just discussed, literally read, section 5725 proscribes appellant’s conduct. The question therefore arises whether the section should be literally read, or whether appellant is correct that we should read into the section an exemption recognizing a privilege to publish information that is of legitimate public concern and that was obtained from court records accessible to the public. In considering whether to find such an exemption implied in section 5725, we must ask whether the failure to find the exemption implied might render the section unconstitutional. For it is a settled principle of statutory construction that the legislature does not intend to violate the Constitution, and if as applied to appellant, section 5725 when literally read would violate the Constitution, we must consider whether an alternative construction, such as finding an implied exemption, will save the section. Triumph Hosiery Mills, Inc. v. Commonwealth, 469 Pa. 92, 96, 364 A.2d 919, 921 (1976) (“[O]ur duty [is] ‘to declare a statute constitutional if this can reasonably be done,’ ” citing Commonwealth v. Girard Life Insurance Co., 305 Pa. 558, 566, 158 A. 262, 264 (1932)), appeal dismissed, 429 U.S. 1083, 97 S.Ct. 1090, 51 L.Ed.2d 530 (1977); Commonwealth v. Rum sey, 309 Pa.Super. 137, 139, 454 A.2d 1121, 1122 (1983) (“Legislative enactments are presumed valid, and will be stricken only if incapable of constitutional construction.”); Commonwealth v. Morgan, 265 Pa.Super. 225, 248, 401 A.2d 1182, 1193 (1979) (“[WJhere alternative constructions of a statute are possible, we must avoid a construction that would result in a statute’s being struck down unnecessarily.”).

A

In considering whether if literally read, section 5725 would violate the Constitution, we may start by recognizing that “[the United States Supreme Court’s] recent decisions demonstrate that state action to punish the publication of truthful information seldom can satisfy constitutional standards.” Smith v. Daily Mail Publishing Co., 443 U.S. 97, 102, 99 S.Ct. 2667, 2670, 61 L.Ed.2d 399 (1979). Of these recent decisions, Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975), is particularly in point.

In Cox the issue was “whether, consistently with the First and Fourteenth Amendments, a State may extend a cause of action for damages for invasion of privacy caused by the publication of the name of a deceased rape victim which was publicly revealed in connection with the prosecution of the crime.” Id. at 471, 95 S.Ct. at 1034. A Georgia statute made it a misdemeanor for the news media to publish or broadcast the name or identity of a rape victim. Id. at 471-72, 95 S.Ct. at 1034. In the course of criminal proceedings related to the rape, a reporter for Cox Broadcasting “approached the clerk of the court ... and requested to see a copy of the indictments. In open court, [the reporter] was handed ... both the murder and the rape indictments, and was allowed to examine fully [those] document[s].” Id. at 472, n. 3, 95 S.Ct. at 1034, n. 3. By examining the indictments the reporter learned the name of the rape victim, and he revealed the name in a news report concerning the criminal proceedings, broadcast later the same day and again the next day on a television station owned by Cox Broadcasting. Id. at 472-74, 95 S.Ct. at 1034-36. The father of the rape victim brought an action for money damages alleging that his right to privacy had been invaded by the broadcast of his deceased daughter’s name. The trial court rejected Cox Broadcasting’s claim under the First and Fourteenth Amendments, and, holding that the Georgia statute granted the father a civil remedy, granted summary judgment as to liability. Id. at 474, 95 S.Ct. at 1035-36. On appeal the Georgia Supreme Court found that the trial court erred in finding that the Georgia statute granted the father a civil remedy but nevertheless found that the father had adequately stated a cause of action for invasion of his right of privacy, and for a common law tort of public disclosure. Id. Noting that questions of fact remained to be determined, the Georgia Supreme Court reversed the order entering summary judgment and remanded for trial. Id. at 475, 95 S.Ct. at 1036. The Georgia Supreme Court agreed with the trial court’s holding that the First and Fourteenth Amendments did nqt require judgment for Cox Broadcasting as a matter of law, id., but later, in response to a motion for rehearing, held that the Georgia statute was a “legitimate limitation on the right of freedom of expression contained in the First Amendment,” and that there was “no public interest or general concern about the identity of the victim of such a crime as will make the right to disclose the identity of the victim rise to the level of First Amendment protection.” Id.

On Cox Broadcasting’s further appeal, the United States Supreme Court opened its discussion by acknowledging that “there is a zone of privacy surrounding every individual, a zone within which the State may protect him from intrusion by the press, with all its attendant publicity.” Id. at 487, 95 S.Ct. at 1042. (Court’s emphasis; footnote omitted). The Court noted, however, that the issue before it was not the broad issue of the extent to which a State may “protect an area of privacy free from unwanted publicity in the press”, id. at 491, 95 S.Ct. at 1044, but the much narrower issue of “whether the State may impose sanctions on the accurate publication of the name of a rape victim obtained from public records — more specifically, from judicial records which are maintained in connection with a public prosecution and which themselves are open to public inspection,” id. “We are convinced,” the Court concluded, “that the State may not do so.” Id. The Court explained:

Public records by their very nature are of interest to those concerned with the administration of government, and a public benefit is performed by the reporting of the true contents of the records by the media. The freedom of the press to publish that information appears to us to be of critical importance to our type of government in which the citizenry is the final judge of the proper conduct of public business. In preserving that form of government the First and Fourteenth Amendments command nothing less than that the States may not impose sanctions on the publication of truthful information contained in official court records open to public inspection. Id. at 495, 95 S.Ct. at 1046.

See also Smith v. Daily Mail Publishing Co., supra (State may not punish truthful publication of alleged juvenile delinquent’s name where the information was lawfully obtained); Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978) (reaffirming Cox and holding that State may not impose criminal sanctions on press for publishing, in violation of State Constitution and statutes, information relating to judicial disciplinary proceedings); Oklahoma Publishing Co. v. District Court of Oklahoma, 430 U.S. 308, 97 S.Ct. 1045, 51 L.Ed.2d 355 (1977) (where reporters acquired information by being present at court proceedings, the name and picture of juvenile were “publicly revealed” and in the “public domain” as much as the name of the rape victim in Cox, and therefore injunction prohibiting publication of the information violated the First and Fourteenth Amendments).

In the present case, the information published by appellant was part of court records accessible to the public, as was true in Cox. In addition, the information was required to be sealed or otherwise treated as confidential, as was true in Landmark Communications. In Cox, Landmark Communications, and Smith, the defendant newspaper obtained the information in question in a lawful manner and reported it accurately. Appellant likewise obtained the information lawfully and reported it accurately. So far, therefore, the present case appears indistinguishable from Cox, Landmark Communications, and Smith.

The question remains whether the cases are distinguishable on the basis of the type of information involved — the name of the deceased rape victim in Cox, the name of the judge being investigated in Landmark Communications, the name of the juvenile offender in Smith, and the transcripts of appellee’s conversations here. We conclude that this is not a basis of distinction. The information here, like the information in Smith, was “about a matter of public significance,” Smith, 443 U.S. at 103, 99 S.Ct. at 2671; and like the information in Cox, it involved “commission of crime, prosecution[] resulting from it, and judicial proceedings arising from the prosecution[], ... without question events of legitimate concern to the public,” Cox, 420 U.S. at 492, 95 S.Ct. at 1045. Cf. Baker v. Burlington Northern, Inc., 99 Idaho 688, 587 P.2d 829 (1978) (disclosure of public facts, plaintiff’s prior criminal record, not actionable as invasion of privacy); State v. Stauffer Communications, Inc., 225 Kan. 540, 592 P.2d 891 (1979) (state cannot impose sanctions on news media for publishing information concerning unexecuted arrest warrant where such information taken from public records); Rawlins v. Hutchinson Publishing Co., 218 Kan. 295, 543 P.2d 988 (1975) (Cox applied to record ten years old); Montesano v. Donrey Media Group, 99 Nev. 644, 668 P.2d 1081 (1983) (where information of juvenile offense obtained from public records, the probation and parole report prepared for sentencing for subsequent crime, media not liable for invasion of privacy), cert. denied, 466 U.S. 959, 104 S.Ct. 2172, 80 L.Ed.2d 555 (1984); Shifflet v. Thomson Newspapers (Ohio), Inc., 69 Ohio St.2d 179, 431 N.E.2d 1014 (1982) (per curiam) (where reporter at expungement hearing and information reported truthfully, First and Fourteenth Amendments do not permit exposing press to liability; citing Landmark Communications, Oklahoma Publishing, and Cox); Ayers v. Lee Enterprises, Inc., 277 Or. 527, 561 P.2d 998 (1977) (police report was public record and, following Cox, no liability for publishing name and address of rape victim); Philadelphia Newspapers, Inc. v. Jerome, 478 Pa. 484, 387 A.2d 425 (1978) (in upholding trial court’s order limiting public access to suppression hearing, appellate court, citing Oklahoma Publishing, notes that trial court had no authority to “gagQ the press”), appeal dismissed, 443 U.S. 913, 99 S.Ct. 3104, 61 L.Ed.2d 877 (1979); Mark v. Seattle Times, 96 Wash.2d 473, 635 P.2d 1081 (1981) (en banc) (information from affidavit of probable cause included in record privileged under Cox), cert. denied, 457 U.S. 1124, 102 S.Ct. 2942, 73 L.Ed.2d 1339 (1982).

B

Given Cox, Landmark Communications, and Smith, we are constrained to conclude that the legislature did not intend that section 5725 should be construed to impose liability on appellant for its publication of information of legitimate public concern lawfully obtained from court records accessible to the public. For if we were to give the section such a construction, its application to appellant would violate the First and Fourteenth Amendments. We therefore hold that included in the section is an implied exemption for the publication of lawfully obtained information of legitimate public concern. So construed, application of the section to appellant presents no constitutional issue. Cf. Commonwealth v. Morgan, supra (to preserve constitutionality of statute, phrase, “not manifestly appropriate to lawful uses it [instrument of crime] may have,” construed to mean “manifestly inappropriate to lawful uses it may have”).

We are confirmed in this conclusion by the application of one further principle of statutory construction. When the legislature enacts a statute after an interpretation of the law by a court of last resort, it will be assumed that the legislature intended the statute to incorporate that interpretation. 1 Pa.C.S. § 1922(3). Here, the General Assembly enacted section 5725 as part of the Act of October 4, 1978, P.L. 831, No. 164, § 2, after the United States Supreme Court’s decisions in Cox, Landmark Communications, and Oklahoma Publishing. We may assume, therefore, that in enacting section 5725, the General Assembly did not intend to deprive appellant of the constitutional right of publication upheld in those decisions. Since the General Assembly did not specifically exempt such publication, it is reasonable to imply an exemption.

Judgment reversed and judgment entered for appellant.

JOHNSON, J., files a concurring opinion.

JOHNSON, Judge,

concurring:

I write separately because I do not believe that the manner in which the information was obtained from the clerk of court’s office was within the legislature’s contemplation when promulgating the Act. Once the transcripts were made a part of the unsealed case file, they became, for all intents and purposes, matters of public record. Appellant could not then willfully disclose or use the information in a manner which violated the law because, in my view, that information was no longer shrouded in the secrecy provided by the Wiretap Act. Any private citizen could have viewed the wiretap transcripts in the clerk of court’s office and would be no more or less subject to criminal or civil liability than appellant herein.

The principles of statutory construction analyzed by my esteemed brother are unquestionably valid, but I see no need to evaluate a possible constitutional conflict in this case to determine the intent of the legislature. Moreover, I do not believe that a constitutional question is before us, indirectly or otherwise, because, as stated by the majority, it was not properly preserved. The majority’s erudite discussion in Part III-A is, therefore, unnecessary to our disposition of this case.

I concur in the result reached by the majority in Part III-B that an implied exemption for the publication of lawfully obtained information of legitimate public concern is included in section 5725. In my mind, the discussion begins and ends here. I would, therefore, reverse the judgment simply on the basis that the trial court, as a matter of law, should not have found a statutory violation where none had occurred.

      . Section 5725 of the Act provides:
      § 5725. Civil action for unlawful interception, disclosure or use of wire or oral communication
      (a) Cause of action. — Any person whose wire or oral communications is intercepted, disclosed or used in violation of this chapter shall have a civil cause of action against any person who intercepts, discloses or uses or procures any other person to intercept, disclose or use, such communication; and shall be entitled to recover from any such person:
      (1) Actual damages, but not less than liquidated damages computed at the rate of $100 a day for each day of violation, or $1,000, whichever is higher.
      (2) Punitive damages.
      (3) A reasonable attorneys’ fee and other litigation costs reasonably incurred.
      (b) Waiver of sovereign immunity. — To the extent that the Commonwealth and any of its officers, officials or employees would be shielded from liability under this section by the doctrine of sovereign immunity, such immunity is hereby waived for the purposes of this section.
      (c) Defense. — It is a defense to an action brought pursuant to subsection (a) that the actor acted in good faith reliance on a court order or the provisions of this chapter.

      . A newspaper of daily circulation published by the defendant [appellant].

      . The evidence does not establish whether or not Loverro knew that the transcript could be found there.

        . The Fair Report Privilege applies to defamatory matter:
      Report of Official Proceeding or Public Meeting The publication of defamatory matter concerning another in a report of an official action or proceeding or of a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fair abridgement of the occurrence reported.
      Restatement (Second) of Torts § 611 (1976).

        See Curran v. Philadelphia Newspapers, Inc., 497 Pa. 163, 439 A.2d 652 (1981) (adopting section 611).

      . The Georgia statute provided:
      It shall be unlawful for any news media or any other person to print and publish, broadcast, televise, or disseminate through any other medium of public dissemination or cause to be printed and published, broadcast, televised, or disseminated in any newspaper, magazine, periodical or other publication published in this State or through any radio or television broadcast originating in the State the name or identity of any female who may have been raped or upon whom an assault with intent to commit rape may have been made. Any person or corporation violating the provisions of this section shall, upon conviction, be punished as for a misdemeanor.
      Ga.Code Ann. § 26-9901 (1972).

      . Compare prior provisions: Act of July 16, 1957, P.L. 956, No. 411, § 1, 18 P.S. § 2443 [renumbered 18 P.S. § 3742], repealed Act of Dec. 6, 1972, P.L. 1482, No. 334, § 5; Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S. § 5704.

      . Given this disposition, we do not address appellee’s argument that he is entitled to punitive damages.