Sellers v. Twp. of Abington

• Citation: 67 A.3d 863
• Parties: Celeste SELLERS and Richard K. Sellers, Individually and as Administrators of the Estate of Joshua David Sellers, Deceased, Appellants v. TOWNSHIP OF ABINGTON and Abington Township Police Department.
• Decision Date: 05 June 2013
• Court: Commonwealth Court of Pennsylvania

67 A.3d 863

Celeste SELLERS and Richard K. Sellers, Individually and as Administrators of the Estate of Joshua David Sellers, Deceased, Appellants

v.TOWNSHIP OF ABINGTON and Abington Township Police Department.

Commonwealth Court of Pennsylvania.

Argued Dec. 12, 2012.

Decided June 5, 2013.

Selah Wyche, Jenkintown, for appellants.

Charles W. Craven, Philadelphia, for appellee Township of Abington.

BEFORE: PELLEGRINI, President Judge, and LEADBETTER, Judge, and SIMPSON, Judge, and LEAVITT, Judge, and BROBSON, Judge.

OPINION BY Judge LEADBETTER.

Celeste Sellers and Richard K. Sellers, individually and as administrators of the estate of Joshua David Sellers, decedent (Appellants), appeal from the order of the Court of Common Pleas of Montgomery County, which granted the Motion for Summary Judgment of Abington Township, Officer Edward Howley, and Lieutenant Karl Knott (collectively Appellees) and dismissed Appellants' action with prejudice. For the reasons that follow, we affirm.

The following is a summary of the evidence of record. On the evening of December 23, 2006, Scott Simons (Simons), Matthew Senger (Senger), and Joshua Sellers (decedent), met at the house of a mutual friend in the area of Jenkintown Road, Abington Township. Deposition of Scott Simons (Simons Dep.) at 33; Reproduced Record (R.R.) at 477a and Deposition of Matthew Senger (Senger Dep.) at 16; R.R. at 508a. Simons testified that they were getting together one last time before their friends who lived at the house were evicted as a result of an incident at the residence in November 2006.¹ Simons admitted that he had been drinking all day, first at his aunt's home and then at his father's apartment, but that he did not drink at the Jenkintown Road residence because they had no beer or alcohol.² Senger, however, testified that he drank beer while at the Jenkintown Road residence and that both Simons and decedent also drank beer while there. Senger Dep. at 16–17; R.R. at 508a–509a.

At some point in the early morning hours of December 24, 2006, both Senger and decedent asked Simons for a ride home. Simons agreed to drive Senger home because Senger lived only a few doors away from his apartment, and it was agreed that decedent would sleep at Simons' apartment, since decedent lived too far away. Simons Dep. at 40; R.R. at 479a; Senger Dep. at 18; R.R. at 510a. Simons testified this was not the first time he had gotten behind the wheel of his car and drove drunk with his friends following a night out drinking.³ Simons Dep. at 39–40; R.R. at 479a. Senger was in the front passenger seat and decedent climbed into the back rear passenger seat. Simons stated that he did not fasten his seatbelt and that neither Senger nor decedent fastened their seatbelts either. Id. at 44; R.R. at 480a.

Simons testified that he was driving west on Jenkintown Road at between 40 and 45 mph in a 30 mph zone when he saw a police car approach going east and pass him.⁴ Simons saw the police vehicle's lights activate and in his rearview mirror he saw the vehicle make a U-turn in a parking lot and proceed to follow him westbound on Jenkintown Avenue. Id. at 18–19, 26, 44–45; R.R. at 474a, 476a, and 480a. Simons admitted that at that point, instead of pulling over, he floored it, because he was “[s]cared of getting a DUI.” Id. at 18; R.R. at 474a.⁵ Senger testified that when Simons floored it, he was shoved back into his seat, and at the time, he did not know why Simons floored it, because he (Senger) did not see any police vehicle. Senger estimated Simons' speed at “[w]ell over a hundred” as they “flew down Jenkintown Road” before turning right onto Garfield and up to his house. Id. at 29, 34; R.R. at 521a, 526a. Senger explained that as he was saying good bye and trying to get out, Simons said something that made him look behind him, where he saw the reflection of police lights on the houses. Senger stated that Simons “floored it again” and he remembered “flying down the street, and ... [Simons] shutting his lights off....” Id. at 29, 31; R.R. at 521a, 523a. Senger testified he asked Simons to slow down and that he smacked or backhanded Simons to get his attention, and that decedent asked Simons to pull over, but Simons did not respond to either of them. Id. at 32–33; R.R. at 524a–525a.

As Simons continued fleeing on Garfield Avenue, he approached the T-intersection of Garfield and Meyer Avenue, where the road dips slightly. Simons testified that as he accelerated the mustang, he hit the “big dip [in the road] and the car, she got airborne, and I remember the car coming down and hitting....” Simons Dep. at 47; R.R. at 481a. The vehicle ultimately crashed into trees and a parked pickup truck on the property located at 2943 Meyer Avenue. Simons and Senger were injured in the crash, while decedent was ejected from the car upon impact and thrown twenty feet. All three men were transported to Abington Hospital, where decedent subsequently died from his injuries. Simons Dep. at 49, 54; R.R. at 481a, 483a; Senger Dep. at 36; R.R. 528a.

Officer Howley testified by deposition ⁶ that on the night in question, he was on routine patrol in his police vehicle traveling westbound on Jenkintown Avenue, when he heard the exhaust mode “wide open and loud,” and saw the taillights of a vehicle far in the distance proceeding in the same westbound direction. Howley Dep. at 88; R.R. at 196a. Officer Howley “attempt[ed] to gain ground safely on that vehicle to initiate a traffic stop” and that when he himself accelerated beyond the posted speed limit of thirty-five mph, he activated the lights and sirens on his police vehicle. Id. at 94; R.R. at 198a. As soon as he activated his light-bar, the in-car camera system automatically began to record. Id. at 39; R.R. at 184a.⁷

As Officer Howley proceeded to follow the vehicle, he reported on his radio that the vehicle had turned north on Penn Avenue, then later corrected that transmission to north on Garfield Avenue. Officer Howley testified that he was unable to identify the color or make of the vehicle until it turned right off of Jenkintown Road, and at that point, he was “relatively certain that it was a red Mustang.” Id. at 104; R.R. at 200a. Officer Howley then transmitted the information that the vehicle was traveling at a high rate of speed and he believed the driver was driving under the influence. Id. at 227; R.R. at 231a. Officer Howley, who was then traveling north on Garfield, reported that he believed the speeding vehicle had “blacked out,” or turned off his lights and he had lost the vehicle. Id. at 140; R.R. at 209a. Officer Howley testified that after the vehicle eluded him at Jenkintown and Garfield, he continued to proceed in the same direction and because he knew from patrolling the area that a red Mustang was frequently at a house on Jefferson Avenue, he headed to that location.⁸Id. at 156; R.R. at 213a. When Officer Howley arrived on Jefferson Avenue, he testified he did not see the vehicle he had been pursuing and that at that point, he turned his sirens off. Id. at 228, 232; R.R. at 231a, 232a. Officer Howley then reported that he was going to go back towards Meyer Avenue and proceeded to turn around. Officer Howley testified that at this point, he heard a report from police dispatch that a car had hit a house on Meyer Avenue and that he immediately went to the scene. Id. at 235; R.R. at 233a. Officer Howley then pointed his vehicle's spotlight onto the crashed vehicle and requested expedited EMS to the scene. Id. at 237; R.R. 234a.

Appellants filed a wrongful death and survival action against Appellees, asserting claims for negligence as well as punitive damages against Abington Township, Officer Howley, and Lieutenant Knott.⁹ Appellants alleged that Appellees negligently, recklessly, and willfully initiated and failed to terminate a high speed pursuit of the vehicle being operated by Simons, causing the death of decedent Sellers who was an innocent bystander. After discovery was completed, Appellees filed a motion for summary judgment which was granted by the trial court following oral argument. This appeal followed.

In considering a motion for summary judgment, we must examine the evidence of record in a light most favorable to the non-moving party, accepting as true all well-pled facts and reasonable inferences to be drawn from those facts. Kuniskas v. Pa. State Police, 977 A.2d 602, 604 n. 3 (Pa.Cmwlth.2009). Summary judgment is proper where there are no genuine issues of material fact as to a necessary element of a cause of action. Wenger v. W. Pennsboro Twp., 868 A.2d 638, 641 (Pa.Cmwlth.2005). Where the non-moving party fails to adduce sufficient evidence on an issue which is not only essential to its case but on which it bears the burden of proof such that a jury could return a verdict in its favor, the moving party is entitled to judgment as a matter of law. Young v. Dep't of Transp., 560 Pa. 373, 376, 744 A.2d 1276, 1277 (2000). A jury “can not be allowed to reach a verdict merely on the basis of speculation and conjecture.” Id. With these principles in mind, we turn now to the matter before this court. As these questions implicate issues of law, our review is plenary.

Appellants argue that the trial court erred in granting summary judgment in favor of Appellees when genuine issues of material fact exist as to: 1) whether Appellees owed a duty of care to decedent, an innocent bystander; 2) whether Appellees' actions in initiating and continuing the pursuit of Simons were a substantial factor contributing to decedent's death; and 3) whether the conscious and/or reckless disregard of the dangers of the high-speed pursuit by Appellees rose to the level of intentional misconduct such that punitive damages are warranted.

First, Appellants argue that like the plaintiffs in Jones v. Chieffo, 549 Pa. 46, 700 A.2d 417 (1997), and Aiken v. Borough of Blawnox, 747 A.2d 1282 (Pa.Cmwlth.2000), decedent Sellers was an...