OPINION BY PLATT, J.
Appellants, Alvin Phillips and Simone Phillips, husband and wife, appeal from the judgment entered on July 3, 2013. After thorough review, we affirm.
The facts of the case are as follows.
(Trial Court Opinion, 7/23/13, at 1). In its answer to the amended complaint, Appellees denied that Krapf and Sons owned the bus driven by Appellee Lock. (See Answer to Second Amended Complaint, 6/23/08, at 2 ¶ 6).
At his March 16, 2009 deposition, Appellee Lock testified that Krapf Coaches paid him and had different offices than Krapf and Sons. (See N.T. Lock Deposition, 3/16/09, at 14-15). During his September 2, 2009 deposition, Robert Morris, the CFO of Krapf and Sons, testified that Krapf Coaches and Krapf and Sons were separate and distinct corporations with different corporate officers and different businesses, with Krapf and Sons supplying school buses to customers and Krapf Coaches supplying motor coaches and minibuses. (See N.T. Morris Deposition, 9/02/09, at 5-6, 24-25). He also confirmed that Appellee Krapf Coaches employed Appellee Lock. (See id. at 8).
Vigorous pre-trial motions practice ensued until, on January 8, 2013, during jury selection, Appellants moved to amend their complaint to name Krapf Coaches and, in response, Appellees moved for a non-suit as to Krapf and Sons. The trial court denied Appellants' motion to amend and granted Appellees' motion, dismissing Krapf and Sons as a defendant.
The jury returned a verdict on January 16, 2013, finding that Appellee Lock was not negligent in the motor vehicle accident.
Appellants present five questions for our review:
(Appellants' Brief, at 6).
Appellants' first issue challenges the trial court's grant of Appellees' motion for a non-suit and dismissal of defendant Krapf and Sons. (See Appellants' Brief, at 14-16). Appellants' issue lacks merit.
Preliminarily, we agree with Appellants that "[w]here a court enters a nonsuit prior to trial, the action would be [considered] either a [grant of] summary judgment or judgment on the pleadings[,]" not of non-suit. (See id. at 14 (citing Gallagher v. Harleysville Mut. Ins. Co., 421 Pa.Super. 192, 617 A.2d 790 (1992), appeal denied, 535 Pa. 620, 629 A.2d 1381 (1993))).
Accordingly, because Appellees moved for the dismissal of Krapf and Sons on the basis of the record, (see N.T. Trial, 1/15/13, at 15 (Appellees' counsel arguing that "[t]here is no evidence on the record whatsoever that Mr. Lock was an employee of [Krapf and Sons]")), we will treat the trial court's dismissal of Krapf and Sons as the grant of summary judgment. See Gallagher, supra at 796. Our standard of review of the grant of a motion for summary judgment is well-settled:
Here, Appellants asserted claims against Krapf and Sons for negligent entrustment and "based upon the principle of responde[a]t superior in that [Appellee] James Lock was the agent, workman, employee or servant of [Appellee Krapf and Sons]." (Second Amended Complaint, 5/27/08, at 6 ¶ 23; see also id. at 7 ¶ 24).
We have long-held that: "Under the doctrine of respondeat superior recovery is sought on the basis of vicarious liability. An employer is vicariously liable for the wrongful acts of an employee if that act was committed during the course of and within the scope of employment." Brezenski v. World Truck Transfer, Inc., 755 A.2d 36, 39 (Pa.Super.2000) (citation omitted).
Under the theory of negligent entrustment:
Christiansen v. Silfies, 446 Pa.Super. 464, 667 A.2d 396, 400 (1995), appeal denied, 546 Pa. 674, 686 A.2d 1307 (1996) (citing Restatement (Second) of Torts § 308).
In this case, the record established that, on June 23, 2008, in their answer to Appellants' complaint, Appellees denied that Krapf and Sons owned the vehicle driven by Lock on the day of the subject accident. (See Answer and New Matter, 6/23/08, at 2 ¶ 6). Indeed, at his deposition, Lock testified that Krapf Coaches, not Krapf and Sons, paid him. (See N.T. Lock Deposition, 3/16/09, at 13). He further stated that Krapf Coaches is not located at the address where Appellants served Krapf and Sons. (See id. at 14 (identifying Krapf Coaches' address as 1030 Andrew Drive, West Chester, PA; Complaint, 5/27/08, at 1 ¶ 4 (identifying Krapf and Sons' address as 495 Thomas Jones Way, Suite 300, Exton, PA 19341))).
Also, on September 2, 2009, Appellants deposed Robert Morris, chief financial officer (CFO) of Krapf and Sons. (See N.T. Morris Deposition, 9/02/09, at 4). Mr. Morris testified that Krapf Coaches and Krapf and Sons were separate and distinct corporations with different corporate officers. (See id. at 5-6). He also explained that the corporations engaged in different businesses, with Krapf Coaches operating motor coaches and minibuses and Krapf and Sons operating school buses. (See id. at 24-25). Mr. Morris confirmed that Mr. Lock was employed by Krapf Coaches, not Krapf and Sons. (See id. at 8).
Indeed, when Appellees moved to dismiss Krapf and Sons, Appellants failed to identify any evidence of record creating liability on behalf of Krapf and Sons. (See N.T. Argument, 1/08/13, 15-16). Instead, they made a procedural argument against the dismissal Krapf and Sons on the morning of trial. (See id.). Accordingly, where the record establishes that Krapf and Sons was not Mr. Lock's employer and did not entrust the vehicle that he was operating at the time of the accident to him, we conclude that the trial court did not commit an abuse of discretion or error of law in dismissing Krapf and Sons as a defendant in this matter. See Hogg Const., supra at 1154.
Additionally, the cases on which Appellants rely are distinguishable from the case before us. For example, Appellants argue that the Pennsylvania Supreme Court, in Cagnoli v. Bonnell, 531 Pa. 199, 611 A.2d 1194 (1992), "reversed a similar dismissal by the trial court in that case." (Id. at 14). This allegation lacks merit, because, in that negligence action, immediately before trial, the appellees moved for admissions or to dismiss for the appellant's procedural failure to respond to their new matter. See Cagnoli, supra at 1195. This is distinguishable from the case at bar where Appellees moved to dismiss, not based on the pleadings, but instead on the undisputed evidence of record. (See N.T. Argument, 1/08/13, at 15 ("There is no evidence on the record whatsoever that Mr. Lock was an employee of [Krapf and Sons]. And, in fact, he is an employee of Krapf Coaches[.]")).
Appellants also rely on DiGregorio v. Keystone Health Plan East, 840 A.2d 361 (Pa.Super.2003) (en banc), in support of their argument that, "[u]nless the trial court has the benefit of a fully-developed record and the non-moving party has had a full opportunity to respond, the trial court should not entertain a motion for summary judgment on the day of trial." (Appellants' Brief, at 15 (citing DiGregorio, supra at 361)).
In DiGregorio, this Court examined the coordinate jurisdiction rule. See DiGregorio, supra at 361. There, the appellees moved to dismiss the complaint on the basis that the appellants lacked a viable cause of action. See id. at 364. The pre-trial motions court denied the motion without a hearing or any further discussion. See id. On the morning of trial, the appellees again raised the motion to dismiss issue and a second court, namely the trial court, granted the appellees' motion based on the record. See id. at 365. The appellants appealed, arguing that the coordinate jurisdiction rule precluded the trial court from granting a motion to dismiss where the pre-trial court had denied such a motion. See id. In considering the appeal, this Court observed:
Id. at 367 (citation omitted).
Here, however, Appellants identify no such prejudice because they do not seek to advance any argument about the motion
In their second issue, Appellants argue that the trial court improperly denied their motion to amend the complaint "to properly name the Appellees' [sic] employer." (Appellants' Brief, at 16). Specifically, Appellants claim that "[t]he parties substitution here was for all practical purposes substitution of a division of the same legal entity." (Id. at 17). This issue lacks merit.
Our standard of review of Appellants' claim is well-settled.
TCPF Ltd. P'ship v. Skatell, 976 A.2d 571, 574 (Pa.Super.2009) (citations and quotation marks omitted).
Pursuant to Pennsylvania Rule of Civil Procedure 1033, "[a] party, either by filed consent of the adverse party or by leave of the court, may at any time change the form of action, correct the name of a party or amend the pleading." Pa.R.C.P. 1033. However "[a] plaintiff may not amend a pleading to add a new and distinct party once the statute of limitations has expired." Kincy v. Petro, 606 Pa. 524, 2 A.3d 490, 497 (2010) (citation omitted); see also Tork-Hiis v. Commonwealth, 558 Pa. 170, 735 A.2d 1256, 1259 (1999) (concluding that a suit against the Commonwealth could not be amended to substitute a Commonwealth agency or employee after the statute of limitations had expired).
Jacob's Air Conditioning & Heating v. Associated Heating & Air Conditioning, 366 Pa.Super. 430, 531 A.2d 494, 496 (1987) (citations omitted).
In the case sub judice, Appellants sought to add Krapf Coaches as a defendant on the morning of trial, after the statute of limitations had expired, although they had known since at least March 16, 2009 that Krapf Coaches employed Appellee
Also, despite Appellants' argument to the contrary, (see id. at 16-17), this case does not present a situation like the one in Powell v. Sutliff, 410 Pa. 436, 189 A.2d 864 (1963). In Powell, the plaintiff identified the defendant as a partnership, later learned it was a corporation, and the trial court permitted the correction of this designation because "the proposed amendment merely seeks to correct the designation of that business entity," which already was a party. Powell, supra at 865. Here, Appellants sought to add a wholly new, separate, and distinct business entity.
Therefore, we conclude that the trial court did not abuse its discretion in denying Appellants' motion to substitute a new and distinct party defendant on the morning of trial after the statute of limitations had run. See TCPF, Ltd., supra at 574.
In their third issue, Appellants claim that the trial court erred in declining to give their proposed jury charge regarding negligence per se based on Appellee's violation of sections 3310 and 3361 of the Vehicle Code. (See Appellants' Brief, at 19); see also 75 Pa.C.S.A. §§ 3310, 3361. Appellants' issue lacks merit.
Our standard of review is well-settled:
Smith v. Morrison, 47 A.3d 131, 134-35 (Pa.Super.2012), appeal denied, 618 Pa. 690, 57 A.3d 71 (2012) (citations and quotation marks omitted).
Section 3310 of the Vehicle Code, following too closely, provides, in pertinent part: "The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of the vehicles and the traffic upon and the condition of the highway." 75 Pa.C.S.A. § 3310(a). Section 3361, driving vehicle at safe speed, states:
75 Pa.C.S.A. § 3361.
Here, Appellants provided the trial court with suggested civil jury instruction 13.80, negligence per se — violation of statute.
This jury instruction more than adequately instructed the jury about the law, as related to sections 3110(a) and 3361 of the Vehicle Code. See 75 Pa.C.S.A. §§ 3310(a), 3361.
In their fourth issue, Appellants argue that the trial court erred in denying their motion for judgment notwithstanding the verdict (JNOV) or for a new trial on the basis that the verdict was against the weight of the evidence. (See Appellants' Brief, at 28, 29). This issue is waived and would not merit relief.
Post-trial relief may not be granted unless the grounds therefore, if available, were raised by an appropriate method at trial. See Pa.R.C.P. 227.1(b)(1). "While the opportunity to move for JNOV typically is preserved by the filing of a motion for a directed verdict ... the right to seek JNOV likewise is preserved if the moving party requests and is denied a binding jury instruction." Thomas Jefferson University v. Wapner, 903 A.2d 565, 570 (Pa.Super.2006) (citing Pa.R.C.P. 227.1(b)(1) and Hayes v. Donohue Designer Kitchen, Inc., 818 A.2d 1287, 1291 n. 4 (Pa.Super.2003)).
Here, Appellants concede that they did not request a binding instruction. (See Appellants' Brief, at 28). Additionally, they fail to claim, and our review of the record does not reveal, that they moved for a directed verdict at the close of the evidence. See Pa.R.C.P. 226(b); (see also N.T. Trial, 1/15/13, at 143). Accordingly, the trial court properly found that Appellants waived their post-trial motion for a JNOV. (See Trial Ct. Op., at 2); see also Thomas Jefferson University, supra at 570.
Additionally, regarding Appellants' weight of the evidence challenge, we observe that in their post-trial motion, they appear to confuse sufficiency and weight of the evidence in that they titled their issue as a sufficiency challenge, but then argued that the jury verdict was "against the weight of the evidence." (Post-Trial Motion, 1/25/13, at 20). Also, a review of their post-trial brief reveals that they did not expressly argue that they were entitled to a new trial, but they summarily sought one on the basis of the trial court's evidentiary rulings, not because the jury verdict was against the weight of the evidence. (See Memorandum in Support of Post-Trial Motion, 1/23/13, at 3-17). Therefore, the weight of the evidence argument is waived. See In re Estate of
Moreover, Appellants' fourth issue challenging the denial of a JNOV or a new trial would not merit relief. (See Appellants' Brief, at 28, 29).
Our standard of review of the denial of a JNOV is well-settled:
Empire Trucking Co. v. Reading Anthracite Coal Co., 71 A.3d 923, 932 (Pa.Super.2013) (citations and quotation marks omitted).
Similarly, our standard of review of weight of the evidence claims is equally well-established:
Smaling, supra at 490-91 (citations omitted).
Here, the trial court addressed both the JNOV and the motion for a new trial and found:
(Trial Ct. Op., at 2 (record citation formatting provided)).
We agree with the reasoning of the trial court and will not re-weigh the evidence. See Smaling, supra at 490-91. Accordingly, based on the foregoing and our own independent review of the record, we conclude that the trial court did not abuse its discretion or commit an error of law when it found that Appellants were not entitled to a JNOV or a new trial on the basis of the weight of the evidence. See id.; Empire Trucking Co., supra at 932. Therefore, even if Appellants had not waived their fourth issue, it would not merit relief.
In their fifth issue, Appellants challenge three different evidentiary decisions by the trial court under the general argument that "the court erred in excluding evidence that would have supported Appellant[s'] claims." (Appellants' Brief, at 21). This issue lacks merit.
Our standard of review of a trial court's decision to admit or exclude evidence is well-settled:
Stumpf v. Nye, 950 A.2d 1032, 1035-36 (Pa.Super.2008), appeal denied, 599 Pa. 711, 962 A.2d 1198 (2008) (citation and quotation marks omitted).
Preliminarily, we observe that:
Commonwealth v. Baker, 963 A.2d 495, 502 n. 5 (Pa.Super.2008), appeal denied, 606 Pa. 644, 992 A.2d 885 (2010). Further, "it is not the responsibility of this Court to scour the record to prove that an appellant has raised an issue before the trial court, thereby preserving it for appellate review." Id. at 502 n. 6 (citations omitted).
In this case, neither Appellants' statement of the case nor the argument section of their brief contains a specific "statement of place of raising or preservation of [his fifth] issue[, including the specific evidentiary challenges contained therein]" and it is not this Court's responsibility to scour the voluminous certified record, or the 2,351 page reproduced record, to prove that Appellants preserved their claims. Pa.R.A.P. 2117(c); see Baker,
Appellants first argue that the trial court erred in excluding, on the basis of hearsay, a police report that contained Appellant Simone Phillips' statements at the accident scene. (See Appellants' Brief, at 21-22). Specifically, they argue the report was admissible pursuant to Pennsylvania Rule of Evidence 803(8) and under the official records exception to the hearsay rule found at 42 Pa.C.S.A. § 6104(a), (b). We disagree.
First, we observe that Appellants did not raise any argument regarding Rule 803(8) or 42 Pa.C.S.A. § 6104 in their post-trial motion. (See Post-Trial Motion, 3/25/13, at 13-14) (arguing physician expert, Dr. Perry Black's, testimony about Appellant Simone Phillips' condition after accident as evidenced by statements recorded in police report admissible on the basis of Rules of Evidence 702-705, 803(4) and (5)). Therefore, this argument is waived on this basis as well. See Beckner v. Copeland Corp., 785 A.2d 1003, 1006 (Pa.Super.2001), appeal denied, 213 Conn. 548, 569 A.2d 518 (2002) ("Grounds not specified in a post-trial motion are deemed waived.") (citation omitted). Moreover, it would not merit relief.
Section 3751 of the Vehicle Code specifically provides that a police report "shall not be admissible as evidence in any action for damages ... arising out of a motor vehicle accident." 75 Pa.C.S.A. § 3751(b)(4). Additionally, "[a] police report prepared by an officer who is not a witness to the accident is inadmissible hearsay evidence and should not be admitted into evidence. Nor should a party be able to get such a report into evidence in an indirect manner." Rox Coal Co. v. WCAB (Snizaski), 570 Pa. 60, 807 A.2d 906, 914 (2002) (citations omitted).
Here, the author of the subject police report, Officer Roy Larue, arrived at the scene after the accident had occurred. (See Police Accident Report, 11/06/06, at 2 (noting that officer dispatched to scene where motor vehicle accident had occurred)). Accordingly, because the officer did not witness the accident, the trial court did not abuse its discretion when it precluded the police officer's report as inadmissible hearsay. See 75 Pa.C.S.A. § 3751(b)(4); see also Stumpf, supra at 1035-36. This argument would lack merit.
Appellants next claim that another physician expert, Dr. Sara Marks Tabby, should have been permitted to testify to "records reviewed from the Social Security Administration Disability Award record and from the disability provider MetLife." (Appellants' Brief, at 23). This argument would lack merit.
On December 28, 2012, Appellees moved to preclude evidence relating to Appellant Simone Phillips' disability on the bases that she received a disability award on December 15, 2008 for a C7 radiculopathy and trigeminal neuralgia, that the report
Appellants argue that the trial court erred in granting Appellees' motion and precluding the Social Security Disability Award information because it was admissible under Pennsylvania Rules of Evidence 803(3) and (4). (See Appellants' Brief, at 24). We disagree.
Pennsylvania Rule of Evidence 803 provides, in pertinent part:
Pa.R.E. 803(3), (4).
Turning first to the exception found at Rule 803(3), we observe that the subject motor vehicle accident occurred on November 6, 2006. On December 15, 2008, the social security administrative law judge determined that Appellant Simone Phillips "has been under a disability ...
Next, we review Appellants' claim that the Social Security disability report falls under Pennsylvania Rule of Evidence 803(4) and that Dr. Tabby should have been allowed to testify about it because it is the type of report on which she usually relies. (Appellants' Brief, at 23-24). We disagree.
It is well-settled that:
Commonwealth v. Smith, 545 Pa. 487, 681 A.2d 1288, 1291 (1996) (citations, quotations marks, and footnote omitted).
We observe that Appellant Simone Phillips appeared at an administrative hearing where the legal "issue [was] whether the claimant is disabled under Section 216(i) and 223(d) of the Social Security Act." (Social Security Decision, 12/15/08, at 1). Any statements she made were for the determination of disability, not "for the purpose of receiving medical treatment," nor is the report "necessary and proper for diagnosis and treatment." Smith, supra at 1291. Accordingly, the medical treatment exception to the hearsay rule does not apply to the Social Security Decision. See id.
Additionally, Appellants could not make the inadmissible hearsay report and the statements therein admissible by introducing it through Dr. Tabby. See Woodard v. Chatterjee, 827 A.2d 433, 444 (Pa.Super.2003) (holding that expert may not act as "mere conduit or transmitter of the content of the extrajudicial source.") (citation omitted).
Next, Appellants argue that they should have had "the opportunity to question" witnesses from Krapf and Sons about "the hiring, training and retraining of Appellee driver James Lock, their entrustment of the vehicle that was operated by Appellee driver James Lock, at the time of the accident" and the "specifications as to the vehicle." (Appellants' Brief, at 25). We disagree.
Preliminarily, we observe that Appellants did not assert any causes of action for negligent hiring, training, or retention. (See Second Amended Complaint, 5/27/08, at 1-8). Therefore, any such claims were barred by the statute of limitations and Appellants could not add new theories of liability at trial. See Kincy, supra at 497.
Also, "a claim of corporate negligence... requires that in cases where a [corporation's] negligence is not obvious, a plaintiff must establish through expert testimony that a [corporation's] acts deviated from an accepted standard of care and that the deviation was a substantial factor in causing plaintiff's harm." Matthews v. Clarion Hosp., 742 A.2d 1111, 1112 (Pa.Super.1999) (citation omitted). However, a review of the record reveals that Appellants did not identify any experts or other evidence in support of a claim of negligent entrustment.
Judgment affirmed.
(Appellants' Suggested Points for Charge, at 55 (citing Pa. S.S.J.I. (Civ.) 13.80)).