Meerhoff, C. v. McCray, D. ( 2017 )

J. A16023/17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
CAROL MEERHOFF, INDIVIDUALLY, : IN THE SUPERIOR COURT OF
AND AS ADMINISTRATRIX OF THE : PENNSYLVANIA
ESTATE OF JEREMY MEERHOFF, :
DECEASED, AND STEVEN LITTLE, :
AN ADULT INDIVIDUAL :
:
Appellants :
:
v. :
:
DALE McCRAY; JAMES McCRAY; :
McCRAY ALUMINUM AND :
BUILDER’S SUPPLY COMPANY, INC.; :
THE NORTHWESTERN RURAL :
ELECTRIC CORPORATION AND :
OHIO CORPORATION, :
PENNSYLVANIA ELECTRIC COMPANY : No. 1392 WDA 2016
T/D/B/A PENELEC, A WHOLLY OWNED :
SUBSIDIARY OF FIRST ENERGY :
Appeal from the Order Entered August 19, 2016,
in the Court of Common Pleas of Erie County
Civil Division at No. Docket No. 11079-2015
BEFORE: STABILE, J., FORD ELLIOTT, P.J.E., AND STRASSBURGER, J.*
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED: SEPTEMBER 29, 2017
Appellants Carol Meerhoff, individually, and as Administratrix of the
Estate of Jeremy Meerhoff (“Mr. Meerhoff”), deceased, and Steven Little
(“Mr. Little”), plaintiffs in the court below, appeal the order entered August 19,
* Retired Senior Judge assigned to the Superior Court.
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2016, granting summary judgment in favor of defendants/appellees.1 We
affirm.
In the early morning hours of October 29, 2012, Mr. Meerhoff was killed
and Mr. Little was seriously injured in a devastating fire that consumed Donald
McCray’s 100-year-old farmhouse in Spartansburg. Mr. Little is Mr. McCray’s
grandson and had permission to use the residence; however, Mr. McCray was
not home at the time and was unaware that Mr. Little would be staying in the
farmhouse that night.
Earlier that evening, Mr. Meerhoff and Mr. Little, both of whom had been
drinking heavily, drove recklessly around the property in Mr. McCray’s pickup
truck, damaging power lines and farm equipment. The cause of the fire was
never determined; however, appellants alleged, inter alia, that Mr. McCray
and McCray Aluminum were negligent for failing to install smoke detectors
and/or carbon monoxide (“CO”) monitors.
The trial court determined that since Mr. McCray’s farmhouse was a
private, non-commercial residence, he had no legal duty to install and
maintain smoke detectors or CO monitors. Appellants also alleged that
Pennsylvania Electric Co. (“Penelec”) was negligent for failing to properly mark
a guy wire on the property; however, the trial court determined that
1 Donald E. McCray died on May 4, 2017. On July 10, 2017, Dale McCray and
James McCray, Donald E. McCray’s sons and co-executors of his estate, made
application pursuant to Pa.R.A.P. 502(a) to substitute themselves for Donald
E. McCray as party-defendants/appellees. The application was granted on
August 30, 2017. The caption has been amended accordingly.
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(a) appellants failed to demonstrate that the cause of the fire was electrical,
and (b) any negligence on the part of Penelec was far exceeded by
Mr. Meerhoff’s and Mr. Little’s wanton misconduct in driving drunk around the
property the night of the incident, damaging structures and electrical wires
including the guy wire which was attached to a yard pole.
The trial court has set forth the history of this case as follows:
The instant matter is before the Pennsylvania
Superior Court on the appeal of Carol Meerhoff,
individually and as Administratrix of the Estate of
Jeremy Meerhoff, deceased, and Steven Little, an
adult individual (both hereafter referred to as
“Appellant[s]”), from this Trial Court’s Opinion and
Order dated August 19th, 2016. By said Opinion and
Order dated August 19th, 2016, this Trial Court
granted the individual Motions for Summary Judgment
of Donald McCray, McCray Aluminum and Builder’s
Supply Company, Inc., and Pennsylvania Electric
Company, t/d/b/a Penelec, a wholly owned subsidiary
of First Energy (hereafter referred to as “Appellees”)
as this Trial Court concluded: (1) Appellants failed to
demonstrate successfully a cause of action for
negligence against Appellees Donald McCray, McCray
Aluminum [] and [] Penelec []; (2) Within the ten [10]
day time period allotted after the undersigned judge
found Plaintiff[s’] proposed expert, James L. Glancey,
Ph.D., unqualified as an [sic] relevant expert in this
case by Order dated July 14th, 2016, Appellants failed
to produce a new expert qualified to demonstrate
(a) whether Appellee Donald McCray’s private,
non-commercial residence was equipped with smoke
detectors, and (b) whether the fire occurring at
Appellee Donald McCray’s private, non-commercial
residence was electrical in nature; (3) Appellants
failed to adhere to the time restraints for filing
responses to Appellee McCray Aluminum[]’s First Set
of Requests for Admissions, pursuant to Pennsylvania
Rule of Civil Procedure 4014(b), thereby admitting the
allegations contained therein; (4) Appellants failed to
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produce sufficient evidence to “pierce the corporate
veil” in order to hold Appellee McCray Aluminum []
liable for Jeremy Meerhoff and Steven Little’s injuries;
and (5) Appellants failed to demonstrate successfully
the “negligence” of the Appellees was greater than the
“wanton comparative negligence” of Jeremy Meerhoff
and Steven Little, thereby barring Appellants’
recovery.
Procedural History
Appellants filed a Motion to Transfer Venue on
April 1st, 2015, which was granted and the instant civil
action was transferred to Erie County, Pennsylvania.
Appellants filed a Praecipe for Writ of Summons
and a Praecipe for Issuance for Rule to File Complaint
on April 1st, 2015. Appellants filed a Complaint in Civil
Action on April 1st, 2015. Appellee [] Penelec filed an
Answer, New Matter and Cross-Claims on April 23rd,
2015. Appellee McCray Aluminum [] filed an Answer,
New Matter and Cross-Claim on May 22nd, 2015.
Appellee Donald McCray filed an Answer, New Matter
and Cross-Claim on May 26th, 2015.
By Stipulation on May 11th, 2015, all allegations
against Appellee Donald McCray and McCray
Aluminum [] for recklessness and punitive damages
were withdrawn. By Stipulation on May 15th, 2015,
First Energy Corporation was dismissed from the
instant civil action. By Stipulation on December 21st,
2015, Northwestern Rural Electric Cooperative
Association, Inc. was also dismissed from the instant
civil action.
Appellee [] Penelec filed a Motion to Strike
Report of James L. Glancey on May 16 th, 2016.
Appellants filed a Response to Defendant Penelec’s
Motion on May 31st, 2016. Following a hearing on
June 30th, 2016, this Trial Court rescheduled the
hearing on Appellees’ Motions for Summary
Judgment, originally scheduled for August 15th, 2016,
to July 26th, 2016, by agreement of all counsel in order
to expedite the hearing on Appellees’ Motions for
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Summary Judgment, and this Trial Court deferred
ruling on Appellee [] Penelec’s Motion to Strike Report
of James L. Glancey.
Appellants presented a Motion for Clarification
to this Trial Court in Motion Court on July 14th, 2016.
At that hearing, this Trial Court, having heard
argument and after reviewing relevant evidence,
granted Appellee [] Penelec’s Motion to Strike Report
of James L. Glancey and denied Appellants’ Motion for
Clarification.
Appellee [] Penelec filed its Motion for Summary
Judgment and a Brief in Support on June 2nd, 2016.
Defendant McCray Aluminum [] filed its Motion for
Summary Judgment and a Brief in Support on June
7th, 2016. Defendant Donald McCray filed his Motion
for Summary Judgment and a Brief in Support on June
17th, 2016. Following the hearing on Appellees’
Motions for Summary Judgment on July 26th, 2016,
and by Opinion and Order dated August 19th, 2016,
this Trial Court granted Appellee[s’] individual Motions
for Summary Judgment and dismissed Appellants’ civil
action against the Appellees with prejudice.
Appellants filed a Notice of Appeal to the
Pennsylvania Superior Court on September 15th,
2016. This Trial Court filed its [Pa.R.A.P.] 1925(b)
Order on September 19th, 2016. Appellants filed their
Concise Statement of Errors Complained of on Appeal
on October 10th, 2016.
Trial court opinion, 11/1/16 at 1-4.
Appellants have raised the following issues for this court’s review:
1. Did the court err in finding that Appellee, Donald
McCray, does not have a legally recognized duty
to install smoke and/or carbon monoxide
detectors in his private, non-commercial
residence?
2. Did the court err in finding that Appellants
cannot prove Appellee, Donald McCray’s,
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private, non-commercial residence was not
equipped with working smoke detectors without
resorting to speculation?
3. Did the court err in finding Appellants failed to
adhere to the time restrain[t]s for responding to
Appellee McCray Aluminum[]’s First Set of
Requests for Admissions, pursuant to
Pennsylvania Rule of Civil Procedure 401[4](b)
as Appellee’s Requests for Admissions were
untimely?
4. Did the court err in finding Appellants did not
present sufficient evidence to “pierce the
corporate veil” in order to hold Appellee McCray
Aluminum [] liable for Mr. Meerhoff and
Mr. Little’s injuries?
5. Did the court err in striking Appellant[s’]
experts, James L. Glancey, Ph.D., P.E. and Jack
Vinson, Ph.D., P.E.?
6. Did the court err in finding Appellants have not
produced any relevant evidence from a qualified
electrical engineer to prove the fire occurring at
Donald McCray’s property on October 29, 2012
was electrical in nature?
7. Did the court err in finding Appellants have not
established a cause of action against Appellee
Penelec?
8. Did the court err in finding Mr. Meerhoff and
Mr. Little’s “wanton comparative negligence”
greatly exceeds the claims of negligence against
Appellee Penelec and thus bars recovery?
Appellants’ brief at 4-5.
Summary judgment may be granted when the
pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to
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judgment as a matter of law. Pa.R.C.P. 1035(b),
42 Pa.C.S.A. When considering a motion for summary
judgment, the trial court must examine the record in
the light most favorable to the non-moving party,
accept as true all well-pleaded facts in the non-moving
party’s pleadings, and give him the benefit of all
reasonable inferences drawn therefrom. Dibble v.
Security of America Life Ins., 404 Pa.Super. 205,
590 A.2d 352 (1991); Lower Lake Dock Co. v.
Messinger Bearing Corp., 395 Pa.Super. 456, 577
A.2d 631 (1990). Summary judgment should be
granted only in cases that are free and clear of doubt.
Marks v. Tasman, 527 Pa. 132, 589 A.2d 205(1991). We will overturn a trial court’s entry of
summary judgment only if we find an error of law or
clear abuse of discretion. Lower Lake Dock Co.,
supra.DeWeese v. Anchor Hocking Consumer and Indus. Products Group,
628 A.2d 421, 422-423 (Pa.Super. 1993).
It is well-settled that a party may not defeat a motion
for summary judgment by relying on the allegations
of his complaint. Rather, he must present
depositions, affidavits, or other acceptable documents
that show there is a factual issue for a jury’s
consideration. Brecher v. Cutler, 396 Pa.Super.
211, 578 A.2d 481 (1990).
Id. at 424.
Thus, our responsibility as an appellate court is
to determine whether the record either establishes
that the material facts are undisputed or contains
insufficient evidence of facts to make out a prima
facie cause of action, such that there is no issue to be
decided by the fact-finder. [Lackner v. Glosser, 892
A.2d 21, 29 (Pa.Super. 2006)]; see Pa.R.C.P.
1035.2.[Footnote 3] If there is evidence that would
allow a fact-finder to render a verdict in favor of the
non-moving party, then summary judgment should be
denied. Lackner, supra at 29[.]
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[Footnote 3] Rule 1035.2 provides:
After the relevant pleadings are
closed, but within such time as not
to unreasonably delay trial, any
party may move for summary
judgment in whole or in part as a
matter of law (1) whenever there is
no genuine issue of any material
fact as to a necessary element of
the cause of action or defense
which could be established by
additional discovery or expert
report, or
(2) if, after the completion of
discovery relevant to the motion,
including the production of expert
reports, an adverse party who will
bear the burden of proof at trial has
failed to produce evidence of facts
essential to the cause of action or
defense which in a jury trial would
require the issues to be submitted
to a jury.
Pa.R.C.P. 1035.2.
Jones v. Levin, 940 A.2d 451, 453-454 (Pa.Super. 2007).
To prevail in a negligence suit, the complaining
party must prove four elements:
1. A duty or obligation recognized by law.
2. A breach of the duty.
3. Causal connection between the actor’s
breach of the duty and the resulting
injury.
4. Actual loss or damage suffered by
complainant.
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Lux v. Gerald E. Ort Trucking, Inc., 887 A.2d 1281,
1286 (Pa.Super. 2005), appeal denied, 587 Pa. 731,
901 A.2d 499 (2006) (citation omitted and emphasis
removed).
Id. at 454.
In their first issue on appeal, appellants argue that the trial court erred
in finding that Mr. McCray did not have a legal duty to install smoke detectors
and/or CO monitors in his private, non-commercial residence. Appellants
argue that Mr. Meerhoff and Mr. Little had permission to be on the premises
and should be considered licensees. (Appellants’ brief at 18.) As licensees,
appellants contend that Mr. McCray had a duty to protect them from
unreasonable risks of foreseeable harm. (Id. at 19.) Appellants allege that
the presence of working smoke detectors/CO monitors would have allowed
them to escape the fire unscathed.
Here, it is not disputed that Mr. Meerhoff and Mr. Little had permission
to use the farmhouse and were licensees.
If a visitor to land is legally classified as a licensee,
A possessor of land is subject to liability
for physical harm caused to licensees by
a condition on the land if, but only if,
(a) the possessor knows or has reason to
know of the condition and should realize
that it involves an unreasonable risk of
harm to such licensees, and should expect
that they will not discover or realize the
danger, and (b) he fails to exercise
reasonable care to make the condition
safe, or to warn the licensees of the
condition and the risk involved, and ([c])
the licensees do not know or have reason
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to know of the condition and the risk
involved. Restatement (Second) of Torts
§ 342.
Liability will only be imposed if all of the criteria in
§ 342 are met. Miranda v. City of Philadelphia
[166 Pa.Cmwlth. 181], 646 A.2d 71, 74
(Pa.Commw[Cmwlth].Ct.1994). As such, § 342
initially requires that the possessor of the land have
actual or constructive notice of the allegedly
dangerous condition.
Alexander v. City of Meadville, 61 A.3d 218, 221-222 (Pa.Super. 2012)
(brackets in case citation in original).
Appellants in their complaint alleged that Mr. McCray, in failing to install
smoke alarms and CO monitors, failed to comply with state, federal, county,
and local building codes, rules, and regulations. However, as the trial court
observed, “[Appellants] have failed to provide any statutory authority or case
law requiring Defendant McCray to install [smoke alarms or CO] detectors in
his private, non-commercial residence.” (Opinion and Order, 8/19/16 at 3-
4.) As appellee Mr. McCray points out, while there are numerous state
statutes requiring smoke detectors and CO monitors in day-care facilities,
assisted-living residences, schools, new multi-unit construction, etc., there
are no statutes or regulations requiring a homeowner to install smoke
detectors or CO monitors in his private, non-commercial residence. (Mr.
McCray’s brief at 14-15.)
Similarly, appellants have failed to cite any authority for the proposition
that failure to install smoke alarms and/or CO detectors constituted a
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“dangerous condition” for purposes of Section 342. In the court below,
appellants relied on Echeverria v. Holley, 142 A.3d 29 (Pa.Super. 2016),
appeal denied, 2017 WL 1078606 (Pa. 2017), and appeal denied, 2017 WL
1078750 (Pa. 2017), in which this court held that a landlord is under a duty
to maintain his rental property in a safe condition which includes the provision
of smoke detection devices. Id. at 36. We agree with the trial court that
Echeverria is distinguishable because it involved a landlord’s duty to his
tenant. (Trial court opinion, 11/1/16 at 6.) Here, Mr. McCray was the owner
of a private, non-commercial residence. (Id.) Mr. Meerhoff and Mr. Little
were not his tenants. Therefore, Echeverria is not controlling. Again,
appellants have cited no statutory or decisional authority for the proposition
that the owner of a private, non-commercial residence has a duty to install
and maintain smoke detectors or CO monitors. This is a question better left
to the legislature, and in the absence of such authority, we decline to impose
such a duty on owners of private residences.
Next, appellants argue that the trial court erred in finding that appellants
failed to prove that Mr. McCray’s farmhouse was not equipped with working
smoke detectors/CO monitors without resorting to speculation. Appellants
claim that there was a genuine issue of material fact as to whether or not
functioning smoke detectors/CO monitors existed at the time of the fire.
(Appellants’ brief at 22.) However, as the trial court noted, the issue is moot
because we have already determined that Mr. McCray was under no legal duty
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to install and maintain smoke detectors/CO monitors in his private, non-
commercial residence. (Opinion and Order, 8/19/16 at 5.) Whether there
were actually working smoke detectors/CO monitors in the farmhouse is
irrelevant in light of the fact that Mr. McCray had no duty to install them in
the first place.
Appellants’ next two issues on appeal relate to their claims against
McCray Aluminum. First, appellants complain that the trial court erred in
finding that they failed to respond to McCray Aluminum’s request for
admissions, and therefore, pursuant to Pa.R.C.P. 4014, the matters raised
therein were deemed admitted. “. . . Pa.R.C.P. 4014(b) provides that all
matters raised in a request for admissions are deemed admitted when a party
fails to respond to the request within 30 days.” Thomas v. Elash, 781 A.2d
170, 177 (Pa.Super. 2001); Innovate, Inc. v. United Parcel Serv., Inc.,
418 A.2d 720, 723 (Pa.Super. 1980) (“A party on whom requests for
admissions of fact are served runs the risk that the facts as set forth in the
request for admissions will be conclusively binding on him if he chooses not
to file an answer to the request for admissions or file objections to the
request.”).
Instantly, McCray Aluminum served its First Set of Requests for
Admissions on the plaintiffs on March 17, 2016, three days before expiration
of the discovery time period. Appellants failed to respond by filing answers or
objections. Therefore, the matters in McCray Aluminum’s requests for
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admissions were deemed admitted, including that Mr. McCray was the sole
owner of the property, that McCray Aluminum had no ownership interest in
the property, and that McCray Aluminum did not design, construct, or
maintain the farmhouse. This was a proper basis for McCray Aluminum’s
motion for summary judgment. See Innovate, 418 A.2d at 724 (defendant
properly relied on unanswered requests for admissions of fact filed under
Pa.R.C.P. 4014 as a basis for a motion for summary judgment (citations
omitted)). While appellants complain that McCray Aluminum’s requests for
admissions were filed only 3 days before the discovery deadline, they have
waived any objection by not responding.
In their second issue relating to McCray Aluminum, appellants argue
that the trial court should have “pierced the corporate veil” to hold
McCray Aluminum liable. Even assuming that this doctrine somehow applies
as asserted by appellants, we do not need to address this issue because we
have already determined that Mr. McCray had no duty to install smoke
detectors/CO monitors in his private, non-commercial residence. If
Mr. McCray had no duty to do so, certainly McCray Aluminum had no duty
either. Furthermore, to the extent appellants alleged in their complaint that
McCray Aluminum was responsible for installing faulty wiring, appellants’
failure to respond to McCray Aluminum’s requests for admissions results in
those facts being admitted, including that no employee of McCray Aluminum
was involved in the design, construction, or maintenance of the farmhouse.
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We now turn to appellants’ issues regarding Penelec. In their fifth issue
on appeal, appellants claim that the trial court erred in striking the expert
report of James L. Glancey, Ph.D., P.E., and Jack Vinson, Ph.D., P.E. We
disagree.
The admission of expert testimony is a matter
committed to the discretion of the trial court and will
not be disturbed absent an abuse of that discretion.
Commonwealth v. Walker, 625 Pa. 450, 92 A.3d
766, 772 (2014). An abuse of discretion “is not
merely an error of judgment, but if in reaching a
conclusion the law is overridden or misapplied, or the
judgment exercised is manifestly unreasonable, or the
result of partiality, prejudice, bias or ill-will, as shown
by the evidence or the record, discretion is abused.”
Id. at 772-73 (citation omitted).
Nobles v. Staples, Inc., 150 A.3d 110, 113 (Pa.Super. 2016).
Pennsylvania Rule of Evidence 702 provides:
A witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify in
the form of an opinion or otherwise if: (a) the expert’s
scientific, technical, or other specialized knowledge is
beyond that possessed by the average layperson; (b)
the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue; and (c) the
expert’s methodology is generally accepted in the
relevant field.
Pa.R.E. 702.
The determination of whether a witness is a qualified
expert involves two inquiries:
When a witness is offered as an expert,
the first question the trial court should ask
is whether the subject on which the
witness will express an opinion is so
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distinctly related to some science,
profession, business or occupation as to
be beyond the ken of the average layman.
. . . If the subject is of this sort, the next
question the court should ask is whether
the witness has sufficient skill,
knowledge, or experience in that field or
calling as to make it appear that his
opinion or inference will probably aid the
trier in his search for truth.
Wexler v. Hecht, 847 A.2d 95, 99 (Pa.Super. 2004), affirmed, 928 A.2d
973 (Pa. 2007) (quotation marks and citations omitted; ellipsis in original).
“In other words, ‘it may appear that the scope of the witness’s experience and
education may embrace the subject in question in a general way, but the
subject may be so specialized that even so, the witness will not be qualified
to testify.’” Id., quoting Dambacher v. Mallis, 485 A.2d 408, 419 (Pa.Super.
1984), appeal dismissed, 500 A.2d 428 (Pa. 1985) (additional citations
omitted).
Appellants sought to introduce the expert report of Dr. Glancey and
Dr. Vinson to prove that the fire was electrical in origin and that there should
have been a reflective marker on the guy cable. According to Dr. Glancey,
after the pickup truck hit the service pole, the guy cable deflected significantly,
resulting in a substantial tensile or pulling force in the service wires connecting
the pole to the transformer. Dr. Glancey opined that the dislodgment of the
transformer on Mr. McCray’s property caused an electrical surge into the
farmhouse, energizing all outlets and appliances in the house with excess
voltage and causing an electrical fire. (RR at 678-679.)
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Neither Dr. Glancey, nor Dr. Vinson, who also signed the report, is an
electrical engineer. Rather, they are mechanical engineers. Mechanical
engineering is a separate and distinct discipline which involves the design,
production, and operation of machinery and equipment, e.g. for the
manufacturing industry. There is nothing to suggest that Dr. Glancey or
Dr. Vinson have the necessary training, education, or experience to testify as
experts in the fields of electrical engineering and/or fire cause and origin. The
trial court permitted appellants ten days in which to identify a new expert in
electrical engineering and/or fire cause/origin and they failed to do so.
(Opinion and Order, 8/19/16 at 8.) The report of their other expert, Deborah
A. Waller, P.E., failed to indicate that the fire was electrical in nature. (Id.)
In fact, the state fire marshal, Pennsylvania State Trooper Dennis R.
Lindenberg, was unable to determine the cause of the fire despite a thorough
investigation. (Id.) Therefore, appellants failed to provide an expert report
from a qualified electrical engineer to prove that the cause of the fire was
electrical. (Id.)
In addition, although not binding precedent, the trial court noted that in
a similar case from Cambria County, Dr. Glancey was precluded from
testifying as an expert witness regarding electrical distribution systems
because he did not possess the requisite knowledge, skill, training, or
experience in the field of electrical engineering. (Trial court opinion, 11/1/16
at 13.) We find that the trial court did not abuse its discretion in precluding
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Dr. Glancey, a mechanical engineer, from offering expert testimony in the
fields of electrical engineering and/or fire cause/origin.
Finally, appellants argue that the trial court erred in finding that the
wanton misconduct of Mr. Meerhoff and Mr. Little greatly exceeded any
possible negligence that could be attributed to Penelec, thus barring recovery.
The trial court determined that any potential recovery would be barred by
Pennsylvania’s comparative negligence statute, which provides, in relevant
part, as follows:
(a) General rule.--In all actions brought to recover
damages for negligence resulting in death or
injury to person or property, the fact that the
plaintiff may have been guilty of contributory
negligence shall not bar a recovery by the
plaintiff or his legal representative where such
negligence was not greater than the causal
negligence of the defendant or defendants
against whom recovery is sought, but any
damages sustained by the plaintiff shall be
diminished in proportion to the amount of
negligence attributed to the plaintiff.
42 Pa.C.S.A. § 7102(a). “Pennsylvania’s comparative negligence statute does
not bar recovery by the plaintiff as long as the plaintiff’s causal negligence is
not greater than that of the defendant.” Terwilliger v. Kitchen, 781 A.2d
1201, 1209 (Pa.Super. 2001).
[W]hen willful or wanton misconduct is involved,
comparative negligence should not be applied. Our
primary reason for so holding is the longstanding
distinction Pennsylvania courts have made between
willful or wanton conduct and negligent conduct.
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Wanton conduct has been defined as
“something different from negligence, however gross,
different not merely in degree but in kind and evincing
a different state of mind on the part of the tort
feasor[.”] Kasanovich v. George, 348 Pa. 199, 203,
34 A.2d 523, 525 (1943); Zawacki v. Pennsylvania
Railroad Company, 374 Pa. 89, 97 A.2d 63 (1953);
Geelen v. Pennsylvania Railroad Company, 400
Pa. 240, 161 A.2d 595 (1960); Stubbs v. Frazier,
[454 A.2d 119 (Pa.Super. 1982)]. “Negligence
consists of inattention or inadvertence, whereas
wantonness exists where the danger to the plaintiff,
though realized, is so recklessly disregarded that,
even though there be no actual intent, there is at least
a willingness to inflict injury, a conscious indifference
to the perpetration of the wrong.” Kasanovich,
supra at 203, 34 A.2d at 525. Wanton misconduct
. . . means that the actor has intentionally
done an act of an unreasonable character,
in disregard of a risk known to him or so
obvious that he must be taken to have
been aware of it and so great as to make
it highly probable that harm would follow.
It usually is accompanied by a conscious
indifference to the consequences.
Prosser, Torts § 33 at 151 (2d ed. 1955) cited in
Evans [v. Philadelphia Trans. Co., 212 A.2d 440,
443 (1965)]; Moss v. Reading Company, 418 Pa.
598, 212 A.2d 226 (1965). Antonace [v. Ferri
Contracting Co., Inc., 467 A.2d 833 (Pa.Super.
1983)]. See also 57 Am.Jur.2d § 102.
Krivijanski v. Union R. Co., 515 A.2d 933, 936-937 (Pa.Super. 1986)
(footnote omitted).
This court does not disagree with appellants that, ordinarily, questions
of comparative negligence are for the jury. (Appellants’ brief at 38.)
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However, this is surely one of those rare cases where summary judgment on
the issue of comparative negligence is appropriate.2 As the trial court stated:
Furthermore, the evidence is clear that
Mr. Meerhoff and Mr. Little’s actions are significantly
greater than the cause of action for negligence against
Defendant Penelec. First, Mr. Meerhoff and Mr. Little
had been consuming alcohol the evening before the
incident, with Mr. Meerhoff beginning to drink around
6:00 p.m. and Little beginning to drink around 9:00
p.m. After they had run out of beer, Mr. Meerhoff and
Mr. Little left around 1:00 -- 1:30 a.m. to buy more
beer. Sometime after, Mr. Meerhoff and Mr. Little
arrived at Donald McCray’s property. While at Donald
McCray’s property, Mr. Meerhoff and Mr. Little were
“race tracking like in a racecar form” and “whipping
doughnuts and going in circles.” During this time,
Mr. Meerhoff and Mr. Little “hit something.” Several
photographs were taken at the scene after the fire by
Corporal Matthew Bly, and these photographs
depicted tire tracks, damaged electrical wires, a
damaged hay wagon and other significant levels of
vandalism. Several photographs depicted some
power lines lying on the ground and the electrical
transformer hanging on the power pole with several
cables torn off. According to the Coroner’s Toxicology
Report to Police Agency, Mr. Meerhoff’s Blood Alcohol
Content (“BAC”) was .244%, three (3) times the legal
limit of .08%. Thereafter, Mr. Meerhoff and Mr. Little
entered Donald McCray’s residence, at which time
Mr. Little indicated the “lights were on.” Mr. Meerhoff
and Mr. Little “wrestled around” for around fifteen
(15) minutes before going to bed. The actions of
Mr. Meerhoff and Mr. Little rise far above the level of
negligence Plaintiffs have alleged against Defendant
2 At any rate, since the trial court properly excluded the expert report of
Dr. Glancey and Dr. Vinson, appellants failed to prove the cause of the fire
and that it was electrical in origin. Mr. McCray did not observe any damage
or malfunction of any electrical equipment on his property on October 28,
2012, the day before the fire, nor did he notify Penelec of any damage, defect,
or malfunction of any electrical equipment. Therefore, appellants failed to
state a claim against Penelec. (Opinion and Order, 8/19/16 at 9.)
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J. A16023/17
Penelec, which, as indicated above, is minimal, if not
absent completely. Therefore, Plaintiffs’ claims
against Defendant Penelec are barred due to the
actions of Mr. Meerhoff and Mr. Little on October 28th,
2012.
Opinion and Order, 8/19/16 at 9-10 (citations to the record omitted).
We agree. To the extent appellants could demonstrate a cause of action
for negligence against Penelec, it was drastically exceeded by their own willful
and wanton misconduct. There is no error here.
As we find the trial court did not err in granting summary judgment for
the defendants/appellees and dismissing appellants’ complaint with prejudice,
we will affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/29/2017
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