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John Keffer v. Bob Nolan's Auto Service

November 26, 2012


Appeal from the Order Entered October 25, 2011 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): No. 2169 Sept. Term 2009

The opinion of the court was delivered by: Stevens, P.J.




Appellant, John Keffer (hereinafter "Mr. Keffer") appeals from the October 25, 2011, Order entering judgment on the jury's verdict and denying his motion for post trial relief and the February 25, 2011, Order granting the motion of AAA Mid-Atlantic, Inc., (hereinafter "AAA") for summary judgment,*fn1 both of which were entered in the Court of Common Pleas of Philadelphia County. Upon our review of the record, we affirm.

The Honorable Marlene Lachman (hereinafter "Judge Lachman") set forth the facts and procedural history herein as follows:

This case involved a September 24, 2007, rear-end motor vehicle collision in Philadelphia on southbound Interstate Route 95 ("I95 South"). Defendant James Gladu*fn2 was operating a 2007

International Navistar 4300 flatbed tow truck owned by Defendant Bob Nolan's Auto Service, Inc. ("Bob Nolan's").*fn3 Bob Nolan's was an independent contractor for Defendant AAA Mid-Atlantic, Inc. ("AAA"), and was responsible for providing roadside assistance to disabled AAA members on portions of I-95.

On September 24, 2007, while in the course and scope of his employment with Bob Nolan's, [Mr.] Gladu received a call from AAA stating that one of its members had a flat tire on the shoulder of northbound I-95 and required assistance. [Mr.] Gladu entered

Southbound I-95 at the Street Road entrance and drove in the left lane looking for, and eventually locating, the disabled vehicle on I-95 North. [Mr.] Keffer was operating a van in the left lane approximately one-and-a-half miles behind [Mr.] Gladu. Mr. Gladu was approximately one mile before an emergency turnaround in the grass median separating North and South I-95. He intended to use it to make a [U]- turn to get to the motorist stranded on I-95 North. [Mr.] Gladu turned on the bar lights on top of the cab of his truck and activated his left turn signal.

[Mr.] Gladu began breaking as he approached the opening in the median strip. At the opening in the median there was a sign stating, "Emergency and Authorized Vehicles Only."

As [Mr.] Gladu was turning into the median strip turn-around, he felt an impact as [Mr. Keffer's] van struck the rear of Mr. Gladu's truck. [Mr. Keffer] argued to the jury that the rear of [Mr.] Gladu's truck struck [Mr. Keffer's] van while the van was in the middle lane of traffic. The jury, however, found that both vehicles were in the left lane and that the collision occurred when the rear half of the tow truck was in the left lane and the front half of the tow truck was in the median turn-around.

After the impact, [Mr. Keffer's] van continued traveling, crossed the median strip, struck the guardrail separating the northbound lanes of I-95 and the median, and rolled over, trapping [Mr. Keffer] inside the van. [Mr. Keffer] sustained very serious injuries and underwent multiple surgeries. He contended at trial that he was disabled from returning to his previous employment as a steamfitter.

[Mr. Keffer] commenced this action against [Appellees] Gladu, Bob Nolan's and AAA on September 22, 2009. AAA was dismissed from the case on February 7, 2011, when Judge George W. Overton granted AAA's motion for summary judgment. Judge Overton is writing an Opinion supporting the grant of summary judgment.

The trial of this case began on May 27, 2011, with the selection of a jury. After 14 days of trial, on June 17, 2011, the jury returned with a verdict that [Mr.] Gladu was not negligent. Because Bob Nolan's liability was merely vicarious, the exoneration of [Mr.] Gladu exonerated Bob Nolan's as well.

[Mr. Keffer] filed a timely post-trial motion for relief seeking a judgment notwithstanding the verdict or a new trial in the alternative. After briefing and argument, the court denied [Mr. Keffer's] post-trial motion and entered judgment on the jury's verdict on October 25, 2011.

[Mr. Keffer] filed a timely notice of appeal to the Superior Court. The [t]rial [c]court issued an Order for a Pa.R.A.P. 1925(b) Statement of the rulings and errors [Mr. Keffer] intended to pursue on appeal. [Mr. Keffer] filed a timely Pa.R.A.P. 1925(b) Statement on December 2, 2011. There was a typographical error in paragraph 3 of the Statement and the [c]court permitted [Mr. Keffer] to file a corrected Amended Statement on December 5, 2011. . .

Judge Lachman Opinion, field June 6, 2012, at 1-3. (footnote omitted).

In his brief, Mr. Keffer raises the following Statement of the Questions Involved:

1. Whether Judge Lachman violated the coordinate jurisdiction rule and committed an error of law by granting [Appellees'] Motion in Limine and taking judicial notice that a private commercial tow truck was authorized to execute an illegal U- turn on I-95?

2. Whether Judge Lachman erred by granting a non-suit in favor of [ ] [Bob Nolan's] despite [Appellees'] admissions as to the lack of supervision and training?

3. Whether Judge Lachman erred by denying [Mr. Keffer's]

Request for a Directed Verdict in light of [Appellees'] admissions on the record and Mr. Gladu's clear failure to "insure the safety of all motorists?"

4. Whether Judge Lachman erred by allowing expert Stephen Fenton to testify despite the fact that (1) [Appellees] agreed that the underlying data that Mr. Fenton's conclusions were based on, the PC-Crash data, would not be offered into evidence and (2) Mr. Fenton submitted a supplemental report that not only introduced a new theory that was not based on any calculations but was untimely?

5. Whether Judge Lachman erred by allowing [Appellees] to offer inadmissible opinions of Trooper Martin in violation of a Court Order granting [Appellees'] own motion to restrict and preclude the opinions of Trooper Martin?

6. Whether Judge Overton committed an error of law and abused his discretion by resolving all factual disputes in favor of the moving party for summary judgment, AAA [ ], and holding that AAA cannot be held vicariously liable because Bob Nolan's [ ] was an independent contractor?

7. Whether Judge Overton erred by dismissing all claims of direct negligence against AAA despite substantial record evidence presented to the [c]court that raised disputed issues of material fact as to AAA's direct liability?

Brief for Mr. Keffer at 4-5. We will consider these issues in turn.

In his first issue, Mr. Keffer maintains that Judge Lachman erred in taking judicial notice that the flatbed tow truck which Mr. Gladu had been operating was an "authorized vehicle" permitted to use the median opening and that "his actual U-turn was a 'legal movement,'" as such a determination was an issue of fact and "[t]his error decimated [Mr.] Keffer's case." Mr. Keffer's Brief at 13-14. Mr. Keffer reasons, inter alia, that under 75 Pa.C.S. § 6107 and Section 15.3 of the Code, which implements the statute, "a vehicle can only be designated as authorized to execute a U-turn if the vehicle is used for public service or governmental purposes and can only exercise special privileges when it is performing the work which is the basis for the designation (as a public or governmental service vehicle), only when those privileges can be executed in a safe manner, and only if every precaution is made to insure the safety of all motorists." Brief for Mr. Keffer at 17.

In reviewing a trial court's interpretation of statutory language, we are mindful of the well-settled rule that "[s]tatutory interpretation implicates a question of law." Commonwealth v. Gonzalez, 10 A.3d 1260, 1261-1262 (Pa. Super. 2010), appeal denied, 21 A.3d 1190 (Pa. 2011). Thus, our scope of review is plenary, and our standard of review is de novo. Commonwealth v. Van Aulen, 952 A.2d 1183, 1184 (Pa. Super. 2008), appeal denied, 965 A.2d 245 (Pa. 2009).

In determining the meaning of a statute, we are obliged to consider and give effect to the intent of the legislature. Courts may disregard the statutory construction rules only when the application of such rules would result in a construction inconsistent with the manifest purpose of the General Assembly. Commonwealth v. Marion, 981 A.2d 230, 242 (Pa. Super. 2009). As with all issues involving statutory interpretation, we must refer to the Statutory Construction Act, 1 Pa.C.S. § 1901- 1991. Section 1921 provides in pertinent part:

(a) The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions.

(b) When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.

(c) When the words of the statute are not explicit, the intention of the General Assembly may be ascertained by considering, among other matters:

(1) The occasion and necessity for the statute.

(2) The circumstances under which it was enacted.

(3) The mischief to be remedied.

(4) The object to be attained.

(5) The former law, if any, including other statutes upon the same or similar subjects.

(6) The consequences of a particular interpretation.

(7) The contemporaneous legislative history.

(8) Legislative and administrative interpretations of such statute.

1 Pa.C.S. § 1921.

We are also mindful of the premise that "when the legislature adopts a statute it does so with full knowledge of existing statutes relating to the same subject," and that "statutes or parts of statutes that relate to the same persons or things or to the same class of persons or things are to be construed together, if possible." Commonwealth v. Hansley, 994 A.2d 1150, 1152-1153 (Pa. Super. 2010) (quoting Hutskow v. Washowich, 628 A.2d 1202, 1207 (Pa. Cmwlth. 1993) and Casiano v. Casiano, 815 A.2d 638, 642 (Pa. Super. 2002)).

Commonwealth v. Dixon, 53 A.3d 839, 842-843 (Pa. Super. 2012).

We now turn to an analysis of the statutes relevant herein. 75 Pa.C.S.

§ 102, defines "authorized vehicle" generally as follows:

"AUTHORIZED VEHICLE" A vehicle or type of vehicle, other than an emergency vehicle, for which special operating or equipment privileges are given by law or regulation of the department based on design and utility for work within a highway. 75 Pa.C.S.A. § 102.

75 Pa.C.S.A. § 6107, entitled designation of authorized vehicles by department*fn4 provides:

The department may designate any vehicle or group of vehicles as authorized vehicles upon a finding that the vehicle is used in the performance of public service or governmental functions. Duly authorized vehicles shall be exempted from certain provisions of this title as specified in regulations promulgated by the department. 75 Pa.C.S.A. § 102.

The regulations issued by DOT under Section 6107 can be found at 67 Pa.Code §§ 15.1-15.3. Section 15.1 indicates that the following chapter establishes the types of vehicles considered authorized vehicles under 75 Pa.C.S. §§ 102, 4572(b) and 6107, and establishes special operating privileges for authorized vehicles. Specifically, Section 15.2 reads in pertinent part as follows:

The vehicles enumerated in this section are designated as authorized vehicles of the type indicated. They may be equipped with one or two flashing or revolving yellow lights as provided in 75 Pa.C.S. § 4572(b) (relating to flashing or revolving yellow lights), and as defined in Chapter 173 (relating to flashing or revolving lights on emergency and authorized vehicles), except that school buses shall be equipped with red and amber flashing lights as defined in 75 Pa.C.S. § 4552 (relating to general requirements for school buses). The flashing or revolving yellow lights on all authorized vehicles except school buses shall be activated only when the vehicle is performing the type of work which is the basis of the designation of ...

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