This allegation is so amorphous that one does not know whose testimony or what document Gans wished to use on rebuttal. This conclusory allegation is far below that level of evidence which would be necessary to withstand a motion for summary judgment.
Finally, plaintiff appears to allege that Gray erred in failing to prevent or object to the trial court's jury charge on the sudden emergency doctrine. Plaintiff has presented no factual support for such an allegation. It cannot be discerned from this record whether or not Gray objected to the jury charge. However, resolving any doubt in favor of the non-moving party, I will assume that defendant made no objection. The heart of any allegation of unreasonable conduct by defendant is the propriety of the instruction itself. For if the instruction was warranted, counsel's failure to object was reasonable.
In examining the record, I find that there was ample evidence to support Senior Judge Davis' instruction on the sudden emergency doctrine. Lloyd Holmes, the driver of the AMTRAK bus, testified pretrial that prior to impact, the AMTRAK bus was stopped behind the SEPTA bus at a red light. When the light turned green, the SEPTA bus moved forward. The AMTRAK bus followed. Holmes testified that, suddenly, the SEPTA bus stopped "on the dime with no indication of brake lights or no indication of a turn signal" and attempted a left-hand turn. See Exh. 5 to Def's Mot. for Sum. Judg. at 12. Holmes was unable to prevent the bus from hitting the SEPTA bus on the wet pavement. It is not disputed that Holmes' trial testimony conformed substantially to his pretrial deposition. Compare Exh. C to Def's Mot. for Sum. Judg. at para. 14 with Exh. 5 to Def's Mot. for Sum. Judg.
This Circuit, applying Pennsylvania law, has recognized that, if a sudden emergency confronts an individual, he should not be held accountable for failing to reflect carefully on the course of action to be taken. Sowizral v. Hughes, 333 F.2d 829, 835-36 (3d Cir. 1964). As a consequence of being placed in an emergency situation through no part of his own, the Third Circuit has held that negligence on the part of the actor faced with the emergency cannot be implied. Id. at 836 (citing, e.g., Liuzzo v. McKay, 396 Pa. 183, 186-87, 152 A.2d 265, 267-68 (1959)). In the underlying action, it was not unreasonable to instruct the the jury on the sudden emergency doctrine. There was evidence that the lack of proper functioning signal devices on the SEPTA bus when combined with sudden stop of the SEPTA bus and the presence of wet pavement, left the AMTRAK driver in a helpless position. Whether Holmes' statement was credible was for the jury. Therefore, as a matter of law, I conclude that Gray's failure to object to this portion of jury charge was not unreasonable.
C. Post-Trial Conduct
Plaintiff's final contentions concern three alleged post-trial errors: 1) defendant negligently failed to comply with the local rules of civil procedure causing plaintiff's motion for a new trial to be disallowed and the underlying action to be dismissed; 2) defendant negligently failed to appeal from Senior Judge Davis' order dismissing the underlying action for lack of prosecution and 3) defendant negligently failed to take an appeal from the jury verdict in favor of AMTRAK. While these are three separate bases for legal malpractice, in the context of this decision, they each involve resolution of the same legal issue.
It is defendant's contention that his post-trial conduct, even if it rises to the level of unreasonable conduct, did not result in any injury to plaintiff. Defendant argues that it is plaintiff's burden under the decisional law of Pennsylvania to show actual damages. To meet this burden, defendant believes that plaintiff must produce evidence that, had the motion for new trial or appeals from the trial court's decisions been considered on the merits, he would have been successful in gaining a decision in his favor. Under defendant's theory, the success of each of plaintiff's three assertions can be reduced to the penultimate question: was plaintiff entitled to a new trial because the jury verdict was against the weight of the evidence?
Gray contends that, when read in a light most favorable to defendant, there was sufficient evidence in the record to support the jury verdict.
Defendant has submitted evidence containing specific facts which indicate that a motion for a new trial should be granted. Plaintiff, on the other hand, again relies on conclusory allegations to support his position. Gans contends that he clearly established AMTRAK's liability in the underlying action. Plaintiff submits that the fact of the rear-end accident must give rise to a conclusive presumption of liability on the part of the driver of the rear-ending vehicle.
Therefore, he believes that he was entitled to judgment in his favor.
The legal standard to be applied in evaluating the merits of plaintiff's allegations of post-trial error is clear under the reasoning of Duke & Co., 275 Pa. Super. at 71, 418 A.2d at 618. In order to succeed in this legal malpractice action, plaintiff must show that Gray's conduct was unreasonable and must demonstrate proof of actual damages resulting from such unreasonable conduct. Defendant's 165-day delay in complying with the local rules may be prima facie evidence of egregious conduct. At no point in his briefs or affidavit did defendant attempt to justify his failure to be aware of or to adhere to the local rules. However, assuming arguendo that defendant's conduct was negligent, plaintiff must still demonstrate that he would have succeeded in the underlying action, but for such omission.
Because it is plaintiff's burden to show that he would have been successful in the underlying action, I agree with defendant's position that the ultimate question is whether plaintiff has submitted sufficient proof to withstand summary judgment on the issue of whether he would have succeeded on the merits of the motion for a new trial.
The standard of review on a motion for a new trial was correctly stated by Senior Judge Davis in the underlying action. This court may only grant a new trial where the verdict is against the weight of the evidence, is excessive, or where errors in rulings on the charge warrant it. See, e.g., Denneny v. Siegel, 407 F.2d 433, 439 (3d Cir. 1969). Gans' argument in this action is identical to the argument presented by him, through Gray, in his motion for a new trial in the underlying action. Compare Pl's Mem. in Op. to Def's Mot. for Sum. Judg. at 14-15 with id. at Exh. B. Because the SEPTA bus struck the AMTRAK bus in the rear, plaintiff argues that he was entitled to recover. This argument, although appealing on its face, is illusory upon further examination. Plaintiff ignores all other testimony and evidence in the record which rationally points to the absence of liability. Plaintiff refuses to accept the viability of the sudden emergency doctrine. The driver of the bus claimed that the SEPTA bus' turn signal lights failed to function. See Exh. 5 to Def's Mot. for Sum. Judg. at 27. This testimony was, in fact, affirmed by plaintiff's own affidavit submitted in another case. See id. at Exh. 4, para. 9. This sworn testimony attests to plaintiff's own belief that there were sufficient facts from which a jury could have concluded that liability attached to SEPTA for any injury sustained by plaintiff.
The failure of the SEPTA bus to have functioning rear lights and the wet condition of the streets, led Senior Judge Davis to instruct the jury on the sudden emergency doctrine. As previously stated, this instruction was warranted. It was consistent with the evidence and the law that the jury concluded that the AMTRAK driver, due to no negligence on his part, had insufficient time to react to the emergency situation created by SEPTA's lack of due care. This court cannot substitute its judgment for that of the jury merely because plaintiff believes a different result may have been reached by other fact-finders. Ernst v. Ace Motor Sales, Inc., 550 F. Supp. 1220, 1222 (E.D. Pa. 1982) (Giles, J.), aff'd, 720 F.2d 661 (3d Cir. 1983).
Because plaintiff has advanced no new evidence in support of its theory that he was entitled to a new trial, the case is essentially in the same posture it was when it was last before Senior Judge Davis.
While not controlling, the court's opinion on the merits of the motion for a new trial is at least persuasive. I agree with plaintiff that the trial court's opinion on the merits is dictum. However, Senior Judge Davis took patience in addressing this issue when he need not have done so. His candor indicates that he strongly believed that plaintiff's motion would have been denied irrespective of defendant's failure to prosecute in accordance with the local rules.
He concluded that plaintiff, in his argument for a new trial, had failed to take into account evidence concerning material facts which, if believed, could have led the jury to find in favor of AMTRAK. Specifically, the trial court pointed to the speed of the AMTRAK bus immediately prior to impact, the distance which the bus might have slid immediately prior to the collision and finally, the condition of the rear lights on the SEPTA bus. Because of conflicting testimony, the court felt that the jury could have determined that plaintiff had failed to establish defendant's negligence. In drawing this conclusion, the court referred to the appropriate standard of review. In reviewing a motion for a new trial, a court is obliged to view the evidence in a light most favorable to the prevailing party and draw every reasonable and fair inference therefrom which supports the verdict. See, e.g., Vizzini v. Ford Motor Co., 569 F.2d 754, 757-58 (3d Cir. 1977). Because there was a variance in the testimony as to the facts of the accident, this court must make inferences favorable to Gray's position. To act in a contrary fashion is to undercut the principles undergirding the jury system.
A review of the record reveals other testimony which supports the jury verdict in the underlying action. First, the two witnesses whose testimony supported a finding of negligence on the part of AMTRAK, Timothy Brown and Michael Akers, both had a personal stake in giving a favorable rendition of the accident. Both had pending lawsuits against AMTRAK arising out of the same incident. See Exh. F to Def's Mot. for Sum. Judg. at 16; Exh. G to id. at 6. Furthermore, Brown's rendition of the facts differed widely from that of Akers. See Exh. G to Def's Mot. for Sum. Judg. at 6. Their only agreement was on the fact of rear-end impact. As stated above, this fact alone is insufficient to trigger a presumption of AMTRAK's negligence.
Finally, there are many discrepancies in the record which cast doubt on the severity of the accident. For example, Akers testified that the bus driver stopped at McDonald's right after the accident. Exh. G to Def's Mot. for Sum. Judg. at 5. On the other hand, Holmes testified that he stopped at McDonald's at the request of his passengers. Exh. C to id. at 33-34. Further, Holmes was to testify that there was no damage to either vehicle. See id. at 25. To choose between differing versions of the accident or post-accident event was a function for the jury. These discrepancies must now be viewed in a light most favorable to Gray. Therefore, the jury's finding that AMTRAK acted reasonably under the sudden emergency situation created by SEPTA's negligence is supported by the record evidence.
Defendant has presented sufficient evidence that the issue as to post-trial conduct can be decided on motion for summary judgment. Plaintiff has failed to submit affirmative evidence under Fed. R. Civ. P. 56(e) to create a genuine issue of material fact for a fact-finder. There is no evidence, and specifically, no affidavit of expert opinion, that defendant's pretrial or trial conduct was unreasonable. Further, as to post-trial conduct, reasonable minds cannot deny that the record supports the jury verdict in favor of AMTRAK. Despite defendant's negligent failure to comply with the local rules of procedure, plaintiff nevertheless would not have been successful on the merits. Under the law of the forum, speculative injury is not sufficient to cause this court to allow a case to go to the jury. A plaintiff should not now be allowed to challenge the propriety of the jury's verdict unless he can adduce sufficient proof that he was entitled to a new trial. To allow a plaintiff to bring a legal malpractice action against his attorney merely because he obtained an unfavorable jury verdict would seriously impair the functioning of the judicial system. A plaintiff must have a legitimate challenge to unreasonable attorney conduct which causes an unfavorable result. These essential elements have not been established here as a matter of law.
Accordingly, defendant's motion for summary judgment is GRANTED. An appropriate order follows.
AND NOW, this 24th day of May, 1985, for the reasons stated in the accompanying memorandum, it is hereby ORDERED that defendant's motion for summary judgment is GRANTED.
BY THE COURT: