Cade v. McDanel

• Decision Date: 22 August 1996
• Citation: 451 Pa.Super. 368,679 A.2d 1266
• Parties: Peggy Harriet CADE, Appellant, v. Brian Samuel McDANEL and Forrest McDanel, t/d/b/a McDanel Painting, Appellees.
• Court: Pennsylvania Superior Court

Page 1266

679 A.2d 1266

451 Pa.Super. 368

Peggy Harriet CADE, Appellant, v. Brian Samuel McDANEL and Forrest McDanel, t/d/b/a McDanel Painting, Appellees.

Superior Court of Pennsylvania.

Argued April 10, 1996.

Filed June 12, 1996.

Reargument Denied Aug. 22, 1996.

James J. Loll, Beaver, for appellant.

Michael B. Jones, Beaver, for appellees.

Before DEL SOLE, POPOVICH and HOFFMAN, JJ.

POPOVICH, Judge.

This is an appeal from an order of the Court of Common Pleas of Beaver County granting summary judgment in favor of Brian S. McDanel and Forrest McDanel, t/d/b/a/ McDanel Painting, in an action for personal injuries sustained by appellant. The lower court's order was based on its belief that there was insufficient evidence to enable the fact finder to infer that Brian S. McDanel's conduct was the proximate cause of appellant's injuries. On appeal, appellant contends that the lower court erred in granting summary judgment in favor of the appellees.

Specifically, appellant contends the following: 1) The lower court erred as a matter of law in concluding that she failed to present sufficient evidence to enable the fact finder to infer reasonably that Brian S. McDanel's conduct was the cause of her injuries; and 2) The lower court erred as a matter of law in concluding that she failed to present sufficient evidence to support the existence of a master-servant relationship necessary for a finding of vicarious liability. After a careful review of the record, the parties' briefs and the applicable law, we reverse the lower court's order of summary judgment in regard to the issue of causation and remand for proceedings consistent with this opinion. However, we affirm the lower court's order of summary judgment in regard to the issue of vicarious liability.

At the outset of our analysis, we must address the appellees' motion to dismiss this appeal. The appellees argue that we should dismiss appellant's appeal because numerous deficiencies exist substantially hampering our ability to address effectively the merits on appeal. Specifically, the appellees assert that appellant's appeal should be dismissed for the following reasons: 1) Appellant failed to provide this Court with the original, certified transcripts of the depositions taken by her and the appellees; and, 2) Appellant failed to file a designation of the parts of the reproduced record which she intended to present on appeal. We find the appellees' arguments to be meritless, and, accordingly, we deny their motion to dismiss.

We agree with the appellees' assertions that it is appellant's responsibility to supply this Court with a complete record for purposes of review. Pa.R.A.P. 1911(a); Pa.R.A.P. 1921; Smith v. Smith, 431 Pa.Super. 588, 637 A.2d 622 (1993). "[A] failure by ... appellant to insure that the original record certified for appeal contains sufficient information to conduct a proper review constitutes a waiver of the issue[s] sought to be examined." Smith, 637 A.2d at 623-624. This includes supplying this Court with the official transcripts of deposition testimony. See Smith, supra.

A close inspection of the original, certified record in this case discloses that appellant did, in fact, provide this court with the deposition testimony of herself, appellee Brian S. McDanel and Irene Mae Cade. The certified record also includes the affidavits of Sharon L. Whitmore and appellee Forrest McDanel. Clearly, the appellees' contentions to the contrary are incorrect. Accordingly, we find that appellant has fulfilled her obligation under Pa.R.A.P. 1911(a) and 1921, and has provided this Court with a complete, original record sufficient for appellate review.

The appellees also assert that this appeal should be dismissed because appellant failed to file a designation of the parts of the reproduced record which she intended to present on appeal. The appellees allege that appellant's failure to serve them with a copy of the designated reproduced record pursuant to Pa.R.A.P. 2154(a) prevented them from having notice as to the parts of the record upon which appellant relied, and, consequently, they were prejudiced. We find this argument also to be meritless.

In Helms v. Boyle, 431 Pa.Super. 606, 637 A.2d 630 (1994), we held that an appellant's failure to serve a timely designation of the reproduced record did not warrant dismissal where the appellees failed to demonstrate that they were prejudiced by the procedural defect. Likewise, in Downey v. Downey, 399 Pa.Super. 437, 582 A.2d 674 (1990), we refused to dismiss an appeal because of appellant's failure to serve the appellees with a copy of the designated reproduced record. In Downey, we noted that "Pa.R.A.P. 2156 expressly permits ... appellee[s] to file ... [their] own supplemental reproduced record with the court when the parties are unable to cooperate on the preparation of the reproduced record." Id., 582 A.2d at 678. We then further noted that upon realizing that appellant had failed to include a copy of the entire hearing transcript in the reproduced record, the appellees failure to file a supplemental record did not warrant dismissal of the appeal.

Here, once it became apparent to the appellees that the entire transcript was not contained in the reproduced record, the appellees supplemented the record by the addition of the deposition testimony transcripts and other material which they deemed to be relevant. Also, we received a brief from the appellees, and all of the material submitted in the appellees' supplemental reproduced record was contained in the certified record. Accordingly, we fail to see how the appellees were prejudiced by appellant's failure to serve a designation of the reproduced record which she intended to file.

As for the appellees' contention that they incurred substantial costs in filing a supplemental reproduced record and that appellant should be required to reimburse them for their expense, we again note that the certified record contained all of the materials found in the appellees' supplemental reproduced record. See Pa.R.A.P. 2154(a) ("In designating parts of the record for reproduction, the parties shall have regard for the fact that the entire record is always available to the court for reference and examination and shall not engage in unnecessary designation."). In addition, pursuant to Pa.R.A.P. 2156, appellees are required to incur the costs necessary to "prepare, serve and file a supplemental reproduced record." Accordingly, we find this argument to be meritless.

Having concluded that the appellees' motion to dismiss is meritless, we shall address the issues raised by appellant.

Our scope of review is plenary when reviewing the propriety of a lower court's entry of summary judgment. Schriver v. Mazziotti, 432 Pa.Super. 276, 638 A.2d 224, 225 (1994), alloc. denied, 539 Pa. 638, 650 A.2d 52 (1994). We must examine the entire record in the light most favorable to the non-moving party and resolve all doubts against the moving party when determining if there is a genuine issue of material fact. Chrysler Credit Corp. v. Smith, 434 Pa.Super. 429, 643 A.2d 1098, 1100 (1994). We will only reverse the lower court's grant of summary judgment if there is a manifest abuse of discretion. Accu-Weather, Inc. v. Prospect Communications, Inc., 435 Pa.Super. 93, 644 A.2d 1251 (1994). An abuse of discretion occurs "when the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will." Coker v. S.M. Flickinger Co., Inc., 533 Pa. 441, 625 A.2d 1181, 1185 (1993). Summary judgment should be granted "only in cases where the right is clear and free of doubt." Chrysler Credit Corp., 643 A.2d at 1100 (citation omitted). "Summary judgment serves to eliminate the waste of time and resources of both litigants and the courts in cases where a trial would be a useless formality." Liles v. Balmer, 389 Pa.Super. 451, 567 A.2d 691, 692 (1989). In addition, pursuant to Pennsylvania Rule of Civil Procedure 1035(b), summary judgment shall be rendered "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law."

Viewing the record in the light most favorable to appellant, the non-moving party, the record reveals the following pertinent facts: Prior to October 24, 1993, appellant and appellee Brian S. McDanel had been dating for a short period of time. On October 24, 1993, the couple attended a party at a friend's house. Brian drove the couple to the party in his father's 1993 Chevrolet S-10 pickup truck. ¹ While at the party, Brian consumed two mixed drinks and a few beers. The couple left the party around midnight, and Brian began to drive appellant home.

On their way home from the party, appellant repeatedly requested that Brian stop the truck because he was driving too fast. When he failed to do so, she grabbed the gearshift and the truck came to an immediate stop. This angered Brian. While the truck was stopped, he exited it to relieve himself. When Brian returned to the truck, he discovered that appellant had removed the keys from the ignition. Brian demanded that she return the keys to him. When appellant refused to do so, Brian struggled with her and was finally able to retrieve the keys.

Brian then started the truck and continued to drive appellant home. Appellant again requested that Brian "slow down." He did not respond. At this point, appellant was seated straight forward in the passenger's seat with her window in a cracked position. Approximately half an hour later, appellant was ejected from the moving truck from the passenger's side.

Shortly after appellant's ejection from the truck, the police arrived on the scene. The...