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Gokey v. Moyer

Superior Court of Pennsylvania

October 10, 2013

RICHARD GOKEY, Appellee
v.
DAVID MOYER AND TERMINIX INTERNATIONAL, INC., Appellants

NON-PRECEDENTIAL DECISION

Appeal from the Order entered October 12, 2012, in the Court of Common Pleas of Berks County, Civil Division, at No(s): 09-11582

Joseph D. Seletyn, Esq.

BEFORE: GANTMAN, ALLEN, and MUNDY, JJ.

MEMORANDUM

ALLEN, J.

David Moyer and Terminix International, Inc. ("Moyer" or collectively "Appellants"), appeal from the trial court's grant of a new trial in favor of Richard Gokey ("Gokey"), following the jury's verdict in favor of Appellants. Gokey cross-appeals and takes issue with the trial court's denial of Gokey's post-trial motion regarding a contested jury instruction. After careful review, we reverse the trial court's order granting a new trial, and affirm the trial court's denial of Gokey's post-trial motion.

The trial court summarized the facts and procedural history as follows:
This case originated from a motor vehicle accident which occurred when the Defendant, David Moyer, stopped his truck 10-20 feet short of the intersection at Old Airport Road and Weavertown Road in Berks County, Pennsylvania. Moyer then pulled into the intersection where his truck collided with a motorcycle operated by [Gokey]. Moyer's entrance onto Weavertown Road was controlled by a stop sign on Old Airport Road. [Gokey] did not have a stop sign while traveling on Weavertown Road.
Following a jury trial concluding on May 4, 2012, the jury returned from deliberation and informed the Court they concluded Moyer did not violate 75 Pa. C.S. 3323(b) relating to duties at stop signs (discussed below), and was therefore not negligent. N.T. 624. On May 14, 2012, [Gokey] filed a Motion for Post-Trial relief. This Court granted [Gokey's] Motion for Post-Trial relief in the form of a new trial on October 12, 2012, and denied all other relief requested by [Gokey].
On October 31, 2012, [Appellants] filed the instant appeal and on November 7, 2012, this Court, in accordance with Pa.R.A.P. 1925, issued an Order directing [Appellants] to file a Concise Statement of Matters Complained of on Appeal. On November 28, 2012, [Appellants] filed [their] statement, raising two issues on appeal[.]

Trial Court Opinion, 12/27/12, at 1-2 (unnumbered).

Within their brief, Appellants present their two issues as follows:
1. Did [Gokey] waive his right to a new trial by failing either to make a motion for directed finding or to submit a binding instruction that [Appellants] violated section 3323 of the Motor Vehicle Code?
2. Did the trial court abuse its discretion by ordering a new trial where there was substantial evidence that [Appellants] had a clear view of traffic at the intersection, therefore not violating section 3323 of the Motor Vehicle Code, and where it improperly substituted its judgment of the contested facts since the jury's factual finding did not "shock a reasonable person's sense of justice"?

Appellants' Brief at 5.

We find Appellants' second issue to have merit. Thus our disposition of Appellants' second issue renders Appellants' first issue moot, and we will not address whether Gokey waived his right to a new trial.

The decision of whether to grant a new trial is within the sound discretion of the trial court. We will not disturb the trial court's decision unless the court palpably abused its discretion or committed an error of law. In evaluating an order awarding a new trial, we keep in mind that a new trial is warranted where the jury's verdict is so contrary to the evidence as to shock one's sense of justice. However, a new trial should not be granted because of a mere conflict in testimony or because the trial judge, on the same facts, would have arrived at a different conclusion.

Andrews v. Jackson, 800 A.2d 959, 962 (Pa.Super. 2002) (quoting Mano v. Madden, 738 A.2d 493, 495 (Pa.Super. 1999) (en banc)) (emphasis supplied).

Here, in ordering a new trial, the trial court ably explained:
Every driver of a vehicle approaching a stop sign shall stop at a clearly marked stop line or, if no stop line is present, before entering a crosswalk on the near side of the intersection or, if no crosswalk is present, then at a point nearest the intersecting roadway where the driver has a clear view of approaching traffic on the intersecting roadway before entering. 75 Pa.C.S. § 3323(b).
The Court instructed the jury to find Moyer negligent if he violated 75 Pa.C.S. §3323(b). In this instance there was no stop line or crosswalk at the stop sign. Moyer admitted that he violated this statute when he failed to stop at a point nearest the intersection at Weavertown Road, the intersecting roadway. N.T. 137-138. [Appellants'] expert, Steven Rickard, also indicated that Moyer had violated 75 Pa.C.S. §3323(b) when Moyer stopped at the stop sign which was 10-20 feet short of the point nearest the intersection. N.T. 434.

Trial Court Opinion, 12/27/12, at 4 (unnumbered).

Gokey contends, and the trial court agrees, that the evidence that Moyer violated 75 Pa.C.S. §3323(b) by not stopping at the point nearest to the intersection warrants a new trial. See Gokey's Brief at 16, 21-24; Trial Court Opinion, 12/27/12, at 5-6. We disagree. See Alexander v. City of Meadville, 61 A.3d 218, 224-25 (Pa.Super. 2012) citing Sellers v. Cline, 49 A.2d 873, 874 (Pa.Super. 1946) ("The violation of a[n] ordinance is not per se negligence. Such ordinances are evidentiary matters to be considered with all other testimony in the case as bearing upon the question of negligence…[] The introduction of the ordinance as evidence [is allowable], but standing alone without proof of negligence as being the proximate cause of the accident, the trial judge would not [be] justified in submitting the case to the jury…") (internal citations omitted); see also Weimer, et al. v. Westmoreland Water Co., 193 A. 665, 668 (Pa.Super. 1937) ("Although a statute or ordinance may be offered as evidence of negligence, it cannot be considered a sole basis of recovery.").

Here, Moyer testified that he stopped at the stop sign controlling his lane of travel as he approached the intersection. N.T., 5/1/12, at 110. Moyer's testimony is corroborated by the testimony of Kenneth Biles, an eyewitness motorist who was traveling on Weavertown Road and saw the collision. Mr. Biles testified that Moyer's truck was "stopped at the intersection[.]" Id. at 55. Moyer testified that he stopped "completely and looked left, right, and left again." Id. at 128. Moyer repeatedly maintained that he did not see Gokey prior to entering the roadway. Id. at 110; 123; 131; 138. Moyer stated that he had "a clear view" of Weavertown Road when he stopped at the stop sign. Id. at 140. Mr. Biles, who was familiar with the intersection, agreed that "one can have an unobstructed view of Weavertown Road to your left [which is the area from where Gokey's motorcycle traveled] by stopping at the stop sign." Id. at 96. Mr. Rickard, Moyer's expert, additionally testified that "it doesn't make any difference if [Moyer] [was] stopped at the stop sign and looks to the left or pulled out in the middle of the highway and looks to the left." N.T., 5/3/12, at 420.

The jury was free to believe Moyer's testimony and to credit Mr. Rickard's expert opinion in finding that Moyer was not negligent. We cannot disregard the jury's rejection of Gokey's argument that Moyer was negligent because he did not stop at the nearest point to the intersection as prescribed in 75 Pa.C.S. § 3323(b). Indeed, we are mindful:

[I]t is within the province of the jury to assess the worth of the testimony, which it may then accept or reject. We agree that the jury is free to believe all, some or none of the testimony presented by a witness. However, this rule is tempered by the requirement that the verdict must not be a product of passion, prejudice, partiality, or corruption, or must bear some reasonable relation to the loss suffered by the plaintiff as demonstrated by uncontroverted evidence presented at trial. The synthesis of these conflicting rules is that a jury is entitled to reject any and all evidence up until the point at which the verdict is so disproportionate to the uncontested evidence as to defy common sense and logic.

Neison v. Heimes, 653 A.2d 634, 636-37 (Pa. 1995) (internal citations omitted). Our careful scrutiny of the record in this case does not reflect that the verdict was "so disproportionate to the uncontested evidence as to defy common sense and logic." Id. Therefore, we reverse the trial court's order granting a new trial.

In his cross-appeal, Gokey presents the following issues for our review:

A. Did the trial court have a duty to order a new trial when the jury failed to find [Appellants] negligent as a matter of law for violating 75 P.S. 3323(b) when all evidence supported such a finding, and when no evidence could dispute such a finding?
B. Did the Court properly determine that [Gokey] did not waive his "right" to a new trial inasmuch as (a) [Gokey] preserved such right by requesting a binding jury instruction, and (b) a post-trial motion is sufficient to raise an issue requesting a new trial when the basis of the motion was that the jury's verdict was contrary to the weight of the evidence?
C. Did the Court err in failing to sustain [Gokey's] objection to a jury instruction on 75 Pa. C.S. 3353 despite (a) the factual irrelevance of 75 Pa. C.S. 3353 to the analysis of negligence and (b) the likelihood that the jury did not fully understand that [Moyer's] compliance with one statute (75 Pa. C.S.A. 3353) could not exculpate him for his violation of another (75 Pa. C.S. 3323(b)).

Gokey's Brief at 7.

Our reversal of the trial court's order granting a new trial addresses Gokey's first issue, and once again renders moot the issue of whether Gokey waived his right to a new trial. As to Gokey's third issue, we deny relief.

Gokey contends that "the lower court's instruction pursuant to the Intersection Law [set forth under 75 Pa.C.S. §3353] could only have misled and confused the jury on the issue of Moyer's negligence." Gokey's Brief at 25.

Under Pennsylvania law, our standard of review when considering the adequacy of jury instructions in a civil case is to determine whether the trial court committed a clear abuse of discretion or error of law controlling the outcome of the case. It is only when the charge as a whole is inadequate or not clear or has a tendency to mislead or confuse rather than clarify a material issue that error in a charge will be found to be a sufficient basis for the award of a new trial.
Further, a trial judge has wide latitude in his or her choice of language when charging a jury, provided always that the court fully and adequately conveys the applicable law.

Patton v. Worthington Associates, Inc., 43 A.3d 479, 490 (Pa.Super. 2012) (internal citations omitted).

Here, the trial court explained:
75 Pa.C.S. §3353 provides in relevant part that, "no person shall stop...a vehicle...within an intersection...[e]xcept when necessary to avoid conflict with other traffic or to protect the safety of any person or vehicle."
[The trial court's instruction on] 75 Pa.C.S. §3353 was given to clarify that there are permitted reasons to stop in the middle of the intersection, such as to avoid a collision. 75 Pa.C.S. §3353 clarified that [Moyer] was not negligent if he had a permissible reason to stop in the intersection. This instruction was separate and apart from the instruction of 75 Pa.C.S. §3323(b) relating to stopping at a stop sign. Mr. Moyer testified that he stopped in the intersection for reasons consistent with attempting to avoid a collision. N.T. 112-114, 119-122. Furthermore, there was no need for this Court to clarify any further the language of two different statutes. There was no error or lack of clarity. The instructions proffered by [Gokey] and [Appellants] and adopted by the trial court were appropriate, not inconsistent, not confusing, and not misleading.

Trial Court Opinion, 12/27/12, at 6-7 (unnumbered).

Based on our review of the record, we agree with the trial court and do not find that it erred in charging the jury regarding 75 Pa.C.S. §3353. Our agreement recognizes that "a trial judge has wide latitude in his or her choice of language when charging a jury, provided always that the court fully and adequately conveys the applicable law." Lockley v. CSX Transp. Inc., 5 A.3d 383, 394 (Pa.Super. 2010).

In sum, we find the trial court abused its discretion in granting Gokey a new trial, and reverse the trial court's order. We affirm the trial court's denial of Gokey's post-trial motion.

Order reversed. Case remanded for entry of judgment in favor of Appellants. Jurisdiction relinquished.

Judgment Entered.

CONCURRING AND DISSENTING MEMORANDUM

MUNDY, J.

I agree with the learned Majority's decision, addressing the issues raised on Appellee's cross-appeal, regarding section 3353 of the Motor Vehicle Code. However, I respectfully dissent from the Majority's decision to reverse the trial court's order and to remand for entry of judgment in favor of Appellants. In my view, the trial court did not err when it granted Appellee a new trial.

As the Majority aptly notes, the general rule is that "[t]he violation of an ordinance is not per se negligence." Majority Memorandum at 4, citing Alexander v. City of Meadville, 61 A.3d 218, 224 (Pa.Super. 2012). However, this Court has held that "[t]he law of this Commonwealth is clear that the failure to obey a stop sign is negligence per se …." Bumbarger v. Kaminsky, 457 A.2d 552, 554 (Pa.Super. 1983) (citations omitted; emphasis added). Furthermore, "a failure to halt at a stop sign only becomes negligence per se when the failure to halt is unexcused." Id. The point at which drivers are required to stop their vehicle is controlled by section 3323 of the Motor Vehicle Code, which provides in relevant part, as follows.

§ 3323. Stop signs and yield signs
(b) Duties at stop signs.--Except when directed to proceed by a police officer or appropriately attired persons authorized to direct, control or regulate traffic, every driver of a vehicle approaching a stop sign shall stop at a clearly marked stop line or, if no stop line is present, before entering a crosswalk on the near side of the intersection or, if no crosswalk is present, then at the point nearest the intersecting roadway where the driver has a clear view of approaching traffic on the intersecting roadway before entering. If, after stopping at a crosswalk or clearly marked stop line, a driver does not have a clear view of approaching traffic, the driver shall, after yielding the right-of-way to any pedestrian in the crosswalk, slowly pull forward from the stopped position to a point where the driver has a clear view of approaching traffic. The driver shall yield the right-of-way to any vehicle in the intersection or approaching on another roadway so closely as to constitute a hazard during the time when the driver is moving across or within the intersection or junction of roadways and enter the intersection when it is safe to do so.

75 Pa.C.S.A. § 3323(b) (emphases added).

In the case sub judice, Moyer admitted to the jury that he did not stop "at the point nearest the intersecting roadway where the driver has a clear view of approaching traffic." Id.

Q: Was there a clearly marked stop line at this intersection?
A: A clearly marked stop line?
Q: Line on the ground?
A: No, there was not.
Q: Was there a crosswalk at this intersection?
A: No, there was not, sir.
Q: I think we've established quite clearly you did not stop at the point nearest the intersecting roadway where the driver has a clear view of approaching traffic on the intersecting roadway before entering. Do you agree that we've established that?
A: Correct, yeah.
Q: I think we've also established you did not slowly pull forward from a stopped position to a point where you had a clear view of approaching traffic. Right?
A: Right.
Q: Had you pulled up and looked, left, right, left, you would have had a view of vehicles closer to you, true?
A: Yeah, correct.

N.T., 5/1/12 – 5/4/12, at 137-138, 140. Additionally, Appellants' expert, Steven Rickard, confirmed that Moyer did not comply with the applicable parts of section 3323(b).

Q: Shall stop at a clearly marked stop line. We don't have one of those here, do we?
A: We do not.
Q: Or, if no stop line is present, before entering a crosswalk. We don't have of those either, do we?
A: That's correct.
Q: On the near side of the intersection or, if no crosswalk is present -- here's where we get to it -- then at the point nearest the intersecting roadway where the driver has a clear view of approaching traffic on the intersecting roadway before entering.
Did I quote [the statute] accurately? …
A: Sure.
Q: Okay. Nearest, means closest, not 25 feet back, true?
A: Correct.
Q: [Moyer] didn't do that, did he?
A: No, because he had a clear view from the stop sign to the top of the hill.
Q: So if Moyer takes those few extra precious seconds to actually pull up to the edge of the roadway, regardless of where you can see from the point of first possible perception, [Appellee]'s up over that hill and he is on the down slope and he is perfectly visible to Moyer if Moyer looked, true?
A: If that was the case, yes.

Id. at 434, 445-446.

In granting Appellee's motion for a new trial, the trial court concluded that the jury's verdict, based on this testimony, was against the weight of the evidence.

The [trial c]ourt instructed the jury to find Moyer negligent if he violated 75 Pa.C.S.[A.] § 3323(b). In this instance[, ] there was no stop line or crosswalk at the stop sign. Moyer admitted that he violated this statute when he failed to stop at a point nearest the intersection at Weavertown Road, the intersecting roadway. [Appellants]' expert, Steven Rickard, also indicated that Moyer had violated 75 Pa.C.S.[A.] § 3323(b) when Moyer stopped at the stop sign which was 10-20 feet short of the point nearest the intersection. Steven Rickard also admitted that if Moyer had went [sic] from his stopped position at the stop sign to the point nearest that intersection and stopping [sic] again, the extra time spent in traveling this distance would have allowed Moyer to see [Appellee] and most likely avoid the accident.

Trial Court Opinion, 12/27/12, at 4 (internal citations omitted).

Based on my review of the record, the trial court did not palpably abuse its discretion in granting Appellee's motion for a new trial. "[U]nder the standard of review for challenges to the weight of the evidence, this Court is under no obligation to view the evidence in a light most favorable to the verdict winner." Morin v. Brassington, 871 A.2d 844, 851 (Pa.Super. 2005) (citation omitted). Additionally, "[t]rial judges, in reviewing a claim that the verdict is against the weight of the evidence do not sit as the thirteenth juror. Rather, the role of the trial judge is to determine that notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice." Helpin v. Trustees of Univ. of Pa., 969 A.2d 601, 616 (Pa.Super. 2009) (citation omitted), affirmed, 10 A.3d 267 (Pa. 2010).

In the instant case, the trial court determined that "[i]t was clear error from the evidence of record for the jury to find [] Moyer not negligent and this required corrective action from th[e trial c]ourt in the form of a new trial." Trial Court Opinion, 12/27/12, at 6. The Majority concludes that Moyer's car stopped at the controlling stop sign and Moyer believed he had a clear view of the Weavertown Road. Majority Memorandum at 4, 5. While there is no dispute that Moyer's car was stationary, the car was not stopped at the stop sign as required by section 3323(b). Moyer was required to stop "at the point nearest the intersecting roadway where the driver has a clear view of approaching traffic on the intersecting roadway[.]" 75 Pa.C.S.A. § 3323(b). Moyer failed to do so, pulled into the intersection, and collided with a cross-traveling motorcycle that did not have a stop sign at the intersection.

The record reveals there was no factual dispute in this case that Moyer violated section 3323(b). He admitted he failed to stop "at the point nearest the intersecting roadway where the driver has a clear view of approaching traffic on the intersecting roadway before entering." Id. In addition, Appellants do not argue that Moyer's failure to do so was excused by some other circumstance.[1] As a result, because Moyer failed to obey the applicable stop sign by his unexcused failure to comply with section 3323(b), the trial court did not abuse its discretion in granting Appellee's motion for a new trial.[2] See Bumbarger, supra.

Based on the foregoing, I conclude the trial court properly did not palpably abuse its discretion or commit an error of law when it granted Appellee's motion for a new trial. Accordingly, I would affirm the trial court's October 12, 2012 order in its entirety. I respectfully dissent.


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