Lux v. Gerald E. Ort Trucking, Inc.

• Decision Date: 02 December 2005
• Citation: 887 A.2d 1281
• Parties: James U. LUX, Appellant v. GERALD E. ORT TRUCKING, INC., Ort Trucking, Inc., Simon Transportation Services Inc., R. and F. Miller, Inc., Samuel Thomas Knight, Eddie C. Roberts, Jamie Harvey Parker, and Pennsylvania Department of Transportation, Appellees.
• Court: Pennsylvania Supreme Court

887 A.2d 1281

James U. LUX, Appellant v. GERALD E. ORT TRUCKING, INC., Ort Trucking, Inc., Simon Transportation Services Inc., R. and F. Miller, Inc., Samuel Thomas Knight, Eddie C. Roberts, Jamie Harvey Parker, and Pennsylvania Department of Transportation, Appellees.

Superior Court of Pennsylvania.

Argued September 20, 2005.

Filed December 2, 2005.

COPYRIGHT MATERIAL OMITTED

Jeffrey R. Owen, Pittsburgh, for appellant.

Michael J. Panichelli, Philadelphia, for Parker, appellee.

Before: ORIE MELVIN, McCAFFERY and POPOVICH, JJ.

POPOVICH, J.

¶ 1 Appellant James U. Lux appeals from the judgment entered on January 14, 2005, marking the case settled and discontinued against Gerald E. Ort Trucking, Inc., Simon Transportation Services Inc., R. and F. Miller, Inc., Samuel Thomas Knight, Eddie C. Roberts, and Pennsylvania Department of Transportation. On appeal, Appellant contends that the trial court erred in granting Appellee Jamie Harvey Parker's preliminary objections in the nature of a demurrer and dismissing Appellee from the case. Upon review, we affirm.

¶ 2 This case arises from two collisions that occurred on October 24, 2000, on Interstate Route 80 between the cities of DuBois and Clearfield. The first accident occurred when a truck driven by Eddie C. Roberts collided with a truck being driven by Appellee. Roberts had fallen asleep at the wheel while driving at an excessive speed. Appellee then fled the scene. Appellant, a DuBois police officer, was dispatched to the accident scene to assist with emergency services and provide assistance. A state police officer, who was securing the scene of the accident, then left upon learning that Appellee was at a nearby truck stop.

¶ 3 During the state police officer's absence, Samuel Knight, who was also driving a truck on Route 80, fell asleep at the wheel while traveling at an excessive speed. He collided with Appellant's rescue vehicle. Appellant and three volunteer firemen who were passengers in Appellant's vehicle were severely injured. As a result of the second accident, Appellant suffered severe injuries, including spinal cord damage that resulted in paralysis.

¶ 4 Appellant commenced suit against various parties of the first and second accidents, including Appellee. In the complaint, Appellant sets forth the following against Appellee:

28. Appellant alleges that Appellee was negligent:

a. In operating his 1998 International Truck and attached cargo trailer without a driver's license;

b. In operating his vehicle at a dangerously slow speed;

c. In failing to display and utilize the proper safety warning apparatus upon his vehicle;

d. In fleeing the scene of the first collision, without identifying himself, and in doing so spreading the field of collision debris across a greater area than that caused by the initial collision;

e. In fleeing the scene of the first collision, and causing law enforcement officials at the scene of the first collision to be required to leave the scene of the first collision in order to apprehend and arrest him, thus diverting them from activities in securing and safeguarding the scene of the first collision;

f. In failing to operate his vehicle in a safe and prudent manner considering the circumstances existent at the time of the first collision;

g. In operating his vehicle when he was not fit and competent to do so;

h. In driving in a careless and reckless fashion;

29. The negligence of Appellant was a substantial factor in causing the first and second collisions described above, and thus was a substantial factor in causing the serious injuries suffered by the Appellant.

Appellant's complaint, 4/3/01, at 8-9, ¶ 28-29.

¶ 5 On May 14, 2001, preliminary objections in the nature of a demurrer were filed by Roberts and R & F Miller, Inc., the owner of the truck he had driven. Appellee joined in these preliminary objections on August 10, 2001. On August 22, 2001, Roberts and R & F Miller's preliminary objections were dismissed. Appellee's preliminary objections were granted on October 1, 2001. Appellant filed a motion to reconsider, which was denied by the trial court on January 4, 2002. Appellant filed a motion with the trial court to certify the order granting the preliminary objections as an appealable interlocutory order pursuant to Pa.R.A.P. 1311. The trial court denied the motion.

¶ 6 Subsequently, Appellant's claims against the remaining defendants were settled or were discontinued. The trial court entered an order on January 14, 2005, stating that the matter of Appellee's preliminary objections was rendered final and appealable by the dismissal of all other parties from the action. Appellant filed an appeal on February 2, 2005. The trial court did not enter an order requiring the filing of a statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b); however, it previously had filed an opinion on October 1, 2001, stating its reasons for granting Appellee's preliminary objections. It also authored an opinion on January 4, 2002, denying Appellant's motion to reconsider its October 1, 2001 order.

¶ 7 Appellant presents two issues for our review:

1. Did the trial court err in granting [Appellee's] preliminary objections, and invade the province of the jury in determining factual issues, by ruling, as a matter of law, that the allegations of Parker's intentional and negligent acts were not a legal cause of the accident which resulted in the severe injuries and paralysis of [Appellant]?

2. Did the trial court err, in ruling as a matter of law, that [Appellant] did not state a cause of action in tort for [Appellee's] driving an eighteen wheeler semi-truck without a license, driving in a negligent manner, and intentionally fleeing the scene of a night time multi-truck interstate highway accident that Parker was involved in, causing the lone police trooper securing the accident scene to leave the scene to pursue and arrest Parker, thereby leaving the accident scene unsecured and permitting an emergency vehicle occupied by [Appellant] to be struck by another truck?

Appellant's brief, at 3.

¶ 8 Appellant claims the trial court erred in granting Appellee's preliminary objections in the nature of a demurrer. Preliminary objections in the nature of a demurrer test the legal sufficiency of the plaintiff's complaint. Grose v. P & G Paper Prods. (In re Grose), 866 A.2d 437, 440 (Pa.Super. 2005) (citations omitted) (quotation marks omitted). The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Id., 866 A.2d at 440. Accepting all material averments as true, we must determine whether the complaint adequately states a claim for relief under any theory of law. Id., 866 A.2d at 440.

¶ 9 On appeal, Appellant contends that his complaint states a claim for relief. He argues that Appellee was negligent in causing the first accident by driving his vehicle without a license at a dangerously slow speed and by failing to use his flashers. Appellant's brief, at 10. He states that this is a deviation from the standard of care expected under the circumstances and that this deviation proximately caused the actual harm suffered by Appellant. Appellant's brief, at 10.

¶ 10 Appellant alleges that Appellee's actions were a substantial factor in causing the second accident. He argues Appellee fled the scene of the first accident, which is a violation of the Pennsylvania "hit and run" statute. 75 Pa.C.S.A. §§ 3741-3755. Appellant's complaint, 4/3/01, at 8-9, ¶ 28. Appellant argues that Appellee did not substantially comply with the statute and, therefore, is negligent per se. Appellant's brief, at 13.

¶ 11 Appellant alleges that as a result of Appellee's flight, he caused the state police officer to leave the scene of the accident and, thereby, removed a layer of protection for Appellant. He contends that this resulted in a tangible and objective increase in the level of danger to which he was exposed. Appellant's brief, at 14.

¶ 12 Further, he alleges Appellee's flight resulted in a greater field of debris being spread over the Interstate, which lengthened the period of time required to clean up after the initial collision and, thus, increased the period of Appellant's exposure to harm. Appellant's brief, at 17.

¶ 13 When reviewing a trial court's order sustaining preliminary objections in the nature of a demurrer and dismissing a suit, our scope of review is plenary. Donahue v. Federal Express Corp., 753 A.2d 238, 241 (Pa.Super. 2000). We apply the same standard employed by the trial court, i.e., all material facts set forth in the complaint, as well as all inferences reasonably deducible therefrom, are admitted as true for the purposes of review. DeMary v. Latrobe Printing & Publ'g Co., 762 A.2d 758, 761 (Pa.Super. 2000). Where affirmance of the trial court's order sustaining preliminary objections would result in the dismissal of an action, we may do so only when the case "is clear and free from doubt." Donahue, 753 A.2d at 241. To be "clear and free from doubt" that dismissal is appropriate, it must appear with certainty that the law would not permit recovery by the plaintiff upon the facts averred. Id., 753 A.2d at 241. Any doubt should be resolved by a refusal to sustain the objections. Id., 753 A.2d at 241.

¶ 14 With respect to Appellant's first issue, that Appellee was negligent in causing the first accident by driving his vehicle without a license at a dangerously slow speed and failing to use his flashers, the relevant law on negligence is not disputed.

In trying to recover for an action in negligence, a party must prove four elements. They are:

1. A duty or obligation recognized by law.

2. A breach of the duty.

3. Causal connection between the actor's breach of the duty and the resulting injury.

4. Actual loss or damage suffered by complainant.

Reilly v. Tiergarten, Inc., 430 Pa.Super. 10, 633 A.2d 208, 210 (1993) (emphasis...