Opinion
J-A27038-17 No. 690 WDA 2017
01-11-2018
JOHN ESTERLY, JR., Appellant v. SANFORD R. PORTER v. MERCEDES PERRINE
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered May 2, 2017 in the Court of Common Pleas of Crawford County
Civil Division at No(s): No. AD-2014-88 BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J.:
John Esterly, Jr. ("Esterly"), appeals from the Order (1) denying his Motion for entry of judgment in his favor or, in the alternative, for a new trial; and (2) directing the entry of judgment against him and in favor of defendant Sanford R. Porter ("Porter") and additional defendant Mercedes Perrine ("Perrine"). We affirm.
The trial court set forth the factual and procedural background underlying this appeal as follows:
This personal injury action stems from a vehicular accident in Meadville on the morning of Sunday, March 4, 2012, at the driveway of the First Christian Church ("the Church") on the east side of North Main Street Extension (Rt. 86). Porter was driving south on Rt. 86 and attempted to turn into the Church parking lot when his Toyota Camry became immobilized and was struck by a Mercury Mariner driven by Perrine, traveling in the opposite
direction (north on Rt. 86). Perrine's car then struck Esterly's Ford F350 truck, which was parked in the Church driveway. Esterly was sitting in his truck and claims to have suffered a shoulder injury as a result of the impact.Trial Court Opinion, 6/28/17, at 2.
Esterly filed a Praecipe for Writ of Summons against Porter on February 13, 2014, and his Complaint on September 22, 2014. Porter moved on November 3, 2014, to join Perrine as an additional defendant. By Order filed March 4, 2015, Perrine was added as a party solely in regard to Porter's right, if any, to contribution.
On Perrine's [M]otion, and with Porter's approval and Esterly's opposition, trial was bifurcated as to liability and damages. The jury found that Porter was not negligent, thereby removing from its consideration whether Perrine and/or Esterly were negligent, as well as the parties' respective percentages of liability. This also eliminated the need for a damages trial. The verdict was entered on April 12, 2017, and Esterly's timely[-]filed [M]otion for post-trial relief was denied by the Order of May 2, 2017, that he now appeals.
Esterly filed a timely Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.
On appeal, Esterly raises the following issues for our review:
A. Whether the court below erred when it failed to charge the jury that Esterly had met his burden by proving that Porter had skidded across onto the wrong side of the road[,] and that it was Porter's burden to justify his presence on the wrong side of the road without any fault of his own[?]Brief for Appellant at 5.
B. Whether the lower court erred when it ruled that the Complaint lacked sufficient allegations to support a charge of violation of statute or negligence per se[,] and denied Esterly's [M]otion to amend to conform to the evidence[?]
As Esterly's issues are related, we will address them together. In his first issue, Esterly contends that the trial court erred by refusing to instruct the jury regarding negligence per se and violation of statute. Id. at 19-20. Esterly asserts that, when an accident occurs because the defendant was on the wrong side of the road, a presumption of negligence arises. Id. at 21. While Esterly concedes that an exception to the "right side of the road" rule exists for left turns, he nevertheless claims that the trial court failed to shift the burden of proving that exception from Esterly to Porter. Id. at 21-22. Esterly argues that, as soon as he proved that Porter was on the wrong side of the road when the accident occurred, the burden shifted to Porter to prove that his vehicle was there through no negligence of his own. Id. at 22. Esterly asserts that the trial court erred by determining that Esterly offered no evidence of speeding, or what a reasonable and prudent speed would be, and claims that this was an issue of fact to be decided by the jury as part of Porter's burden of proof. Id. at 27-28. Esterly contends that the trial court erred in its interpretation of Bohner v. Stine , 463 A.2d 438 (Pa. Super. 1983), and should not have ignored the legal precedent established therein. Brief for Appellant at 25-26. Esterly claims that the trial court incorrectly distinguished Bohner on the basis that (1) Porter's car had deliberately entered the opposite lane of travel; and (2) Esterly was not an injured motorist driving in the opposite lane. Id. at 28. Esterly points out that Porter claimed that his car had skidded out of control into the opposite lane. Id. at 29. Esterly argues that, "[a]t best, this was a factual matter to be determined by the jury." Id.
In his proposed point for charge No. 4, Esterly sought a jury instruction under Pa.SSJI (Civ) 13.100 Violation of Statute-Negligence Per Se. In his proposed point for charge No. 5, Esterly sought a jury instruction under Pa.SSJI (Civ) 13.240 Justification Defense-Violation of Statute (Modified).
In Bohner , the defendant admitted that his vehicle skidded into the oncoming lane of traffic and struck plaintiff's vehicle. At trial, the jury returned a verdict in favor of the defendant. Bohner , 463 A.2d at 440. In post-trial motions, the plaintiff unsuccessfully argued that the jury was not properly advised that skidding on a wet roadway is not, in and of itself, justification for crossing the center line; and that the trial court's instructions regarding the shifting of the burden of proof to defendant, who had crossed the center line, was misleading. Id. On appeal, this Court reversed and remanded for a new trial, finding that the evidence offered by the defendant at trial, to justify the fact that his vehicle skidded into the oncoming lane of traffic, was insufficient to sustain a finding of no negligence. Id. at 443. The Bohner Court premised its determination upon the legal maxim that a driver crossing the center line of a roadway, and thereafter causing a collision, is negligent per se. Id . The Bohner Court noted that the only evidence offered by the defendant in an attempt to meet his burden of proof was that the road was wet, the car in front of him suddenly slowed down to make a turn, and there were wet leaves in certain places on the road. Id. The Bohner Court found that the condition of the roadway must be considered by a driver regulating his speed and controlling his vehicle. Id. (citing 75 Pa.C.S.A. § 3361). Furthermore, the Bohner Court noted that, under the assured clear distance rule, a driver must have his vehicle under such control, and operate it at such a speed, as to safely stop within the assured clear distance ahead. Id. The Bohner Court pointed to the testimony by the investigating officer that, immediately after the accident, the defendant admitted to panicking and hitting his brakes harder than he had to, thereby losing control of his automobile on the wet roadway. Id. After reviewing the evidence relevant to the reasons for the skidding of defendant's car, the Bohner Court determined that the verdict for the defendant was against the weight of the evidence, and on this basis reversed and remanded for a new trial. --------
In his second issue, Esterly again challenges the trial court's rejection of his request to charge the jury on negligence per se and violation of statute on the basis that these terms were not used in the Complaint. Id. at 35. Esterly contends that the trial court's reading of the Complaint was unduly restrictive, and claims that Porter's negligence was pled in multiple paragraphs of the Complaint. Id. at 35-36. Esterly further contends that the trial court erred by denying his claim that Porter had waived any objection to Esterly's request to charge the jury on negligence per se and violation of statute by failing to raise an objection at the commencement of the case. Id. at 36-37. Finally, Esterly asserts that the trial court erred by "denying [his M]otion to amend the Complaint and allow a charge for negligence per se under the 'wrong side of the road' cases ...." Id. at 39.
When reviewing a trial court's denial of a jury charge in a civil case, an appellate court must examine the trial court's instruction in its entirety, against the background of all evidence presented, to determine whether an error has been committed. Buckley v. Exodus Transit & Storage Corp., 744 A.2d 298, 305 (Pa. Super. 1999). A jury charge is proper unless, as a whole, it is "inadequate, unclear, or has a tendency to mislead or confuse the jury...." Id. at 305-06. Trial courts are not required to use the language of requested jury charges, but may utilize different formulations so long as they "adequately and clearly" cover their subjects. Id. at 306. The court may refuse to submit for the jury's consideration a point for charge that is not strictly in accordance with the facts in evidence or the law in the case. Id.
As to charge for negligence per se, it may be required when it is shown that an individual violates a statute intended to prevent public harm, but while this establishes the elements of duty and breach, a plaintiff must still show that such negligence was the proximate cause of the injury suffered. See Mahan v. Am-Gard , Inc., 841 A.2d 1052, 1058-59 (Pa. Super. 2003).
Our standard of review of a trial court's order denying a plaintiff leave to amend its complaint, ... permits us to overturn the order only if the trial court erred as a matter of law or abused its discretion. The trial court enjoys "broad discretion" to grant or deny a petition to amend. Amendment of pleadings is governed by Pa.R.C.P. 1033, which provides: "[a] party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading."The Brickman Grp., Ltd. v. CGU Ins. Co., 865 A.2d 918, 926-27 (Pa. Super. 2004) (internal citations omitted). Further, the Pennsylvania Supreme Court has held "the right to amend should be liberally granted at any stage of the proceedings unless there is an error of law or resulting prejudice to an adverse party." Werner v. Zazyczny , 681 A.2d 1331, 1338 (Pa. 1996) (quoting Connor v. Allegheny Gen. Hosp., 461 A.2d 600, 602 (Pa. 1983)). However, "where a party will be unable to state a claim on which relief could be granted, leave to amend should be denied." The Brickman Grp., supra , 865 A.2d at 927.
In its Opinion, the trial court addressed Esterly's issues, set forth the relevant law, and determined that the issues lack merit. See Trial Court Opinion, 6/28/17, at 11-15. We agree with the reasoning of the trial court, which is supported by the record and free of legal error, and affirm on this basis as to Esterly's issues. See id.
Judgment affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/11/2018
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