Esterly, J. v. Porter, S. v. Perrine, M. ( 2018 )

J-A27038-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOHN ESTERLY, JR., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
SANFORD R. PORTER :
:
v. :
:
MERCEDES PERRINE : No. 690 WDA 2017
Appeal from the Order Entered May 2, 2017
in the Court of Common Pleas of Crawford County
Civil Division at No(s): No. AD-2014-88
BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED JANUARY 11, 2018
John Esterly, Jr. (“Esterly”), appeals from the Order (1) denying his
Motion for entry of judgment in his favor or, in the alternative, for a new
trial; and (2) directing the entry of judgment against him and in favor of
defendant Sanford R. Porter (“Porter”) and additional defendant Mercedes
Perrine (“Perrine”). We affirm.
The trial court set forth the factual and procedural background
underlying this appeal as follows:
This personal injury action stems from a vehicular accident
in Meadville on the morning of Sunday, March 4, 2012, at the
driveway of the First Christian Church (“the Church”) on the east
side of North Main Street Extension (Rt. 86). Porter was driving
south on Rt. 86 and attempted to turn into the Church parking
lot when his Toyota Camry became immobilized and was struck
by a Mercury Mariner driven by Perrine, traveling in the opposite
J-A27038-17
direction (north on Rt. 86). Perrine’s car then struck Esterly’s
Ford F350 truck, which was parked in the Church driveway.
Esterly was sitting in his truck and claims to have suffered a
shoulder injury as a result of the impact.
Esterly filed a Praecipe for Writ of Summons against Porter
on February 13, 2014, and his Complaint on September 22,
2014. Porter moved on November 3, 2014, to join Perrine as an
additional defendant. By Order filed March 4, 2015, Perrine was
added as a party solely in regard to Porter’s right, if any, to
contribution.
On Perrine’s [M]otion, and with Porter’s approval and
Esterly’s opposition, trial was bifurcated as to liability and
damages. The jury found that Porter was not negligent, thereby
removing from its consideration whether Perrine and/or Esterly
were negligent, as well as the parties’ respective percentages of
liability. This also eliminated the need for a damages trial. The
verdict was entered on April 12, 2017, and Esterly’s
timely[-]filed [M]otion for post-trial relief was denied by the
Order of May 2, 2017, that he now appeals.
Trial Court Opinion, 6/28/17, at 2.
Esterly filed a timely Notice of Appeal and a court-ordered Pa.R.A.P.
1925(b) Concise Statement of matters complained of on appeal.
On appeal, Esterly raises the following issues for our review:
A. Whether the court below erred when it failed to charge the
jury that Esterly had met his burden by proving that Porter
had skidded across onto the wrong side of the road[,] and
that it was Porter’s burden to justify his presence on the
wrong side of the road without any fault of his own[?]
B. Whether the lower court erred when it ruled that the
Complaint lacked sufficient allegations to support a charge of
violation of statute or negligence per se[,] and denied
Esterly’s [M]otion to amend to conform to the evidence[?]
Brief for Appellant at 5.
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As Esterly’s issues are related, we will address them together. In his
first issue, Esterly contends that the trial court erred by refusing to instruct
the jury regarding negligence per se and violation of statute.1 Id. at 19-20.
Esterly asserts that, when an accident occurs because the defendant was on
the wrong side of the road, a presumption of negligence arises. Id. at 21.
While Esterly concedes that an exception to the “right side of the road” rule
exists for left turns, he nevertheless claims that the trial court failed to shift
the burden of proving that exception from Esterly to Porter. Id. at 21-22.
Esterly argues that, as soon as he proved that Porter was on the wrong side
of the road when the accident occurred, the burden shifted to Porter to
prove that his vehicle was there through no negligence of his own. Id. at
22. Esterly asserts that the trial court erred by determining that Esterly
offered no evidence of speeding, or what a reasonable and prudent speed
would be, and claims that this was an issue of fact to be decided by the jury
as part of Porter’s burden of proof. Id. at 27-28. Esterly contends that the
trial court erred in its interpretation of Bohner v. Stine, 463 A.2d 438 (Pa.
Super. 1983), and should not have ignored the legal precedent established
____________________________________________
1
In his proposed point for charge No. 4, Esterly sought a jury instruction
under Pa.SSJI (Civ) 13.100 Violation of Statute-Negligence Per Se. In his
proposed point for charge No. 5, Esterly sought a jury instruction under
Pa.SSJI (Civ) 13.240 Justification Defense-Violation of Statute (Modified).
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therein.2 Brief for Appellant at 25-26. Esterly claims that the trial court
incorrectly distinguished Bohner on the basis that (1) Porter’s car had
deliberately entered the opposite lane of travel; and (2) Esterly was not an
injured motorist driving in the opposite lane. Id. at 28. Esterly points out
that Porter claimed that his car had skidded out of control into the opposite
____________________________________________
2
In Bohner, the defendant admitted that his vehicle skidded into the
oncoming lane of traffic and struck plaintiff’s vehicle. At trial, the jury
returned a verdict in favor of the defendant. Bohner, 463 A.2d at 440. In
post-trial motions, the plaintiff unsuccessfully argued that the jury was not
properly advised that skidding on a wet roadway is not, in and of itself,
justification for crossing the center line; and that the trial court’s instructions
regarding the shifting of the burden of proof to defendant, who had crossed
the center line, was misleading. Id. On appeal, this Court reversed and
remanded for a new trial, finding that the evidence offered by the defendant
at trial, to justify the fact that his vehicle skidded into the oncoming lane of
traffic, was insufficient to sustain a finding of no negligence. Id. at 443.
The Bohner Court premised its determination upon the legal maxim that a
driver crossing the center line of a roadway, and thereafter causing a
collision, is negligent per se. Id. The Bohner Court noted that the only
evidence offered by the defendant in an attempt to meet his burden of proof
was that the road was wet, the car in front of him suddenly slowed down to
make a turn, and there were wet leaves in certain places on the road. Id.
The Bohner Court found that the condition of the roadway must be
considered by a driver regulating his speed and controlling his vehicle. Id.
(citing 75 Pa.C.S.A. § 3361). Furthermore, the Bohner Court noted that,
under the assured clear distance rule, a driver must have his vehicle under
such control, and operate it at such a speed, as to safely stop within the
assured clear distance ahead. Id. The Bohner Court pointed to the
testimony by the investigating officer that, immediately after the accident,
the defendant admitted to panicking and hitting his brakes harder than he
had to, thereby losing control of his automobile on the wet roadway. Id.
After reviewing the evidence relevant to the reasons for the skidding of
defendant’s car, the Bohner Court determined that the verdict for the
defendant was against the weight of the evidence, and on this basis
reversed and remanded for a new trial.
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lane. Id. at 29. Esterly argues that, “[a]t best, this was a factual matter to
be determined by the jury.” Id.
In his second issue, Esterly again challenges the trial court’s rejection
of his request to charge the jury on negligence per se and violation of
statute on the basis that these terms were not used in the Complaint. Id. at
35. Esterly contends that the trial court’s reading of the Complaint was
unduly restrictive, and claims that Porter’s negligence was pled in multiple
paragraphs of the Complaint. Id. at 35-36. Esterly further contends that
the trial court erred by denying his claim that Porter had waived any
objection to Esterly’s request to charge the jury on negligence per se and
violation of statute by failing to raise an objection at the commencement of
the case. Id. at 36-37. Finally, Esterly asserts that the trial court erred by
“denying [his M]otion to amend the Complaint and allow a charge for
negligence per se under the ‘wrong side of the road’ cases ….” Id. at 39.
When reviewing a trial court’s denial of a jury charge in a civil case, an
appellate court must examine the trial court’s instruction in its entirety,
against the background of all evidence presented, to determine whether an
error has been committed. Buckley v. Exodus Transit & Storage Corp.,
744 A.2d 298, 305 (Pa. Super. 1999). A jury charge is proper unless, as a
whole, it is “inadequate, unclear, or has a tendency to mislead or confuse
the jury....” Id. at 305-06. Trial courts are not required to use the
language of requested jury charges, but may utilize different formulations so
long as they “adequately and clearly” cover their subjects. Id. at 306. The
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court may refuse to submit for the jury’s consideration a point for charge
that is not strictly in accordance with the facts in evidence or the law in the
case. Id.
As to charge for negligence per se, it may be required when it is
shown that an individual violates a statute intended to prevent public harm,
but while this establishes the elements of duty and breach, a plaintiff must
still show that such negligence was the proximate cause of the injury
suffered. See Mahan v. Am-Gard, Inc., 841 A.2d 1052, 1058-59 (Pa.
Super. 2003).
Our standard of review of a trial court’s order denying a
plaintiff leave to amend its complaint, ... permits us to overturn
the order only if the trial court erred as a matter of law or
abused its discretion. The trial court enjoys “broad discretion” to
grant or deny a petition to amend. Amendment of pleadings is
governed by Pa.R.C.P. 1033, which provides: “[a] party, either
by filed consent of the adverse party or by leave of court, may at
any time change the form of action, correct the name of a party
or amend his pleading.”
The Brickman Grp., Ltd. v. CGU Ins. Co., 865 A.2d 918, 926-27 (Pa.
Super. 2004) (internal citations omitted). Further, the Pennsylvania
Supreme Court has held “the right to amend should be liberally granted at
any stage of the proceedings unless there is an error of law or resulting
prejudice to an adverse party.” Werner v. Zazyczny, 681 A.2d 1331, 1338
(Pa. 1996) (quoting Connor v. Allegheny Gen. Hosp., 461 A.2d 600, 602
(Pa. 1983)). However, “where a party will be unable to state a claim on
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which relief could be granted, leave to amend should be denied.” The
Brickman Grp., supra, 865 A.2d at 927.
In its Opinion, the trial court addressed Esterly’s issues, set forth the
relevant law, and determined that the issues lack merit. See Trial Court
Opinion, 6/28/17, at 11-15. We agree with the reasoning of the trial court,
which is supported by the record and free of legal error, and affirm on this
basis as to Esterly’s issues. See id.Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/11/2018
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CIVIL ACTION - LAW
JOHN ESTERLY, JR.,
Plaintiff
V.
SANFORD R. PORTER, No. AO 2014 - 88
Defendant
(690 WDA 2017)
v.
MERCEDES R. PERRINE,
Additional Defendant
Pa.R.A.P. 1925 OPINION
John F. Spataro, J.
Plaintiff, John Esterly, Jr. (Esterly), appeals the Order entered in the above
captioned case on May 2, 2017, denying his motion for the entry of judgment in his
favor or, in the alternative, for a new trial, and directing the Prothonotary to enter
judgment against him and in favor of the Defendant, Sanford R. Porter ("Porter"), and
the Additional Defendant, Mercedes R. Perrine ("Perrine").1 He has timely complied
with our request, pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate
Procedure, that he file a concise statement of errors complained of on appeal:2
1The Notice of Appeal refers only to the Order entered on May 2, 2017, of which there were two, but the
other Order merely overruled as moot Porter's objection to Esterly's request for a transcript.
2 Our Order dated and filed on May 11, 2017 (the day after Plaintiffs' notice of appeal was filed) ordered
the filing of a concise statement within twenty-one days. Esterly's Statement was filed on May 22, 2017.
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BACKGROUND
This personal injury action stems from a vehicular accident in Meadville on the
morning of Sunday, March 4, 2012, at the driveway of the First Christian Church (the
"Church") on the east side of North Main Street Extension (Rt. 86). Porter was driving
south on Rt. 86 and attempted to turn into the Church parking lot when his Toyota
Camry became immobilized and was struck by a Mercury Mariner driven by Perrine,
traveling in the opposite direction (north on Rt. 86). Perrine's car then struck Esterly's
Ford F350 truck, which was parked in the Church driveway. Esterly was sitting in his
truck and claims to have suffered a shoulder injury as a result of the impact.
Esterly filed a Praecipe for Writ of Summons against Porter on February 13,
2014, and his Complaint on September 22, 2014. Porter moved on November 3, 2014,
to join Perrine as an additional defendant. By Order filed on March 4, 2015, Perrine
was added as a party solely in regard to Porter's right, if any, to contribution.
On Perrine's motion, and with Porter's approval and Esterly's opposition, trial
was bifurcated as to liability and damages. The jury found that Porter was not negligent,
thereby removing from its consideration whether Perrine and/or Esterly were negligent,
as well as the parties' respective percentages of liability. This also eliminated the need
for a damages trial. The verdict was entered on April 12, 2017, and Esterly's timely filed
motion for post-trial relief was denied by the Order of May 2, 2017, that he now appeals.
ALLEGED COURT ERRORS
Esterly alleges (within the paragraphs of his Statement indicated below in square
brackets) that the Court erred in the following, somewhat duplicative respects, listed in
more or less chronological order:
2
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1. Granting Perrine's motion to bifurcate the trial m 32};
2. Denying his (Esterly's) motion in limine to preclude evidence "of prior accidents
that occurred around the same time, or within the vicinity, of the [subject
accident]" [1135];
3. Ruling that his Complaint "lacked sufficient allegations to justify a charge of
violation of statute and/or negligence per se" [1121];
4. Ruling that his motion to amend the pleadings to conform with the evidence [and
allege statutory violations and/or negligence per se] was barred by the statute of
limitations e,f 26];
5. Failing to permit him to amend the pleadings to conform to the evidence "under
Connor [v. Allegheny Gen. Hosp., 501 Pa. 306, 461 A.2d 600 (Pa. 1983),] and
the averments of (Paragraph 8 of his] Complaint" [,I 29];
6. Granting Porter's untimely objections to his motion to amend and denying the
motion m
28);
7. Refusing his proposed jury charge of negligence per se in violating the Vehicle
Code offenses of "driving on right side of roadway" (75 Pa.C.S.A. § 3301) and
"turning movements and required signals" (id. § 3334). requiring a directed
verdict (Point No. 4) [ffll 18, 20);3
8. Refusing his proposed alternative jury charge (Alternative Point No. 3), which
repeated Point No. 4, but omitted a request for a directed verdict [implied in �m
16, 18];
9. Refusing to charge the jury on negligence per se in violating the Vehicle Code
offense of "driving vehicle at safe speed" (75 Pa.C.S.A. § 3361) [,I 20];4
10. Refusing his proposed jury charge modifying the suggested standard jury
instruction on Justification Defense - Violation of Statute (Pa.SSJI (Civ) 13.240),
and reciting the Vehicle Code offense of "driving vehicle at safe speed" (75
Pa.C.S.A. § 3361) (Point No. 5) [1l 18];
11. Refusing his proposed jury charge on the burden of proof incorporating his claim
that Porter "violated the law" (Point No. 3) [,I 18];
12. Failing to charge the jury that Porter was negligent per se "because [he]
admitted to skidding across the roadway and into the opposing lane" [if 19(a)J;
3Esterly's Statement errs in indicating that these two statutory violations are set forth in his Proposed
Points Nos. 3 and 4; both statutes were instead presented in Proposed Point No. 4.
4
Esterly's Alternative Proposed Point for Charge No. 5 is identical to his Proposed Point for Charge No. 4.
3
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13. Refusing his (Esterly's) proposed jury charge for a directed verdict (Point No. 1)
(,I 12];
14. Refusing to charge the jury that he had met his burden of proof [,I,I 18, 19(b)];
15. "[G]iving the jury a standard charge on negligence and burden of proof without
charging on violation of law, negligence per se and the shifting of the burden to
[Porter] to justify his presence on the wrong side of the road" [,I 24J;
16. Falling to charge the jury that "the burden shifted to [Porter] to justify his
presence in the wrong side of the road without any fault of his own" [111l 19(c),
24};
17. Giving the jury a standard negligence charge m 18);
18. Charging the jury that the burden of proof remained with him (Esterly)
throughout the trial [,i 18);
19. Denying his post-trial motion for a directed verdict m,r 13, 25, 30, 33, 36); and
"further" in
20. Ordering the entry of judgment in favor of Porter and Perrine [1111 13, 25, 30, 33,
36).
Bifurcation
The procedural rules allow a trial court, sua sponte or on motion of any party, to
order a separate trial of any issue "in furtherance of convenience or to avoid prejudice."
Pa.R.C.P. No. 213(b). The Superior Court has provided the following guidelines:
Before ordering the separate adjudication of issues, the court should
carefully consider the issues raised and the evidence to be presented to
determine whether the issues, here liability and damages, are interwoven.
Bifurcation is discouraged in those cases in which evidence relevant to
both issues would be excluded in one portion of the trial and would result
in prejudice to the objecting party. However, bifurcation is strongly
encouraged and represents a reasonable exercise of discretion where the
separation of issues facilitates the orderly presentation of evidence and
judicial economy, or avoids prejudice.
Coleman v. Philadelphia Newspapers, lnc., 391 Pa.Super. 140, 146·47, 570 A.2d 552,
555 ( 1990) ( citations omitted). Additionally, in personal injury cases, "[w]here liability
4
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and damage issues are not interwoven, bifurcation may be used as a means to insure
against taint of the jury through sympathy occasioned by knowledge of the severity of
the injury." Pascale v. Hechinger Co. of Pe., 426 Pa.Super. 426, 438, 627 A.2d 750,
756 (1993).
Perrine's bifurcation motion was filed on March 16, 2017, nearly a month before
the trial. After reviewing Esterly's opposing brief and hearing argument, the Court on
March 22, 2017, granted the motion. Esterly contends that the Court erred in bifurcating
the action because "[t]he issues of liability and damages are interwoven and [Perrine]
could not establish 'actual' or 'manifest' prejudice, only mere inconvenience" (Statement
,I 32) (Error No. 1 ).
In deciding the motion, this Court was well aware of the issues and evidence to
be presented, having in February of 2015 begun deciding matters raised by the parties.
All parties were in agreement that Esterly's recovery, if any, was based solely upon his
truck being hit by Perrine's car, and that Porter's Camry being in the middle of Rt. 86
was the source of the accident. It was apparent that the issue of liability (here, for
negligence, in the sense of breach of a duty owed) could be decided separately, without
the necessity of hearing evidence as to damages for personal injury, or whether those
damages stemmed from the accident." Negligence, ln other words, was not interwoven
with other trial issues.
Separating the threshold issue of negligence, and presenting damages evidence
separately, avoided both jury confusion and possible sympathy from learning the extent
of Esterly's injury and treatment Pascale, supra; Coleman, 391 Pa. Super. at 147, 570
5 The only expert testimony scheduled for trial pertained to the issue of damages from the impact, as did
that of many of the other anticipated witnesses and all medical records and invoices listed as exhibits.
5
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A.2d at 555-56 ("bifurcation minimized the possibility of jury confusion in discerning
what evidence of damage was relevant to the threshold question of whether actual
malice existed"). Bifurcation thus "facilitated the orderly presentation of evidence and
avoided prejudice." Ptak v. Masontown Men's Softball League, 414 Pa.Super. 425, 430,
607 A.2d 297, 300 (1992) (approving bifurcation in a personal injury action where
corroborating testimony of physicians was unnecessary because causation was
undisputed, and because it insured that the jury's decision as to liability would not be
tainted by sympathy for the plaintiff due to the severity of his injuries).
Because Esterly had not named Perrine as a defendant, she could only be held
liable (for contribution) if Porter was negligent. Furthermore, under the comparative
negligence statute, she would be liable only if Porter was more than sixty percent liable,
and Porter could not be held liable if Esterly was more than fifty percent responsible for
the accident- See 42 Pa.C.S.A. §§ 7102(a), (a.1 )(3)(iii). An initial determination of
each parties' percentage of liability (as all parties requested) thus could potentially
terminate the action, or at least excuse Perrine's participation in the damages phase,
ending the complications associated with the joinder of an additional defendant.
The jury found that Porter was not negligent, and bifurcation therefore "facilitated
judicial economy, as the second phase relating to damages was actually avoided."
Coleman, 391 Pa.Super. at 147, 570 A.2d at 555-56. Pending at the time of trial,
moreover, were multiple motions in limine regarding damage witnesses and calculations
which, consequently, did not have to be argued and decided.7
6 Esterly may have been negligent in parking at the entrance to the driveway, or his injury caused in
reaching to open the passenger door with his shoulder harness engaged and his "arm up over the
steering wheel" at the moment of impact. Transcript of Proceedings, Jury Trial, Day II (Transcript) 61-62.
7 See Plaintiff's Brief in Opposition to Motion in Umlne to Limit and/or Preclude Testmony of Mary Howick,
6
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We find no support for Ester1y's assertion that Perrine was required to show
actual or manifest prejudice in seeking bifurcation.8 Insuring against potential jury
prejudice, as in Ptak, may provide sufficient justification, but is not necessary;
bifurcation may be appropriate "in furtherance of convenience or to avoid prejudice."
Pa.R.C.P. No. 213(b) (emphasis added). Esterly claimed that he would be prejudiced in
being "prohibited from offering evidence to establish how the accident did in fact
produce his shoulder injury and counter the defense on the hotly contested issue of
causation." Opposing brief at 4. Because the first collision was acknowledged by all
parties to be the cause of the second, the only contested issue of causation was
whether the impact contributed to Esterly's shoulder injury and treatment. See
generally Whitner v. Von Hintz, 437 Pa. 448, 454-57, 263 A.2d 889, 892-94 (1970)
(discussing proximate cause}. Evidence on that issue was not relevant to ascertaining
liability for the accident, i.e., the issues, as noted above, were not interwoven. Esterly
could have offered his causation evidence at the second trial, had there been one.
Moreover, he never sought to introduce such evidence at the trial, and thus his "case
was not hindered in the least by the [C]ourt's decision to bifurcate." Coleman, 570 A.2d
at 147, 570 A.2d at 556.
0.0. Plaintiffs Brief in Opposition to Motion in Umine to Preclude Causation Testimony of Dr. Mark
Baratz, Plaintiffs Omnibus Brief in Response to Defendants' Motions in Limine as They Relate to
Preclusion of Plaintiffs Evidence of Medical Expenses and Testimony from Plaintiffs Witnesses.
8 Esterly's reliance, in his opposing and post-trial briefs, upon Stevenson v, General Motors Carp., 513
Pa. 411, 521 A2d 413 (1987) is misplaced. Stevenson, as the Coleman Court observed, was a bifurcated
products liability case in which the trial court was not condemned for its original decision to bifurcate; the
Stevenson Court held only "that the trial court's decision against bifurcation of the new trial was a
reasonable exercise of its discretion." 570 A.2d at 554, 391 Pa.Super. at 144-45.
7
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Exclusion of Evidence
Evidence is considered relevant if it tends to make a fact that is of consequence
to the determination of the action more, or less, probable than it would be without the
evidence. Pa.RE. 401. Relevant evidence is generally admissible, and "[e]vidence that
is not relevant is not admissible." Id. 402. Evidence may be excluded even though
relevant "if its probative value is outweighed by a danger of one or more of the following:
Unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time,
or needlessly presenting cumulative evidence." Id. 403. Evidence is unfairly prejudicial
if it has "a tendency to suggest decision on an improper basis or divert the jury's
attention away from its duty of weighing the evidence impartially." Commonwealth v.
Wright, 599 Pa. 270, 325, 961 A.2d 119, 151 (2008). "[T]he function of the trial court is
to balance the alleged prejudicial effect of the evidence against its probative value."
Commonwealth v. Parker, 882 A.2d 488, 492 (Pa. Super. 2005), quoted in, e.g., Parr v.
Ford Motor Co., 109 A.3d 682, 696 (Pa. Super. 2014).
Esterly's motion in limine to preclude Porter from presenting evidence regarding
"prior accidents that occurred around the same time, or within the vicinity, of the [subject
accident]" was denied following oral arqurnent.s Order of March 6, 2017. Esterly
claimed that prior accidents were irrelevant to Porter's defense, "as this type of
evidence is generally only relevant to prove notice on the part of the negligent party,"
and "Porter was already on notice of the slippery conditions." Motion ffll 12, 13
(emphasis in original). Porter, moreover, "ha[d] not produced any evidence of similarity
between the anticipated testimony regarding prior accidents and the at-issue accident."
9
By "prior accidents," Esterly meant "evidence or witness testimony of certain individuals who had
attended the previous church service who experienced slippery road conditions and veered off the road in
the vicinity of the accident location." Motion ,i 7.
8
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Motion ,I16. Even if relevant, prior accidents should be excluded as unfairly prejudicial.
confusing to the jury, or needlessly wasteful of the Court's time. Motion ,m 14-18 (Error
No. 2).
Esterly's assertion that evidence of similar accidents is generally relevant only to
notice is in reference to cases in which the plaintiff seeks its admission; here, it was
anticipated that the defendant would proffer such evidence. See Spino., 448 Pa.Super.
at 346, 671 A.2d at 735 (noting that ''we have been unable to find a Pennsylvania
appellate court· decision directly addressing the admissibility of such evidence on the
issue of causation in the defendant's case") (emphasis in original). Vehicle accidents
occurring at about the same time and place could make more probable Porter's defense
that his predicament was the result of unanticipated road conditions. Cf. Spino v John
S. Tilley Ladder Co .. 448 Pa.Super. 327, 347, 671 A.2d 726, 736 (1996) (holding that
"the absence of any evidence of a prior product failure in a design defect case ... may
be admitted if relevant to a contested issue of causation, under appropriate instructions
from the court and subject to the exercise of the trial court's discretion as to the
probative value of the evidence. where the requirement of substantially identical
circumstances is satisfied"), affd, 548 Pa. 286, 696 A.2d 1169 (1997). Rather than
purpose. the guiding principal on admissibility should be whether the probative value of
similar incidents, or lack thereof, exceeds the danger of confusion of issues. Cf. Spino,
448 Pa.Super. at 347, 671 A.2d at 736 ("we agree that such evidence does raise
concerns over creation of collateral issues and jury distraction"); Whitman v. Riddell,
324 Pa.Super. 177, 181, 471 A.2d 521, 523 (1984) ("This limited exception, permitting
the [plaintiff's) introduction of evidence of similar accidents, is tempered by judicial
9
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concern that the evidence may raise collateral issues, confusing both the real issue and
the jury.").
The only evidence of other accidents introduced at trial was that a Jeep
Cherokee was ditched on the north side of the entrance to the Church parking lot, and
that there were tracks on the south side of the driveway showing that a vehicle had
gone into a ditch there. Esterly himself, while testifying on own behalf, made the first
reference to the ditched jeep in explaining how his truck came to be parked in the
driveway, rather than a designated parking spot. Transcript at 61:21-22 (explaining that
he stopped to offer assistance). This evidence was, therefore, relevant to Esterly's
defense to the charge of contributory negligence. He was not prejudiced by the
additional commentary on the issue he himself raised. See Transcript at 109, 138-40.
Defense counsel published to the jury a photograph of the other vehicle's tracks
(admitted into evidence as Exhibit M over Esterly's objection). fd. at 141-43. The
photograph depicts a somewhat broader area than that shown in the photographs
already published to the jury and admitted into evidence as Plaintiffs Exhibits 1, 2, 8,
and 9, on which those tracks are partially visible. Id. at 37, 40-41, 45, 47. The tracks
were perhaps indicative of unanticipated road conditions that may have caused the
subject accident, although no witness testified that they could have been attributable to
road conditions. Surely Porter was nevertheless entitled to show where the wayward
tracks in Esterly's exhibits led. Assuming arguendo, however, that this evidence should
not have been admitted, it was not unfairly prejudicial to Esterly. See Whitman, 324
Pa.Super. at 180, 471 A.2d at 523 ("appellant must demonstrate first. that it was error to
admit the allegedly irrelevant evidence and, second, that it was prejudiced by the
10
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admission of the evidence"). The admission of one additional photograph did not waste
the Court's time, and could not have confused the jury.
Negligence per Se
Most of the remaining allegations of error are in respect to our refusal to charge
the jury on violation of statute/negligence per se. Esterly finds proof of negligence per
se in Porter's alleged violation of the following three Vehicle Code offenses:
1. Driving on right side of roadway. Upon all roadways of sufficient width,
a vehicle shall be driven upon the right half of the roadway except as
follows: ... (5) When making a left turn as provided in sections 3322
(relating to vehicle turning left)10 and 3331 (relating to required position
and method of turning) ... ;11
2. Turning movements and required signals. (a) General rule.-Upon a
roadway no person shall turn a vehicle or move from one traffic lane to
another or enter the traffic stream from a parked position unless and
until the movement can be made with reasonable safety nor without
giving an appropriate signal in the manner provided in this section .... :
and
3. Driving vehicle at safe speed. No person shall drive a vehicle at a
speed greater than is reasonable and prudent under the conditions and
having regard to the actual and potential hazards then existing, nor at
a speed greater than will permit the driver to bring his vehicle to a stop
within the assured clear distance ahead. Consistent with the foregoing,
every person shall drive at a safe and appropriate speed when
approaching and crossing an intersection or railroad grade crossing,
when approaching and going around curve, when approaching a hill
crest, when traveling upon any narrow or winding roadway and when
special hazards exist with respect to pedestrians or other traffic or by
reason of weather or highway conditions.
75 Pa.C.S.A. §§ 3301, 3334, and 3361, respectively.
10Section 3322 of the Motor Code provides as follows: "The driver of a vehicle intending to turn left within
an intersection or into an alley, private road or driveway shall yield the right-of-way to any vehicle
approaching from the opposite direction which is so close as to constitute a hazard."
11 Section 3331(b) provides as follows: "Left tum.-The driver of a vehicle intending to turn left shall
approach the tum in the extreme Jett-hand lane lawfully available to traffic moving in the direction of travel
of the vehicle. Whenever practicable, the left turn shall be made to the left of the center of the intersection
and so as to leave the intersection or location in the extreme left-hand lane lawfully available to traffic
moving in the same direction as the vehicle on the roadway being entered."
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Esterly cannot use the first offense - "Driving on right side of roadway'' - to
establish negligence per se because making a left turn is expressly excepted from its
purview. Porter was turning left into the Church driveway, and thus did not violate
Section 3301.12
The second offense - "Turning movements and required signals" - seems
inapplicable to left hand turns, which are specifically addressed by Sections 3322
(Vehicle turning left," quoted at n.10, supra) and 3331 ("Required position and method
of turning - Left turn," quoted at n.11, supra). Even if Section 3334 were applicable
here, a violation would not establish negligent per se. A statutory violation can serve as
proof of negligence per se only if the statute is "so specific as to leave little question that
a person or entity found in violation of it deviated from a reasonable standard of care."
Shamnoski v. PG Energy, Div. of Southern Union Co., 579 Pa. 652, 671, 858 A.2d 589,
601 (2004). The Shamnoski Court utilized Section 3361 in explaining this precept:
Many statutes provide very general statements of what constitutes
compliance or deviation, while others are quite specific. The Motor [sic]
Vehicle Code provides a useful example of the distinction. Section 3361
of the Motor Vehicle Code contains the very general requirement that
operators of motor vehicles drive at a "reasonable and prudent" speed[.]
What constitutes a reasonable and prudent speed is unspecified; since
the statute essentially sets forth a traditional reasonable man
standard, it would be impracticable to base a finding of negligence
per se upon this provision. The very next section of the Code, however,
sets forth the specific numeric limits on vehicle speed which every
Pennsylvania driver must obey or be deemed at fault. Id. § 3362. Section
3362 speaks in absolutes; there is no room for the flexibility of the
reasonable man standard. Exceeding the designated limit is, by statutory
definition, unreasonable.
12 Esterly never asserted that Perrine's vehicle was "so close as to constitute a hazard" when Porter
attempted his turn, which would violate Section 3322; and Perrine's uncontradicted testimony was that
"[Porter] had plenty of time to make that left turn." Transcript at 102:9·11. The restrictions of Section
3331 (using the extreme left-hand lane and staying to the left of the intersection) are also not applicable
here.
12
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579 Pa. at 672, 858 A.2d at 601 (quotation of Section 3361 omitted; emphasis added).
Section 3334(a) criminalizes turning "unless and until the movement can be made with
reasonable safety," and thus "essentially sets forth a traditional reasonable man
standard," the same as Section 3361.
The third offense - "Driving vehicle at safe speed," as the Shamnoski Court
observed, cannot support a charge of negligence per se. Porter, moreover, was not
shown to have violated Section 3361: Esterly offered no evidence of speeding, or what
a "reasonable and prudent" speed would have been.13
Thus none of these three statutes provides a foundation upon which Esterly
could assert negligence per se. All of his proposed jury charges on statutory violation/
negligence per se were accordingly rejected, as well as his requests for a directed
verdict on such basis (Error Nos. 7 through 11 ).
In addition, it would have been pointless for Esterly to amend his Complaint, after
the close of evidence, to include violation of statute/negligence per se when that cause
of action did not exist with respect to these Vehicle Code offenses (Error Nos. 4-6).
Esterly's counsel, moreover, never moved to amend, merely discussing that possibility
in chambers. See Transcript of Proceedings Taken at the Time of Trial (April 12, 2017
13 We do not agree with Esterly that Porter, in the following exchange at the conclusion of his testimony
as on cross examination, admitted to speeding or to violating Section 3334(a):
Question: ... isn't it true that when you got to the point of making your tum, you were
not concerned about the potential for slipperiness because, at that time, you
knew you were going slow enough that you wouldn't have any problem
negotiating a left turn?
Porter. I assumed at that point I was slow enough to make the turn safely.
Question: As it turned out, you didn't make that turn safely, did you?
Porter. No, I did not.
QuesUon: So it turned out, isn't it true, sir, that your assumption was wrong?
Porter. l guess you could say that
Transcript 49:2-14; cf id. 25:24-25, 26:1 ("I was gradually braking as I approached the entrance to the
church and - and slowed down enough to the point where I could assume I could make a left turn.").
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Transcript) 4-21. The ruling that Paragraph 6 of the Complaint was insufficient to
support a negligence per se cause of action (April 12, 2017 Transcript at 36:6-10) could
not have been in error when, under Shamnoski, there is no such cause of action for
either a Section 3334(a) turning or a Section 3361 speeding violation (Error No. 3).
Most of Esterly's remaining allegations of error (Nos. 12-18) concern his
assertion that sliding across a highway into the opposite lane, thereby causing · a
collision, also constitutes negligence per se, and shifts the burden of proof from the
plaintiff to the defendant.v His reliance upon Bohner v. Stine, 316 Pa.Super. 426, 430,
463 A.2d 438, 440 (1983) is misplaced. The negligence per se in Bohner was
erroneously based upon a violation of Section 3361, contrary to the Pennsylvania
Supreme Court's later directive in Shamnoski.15 The defendant in Bohner, moreover,
"admitted to panicking [when the car ahead of him suddenly slowed to make a turn] and
hitting his brakes harder than he had to. thereby losing control of his automobile on the
wet roadway." 316 Pa.Super. at 437, 463 A.2d at 443. Porter's car, in contrast, entered
the opposing lane deliberately when he attempted a left hand turn. This was not a
'wrong side of the road' accident "where one car suddenly enters the lane of oncoming
traffic and an accident occurs." Fair v. Snowball Exp., Inc., 226 Pa.Super. 295, 298,
310 A.2d 386,388 (1973). and similar cases cited therein. Esterly was also not an
injured motorist driving in the opposing lane; there was an intervening motorist (Perrine)
whose negligence could have been responsible for the second collision. We perceived
no inequity in Esterly bearing the burden of proof of Porter's alleged negligence; and in
14 Esterly's burden shifting contention might explain why Perrine was not named as a defendant
15Thls presumably explains why Bohner appears not to have been relied upon in any subsequent
appellate decision.
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the absence of negligence per se, the evidence did not entitle him to a directed verdict.
The standard negligence instruction - applicable to all parties - was accordingly given.
Esterly's additional allegations of error, in regard to his post-trial motion and the
entry of judgment (Nos. 19 and 20), reflect the rulings discussed above, which the Court
believes to have been correctly decided.
ORDER
AND NOW, this Zi8t1>-day of June, 2017, the Court directs the filing of this
Opinion in compliance with Pa.RAP. 1925(a)(1 ).
BY THE COURT,
Judge
cc: John W. McCandless, Esq., counsel for Plaintiff/Appellant
R. Sean O'Connell, Esq., counsel for Defendant
Paul E. Pongrace, Ill, Esq., counsel for Additional Defendant
? �.,� 0
1,'fff-� 1
(9 • P.tc, J 1
15