Estate of Hine, J. v. Pennsy Supply, Inc. ( 2018 )

J-A07019-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ESTATE OF JEFF S. HINE BY AND : IN THE SUPERIOR COURT OF
THROUGH HIS EXECUTRIX, JOLIE : PENNSYLVANIA
HINE AND JOLIE HINE, :
INDIVIDUALLY :
:
Appellant :
:
:
v. : No. 1039 MDA 2017
:
:
PENNSY SUPPLY, INC. AND :
MICHELLE D. DULAY :
Appeal from the Order Entered June 2, 2017
In the Court of Common Pleas of Luzerne County Civil Division at No(s):
201406930
BEFORE: PANELLA, J., OLSON, J., and STEVENS*, P.J.E.
DISSENTING MEMORANDUM BY STEVENS, P.J.E.:
FILED SEPTEMBER 07, 2018
There is no dispute that Pennsy Supply (“Pennsy”) had performed
sidewalk construction on Coal Street at or near the intersection of North
Empire Court, Wilkes-Barre, Luzerne County, PA, where the motor vehicle
collision at issue occurred.
The summary judgment record was devoid of testimony or other
evidence that Pennsy either removed a stop sign purportedly controlling traffic
at the intersection or had a duty to erect or maintain such a stop sign during
the relevant time period. Without such evidence, an issue of material fact
does not exist with respect to whether Pennsy breached a duty of care.
____________________________________
* Former Justice specially assigned to the Superior Court.
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Additionally, the Opinion of the learned Honorable William H. Amesbury
found that even if a stop sign had been improperly removed from the
intersection, Ms. Dulay's failure to obey the rules of the road requiring her to
stop and yield the right of way to the Hines' vehicle stood as the sole proximate
cause of her injuries.
For these reasons, I respectfully dissent.
When reviewing a trial court's grant of summary judgment, our standard
and scope of review are as follows:
Our scope of review is plenary, and our standard of review is the
same as that applied by the trial court ... An appellate court may
reverse the entry of a summary judgment only where it finds that
the lower court erred in concluding that the matter presented no
genuine issue as to any material fact and that it is clear that the
moving party was entitled to a judgment as a matter of law. In
making this assessment, we view 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. As our inquiry involves solely questions
of law, our review is de novo.
Reinoso v. Heritage Warminster SPE, LLC, 108 A.3d 80, 84
(Pa.Super. 2015) (en banc ).
Here, Ms. Dulay's 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 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. Davis v. Wright, 156 A.3d 1261, 1271 (Pa.Super.
2017) (citation omitted).
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Given the record as it existed before the trial court, there is no issue of
material fact with respect to the element of breach of duty. Although there
was testimony that a stop sign existed near the intersection in question prior
to the Pennsy project, no witness testified the stop sign was present on the
day when Pennsy arrived, and no witness expressed personal knowledge that
Pennsy removed a stop sign from the location during the performance of its
work.
Moreover, on the question of whether Pennsy breached a duty to erect
a stop sign at the intersection when it completed its work, testimony taken
during depositions established that the PennDot-approved road and sidewalk
construction plans supplied by the City of Wilkes-Barre did not call for a stop
sign at the location.
In this regard, the opinion of Judge Amesbury is compelling wherein he
observes the evidence presented thus failed to create an issue of material fact
requiring resolution by a jury:
There is no evidence of record that Pennsy removed the stop sign,
or that they deviated from the plans they were required to
follow. Plaintiff has put forth a theory of circumstantial evidence
and inferences that could be drawn therefrom, but careful analysis
of that argument shows that it requires pure conjecture and
speculation that a stop sign was present the day construction
began and Pennsy removed it.
Trial Court Opinion, filed 6/5/17, at 3-4.
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Additionally, the court determined Ms. Dulay's failure to yield the right
of way to the Hines' vehicle pursuant to a governing provision of the Motor
Vehicle Code likewise supported summary judgment:
As Dulay reached the then uncontrolled intersection, she turned
left onto North Empire Court and collided with Jeff Hine. Dulay's
actions were violative of 75 Pa.C.S.A. SS 3321(a):
When two vehicles approach or enter an intersection
from different highways at approximately the same
time, the vehicle on the left shall yield the right of way
to the vehicle on the right.
Dulay admitted she did not stop at the curbed intersection and
that she made a left-hand turn onto a roadway when it was not
safe to do so. Clearly Dulay bears substantial if not sole
responsibility for the accident.
Trial Court Opinion, at 1.
The record supports the court's conclusion: Ms. Dulay stated during
depositions that she was familiar with the requirement to stop at intersections
and to yield right-of-way to traffic already traveling on a road she was
approaching. She admitted she did not stop at the intersection in question.
In this regard, Appellees persuasively argue that the deposition of
Detective Harding, who testified that the former stop sign was located 10 to
15 feet from the intersection, places this case squarely under decisional law
recognizing the right of a driver possessing a right of way to assume an
approaching driver will stop at the intersection even after disregarding a
posted stop sign set back a good distance from the intersection. See Ketzel
v. Lazzini, 63 A.2d 369 (Pa.Super. 1949) (holding "duty on driver on the
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'stop' street is to stop at the intersection, not at the sign [posted 26 feet from
intersection].").
Regardless of the absence of a former stop sign set back from the
intersection, therefore, Ms. Dulay had the legal obligation to stop at the
intersection and yield the right of way to the Hines' vehicle.
Accordingly, I must dissent from the learned majority's opinion
reversing the order granting summary judgment in favor of
Defendant/Appellee Pennsy Supply.
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