Davis, D. v. Wright, B.

J-S04032-17
2017 Pa. Super. 48
DONALD DAVIS, CARMEN GIBSON : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellants :
:
:
v. :
:
:
BYRON WRIGHT, JR., : No. 2320 EDA 2016
ADMINISTRATOR OF THE ESTATE OF :
BYRON L. WRIGHT, DECEASED :
Appeal from the Order July 13, 2016
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): No. 150701828
BEFORE: SHOGAN, OTT and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED February 27, 2017
Donald Davis and Carmen Gibson (collectively “Appellants”) appeal
from the Court of Common Pleas of Philadelphia County’s July 13, 2016,
order granting the motion for summary judgment filed by Appellee Bryon
Wright, Jr., as Administrator of the Estate of Byron L. Wright (“the
deceased”).1 For the reasons set forth below, we affirm.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
The trial court’s July 13, 2016, order did not dispose of a pending
counterclaim, and thus, Appellants’ appeal therefrom was premature. See
Pa.R.A.P. 341(a); Bonner v. Fayne, 657 A.2d 1001 (Pa.Super. 1995).
However, subsequent to Appellants’ filing of the instant appeal, the trial
court entered an order on September 12, 2016, which dismissed the pending
counterclaim with prejudice. Accordingly, our appellate jurisdiction has been
(Footnote Continued Next Page)
J-S04032-17
The relevant facts and procedural history are as follows: On July 16,
2015, Appellants filed a civil complaint averring that, on May 25, 2014, at
approximately 9:30 p.m., Mr. Davis was operating a vehicle in which Ms.
Gibson was a passenger when, without any negligence on their part, the
deceased, who was operating his vehicle negligently, collided with their
vehicle, resulting in serious, severe, and permanent injuries to Appellants.2
On July 28, 2015, Appellee, as administrator of the deceased’s estate,3
filed an answer with new matter averring, inter alia, that the deceased was
not negligent in any respect; Appellants were contributorily and/or
comparatively negligent; Appellants assumed the risk of their activities; and
the injuries and damages caused to Appellants were caused by or
contributed to by the negligent acts or omissions of entities other than the
deceased. Moreover, Appellee presented a counterclaim against Mr. Davis
alleging the accident was caused solely by his negligent operation of his
vehicle, and any injuries sustained by Ms. Gibson was attributed solely to
Mr. Davis’ negligence.
_______________________
(Footnote Continued)
perfected. See Drum v. Shaull Equipment and Supply, Co., 787 A.2d
1050 (Pa.Super. 2001).
2
Appellants also averred in their complaint that the deceased was operating
his vehicle in a “reckless” manner; however, by stipulation entered on July
23, 2015, Appellants withdrew all allegations and claims related to
recklessness.
3
The deceased passed away on September 22, 2014.
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Appellants filed a reply to Appellee’s new matter, and Mr. Davis filed a
reply to Appellee’s counterclaim. On April 29, 2016, Appellee filed a motion
for summary judgment, along with a supporting memorandum. In the
motion, Appellee alleged, in relevant part, the following:
8. [The decedent] was interviewed about the happening of the
accident on May 27, 2014.
9. [The decedent] describes an accident occurring at
approximately 10:30 p.m. He was traveling southbound on 84 th
St. There are two travel lanes. [The] decedent was in the left
land and [Appellants’] vehicle was in the right lane.
10. According to [the] [d]ecedent [Appellants’] vehicle made a
sudden lane change into his lane causing the collision.
11. [The] [d]ecedent describes a low-speed impact. At the
accident scene, [Appellants] said “we are going to get us some
money now.”
12. A photograph of [the decedent’s] vehicle shows damage to
the driver side front of the vehicle.
13. A photograph of [Appellants’] vehicle shows damage to the
passenger side rear.
14. If alive, [the decedent] would testify that the accident was
caused by the actions of [Mr. Davis.]
15. If alive, [the decedent] would testify regarding the lack of
severity of impact, and the statements made by [Appellants] at
the accident scene in his defense of [Appellants’] claims for
injury.
16. [Appellants] are precluded from testifying against [Appellee]
by virtue of the Dead Man’s [Statute,] 42 Pa.C.S.A. [§] 5930.
17. If [Appellants] are precluded from testifying about the
happening of the accident and the nature and extent of their
injuries, they will not be able to prove their case against
[Appellee].
18. Allowing [Appellants] to testify against [Appellee] will be
extremely prejudicial to [Appellee] since [the decedent], by
virtue of his death, is unable to testify.
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Appellee’s Motion for Summary Judgment, filed 4/29/16, at 3-4 (citations to
record omitted). Accordingly, Appellee requested the trial court enter
summary judgment in favor of the estate since “application of [the] Dead
Man’s [Statute] prohibits [Appellants] from testifying against [Appellee]
thereby making it impossible for [Appellants] to prove their claims of
negligence[.]” Appellee’s Memorandum of Law in Support of Motion for
Summary Judgment, filed 4/29/16, at 5.
On May 26, 2016, Mr. Davis filed an answer in opposition to Appellee’s
motion for summary judgment requesting the trial court deny Appellee’s
motion for summary judgment as to Appellants’ complaint but enter
summary judgment in favor of Mr. Davis as to Appellee’s counterclaim. Mr.
Davis’ theory was that Appellee admitted in the motion for summary
judgment that Appellee could produce no evidence in support of the
counterclaim.
Thereafter, on May 31, 2016, Appellants filed a joint response in
opposition to Appellee’s motion for summary judgment in which they
contended that Appellee had waived the protections of the Dead Man’s
Statute by failing to timely raise the issue in the answer and new matter to
Appellants’ complaint, i.e., the first responsive pleading following the
decedent’s death. Also, Appellants averred Appellee had waived application
of the Dead Man’s Statute by participating in discovery, i.e., deposing the
police officer who authored the investigation report of the subject accident.
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Alternatively, Appellants argued that, assuming, arguendo, Appellee did not
waive application of the Dead Man’s Statute, the evidence of record still
supported a prima facie claim that the decedent was negligent, i.e., the
police officer, who is an independent third party, would be competent to
testify the decedent was negligent. Accordingly, Appellants requested the
trial court deny Appellee’s motion for summary judgment.
By order dated July 13, 2016, the trial court granted Appellee’s motion
for summary judgment and dismissed Appellants’ complaint with prejudice.
However, the trial court specifically noted “the request to have all
[counterclaims] dismissed is denied without prejudice for [Mr. Davis] to file a
motion requesting this relief.” Trial Court Order, dated 7/13/16, at 1
(footnote omitted).
On July 14, 2016, Mr. Davis filed a motion for summary judgment,
along with a supporting memorandum, pertaining to Appellee’s counterclaim.
However, prior to the trial court ruling on Mr. Davis’ motion for summary
judgment, Appellants filed the instant notice of appeal on July 18, 2016. In
any event, thereafter, on September 12, 2016, the trial court entered an
order granting Mr. Davis’ motion for summary judgment and dismissing with
prejudice the pending counterclaim. The trial court did not direct Appellants
to file a Pa.R.A.P. 1925(b) statement, and thus, no such statement was filed.
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However, the trial court filed a Pa.R.A.P. 1925(b) opinion explaining the
reasons for its decision. 4
Appellants present the following issues for our review:
1. Whether the trial court abused its discretion and otherwise
committed an error of law when it improperly granted
[Appellee’s] Motion for Summary Judgment, despite the fact
that there was a waiver of the protections of the Dead Man’s
[Statute] by both participation in discovery as well as a failure
by [Appellee] to timely and properly object in [Appellee’s]
first responsive pleading?
2. Whether the trial court abused its discretion and otherwise
committed an error of law when it improperly granted
[Appellee’s] Motion for Summary Judgment, despite the fact
that there were other competent witnesses and documentary
evidence, aside from [Appellants’] testimony, which
establishes the decedent/[Appellee’s] liability?
Appellants’ Brief at 5.
At the outset, we note that we review a challenge to the entry of
summary judgment as follows:
A reviewing court may disturb the order of the trial court
only where it is established that the court committed an error of
law or abused its discretion. As with all questions of law, our
review is plenary.
In evaluating the trial court's decision to enter summary
judgment, we focus on the legal standard articulated in the
summary judgment rule. Pa.R.C.P. 1035.2. The rule states that
where there is no genuine issue of material fact and the moving
party is entitled to relief as a matter of law, summary judgment
may be entered. [Pa.R.C.P. 1035.2(1).] Where the nonmoving
party bears the burden of proof on an issue, he may not merely
rely on his pleadings or answers in order to survive summary
____________________________________________
4
Appellee did not file a cross-appeal, and thus, we limit our analysis
accordingly.
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judgment. Failure of a non-moving party to adduce sufficient
evidence on an issue essential to his case and on which he bears
the burden of proof establishes the entitlement of the moving
party to judgment as a matter of law. [Pa.R.C.P. 1035.2(2).]
Lastly, we will review the record in the light most favorable to
the non-moving party, and all doubts as to the existence of a
genuine issue of material fact must be resolved against the
moving party.
Krauss v. Trane U.S. Inc., 104 A.3d 556, 562–63 (Pa.Super. 2014)
(citation omitted).
Moreover, inasmuch as this appeal involves the Dead Man’s Statute,
we note the Statute provides, in relevant part, the following:
§ 5930. Surviving party as witness, in case of death,
mental incapacity, etc.
Except as otherwise provided in this subchapter, in any civil
action or proceeding, where any party to a thing or contract in
action is dead,...and his right thereto or therein has passed,...to
a party on the record who represents his interest in the subject
in controversy, neither any surviving or remaining party to such
thing or contract, nor any other person whose interest shall be
adverse to the said right of such deceased..., shall be a
competent witness to any matter occurring before the death of
said party....
42 Pa.C.S.A. § 5930 (bold in original).
The Dead Man's Statute is an exception to the general rule of evidence
in this Commonwealth that: “no interest or policy of law...shall make any
person incompetent as a witness.” 42 Pa.C.S.A. § 5921. The Statute
“provides an exception to the general rule of competency and disqualifies
surviving parties to a transaction or event who have an interest adverse to
the decedent from testifying as to matters which occurred prior to the
decedent's death.” Estate of Kofsky, 487 Pa. 473, 476, 409 A.2d 1358,
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1359 (1979) (citation omitted). “The purpose of the [S]tatute is to prevent
the injustice that may result from permitting a surviving party to a
transaction to give testimony favorable to himself and adverse to the
decedent, which the decedent’s representative would be in no position to
refute by reason of the decedent’s death.” Larkin v. Metz, 580 A.2d 1150,
1152 (Pa.Super. 1990) (citations omitted).
In their first claim, Appellants aver the trial court improperly
concluded, as a matter of law, that Appellee did not waive the protections
afforded under the Dead Man’s Statute. More specifically, Appellants
contend Appellee waived application of the Dead Man’s Statute since (1)
Appellee failed to properly and timely raise the Statute’s protection in the
answer and new matter to Appellants’ complaint, i.e., the first responsive
pleading; and (2) Appellee participated in discovery by cross-examining the
investigating police officer during his deposition.
For a witness to be disqualified as a witness under the
Dead Man's [Statute], the following [conditions] must be proven:
(1) the deceased must have had an interest in the
matter at issue, i.e., an interest in the immediate
result of the suit; (2) the interest of the witness
must be adverse; and (3) a right of the deceased
must have passed to a party of record who
represents the deceased's interest.
Pagnotti v. Old Forge Bank, 631 A.2d 1045, 1046 (Pa.Super. 1993)
(quotation omitted).
In the case sub judice, it is undisputed that Appellee has met these
three conditions as to Appellants. However, as Appellants correctly argue,
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while the Dead Man’s Statute exists for the protection of the deceased’s
estate, the protection afforded thereunder may be waived in certain
circumstances by the representative of the decedent’s estate. However, for
the following reasons, we disagree with Appellants that waiver of the Statute
applies in the instant case.
With regard to the first waiver argument advanced by Appellants,
namely, that Appellee failed to properly and timely raise the Statute’s
protection in the answer to Appellants’ complaint, i.e., the first responsive
pleading, Appellants rely primarily upon Hughes v. Bailey, 195 A.2d 281
(Pa.Super. 1963) (en banc). In rejecting Appellants’ claim, the trial court
provided the following reasons:
First, [Appellants] argued that [Appellee] waived the
protections of the Dead Man’s [Statute] by failing to timely raise
the protections of the [Statute] and instead waiting until they
filed a Motion for Summary Judgment to raise the issue.
[Appellants] cite Hughes[, supra], for the proposition
that there exists some rule in Pennsylvania that the “first
responsive pleading” in a case must raise the Dead Man’s
[Statute] or the protections of the [Statute] are waived. There
exists no such rule in Pennsylvania, and the case cited by
[Appellants] does not stand for this idea.
In Hughes, the plaintiff in the action testified at a hearing
for a preliminary injunction, and was cross-examined by the
defendant, who then sought to declare the plaintiff incompetent
to testify. The [appellate court] in that case found that where a
witness has been “examined and cross-examined at length”
without a party’s failure to object to the witness’ competency, a
court would not err in refusing to then strike the testimony after
it is taken.
In the instant case, no testimony (and, by extension, no
cross-examination), has been taken from either [Appellant], and
Hughes is therefore inapplicable. Nor does [the appellate court]
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in Hughes create a rule under which the “first responsive
pleading” must contain the objection. In fact, the [appellate
court] in that case specifically would not have required this,
stating only that the objection in that case should have been
raised at, not after, the preliminary hearing. [Id. at] 284.
Trial Court Opinion, filed 8/1/16, at 4 (emphasis in original).
We agree with the trial court’s reasoning in this regard. This Court has
not found, nor have Appellants cited, any binding Pennsylvania appellate
court decision which has ruled that a wavier of the Dead Man’s Statute exists
in a situation where the competency of a party was not raised in the “first
responsive pleading.” Further, the case relied upon by Appellants does not
support this proposition.
Additionally, we note that, intertwined with their first argument,
Appellants suggest that the protections offered by the Dead Man’s Statute
must be raised as an affirmative defense in the answer as new matter
pursuant to Pennsylvania Rule of Civil Procedure 1030. We disagree.
Rule 1030 provides that “all affirmative defenses...shall be pleaded in
a responsive pleading under the heading ‘New Matter.’” Pa.R.C.P. 1030(a).5
However, the invocation of the protection based on the Dead Man’s Statute
is not an “affirmative defense.”
____________________________________________
5
This general rule regarding affirmative defenses does not apply to
“defenses of assumption of the risk, comparative negligence and
contributory negligence[.]” Pa.R.C.P. 1030(b).
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Our Supreme Court has held that, by definition, an “affirmative
defense” pertains to “a defendant's assertion of facts and arguments that, if
true, will defeat the plaintiff's...claim, even if all the allegations in the
complaint are true.” Reott v. Asia Trend, Inc., 618 Pa. 228, 240, 55 A.3d
1088, 1095 (2012) (quotation marks and quotation omitted). As indicated
supra, the purpose behind the legislatively enacted Dead Man’s Statute is
that the decedent’s representative is in no position to rebut the assertions
presented by the adverse party, and thus, it would be unfair to permit a
surviving adverse party to give testimony that is favorable to himself and
unfavorable to the decedent’s interest. See Larkin, supra. It is not a
defense whereby the decedent’s representative assumes the allegations in
the adverse party’s complaint are true. Accordingly, as a matter of law,
Appellants have not proven waiver on this basis. See Krauss, supra
(setting forth our standard of review).
With regard to the second waiver argument advanced by Appellants,
namely, that Appellee waived the protection of the Dead Man’s Statute by
participating in discovery, we disagree.
Under certain circumstances, the representative of the estate may
waive the disqualification of the adverse party via discovery. For instance,
our Supreme Court has held:
[W]hen a decedent before he died or a decedent's representative
has required an adverse party to be deposed or to answer
interrogatories, any objection based upon the Dead Man's
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[Statute] to the competency of such a party to testify at the trial
is waived, even though the discovery is not offered in evidence.
Schroeder v. Jaquiss, 580 Pa. 381, 388, 861 A.2d 885, 889 (2004)
(citations omitted). Moreover, this Court has found waiver where the
decedent’s representative introduced as evidence the adverse party’s
statement in the pretrial conference. Flagship First Nat. Bank of Miami
Beach v. Bloom, 431 A.2d 1082 (Pa.Super. 1981). As this Court has
noted, such forms of discovery are equivalent to placing the adverse party
on the witness stand. Perlis v. Kuhns, 195 A.2d 156 (Pa.Super. 1963) (en
banc). It would be unfair to “enable one party to search the conscience of
his adversary, drag to light his private papers and other evidence, and then
repudiate the result, if the experiment proved unsatisfactory.” Id. at 159.
Moreover, our Supreme Court has held that a representative may waive the
disqualification of the adverse party by testifying on his or her own behalf as
to facts occurring subsequent to the decedent's death. Estate of Kofsky,
supra.
In the present case, however, as the trial court properly found, the
aforementioned waiver exceptions do not apply. Appellants were neither
deposed nor served with interrogatories. Further, Appellee did not testify as
to facts occurring subsequent to the decedent’s death.
Still, Appellants argue that Appellee “participated extensively in
discovery,” thus waiving the protections of the Dead Man’s Statute. For
instance, they note that Appellee participated in the deposition of
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Philadelphia Police Officer Thomas O’Neill, who completed an investigation
report in the subject case.6 In rejecting this argument, the trial court noted:
[I]t is the participation in discovery of the surviving
adverse party that results in waiver of the [Statute]. It is the
act of taking a deposition, filing interrogatories, or taking some
other action that essentially places the surviving adverse party
on the witness stand that triggers waiver of the [Statute’s
protections]....
Such a concern does not exist here....In fact, per
[Appellants’] representation in their response to the Motion for
Summary Judgment, the only potential witness that has been
deposed in this case is Officer Thomas O’Neill, the police officer
who wrote the investigation report following the accident.
Officer O’Neill...is not a party to this case. Nor does he have any
interest in the outcome of this case; this means that he is not
the kind of adverse party courts contemplate when they discuss
waiver of the Dead Man’s [Statute] through participation in
discovery.
Trial Court Opinion, filed 8/1/16, at 6.
We agree with the trial court’s sound rationale. The waiver principle
applicable to the Dead Man’s Statute has been applied to “taking the
deposition of or requiring answers to interrogatories from an adverse
party[.]” Schroeder, 580 Pa. at 890, 861 A.2d at 389 (citation omitted)
(emphasis added). Officer O’Neill is not an “adverse party.” Appellants
have not persuaded us that Appellee engaged in the type of discovery which
____________________________________________
6
The record reflects that Appellants conducted Officer O’Neill’s deposition;
however, Appellee cross-examined him.
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results in waiver of the Dead Man’s Statute.7 Thus, the trial court properly
ruled, as a matter of law, that Appellee did not waive the protection of the
Dead Man’s Statute, and accordingly, Appellants, as surviving adverse
parties, are not competent to testify at trial regarding the circumstances
surrounding the motor vehicle accident.8
In their next issue, Appellants allege that, assuming, arguendo, the
trial court properly ruled Appellants were incompetent to testify at trial, the
entry of summary judgment in favor of Appellee was improper since
Appellants otherwise produced sufficient evidence such that a jury could
return a verdict in their favor. See Krauss, supra (setting forth summary
judgment standard of review). Specifically, Appellants allege the deposition
testimony of Police Officer O’Neill, who is competent to testify at trial,
____________________________________________
7
The authority relied upon by Appellants, Beck v. Beck, 646 A.2d 589
(Pa.Super. 1994), is unavailing. Beck stands for the proposition that the
Dead Man’s Statue is not applicable where a claim is not asserted against
the estate of a decedent but against a surviving joint obligor. Such facts are
not akin to the situation at hand.
8
Appellants further baldly suggest on appeal that Appellee waived the
protection of the Dead Man’s Statute by responding to Appellants’ request
for production of documents and sending a subpoena for the deposition of
Andrew Smith (a potential eyewitness who failed to appear for the
deposition). With regard to Appellee responding to Appellants’ request for
production of documents, this is not the type of discovery which waives
Appellee’s protection of the Dead Man’s Statute. See Schroeder, supra.
Further, as to Appellee serving a subpoena upon Mr. Smith, we dispose of
this issue simply by noting that Mr. Smith, similar to Officer O’Neill, is not an
adverse party.
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sufficiently established the decedent’s breach of his duty to keep an assured
clear distance ahead, thus establishing a prima facie case of negligence.9
Initially, we agree with Appellants that there are limits to the Dead
Man’s Statute and, while Appellants’ testimony would be barred by the
Statute in this case, “[A]ppellants [are] free to present other evidence of
fault in support of their claims.” Weschler v. Carroll, 578 A.2d 13, 17
(Pa.Super. 1990) (italics in original) (citations omitted). Here, Appellants’
civil claim is grounded in negligence. In any case alleging negligence, a
claimant must establish the presence of a legal duty or obligation; a breach
____________________________________________
9
Appellants also baldly asserts:
Furthermore, another independent witness, Andrew Smith, was
found to have witnessed this incident. Though Mr. Smith failed to
appear for a discovery deposition, his testimony as to how this
incident occurred, would not have been precluded by the [D]ead
[M]an’s [Statute], and [ ] would have established a genuine
issue of fact with regard to how this incident occurred.
Appellants’ Brief at 13. We find this assertion to be unavailing. Appellants
have not proffered any facts to which Mr. Smith would testify, and without
some indication of the substance of Mr. Smith’s testimony, Appellants have
not met their burden.
Further, Appellants suggest that the deceased made recorded
statements to his insurance company which “are sufficient to establish a
genuine issue of material fact as to how th[e] collision occurred[.]”
Appellants’ Brief at 14. However, Appellants failed to raise this issue in their
answer in opposition to Appellee’s motion for summary judgment and have
sought to present it for the first time on appeal. Consequently, this issue is
waived. Lineberger v. Wyeth, 894 A.2d 141, 147 (Pa.Super. 2006)
(“[A]rguments not raised initially before the trial court in opposition to
summary judgment cannot be raised for the first time on appeal.”) (citation
and quotation omitted).
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of that duty; a causal link between that breach and the injury alleged; and
actual damage or loss suffered by the claimant as a consequence of thereof.
Lux v. Gerald E. Ort Trucking, Inc., 887 A.2d 1281, 1286 (Pa.Super.
2005).
It is well-settled that drivers owe each other a duty to drive carefully,
and the “assured clear distance rule,” based upon 75 Pa.C.S.A. § 3361,
requires a driver to be able to stop safely within the distance the driver can
clearly see. Levey v. DeNardo, 555 Pa. 514, 518, 725 A.2d 733, 735
(1999) (“[T]he assured clear distance ahead rule...requires a driver to
control the speed of his or her vehicle so that he or she will be able to stop
within the distance of whatever may reasonably be expected to be within the
driver's path.”) (italics omitted); Phillips v. Lock, 86 A.3d 906 (Pa.Super.
2014) (suggesting the rule is applicable to situations where a driver is
alleged to have been following too closely, commonly referred to as
tailgating).
The “key issue” in this case is whether Appellants adduced sufficient
evidence to establish the decedent breached his duty to Appellants under the
“assured clear distance rule,” thus establishing a prima facie case for
negligence.10 The trial court found that Appellants failed to meet their
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10
We note that, if Appellants set forth prima facie evidence that decedent
breached his duty to Appellants, then a prima facie case for the element of
(Footnote Continued Next Page)
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burden in this regard, and consequently, granted summary judgment in
favor of Appellee. More specifically, the trial court concluded Officer O’Neill’s
testimony did not create a genuine issue of material fact or establish a prima
facie case for negligence against the decedent, i.e., that the decedent
breached his duty of care towards Appellants. See Trial Court Opinion, filed
8/1/16, at 7. We agree.
In his deposition, Officer O’Neill testified upon direct-examination by
Appellants’ counsel that, although he investigates traffic accidents as part of
his patrol duties, he is not trained in accident reconstruction. See Police
Officer Thomas O’Neill’s deposition, dated 3/29/16, at 7-8. He indicated
that, over the course of his career, he has responded to approximately
24,000 motor vehicle accidents, which is approximately one thousand per
year. Id. at 6-7. Officer O’Neill testified that the accident at issue occurred
outside his district, and it is unlikely that he responded to the accident
scene. Id. at 12-13. In any event, he testified that he has no independent
recollection of the accident at issue. Id. at 9.
Officer O’Neill admitted that, on the day after the accident, he
completed an investigation report. Id. However, he testified he has no
_______________________
(Footnote Continued)
causation would plainly be established in this case as well. See Wright v.
Eastman, 63 A.3d 281 (Pa.Super. 2013).
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independent recollection of preparing the report, and it is “most likely” that
the report was prepared based on information given to him from Mr. Davis.
Id. at 12. He noted his report contained neither a narrative nor a diagram,
and the report failed to indicate the location where the information for the
report was taken. Id. at 10. He surmised that he spoke to Mr. Davis either
at his home or at the police district window; however, he testified he has no
independent recollection of speaking to Mr. Davis. Id. at 10-11, 14. He
noted that he took no other written notes or generated any other documents
regarding the accident. Id. 14-15, 19.
With regard to the contents of his written report, Officer O’Neill noted
that he had “Operator 1” listed as the deceased and “Operator 2” listed as
Mr. Davis. Id. at 13. When asked how he arrived at the operator
designations, Officer O’Neill testified “[i]t’s customary that the vehicle that
has the front end damage is considered the striking vehicle, therefore, he
would be Operator 1. Operator 2 would be the receiving vehicle of being
struck.” Id. at 14. As to how he determined that there was front end
damage to the left side of Operator 1’s (the deceased’s) vehicle, and rear
right corner damage to Operator 2’s (Mr. Davis’) vehicle, Officer O’Neill
testified that he obtained the information from Operator 2 (Mr. Davis). Id.
at 15-16.
Officer O’Neill testified that he did not take any photographs of either
vehicle, and he does not recall whether Mr. Davis showed him any
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photographs of the vehicles. Id. at 16. He noted that neither operator was
cited for any motor vehicle violations in connection with the accident. Id.
Further, Officer O’Neill testified as follows on direct-examination:
Q. Is it your understanding from your review of this report
and based on your investigation into this matter that [the
deceased] caused the accident?
A. It only indicates from my perspective to be
nonjudgmental in this situation. If I’m not presently at that
accident, if I have no witnesses to state concretely what actually
occurred as an independent witness, I can only surmise from
where the damage area is who would have been the striking
vehicle.
However, I do not in my personal estimation consider that
the [“]at fault[”] vehicle. It’s simply an indication as Vehicle 1
has front end damage, Vehicle 2 has rear end damage. How
that accident occurred is frankly supposition on my part.
And as I advised, operators are, from my own personal
experience, when you call your insurance company notate where
you were, what your geography was, what the street signs were,
traffic lights were, direction you were traveling, what you were
doing prior, during and after the accident. They take your
statement as credible and more credible over what is considered
recorded by the City of Philadelphia. I found that from my own
personal experience.
Id. at 17-18.
Officer O’Neill noted that Ms. Gibson was listed on the report as a
passenger; however, he has no recollection of speaking to Ms. Gibson and
believes Mr. Davis provided him with her name. Id. at 18. He noted that
Andrew Smith was listed on the report as a witness; however, he has no
recollection of having any conversations with him. Id. at 19.
On cross-examination, Officer O’Neill reiterated that Mr. Davis was
“most likely” the person who provided him with the information about the
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accident; however, he has no independent recollection of interviewing Mr.
Davis or the decedent. Id. at 20-21. Officer O’Neill testified that he left the
report’s “narrative blank because it could be seen by either party as being
one-sided from our perspective, that we are taking one side over another
because we have a narrative from one person.” Id. at 23. Officer O’Neill
testified that, with regard to the instant accident, he would not view himself
as an investigator, but as a “[r]ecorder of information.” Id. at 25.
Based on the aforementioned, and viewing the evidence in the light
most favorable to Appellants (the nonmoving parties), we agree with the
trial court that Officer O’Neill’s deposition testimony neither created a
genuine issue of material fact nor sufficiently established facts suggesting
the decedent violated any duty of care, particularly his duty under the
“assured clear distance ahead rule.”
For example, Officer O’Neill testified that he did not recall responding
to the accident scene, viewing any photographs of the subject vehicles,
speaking to the parties, or speaking to any witnesses regarding the accident.
While he admitted he prepared an investigation report “most likely” from
information provided to him from Mr. Davis, he testified he had no
independent recollection of preparing the report. Moreover, when asked if
his report and investigation revealed whether the decedent caused the
accident, Officer O’Neill specifically testified that it was his perspective to “be
nonjudgmental in this situation[,]” he could only “surmise” what had
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happened, and how the accident occurred is “supposition on [his] part.”
See id. at 17-18.
“[S]uch statements do not present competent evidence for the jury
because [they are] speculative. A plaintiff cannot survive summary
judgment when mere speculation would be required for the jury to find in
plaintiff's favor.” Krauss, 104 A.3d at 568 (citations omitted). In fact, “the
trial court has a duty to prevent questions from going to the jury which
would require it to reach a verdict based on conjecture, surmise, guess or
speculation.” Farnese v. Se. Pennsylvania Transp. Auth., 487 A.2d 887,
890 (Pa.Super. 1985). A party is not entitled to an inference of fact that
amounts merely to a guess or conjecture. Flaherty v. Pennsylvania
Railroad Co., 426 Pa. 83, 231 A.2d 179, 180 (1967).
Moreover, as it pertains to Officer O’Neill’s investigation report, we
note that, while Pennsylvania Rule of Evidence 612(a) provides that a
witness “may use a writing...to refresh memory for the purpose of testifying
while testifying, or before testifying[,]” there is no indication the
investigation report refreshed Officer O’Neill’s recollection in any respect.
Further, the report itself, which Officer O’Neill testified was “most likely”
prepared based on information provided by Mr. Davis, would be inadmissible
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at trial pursuant to Section 3751 of the Motor Vehicle Code.11 See 75
Pa.C.S.A. § 3751(b)(4) (indicating police reports “shall not be admissible as
evidence in any action for damages...arising out of a motor vehicle
accident.”); Phillips, supra (holding a report prepared by a police officer
who is not a witness to the accident is inadmissible hearsay evidence and
should not be admitted into evidence in an action for damages).
Based on the aforementioned, we conclude Appellants’ own testimony
would be barred under the Dead Man’s Statute, and they have not set forth
other competent evidence of fault in support of their negligence claims.
Accordingly, the trial court properly determined there were no genuine
issues of material fact, Appellants failed to produce evidence to establish a
prima facie case of negligence, and Appellee was entitled to the entry of
summary judgment as a matter of law. See Pa.R.C.P. 1035. Accordingly,
we affirm.
Affirmed.
____________________________________________
11
Moreover, inasmuch as Officer O’Neill’s report was entirely comprised of
information “most likely” provided to him by Mr. Davis (a surviving adverse
party), permitting Appellants to rely upon the report in order to avoid
summary judgment would, in at least an indirect manner, deprive Appellee
of the protections under the Dead Man’s Statute.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/27/2017
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