Phillips v. James Lock & George Krapf, Jr., & Sons, Inc.

• Decision Date: 28 February 2014
• Citation: 86 A.3d 906,2014 PA Super 38
• Parties: Alvin PHILLIPS and Simone Phillips, H/W, Appellants v. James LOCK and George Krapf, Jr., and Sons, Inc., Appellees.
• Court: Pennsylvania Superior Court

86 A.3d 906

2014 PA Super 38

Alvin PHILLIPS and Simone Phillips, H/W, Appellants

v.James LOCK and George Krapf, Jr., and Sons, Inc., Appellees.

Superior Court of Pennsylvania.

Submitted Dec. 9, 2013.

Filed Feb. 28, 2014.

Rhonda H. Wilson, Philadelphia, for appellants.

Joseph R. Fowler, Philadelphia, for appellees.

BEFORE: SHOGAN, J., OTT, J., and PLATT, J.^*

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.

Stated simply, this case involved a collision on November 6, 2006 between a car, driven by [Appellant] Simone Phillips, and a bus, driven by [Appellee] James Lock. The bus was owned by[,] and Lock was employed by[,] Krapf's Coaches, Inc. (“Krapf Coaches”); Krapf Coaches was not named as defendant [, and Appellants instead named Appellee George Krapf, Jr., and Son's Inc. (Krapf and Sons), as a defendant.]

(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. The trial court denied Appellants' motion for post-trial relief on May 16, 2013. Appellants timely filed ¹ a notice of appeal.²

Appellants present five questions for our review:

I. Whether the trial court erred as a matter of law, abused its discretion and committed reversible error in dismissing a party Appellee and refusal [sic] to remove a non-suit[?]

II. Whether the trial court improperly denied amendment of the complaint[?]

III. Whether the trial court erred as a matter of law, abused its discretion and committed reversible error in excluding Appellant[s]' claims of negligence per se against Appellees[?]

IV. Whether the trial court erred, abused its discretion and committed reversible error in not granting Appellants' judgment notwithstanding the verdict[?]

V. Whether the trial court erred, abused its discretion and committed reversible error in excluding Appellants' evidence[?]

(Appellants' Brief, at 6).³

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:

We view the record in the light most favorable to the nonmoving 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. Our scope of review of a trial court's order granting or denying summary judgment is plenary, and our standard of review is clear: the trial court's order will be reversed only where it is established that the court committed an error of law or abused its discretion.Hogg Const., Inc. v. Yorktowne Med. Ctr., L.P., 78 A.3d 1152, 1154 (Pa.Super.2013) (citation omitted).

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:

It is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others.

... However, our cases do require that the entrustee be causally negligent before the entrustor may be held liable through 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.

Neither are we persuaded by Appellants' argument that the trial court erred in dismissing Krapf and Sons because it did so on the morning of trial. ( See Appellants' Brief, at 14–15). Other than citing authority for conclusory statements in support of their argument, Appellants fail to engage in pertinent discussion, contrary to Pennsylvania Rule of Civil Procedure 2119(a). SeePa.R.A.P. 2119(a) (mandating that appellant shall provide pertinent discussion and citations to authority); ( see also Appellants' Brief, at 14–16). Appellants also fail to provide precise citations identifying on which page this Court can find the legal principles for which they cite the cases. SeePa.R.A.P. 2119(b) (“Quotations from authorities ... shall also set forth the pages from which they are taken.”); ( see also Appellants' Brief, at 14–16).

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...