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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 the vehicle as an authorized vehicle, except lights on Type VI vehicles may be activated whenever an emergency condition requires police assistance. The enumeration of vehicles is as follows:

(1) Type I. Type I vehicles include the following:

(i) Highway construction and maintenance vehicles. Such vehicles shall include, but not be limited to, traffic-line-painting trucks, sign and signal maintenance trucks, dump trucks, street sweepers, mowers, highway inspection vehicles, and vehicles involved in traffic studies or investigations or right-of-way operations.

(ii) Vehicles which are used in utility operations.

(iii) Highway service vehicles such as, but not limited to, tow trucks and road-service vehicles.

(iv) Vehicles used to collect money from parking meters.

67 Pa. Code § 15.2. In addition, § 15.3, entitled Special operating privileges, states that:

(a) General. The following types of authorized vehicles may exercise the special privileges indicated when they are performing the type of work which is the basis of the vehicle's designation as an authorized vehicle in § 15.2 (relating to types of authorized vehicles) and the special privileges can be executed in a reasonable and safe manner:

(1) Any type of authorized vehicle, except Types III, VI and VII vehicles, may utilize special median openings on divided highways designated for emergency and authorized vehicles, if every precaution is taken to insure the safety of all motorists and pedestrians.

(2) Types I, II and IV authorized vehicles may drive on highways, or any part thereof, closed to the general public when they are performing the type of work which is the basis of the designation of the vehicle as an authorized vehicle in § 15.2, if the driving can be done in a reasonable and safe manner.

67 Pa. Code § 15.3.

After determining the question of whether the tow truck Mr. Gladu had been operating at the time of the accident was an "authorized vehicle" under the applicable regulations was a legal issue as it involved statutory interpretation, Judge Lachman entered an Order on June 2, 2011, granting Bob Nolan's and Mr. Gladu's Motion In Limine requesting that she take judicial notice that the tow truck driven by Mr. Gladu was an "authorized" vehicle and permitted to use the median opening. In her Opinion, Judge Lachman set forth her reasoning in making that ruling as follows:

Because Mr. Gladu was on his way to rescue a stranded motorist on I-95 North, he was performing the highway service or road service mentioned in 67 Pa. Code § 15.2 (1) (ii).

Consequently, the [c]court correctly ruled that the tow truck operated by Mr. Gladu was "authorized" to use the turnaround in the median strip in furtherance of his road service efforts. Contrary to [Mr. Keffer's] repeated assertions in his

Amended 1925(b) Statement, the [c]court never ruled that the manner in which Mr. Gladu made his turn was appropriate. The [c]court left it for the jury to decide whether Mr. Gladu "executed" his turn "in a reasonable and safe manner," and whether Mr. Gladu took "every precaution . . . [to] insure the safety of all motorists and pedestrians" as he made his turn as required by 67 Pa. Code § 15.3(a).

Judge Lachman Opinion, filed 6/6/12, at 10 (emphasis in original). Judge Lachman rejected Mr. Keffer's claim that public service acts may be provided only by governmental entities and not by for-profit, commercial enterprises and noted that it was undisputed that Mr. Gladu was "'performing the type of work which is the basis of the vehicle's designation as an authorized vehicle in § 15.2 relating to types of authorized vehicles).' 67 Pa. Code § 15.3(a)." Id. at 23-24. Indeed, Mr. Keffer's argument that tow truck operators may disregard rules of the road only when the vehicle is found to have been used "in the performance of public service" dictates an analysis of what constitutes "public service" is to be done on a case by case basis. A reading of the statute, though, suggests the designation of "authorized vehicle" by DOT is made after it has made a finding the vehicle is to be used to perform a public service, i.e., DOT decided tow trucks are used in performance of public service then included them in the regulations as "authorized vehicles."

Upon our review of the record and relevant statutory language, we find that the only issue Judge Lachman decided as a matter of law was the designation of the vehicle as an "authorized" one under the aforementioned statutes and regulations governing the use of the median opening. Indeed, Judge Lachman indicated on the record that in granting Defendants' motion in limine, she was deciding an issue of law:

[Ms. Gallagher]: So are you going to be instructing them that there's a specific judicial notice of authorization to make that turn?

[Judge Lachman]: First of all, it is not judicial notice. . . It is an issue of law.

[Ms. Gallagher]: I thought their Motion was a Motion to take judicial notice.

[Judge Lachman]: Well, they are wrong. It is not a judicial notice. It is for facts. This is a question of whether the tow truck was an authorized vehicle. That is an issue of the statute and the regs and the one case that was submitted which isn't on point.

And having said all that, the [c]court has made a ruling of law.

N.T., 5/31/11 at 19-20.

Furthermore, at the conclusion of trial, Judge Lachman instructed the jury on this issue as follows:

I am instructing you, ladies and gentlemen, that 15.2

includes tow trucks as authorized vehicles. Specifically, they are Type I authorized vehicles.

Authorized vehicles such as tow trucks may utilize special median openings or divided highways designated for emergency and authorized vehicles if every precaution is taken to insure the safety of all motorists and pedestrians. Type II authorized vehicles may drive on highways or any part thereof closed to the general public when they are performing the type of work which is the basis of the designation of the vehicle as an authorized vehicle in 15.2 if the driving can be done in a reasonable and safe manner.

This regulation or set of rules dictate the duty of care required of someone in the same situation as defendant Bob Nolan's Auto Services' tow truck driver defendant James Gladu. If you find that there was a violation of this Act, you will find that the defendant was negligent as a matter of law. . .

Furthermore, the Act of the General Assembly of the Commonwealth of Pennsylvania in effect at the time of this accident provided, in part, any person who drives a vehicle in careless disregard for the safety of persons or property is guilty of careless driving, a summary offense. This Act dictates the duty of care required by the defendants in this case and if you find a violation of this Act, you may find the defendants guilty of negligence as a matter of law. . .

N.T., 6/16/11 at 103-104 (emphasis added). As such, we agree with Judge Lachman's finding that under the circumstances presented herein, Mr. Gladu's tow truck was an "authorized vehicle" and adopt her well-reasoned analysis in support of that finding. See Judge Lachman Opinion, filed 6/6/12, at 5-31.

Mr. Keffer also maintains Judge Lachman's finding that the tow truck was an "authorized vehicle" violated the coordinate jurisdiction rule in light of the fact that Judge Overton had previously decided this issue when denying Bob Nolan's and Mr. Gladu's Motion for Partial Summary Judgment on the issue of punitive damages. Brief for Appellant at 15-17. Mr. Keffer disagrees with Judge Lachman's finding that the issue has been waived and argues that he "has not brought a new theory of liability in arguing the [t]rial [c]court has violated the Coordinate Jurisdiction Rule and [he] clearly set forth this position in detail in his motion for post-trial relief." Mr. Keffer's Brief at 16. Upon our review of the record, we find this issue has been waived.

Generally, the coordinate jurisdiction rule commands that upon transfer of a matter between trial judges of coordinate jurisdiction, a transferee trial judge may not alter resolution of a legal question previously decided by a transferor trial judge. Commonwealth v. Starr, 541 Pa. 564, 664 A.2d 1326, 1331 (1995); see also Riccio v. American Republic Insurance Co., 550 Pa. 254, 705 A.2d 422, 425 (1997). More simply stated, judges of coordinate jurisdiction should not overrule each other's decisions. Id.; Okkerse v. Howe, 521 Pa. 509, 556 A.2d 827, 831 (1989).

The reason for this respect for an equal tribunal's decision, as explained by our court, is that the coordinate jurisdiction rule is "based on a policy of fostering the finality of pre-trial applications in an effort to maintain judicial economy and efficiency." Starr, 664 A.2d at 1331. Furthermore, consistent with the law of the case doctrine, the coordinate jurisdiction rule serves to protect the expectations of the parties, to insure uniformity of decisions, to maintain consistency in proceedings, to effectuate the administration of justice, and to bring finality to the litigation. Id.

Zane v. Friends Hosp., 836 A.2d 25, 29 (Pa. 2003) (footnote omitted).

Herein, Mr. Keffer raised the coordinate jurisdiction issue for the first time in his post-trial motion, though he filed a written opposition to the Appellees' motion in limine, as well as his own motion in limine and a motion for consideration. One "may not, at the post-trial motion stage, raise a new theory which was not raised during trial." Solomon v. Presbyterian University Hospital, 530 A.2d 95, 97 (Pa. Super. 1987).

Nevertheless, even if Mr. Keffer had properly preserved this claim for our review, we note that this Court has determined:

In deciding whether to apply the coordinate jurisdiction rule, the Court must look to where the rulings occurred in the context of the procedural posture of the case rather than to whether an opinion was issued in support of the initial ruling.

Where the motions differ in kind, as preliminary objections differ from motions for judgment on the pleadings, which differ from motions for summary judgment, a judge ruling on a later motion is not precluded from granting relief although another judge has denied an earlier motion. However, a later motion should not be entertained or granted when a motion of the same kind has previously been denied, unless intervening changes in the facts or the law clearly warrant a new look at the question.

[A] court involved in the later phases of a litigated matter should not reopen questions decided by another judge of the same court or by a higher court in the earlier phases of the matter. Among the related but distinct rules which make up the law of the case doctrine are that: ... upon transfer of a matter between trial judges of coordinate jurisdiction, the transferee trial court may not alter the resolution of a legal question previously decided by the transferor trial court."

Martin Stone Quarries, Inc. v. Robert M. Koffel Builders, 786 A.2d 998, 1001-1002 (Pa. Super. 2001) (quotation marks and citations omitted).

Therein, this Court found that the issues involved were essentially the same in that the first order had denied the appellees' motion for summary judgment based on the timeliness and apportionment requirements of the Mechanics' Lien Law, and the trial court subsequently entered final judgment for the appellees because it found that the appellant did not abide by these two requirements such that "[e]ssentially, the trial judge overruled the exact same determination of the prior judge." Id. at 1001. Nevertheless, we ultimately held that the coordinate jurisdiction rule did not bar the trial judge from ruling in contradiction of the motion judge where the second decision was correct, although made after trial rather than during post-trial motions.

Id. 1002.

Herein, Judge Overton entered his order denying Appellees' Motion for Partial Summary Judgment without an accompanying opinion.*fn5 However, in their motion Appellees argued their conduct at the time of the accident did not warrant the imposition of punitive damages. As such, Judge Overton was not deciding the issue of what constitutes an "authorized vehicle" when ruling on the motion, nor did he set forth his specific reasoning in support of his ruling. For all of the foregoing reasons, Mr. Keffer's first clam fails.

Mr. Keffer next argues that Judge Lachman erred in granting a non-suit in favor of Bob Nolan's on the issue of negligent supervision and training. Specifically, in his brief Mr. Keffer maintains Judge Lachman "erred by requiring a standard beyond reasonable care for claims against Bob Nolan's for negligent supervision and lack of training, obstructing [Mr. Keffer]'s cross-examination of Bob Nolan's witnesses, thereby prejudicing [Mr. Keffer]'s ability to prove the claims in question and then finding that [Mr. Keffer] had not established sufficient facts to require the submission of his case to the jury." Brief for Mr. Keffer at 27.

[T]he trial court, on the oral motion of a party, may enter a non-suit if the plaintiff has failed to establish a right to relief. Pa.R.C.P., Rule 230.1, 42 Pa.C.S.A. In evaluating the trial court's grant of a non-suit, "we must view the evidence adduced on behalf of the [plaintiff] as true, reading it in the light most favorable to [her]; giving [her] the benefit of every reasonable inference that a jury might derive from the evidence and resolving all doubts, if any, in [her] favor." Sinclair by Sinclair v. Block, 534 Pa. 563, 568, 633 A.2d 1137, 1139 (1993). Accord Taliferro v. Johns-Manville Corp., 421 Pa. Super. 204, 208, 617 A.2d 796, 799 (1992). Additionally, a compulsory non-suit may be entered only in cases where it is clear that the plaintiff has not established a cause of action.... When so viewed, a non-suit is properly entered if the plaintiff has not introduced sufficient evidence to establish the necessary elements to maintain a cause of action.... Taliferro v. Johns- Manville Corp., 421 Pa. Super. at 208, 617 A.2d at 799. With respect to the trial court's evidentiary rulings, "[q]uestions concerning the admission and exclusion of evidence are within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. The basic requisite for the admissibility of any evidence in a case is that it be competent and relevant." Moran v. G. & W.H. Corson, Inc., 402 Pa. Super. 101, 125, 586 A.2d 416, 428 (1991), allocatur denied, 529 Pa. 650, 602 A.2d 860 (1992).

Liles v. Balmer, 653 A.2d 1237, 1241 (Pa. Super. 1994), appeal denied, 663 A.2d 692 (Pa. 1995). In addition, citing to our Supreme Court's holding in Harnish v. School Dist. of Philadelphia, 557 Pa. 160, 163-64, 732 A.2d 596, 599 (1999) wherein the Supreme Court reiterated language from its earlier decision in Atlantic Richfield Co. v. Razumic, 480 Pa. 366, 390 A.2d 736 (1978), this Court reasoned as follows:

A motion for compulsory non-suit allows a defendant to test the sufficiency of a plaintiff's evidence.... To assure that the trial court considers the motion only on the basis of evidence favorable to the plaintiff, the [Rule 230.1] expressly limits the court's authority to grant a non-suit to those instances where a defendant has "offered no evidence." Our cases have strictly enforced the terms of [Rule 230.1], prohibiting the trial court from granting the motion where the defendant offers evidence either during the plaintiff's case ... or after it.... We have even held that where the defendant exceeds proper bounds of cross- examination so as to elicit matters constituting a defense to the cause of action, the trial court is without authority to enter a non-suit...

Deiley v. Queen City Business Center Associates, 757 A.2d 956, 957 - 958 (Pa. Super. 2000).

At the close of Mr. Keffer's case in chief, Appellees presented a written Motion for Non-suit wherein they requested that Judge Lachman dismiss the following claims for direct negligence which Mr. Keffer had brought against Bob Nolan's:

25 (i) negligently entrusting [Bob Nolan's] driver to a careless driver who ignored the clearly marked signs and rules of the road;

(j) in negligently hiring, training, screening,

evaluating, monitoring, supervising, and retaining [] [Mr.] Gladu or doing so in an inadequate manner;

(r) failing to instruct operators of tow trucks on safety precautions.

Amended Complaint of Mr. Keffer, at ¶ 25.

At the outset, we note that as the jury found Mr. Gladu was not negligent in his operation of the tow truck, it follows it could not have found Bob Nolan's liable for its failure to supervise and train him. Nevertheless, we find that Judge Lachman properly disposed of this issue in her Opinion and we rely upon and incorporate the arguments she makes on pages 46-53 of it in disposing of issue. See Judge Lachman Opinion, filed 6/6/12 at 46-53.

In his third issue, Mr. Keffer maintains that the trial court should have granted his request for a directed verdict in light of Bob Nolan's and Mr. Gladu's admissions on the record and the latter's "clear failure to ensure the safety of all motorists."

"A directed verdict may be granted only where the facts are clear and there is no room for doubt. In deciding whether to grant a motion for a directed verdict, the trial court must consider the facts in the light most favorable to the nonmoving party and must accept as true all evidence which supports that party's contention and reject all adverse testimony." Maverick Steel Co., L.L.C. v. Dick Corporation/Barton Malow, 54 A.3d 352, 356 (Pa. Super. 2012) (citations and quotations omitted), reargument denied (Oct. 25, 2012).

In his brief, Mr. Keffer devotes just six sentences of argument to this claim and asserts that Mr. Gladu admitted he did not look for Mr. Keffer's van before he made the U-turn. Mr. Keffer reasons that if Mr. Gladu had done so he could have avoided the accident. Mr. Keffer also notes that Mr. Gladu admitted on the record he failed to reach the AAA member in a safe manner and concludes that "[i]t is beyond dispute that Mr. Gladu simply failed to 'take every precaution to insure the safety of all motorists,' including [Mr. Keffer]." Brief for Mr. Keffer at 28.

At trial, Mr. Gladu testified as on cross that prior to making the U-turn, he utilized his truck's mirrors and observed Mr. Keffer's van about one and one half miles behind him. Mr. Gladu decided there was ample space between Mr. Keffer and him such that the former could utilize the turnaround to reach the stranded motorist. Mr Gladu explained he looked around him to ensure "everything was safe" and that his lights were flashing. N.T., 6/6/11 at 96-98, N.T., 6/7/37 at 37. He also explained he had accessed the turnarounds on I-95 "numerous" times, and "would have aborted if it wasn't safe." N.T., 6/7/11 at 34. In addition, Mr. Gladu further testified that when he spotted the stranded vehicle he proceeded to "look all around" him, began pumping his brakes and slowing down with his turn signal on prior to making the U-turn. N.T., 6/6/11 at 104.

As Judge Lachman correctly notes in her Opinion:

[it] was the duty of the jury to decide whether the collision occurred in the left land or in the center lane, whether Mr. Gladu's observation of the van before the collision was sufficient and whether he took 'every precaution' to make the turn safely. . . . The record contains sufficient evidence to support the jury's verdict that Mr. Gladu was not negligent in the manner in which he made the [U]-turn. . . Whether Mr. Gladu took every precaution when making his turn was a question of fact for the jury to determine based on all of the circumstances surrounding the turn.

Judge Lachman's Opinion, filed 6/6/12, at 57-58.

Upon our review of the record, we find Judge Lachman did not err in denying Mr. Keffer's motion for a directed verdict.

Mr. Keffer next claims Judge Lachman erred in allowing Mr. Stephen Fenton, Appellees' accident reconstruction expert, to testify at trial in light of the fact that Appellees had agreed the underlying data upon which his conclusions were based would not be offered into evidence and that he had submitted an untimely, supplemental report which introduced a new theory and was not based upon any calculations.

At the outset we recognize that our standard of review regarding this claim is very narrow.

The admission or exclusion of evidence, including the admission of testimony from an expert witness, is within the sound discretion of the trial court... [W]e may only reverse upon a showing that the trial court clearly abused its discretion or committed an error of law. To constitute reversible error, an evidentiary ruling must not only be erroneous, but also harmful or prejudicial to the complaining party.

McClain ex rel. Thomas v. Welker, 761 A.2d 155, 156 (Pa. Super. 2000), appeal denied, 771 A.2d 1286 (Pa. 2001).

Appellants also contend that Mr. Fenton's expert testimony was not based upon evidence of record. We note that our standard of review for evidentiary rulings is also a narrow one:

When we review a trial court's ruling on admission of evidence, we must acknowledge that decisions on admissibility are within the sound discretion of the trial court and will not be overturned absent an abuse of discretion or misapplication of law. In addition, for a ruling on evidence to constitute reversible error, it must have been harmful or prejudicial to the complaining party.

Reott v. Asia Trend, Inc., 7 A.3d 830, 839 (Pa. Super. 2010). The admissibility of expert testimony is soundly committed to the discretion of the trial court, and the trial court's decision will not be overruled absent "a clear abuse of discretion." Helpin v. Trustees of Univ. of Pennsylvania, 969 A.2d 601, 617 (Pa. Super. 2009), aff'd, 608 Pa. 45, 10 A.3d 267 (2010), see also Hatwood v. Hospital of University of Pennsylvania, 2012 WL 4748194, at *7 (Pa. Super. October 5, 2012).

Pa.R.E. 702 provides that a party may present the testimony of an expert:

If scientific, technical or other specialized knowledge beyond that possessed by a layperson will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.

Pa.R.E. 702.

Mr. Fenton submitted three reports in this case, one dated December 23, 2010, another dated February 9, 2011, and the last dated June 3, 2011, which he prepared after receiving a supplemental report dated May 20, 2011, from Steven Marc Schorr, P.E., Mr. Keffer's accident reconstruction expert, wherein Mr. Schorr found fault with Mr. Fenton's earlier reports. In his brief, Mr. Keffer argues that Mr. Fenton's expert opinion was based upon an unreliable methodology, PC-Crash analysis, and was inconsistent with his opinions as to the property damage. Brief for Mr. Keffer at 28. Mr. Keffer further asserts Judge Lachman erred by failing to rule on his Motion to strike Mr. Fenton's testimony after he had admitted to the jury his "Dip in the Median" theory was not based upon any specific calculations because such calculations "were too complicated." Id. at 29. Lastly, Mr. Keffer maintains Judge Lachman should not have allowed Mr. Fenton to testify as to the findings he made in his allegedly untimely June 3, 2011, supplemental report. Id. at 32.

Once again, upon our review of the record, we find Judge Lachman properly and correctly addresses these issues in her Opinion, and adopt her reasoning herein as our own. See Judge Lachman Opinion, filed 6/6/12, at 34-44.

In his next argument, Mr. Keffer asserts the trial court erred in allowing Trooper Kevin Martin, a Pennsylvania State Police Officer who responded to the accident, to testify regarding his observation of the scene and investigation of the accident. Mr. Keffer maintains that in granting a motion filed by Appellees to exclude Trooper Martin from expressing his opinion as to how the accident occurred, Judge Lachman noted he could not be offered as an expert, and as such, his testimony would have to be based upon only his actual perceptions made at the accident scene. Mr. Keffer reasons that because Trooper Martin did not witness the accident, he could not opine about causation. Mr. Keffer further asserts that a line of questioning on cross-examination regarding a diagram in the police report "allowed [Appellees]' counsel to portray to the jury that Trooper Martin placed both units in the left lane at the time of the impact, which was in complete contradiction of the [c]court's earlier ruling that Trooper Martin could not testify about the impact because he did not observe it." Brief for Mr. Keffer at 34-35.

Specifically, Mr. Keffer posits that "the following questions and responses elicited the very issues [Appellees] successfully precluded via their Motion in Limine." Brief for Mr. Keffer at 34.

Q: And would you agree with me, Trooper, that the diagram on the official state police investigation report shows the two units involved in this accident, am I right? Mr. Turchi: I make an objection, Your Honor, at this point. This is going into what I believe what we already discussed this morning and outside the scope. This is based upon investigation.

Mr. Kuzmick: Your Honor, I'm only asking the trooper to identify the units on the diagram.

Mr. Turchi: And I believe Your Honor discussed that this morning saying that when and where Trooper Martin arrived.

The Court: Overruled.

Q: All right. Trooper, and it's just fair for all [of] us to understand, Units 1 and 2. We know that you know it. Unit 1, that is the tow truck; correct?

A: Correct

Q. Unit 2 is Mr. Keffer's van; correct?

A. Correct.

Q. All right. And as drawn on the diagram they're both in the left lane; correct?

A. Correct.

Q. Trooper, the diagram prepared by Trooper Nyitray which you looked at before your testimony here today has the point of impact on the roadway in the left lane; is that a fair statement?

Mr. Turchi: Objection, Your Honor, That's outside. That was discussed this morning.

Mr. Kuzmick: Just about the diagram, Your Honor.

Mr. Turchi: His diagram is based upon an investigation.

The Court: To the extent it is what he observed, it is admissible.

Q: The debris was located where you have your impact? A: yes.

Mr. Turchi: Objection, Your Honor. Again, this is what we discussed this morning and was not to be discussed now. This is part of that Motion and request to keep out. This is based upon observations only of Trooper Martin. The Court: And observations are admissible. Mr. Turchi: Correct. Observed by him upon arrival. Mr. Kuzmick: And I'm asking him about the debris which he said he saw.

The Court: All right. Overruled.

Mr. Turchi: You Honor, its observation of an impact. Trooper Martin did not observe the impact.

The Court: Overruled, Counselor.

Brief for Mr. Keffer at 34-36, citing N.T., 6/1/11 at 22-24, 33-34, 36.

Mr. Keffer maintains the first line of questioning suggested to the jury that Trooper Martin placed both vehicles in the left lane at the time of impact, while the second and third permitted Trooper Martin "to place the point of impact in the left lane" though he did not observe the impact. Brief for Mr. Keffer at 35-36. However, upon our review of Trooper Martin's direct examination testimony, we find it had been based upon his observation of the accident scene and the accident report that he prepared along with another officer. The aforementioned excerpts reveal that Trooper Martin did not opine as to the cause or place of impact of the accident, but rather commented upon images he viewed in the diagram which were based upon his personal observations of the accident site. Indeed, as Judge Lachman states in her Opinion, the testimony at issue is "merely a continuation of the same subject matter originally brought out by [Mr. Keffer] during his direct examination of Trooper Martin." Judge Lachman Opinion, filed June 6, 2012 at 66.

On Direct Examination, Trooper Martin explained he had taken some of the measurements indicated on the diagram and that the report was based upon his observations of the accident scene and interview of Mr. Gladu.

N.T., 5/31/11 at 65-72. In the first excerpt Mr. Keffer cites, Trooper Martin simply was asked whether he agreed that Unit 1 on the diagram represented the tow truck, Unit 2 represented Mr. Keffer's van and that they are both depicted in the left lane on the diagram. In the next two question/answer sequences, Trooper Martin indicates that Trooper Nyitray has the point of impact on the diagram in the left lane, and that the debris at the scene was located where the impact had been indicated on the diagram. Such queries require Trooper Martin to comment upon the location of objects in a diagram which depicts debris in an accident scene he observed personally. Indeed, when he was asked to opine as to "how the accident happened," Judge Lachman sustained the objection after hearing counsel's argument that "[t]his is not a witness who has been qualified as an expert. He's being called as a fact witness who conducted a response to an accident scene. N.T., 5/31/11 at 74. Therefore, this claim merits no relief.

Mr. Keffer's final two issues pertain to Judge Overton's granting of AAA's motion for summary judgment. Specifically, Mr. Keffer argues the trial court erred in holding AAA could not be held vicariously liable for his injuries and in dismissing all claims concerning direct negligence in light of evidence which raised a question of AAA's direct liability.

Our well-settled standard of review of a challenge to an order granting summary judgment is as follows:

We may reverse if there has been an error of law or an abuse of discretion. Our standard of review is de novo, and our scope plenary. We must view the record in the light most favorable to the nonmoving party and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Furthermore, [in] evaluating the trial court's decision to enter summary judgment, we focus on the legal standard articulated in the summary judgment rule. See Pa.R.C.P. 1035.2. The rule states that where there is no genuine issue of material fact and the moving party is entitled to relief as a matter of law, summary judgment may be entered. Where the nonmoving party bears the burden of proof on an issue, he may not merely rely on his pleadings or answers in order to survive summary judgment. Failure of a non-moving party to adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof establishes the entitlement of the moving party to judgment as a matter of law.

Gubbiotti v. Santey, 52 A.3d 272, 273 (Pa. Super. 2012) (citations omitted).

Mr. Keffer contends Judge Overton erroneously decided questions of fact in determining Bob Nolan was an independent contractor, not an employee, of AAA. Mr. Keffer's Brief at 37. Mr. Keffer reasons that though AAA's contract contains boilerplate language labeling its relationship with Bob Nolan's as independent, "the actual performance under the contract belies this label." Id. at 39-40. In this regard, Mr. Keffer states that "[i]n the end, the seminal question here was whether Mr. Gladu controlled both the manner and method by which he delivered service to AAA customers, and on this issue, the record evidence showed that this was just not the case." Mr. Keffer's Brief at 39-40, 43.*fn6

Mr. Keffer bases his first argument upon a theory of vicarious liability. In Mamalis v. Atlas Van Lines, Inc., 560 A.2d 1380, 1383 (Pa. 1989), our Pennsylvania Supreme Court explained this theory of recovery as follows:

The rules of vicarious liability respond to a specific need in the law of torts: how to fully compensate an injury caused by the act of a single tortfeasor. Upon a showing of agency, vicarious liability increases the likelihood that an injury will be compensated, by providing two funds from which a plaintiff may recover. If the ultimately responsible agent is unavailable or lacks the ability to pay, the innocent victim has recourse against the principal. If the agent is available or has means to pay, invocation of the doctrine is unnecessary because the injured party has a fund from which to recover.

In support of his decision that AAA cannot be held vicariously liable because Bob Nolan's was an independent contractor, Judge Overton stated that:

In this instance, the contract between AAA [] and Bob Nolan's [] specifically defined their relationship as that of an "independent contractor." Moreover, Bob Nolan's [] hired its own employees, supplied its own equipment and managed its own operation. Additionally, Bob Nolan's contract was non- exclusive with AAA [] and other companies took on repair jobs for the same regional area. Finally, Bob Nolan's [] was paid by the task completed and not by an hourly or set rate by AAA [ ].

Therefore, AAA cannot be held vicariously liable for the actions of Bob Nolan's [] or [Mr.] Gladu because its relationship with both was that of an independent contractor.

Judge Overton's Opinion, filed 1/27/12 at 3. Upon our review of the record, we agree.

The initial provision of the Roadside Assistance Service Provider Agreement Contract Number (3415) defines AAA as "a Pennsylvania not-for- profit Corporation," and Bob Nolan's as "an independent Roadside Assistance contract facility." In the body of the contract between AAA and Bob Nolan's, their relationship is described as follows:

It is understood and agreed that CONTRACTOR is not acting as an employee or agent of [AAA] but as an

INDEPENDENT CONTRACTOR, nor is [AAA] acting as agent for CONTRACTOR. It is further understood and agreed that [AAA] shall not have nor shall it exercise any right of control as to the manner, methods or means employed by CONTRACTOR in the rendering of services herein provided. CONTRACTOR acts in an independent capacity as a public garage and is exclusively responsible for its actions in connection with the rendering of services under this Contract. CONTRACTOR shall have no power or authority other than herein expressly granted and shall nave no authority to act on behalf of [AAA] or extend, waive or change any of [AAA's] membership terms, condition, and benefits.

Roadside Assistance Service Provider Agreement Contract Number (3415) at § VIII. In addition, Sections IX and X of the Contract indicated that Bob Nolan's would defend and indemnify AAA for any and all claims, including punitive damages, court costs and attorney's fees, "arising out of the performance by contractor, its employees or agents or any services under this Contract," and maintain at its own expense its own liability insurance. Roadside Assistance Service Provider Agreement Contract Number (3415) at §§ IX and X.

Even were we to accept as true Mr. Keffer's claims that Bob Nolan's was an employee of AAA, "[i]t is clear that if [an] employee was found to not have been negligent, that [his employer] could not be held negligent under the doctrine of respondeat superior." Skalos v. Higgins, 449 A.2d 601, 607 (Pa. Super. 1982). Therefore, even had the trial court erred in granting AAA's motion for summary judgment, AAA could not have been held liable for Mr. Keffer's injuries under a vicarious liability theory, as Mr. Gladu was found not to have been negligent. Indeed, the trial court specifically instructed the jury that an employer is liable for the negligence of its employee occurring in the course and within the scope of his employment and that if it found Mr. Gladu to be liable, it must also find Bob Nolan's liable. To the contrary, the trial court explained that if Mr. Gladu were found not liable, then Bob Nolan's also would not be liable. N.T., 6/16/11 at 106.

Mr. Keffer also asserts the trial court erred in granting AAA's summary judgment motion because AAA was liable under a theory of direct negligence. Mr. Keffer maintains the evidence reveals a "genuine dispute of material fact as to whether AAA's own actions were a proximate cause of the accident." Mr. Keffer's Brief at 44.

Our Supreme Court has set forth the elements of a cause of action based upon a negligence theory in Pennsylvania as follows:

(1) a duty or obligation recognized by the law requiring the defendant to conform to a certain standard of conduct for the protection of others against unreasonable risks;

(2) defendant's failure to conform to the standard required;

(3) a causal connection between the conduct and the resulting injury;

(4) actual loss or damage resulting to the plaintiff.

R.W. v. Manzek, 888 A.2d 740, 746-748 (Pa. 2005) (citations omitted).

In his Opinion, Judge Overton briefly explains his decision that Mr. Keffer's claim of direct negligence failed because there is no evidence to support a finding that AAA's Priority Call Policy caused the accident as follows:

[Mr. Keffer's] other claim of negligence against AAA Mid- Atlantic Inc. is also without merit. In order to submit a negligence claim to a jury, the plaintiff must proffer sufficient evidence of record from which the jury could reasonably conclude that the defendant's actions causally created the accident. Farnese v. Septa, 487 A.2d 887 (Pa. Super. Ct. 1985). In this instance, [Mr. Keffer] alleged that AAA Mid-Atlantic's policies caused the accident but provides no factual evidence of any causal connection between the Priority Call Policy of AAA Mid-Atlantic and the accident. [Mr. Keffer's] argument alleging that AAA Mid-Atlantic had a priority call policy incentivizing response time caused the accident is unsupportable. Therefore, summary judgment was properly entered in favor of AAA Mid- Atlantic Inc.

Judge Overton's Opinion, filed 1/27/12 at 3-4. Upon our review of the record, we agree. Moreover, even if Judge Overton erred in this determination, Mr. Keffer's claim fails in light of the fact that he cannot prove the third element of the negligence test because the jury found Mr. Gladu was not negligent.*fn7

Orders affirmed.

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