Casey, R. v. Xpedx ( 2019 )


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  • J-S63032-19
    NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
    ROBERT CASEY,                              :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    Appellant                     :
    :
    v.                        :
    :
    XPEDX, XPEDX, VERITIV, VERITIV             :
    CORPORATION, FORD MOTOR                    :
    COMPANY AND FORD                           :
    :
    Appellees                     :   No. 3698 EDA 2018
    Appeal from the Order Entered November 14, 2018
    in the Court of Common Pleas of Philadelphia County
    Civil Division at No(s): July Term, 2016 02028
    BEFORE:      GANTMAN, P.J.E., MURRAY, J. and STRASSBURGER, J.*
    MEMORANDUM BY STRASSBURGER, J.:                       FILED DECEMBER 17, 2019
    Robert Casey appeals from the orders entered on November 14 and
    15, 2018, in which the trial court granted summary judgment in favor of
    Xpedx,1 Veritiv,2 and Ford Motor Company (collectively, Appellees) and
    against him, and dismissed the case with prejudice.             Upon review, we
    reverse the orders of the trial court and remand for proceedings consistent
    with this memorandum.
    ____________________________________________
    1Casey has listed two separate addresses for Xpedx in his complaint. See
    Amended Complaint, 9/6/2016, at 1.
    2 Casey has listed two separate entities and two separate addresses for
    Veritiv and Veritiv Corporation. See Amended Complaint, 9/6/2016, at 1. In
    2014, Xpedx merged with another company, and the new entity became
    Veritiv. Veritiv is a packaging distribution company.
    *   Retired Senior Judge assigned to the Superior Court.
    J-S63032-19
    We provide the following background. Casey was hired as a delivery
    driver by Pacifico Ford in November 2013. One of his job responsibilities
    included delivering auto parts. According to Casey, on July 29, 2014, he was
    charged with delivering a Ford replacement hood3 to Rocco’s Collision in
    Berlin, New Jersey. Casey typically loaded his delivery van himself, and then
    would drive to the locations where parts were supposed to be delivered.
    When he arrived at Rocco’s Collision, the shop manager met Casey at the
    delivery van to sign for the hood. Casey believed the shop manager’s name
    was John or Jerry and that he had an Italian-sounding last name. Deposition
    of Robert Casey, 8/30/2017, at 30.
    Casey stated that when he attempted to remove the hood from his
    van, he “reached in for [the box with the hood] and the cardboard gave way.
    [His] arm snapped back, [and his] head snapped back.” 
    Id. at 31.
    Casey
    indicated that “[t]he cardboard ripped” and his “hand came out of the
    handle.” 
    Id. at 39.
            Casey “heard a cracking sound in [his] neck and
    [experienced] extreme pain in [his] elbow.” 
    Id. Casey believed
    that the
    shop manager completed the delivery,4 and Casey drove back to Pacifico
    Ford to report the incident to his manager, Keith Reedell. Casey filled out an
    ____________________________________________
    3Casey sets forth that the Ford model number for the replacement hood was
    CT4Z-16612-A. Amended Complaint, 9/6/2016, at ¶ 9.
    4 Casey did not know what happened to the box at issue and made no effort
    to preserve it at the time of the incident.
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    J-S63032-19
    incident report and also spoke with another shop manager, Johnny
    Castillano, about the incident.         Casey was sent to Mercy Work Care for
    treatment the same day. Casey was able to work for approximately three
    weeks after the incident,5 but then had to cease working due to his injuries.
    Casey required surgery on his elbow and neck due to this incident.
    Casey was medically cleared to return to work as of April 2015, and although
    he was offered a position at Pacifico Ford, he elected not to return to work.
    On June 21, 2016, Casey filed a complaint against Appellees. He filed
    an amended complaint on September 6, 2016, which included causes of
    action for negligence, products liability, and breach of warranty.         See
    Amended Complaint, 9/6/2016.
    On February 6, 2017, a case management order was issued that
    required discovery to be completed by March 5, 2018, for Casey to submit
    curricula vitae and expert reports by April 2, 2018, and for Appellees to
    submit their curricula vitae and expert reports by May 7, 2018. Casey did
    not file his expert reports until May 7, 2018. At that time, he submitted four
    reports from previously undisclosed experts.       Three of those reports were
    from doctors and were related to Casey’s current and future medical needs.
    The fourth report was from a packaging expert, Dr. Douglas C. Moyer (Moyer
    Report).     Dr. Moyer opined, inter alia, that it is his “opinion within a
    ____________________________________________
    5On one of the occasions he was working, Casey took photographs of boxes
    he believed to be similar to the box that caused his injury. Deposition of
    Robert Casey, 8/30/2017, at 33. Those boxes were manufactured by Xpedx.
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    reasonable degree of engineering certainty that the box which injured []
    Casey was defective at the time it left [Appellees’] control.” Moyer Report,
    4/19/2018, at 2.
    Also on May 7, 2018, Appellees filed motions for summary judgment.
    First, Appellees contended that summary judgment should be granted
    because neither Pacifico Ford nor Rocco’s Collision has any records indicating
    that a Ford replacement hood delivery was made on July 29, 2014. See
    Motion for Summary Judgment (Xpedx and Veritiv), 5/7/2018, at ¶¶ 10-11;
    Motion for Summary Judgment (Ford), 5/7/2018, at ¶¶ 15, 25. According to
    Appellees, Casey’s “failure to provide any evidence other than his own
    unsupported speculation regarding the box         allegedly involved in this
    incident alone warrants summary judgment.” Motion for Summary Judgment
    (Ford), 5/7/2018, at ¶ 27; see also Motion for Summary Judgment (Xpedx
    and Veritiv), 5/7/2018, at ¶¶ 65-66. Moreover, Appellees argued that Ford
    ships replacement hoods with the aforementioned model number in its
    PH056 boxes. It was Veritiv’s position that it does not manufacture PH056
    boxes.    Motion for Summary Judgment (Xpedx and Veritiv), 5/7/2018, at
    ¶ 8.
    In addition, Appellees contended that Casey’s failure to produce
    timely-filed expert reports required that the trial court grant summary
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    judgment with respect to all claims.6            Further, Appellees argued that
    summary judgment should be granted on the basis of spoliation, because
    the actual box which purportedly injured Casey was not available for
    inspection.
    Casey responded that the fact that there was no invoice or other
    evidence of a delivery from Pacifico Ford to Rocco’s Collision on July 29,
    2014, “creates a genuine issue of material fact which must be decided by
    the jury at the time of trial.” Casey’s Response to Motions for Summary
    Judgment, 7/27/2018, at 2 (unnumbered).            In addition, Casey contended
    that it indeed filed expert reports, albeit late, but well prior to the scheduled
    trial in this case.
    By orders entered November 14, 2018 and November 15, 2018, the
    trial court granted summary judgment in favor of Appellees and against
    Casey.    According to the trial court, Casey’s responses to the motions for
    summary judgment “did not cite to any specific pages in [Casey’s]
    deposition, and did not attach [Casey’s] deposition as an exhibit (although
    Ford did).” Order (Ford), 11/14/2018, at 3; Order (Veritiv and Xpedx),
    11/15/2018, at 3.        “Similarly, [Casey’s] answer to the present summary
    judgment motion failed to identify any specific pages in his deposition or
    ____________________________________________
    6 In addition, on May 16, 2018, and May 18, 2018, Appellees filed motions to
    strike Casey’s expert reports due to their late filing. Those motions were
    referred to a different judge, who has not ruled on the motions. See Order
    (Ford), 11/14/2018, at 3 n.3; Order (Veritiv and Xpedx), 11/15/2018, at 4
    n.5.
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    expert reports that supported his factual averments and general denials.
    [Casey] had the duty to identify the precise pages in [his] deposition
    testimony and in the expert reports that supported his claims.” Order (Ford),
    11/14/2018, at 4; Order (Xpedx and Veritiv), 11/15/2018, at 4. Thus, the
    trial court determined that Casey did not satisfy his burden and the entry of
    summary judgment against him was proper.
    Casey moved for reconsideration of both orders, arguing that due to a
    clerical error, he neglected to attach accompanying memoranda to his
    answers to summary judgment. Casey’s Motion for Reconsideration (Ford),
    11/20/2018, at 1-2; Casey’s Motion for Reconsideration (Xpedx and Veritiv),
    11/20/2018, at 1-2. The trial court denied the motions for reconsideration,
    concluding that even after reviewing the attached memoranda, summary
    judgment was still proper in this case because Casey failed to set forth
    citations to the record in support of his arguments. Order (Ford),
    11/30/2018; Order (Xpedx and Veritiv), 11/30/2018.
    Casey timely filed a notice of appeal.   The trial court did not order
    Casey to file a concise statement of errors complained of on appeal pursuant
    to Pa.R.A.P. 1925, but did file an opinion pursuant to Pa.R.A.P. 1925(a).
    On appeal, Casey contends that the trial court erred in granting
    summary judgment. It is his position that the trial court erred because it
    failed to consider the documentation available to it, including both Casey’s
    deposition and the Moyer Report. Casey’s Reply Brief at 2.       In response,
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    Appellees contend the trial court did not err in granting summary judgment
    because Casey violated the rules of civil procedure by failing to supply facts
    and citations to support his general denials of the claims made in their
    motions. We review this issue mindful of the following.
    Our standard of review of an order granting summary
    judgment requires us to determine whether the trial court
    abused its discretion or committed an error of law.
    Judicial discretion requires action in conformity
    with law on facts and circumstances before the trial
    court after hearing and consideration. Consequently,
    the court abuses its discretion if, in resolving the
    issue for decision, it misapplies the law or exercises
    its discretion in a manner lacking reason. Similarly,
    the trial court abuses its discretion if it does not
    follow legal procedure.
    Miller v. Sacred Heart Hospital, 
    753 A.2d 829
    , 832 (Pa.
    Super. 2000) (internal citations and quotation marks omitted).
    Our scope of review is plenary. In reviewing a trial court’s grant
    of summary judgment,
    we apply the same standard as the trial court,
    reviewing all the evidence of record to determine
    whether there exists a genuine issue of material fact.
    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. Only where there is no
    genuine issue as to any material fact and it is clear
    that the moving party is entitled to a judgment as a
    matter of law will summary judgment be entered. All
    doubts as to the existence of a genuine issue of a
    material fact must be resolved against the moving
    party.
    Motions for summary judgment necessarily and
    directly implicate the plaintiff’s proof of the elements
    of [a] cause of action. Summary judgment is proper
    if, after the completion of discovery relevant to the
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    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. In other words, 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 and the moving party is entitled to
    judgment as a matter of law, summary judgment is
    appropriate. Thus, a record that supports summary
    judgment either (1) shows the material facts are
    undisputed or (2) contains insufficient evidence of
    facts to make out a prima facie cause of action or
    defense.
    Upon appellate review, we are not bound by
    the trial court’s conclusions of law, but may reach
    our own conclusions.
    Chenot v. A.P. Green Services, Inc., 
    895 A.2d 55
    , 61 (Pa.
    Super. 2006) (internal citations and quotation marks omitted)
    (emphasis added).
    Kardos v. Armstrong Pumps, Inc., __ A.3d __, 
    2019 WL 5540994
    , at *3–
    4 (Pa. Super. 2019) (some citations omitted).
    We begin by considering the aforementioned procedural dispute
    between the parties.    As the trial court pointed out, it granted summary
    judgment not on the merits, but because Casey failed to comply with certain
    rules of civil procedure. Specifically, the trial court rejected Casey’s claims
    “because they were not supported by citations to pages in his deposition
    that supported [Casey’s] factual averments. [Casey] never set forth the gist
    of [his] testimony and [Casey] did not attach a copy of his deposition to his
    answer.” Order (Ford), 11/30/2018; Order (Xpedx and Veritiv), 11/30/2018.
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    The trial court further pointed out that Casey produced 60 pages of expert
    reports, and referenced only the Moyer Report, but not specific pages of it,
    in his response:
    Both the Pennsylvania [] and Philadelphia Rules of Civil
    Procedure [] are clear in what is required to respond properly to
    the allegations presented in a motion for summary judgment.
    The Pennsylvania rule states:
    (a) Except as provided in subdivision (e) [not applicable to
    this matter], the adverse party may not rest upon the
    mere allegations of denials of the pleadings but must file a
    response within thirty days after service of the motion
    identifying
    (1) one or more issues of fact arising from evidence
    in the record controverting the evidence in support
    of the motion or from a challenge to the credibility of
    one or more of the witnesses testifying in support of
    the motion, or
    (2) evidence in the record establishing the facts
    essential to the cause of action or defense which the
    motion cites as not having been produced.
    (b) An adverse party may supplement the record or set
    forth the reasons why the party cannot present evidence
    essential to justify opposition to the motion and any action
    proposed to be taken by the party to present such
    evidence.
    Note: Procedural requirements with respect to argument
    and briefs are governed by local rule.
    Pa.R.C.P. 1035.3(a)(1), (2).
    Additionally, the Note to Pa.R.C.P. 1035.2 states: “Rule
    239.7 requires every court to promulgate Local Rule 1035.2(a)
    describing the local court procedure governing motions for
    summary judgment.”
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    The Philadelphia Rules of Civil Procedure have similar
    substantive requirements but also direct the respondent as to
    the proper form of response. The Philadelphia Rule states, in
    relevant part:
    Response to Motion for Summary Judgment.
    The adverse party or parties must file a response to
    the motion for summary judgment within thirty (30)
    days of the service of the motion, as provided by
    Pa.R.C.P. 1035.3. The response to the motion shall
    be divided into paragraphs, numbered consecutively,
    corresponding to the numbered paragraphs of the
    motion for summary judgment. The response shall
    state whether each of the allegation is admitted or
    denied. No general denial is acceptable. The factual
    reasons for the denial or dispute must be specifically
    stated and the “record,” (as that term is defined in
    Pa.R.C.P. 1035.1) supporting the denial or dispute
    must be attached as an exhibit. A response may also
    include additional allegations demonstrating any
    genuine issue of material fact, in which event the
    responding party must reference and attach a copy
    of the “record,” (as that term is defined in Pa.R.C.P.
    1035.1) which demonstrates the existence of a
    genuine issue of material fact.
    Phila.Civ.R. 1035.2(a)(4).
    The rules of civil procedure require both movant and
    respondent to supply specific citation to the record to
    support averments.
    Welsh v. Nat’l R.R. Passenger Corp., 
    154 A.3d 386
    , 392-93 (Pa. Super.
    2017) (emphasis added).
    We recognize that pursuant to the aforementioned rules, Casey indeed
    should have cited to, and even quoted from, specific pages in his deposition
    and the Moyer Report.     However, we point out that the Moyer Report
    consists of only ten double-spaced pages. It was somewhat overreaching of
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    the trial court to point out that Casey filed 60 pages of expert reports, when
    the only report relevant to the summary judgment motion was the ten-page
    Moyer Report.     Moreover, the gist of Casey’s claim is clear from the
    complaint and a cursory review of the deposition testimony.             Casey’s
    position was simple to discern – he believes he was injured when a
    cardboard box manufactured by Xpedx, which contained a Ford product,
    malfunctioned. The trial court did not need to scour the entire deposition to
    understand those facts, and in fact, the trial court was required to consider
    all facts of record before making its decision. See Estate of Agnew v.
    Ross, 
    152 A.3d 247
    (Pa. 2017) (“When considering a motion for summary
    judgment, the trial court must take all facts of record and reasonable
    inferences therefrom in a light most favorable to the non-moving party.”)
    (emphasis added). Accordingly, we conclude that despite Casey’s failure to
    cite to specific pages of his deposition and the Moyer Report, because those
    facts were available in the record, the trial court erred in granting summary
    judgment on this basis alone.
    Appellees also argue that even had the trial court considered all facts
    of record, summary judgment would still have been proper. See Ford’s Brief
    at 16-21, 23-27 (arguing that Casey did not set forth sufficient evidence to
    identify the allegedly defective box which is fatal to all claims); 
    id. at 21-23
    (arguing that Casey did not present expert testimony); 
    id. at 27-29
    (arguing
    that Casey did not establish that a warning would have caused Casey to act
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    differently, which is fatal to his failure to warn claim); see also Brief of
    Xpedx and Veritiv at 18-19 (arguing that Casey failed to present evidence
    that he actually delivered a Ford replacement part in a Veritiv box on July
    29, 2014); 
    id. at 24-27
    (arguing that the Moyer Report is conclusory and
    inadequate); 
    id. at 27-28
    (arguing that Ford, not Veritiv, designed the
    defective box).
    “On summary judgment, as our governing standard makes clear, all
    doubts are to be resolved in favor of the non-moving party.” K.H. ex rel.
    H.S. v. Kumar, 
    122 A.3d 1080
    , 1109-10 (Pa. Super. 2015).          Here, while
    Appellees present arguments as to why Casey’s case and the Moyer Report
    are weak or should not be believed, we must resolve all doubts in favor of
    Casey as the non-moving party. A jury could believe Casey’s testimony, as
    set forth in his deposition, that he delivered a Ford replacement hood in a
    box with the name Xpedx on it, which malfunctioned and caused his injuries.
    A jury could also credit the Moyer Report, which sets forth that the box was
    defective and did not meet industry standards.       This testimony creates
    genuine issues of material fact, which must be resolved by a jury, and
    preclude summary judgment.7
    Orders reversed. Case remanded. Jurisdiction relinquished.
    ____________________________________________
    7 We recognize that much of Appellees’ argument hinges on the fact that
    Casey’s expert reports were filed late. That issue has not yet been resolved
    by the trial court, and we will not consider it at this juncture. Our standard
    of review requires us to examine the evidence of record; and those late-filed
    expert reports are indeed evidence of record at this time.
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    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 12/17/19
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Document Info

Docket Number: 3698 EDA 2018

Filed Date: 12/17/2019

Precedential Status: Precedential

Modified Date: 12/17/2019