Smitley v. Holiday Rambler Corp.

• Decision Date: 27 January 1998
• Citation: 707 A.2d 520
• Parties: Donald Lee SMITLEY, Appellant (at 935 & 3), v. HOLIDAY RAMBLER CORPORATION, Landmark Dodge, Inc., Greg Deimler Scrap Recyclers, Smith Towing & Jeff Smith, Appellees (Two Cases). Donald Lee SMITLEY, Appellee, v. LANDMARK DODGE, INC., Appellant (at 20).
• Court: Pennsylvania Superior Court

Page 520

707 A.2d 520

Donald Lee SMITLEY, Appellant (at 935 & 3), v. HOLIDAY RAMBLER CORPORATION, Landmark Dodge, Inc., Greg

Deimler Scrap Recyclers, Smith Towing & Jeff

Smith, Appellees (Two Cases).

Donald Lee SMITLEY, Appellee, v. LANDMARK DODGE, INC., Appellant (at 20).

Superior Court of Pennsylvania.

Argued Oct. 30, 1997.

Filed Jan. 27, 1998.

Richard H. Shaw, Media, for Donald L. Smitley.

Jonathan H. Rudd, Harrisburg, for Holiday Rambler Corp.

Val E. Winter, York, for Landmark Dodge, Inc.

Before FORD ELLIOTT, EAKIN and OLSZEWSKI, JJ.

OLSZEWSKI, Judge:

These three appeals arise out of a vehicle fire in a modified 1991 Dodge Aeromate van. The appeals present several issues concerning the proper procedure for considering a motion for summary judgment and the proper time for appealing an order granting the same. Resolution of these procedural issues also requires us to consider when a trial court may dismiss a product liability claim based solely on the plaintiff's failure to produce the allegedly defective product. We affirm in part and remand in part.

Mr. Smitley filed a complaint alleging negligence and strict product liability on August 11, 1994. The complaint named defendants Landmark Dodge, Inc. (Landmark), Holiday Rambler Corporation (Holiday), Greg Deimler, t/d/b/a Deimler Scrap Recyclers (Deimler Scrap), and Jeff Smith, t/d/b/a Smith Towing (Smith Towing). On June 18, 1996, the trial court granted summary judgment in favor of Smith Towing without contest. On September 30, 1996, Deimler Scrap was dismissed from the suit pursuant to a settlement.

On September 23, Holiday filed a motion in limine to prevent Mr. Smitley from presenting evidence concerning damages that were covered by his insurance carrier. The court scheduled a telephone hearing for October 2 to consider this motion. Three days later, Landmark moved for summary judgment. At the telephone hearing, Mr. Smitley's counsel was informed that Landmark's motion for summary judgment would be heard in addition to the evidentiary motion. Mr. Smitley was allowed until 5:00 p.m. the following day to transmit a written response by facsimile. The court granted both Landmark's motion and the motion in limine on October 11. On October 7, Holiday filed a motion for summary judgment parallel to Landmark's. The court granted this motion on October 15.

On November 12, Mr. Smitley filed a notice of appeal challenging the orders of October 11 (summary judgment for Landmark) and October 15 (summary judgment for Holiday). This appeal is docketed at No. 935 Harrisburg 1996 (hereinafter Appeal 1). Mr. Smitley next petitioned the trial court for allowance to appeal the October 11 order nunc pro tunc. The court granted the petition on December 12. Six days later, Mr. Smitley filed a second notice of appeal. This appeal, docketed at No. 3 Harrisburg 1997, challenges only the October 11 order (hereinafter Appeal 2). On December 30, Landmark filed a notice of appeal challenging the December 12 order (allowance to appeal nunc pro tunc). This appeal is docketed at No. 20 Harrisburg 1997 (hereinafter Appeal 3).

The vehicle at issue was manufactured by Holiday and sold to Mr. Smitley by Landmark. ¹ Prior to purchase Mr. Smitley informed Landmark of his intention to modify the vehicle to accommodate his disability ² during camping trips. Throughout his ownership the vehicle's engine repeatedly overheated. On April 10, 1992, Mr. Smitley received a letter from Holiday informing him that his vehicle's cooling system could be modified as part of Holiday's "continuing product improvement program." Landmark performed these modifications on May 14, 1992. Less than a month later, on June 7, the vehicle overheated while ascending a mountain road. On this occasion, however, a fire began in the engine compartment. Fortunately, Mr. Smitley and his driver escaped uninjured. The fire rapidly destroyed the vehicle and all Mr. Smitley's personal property therein. Afterwards, the remains of the vehicle were removed to a salvage yard. Mr. Smitley visited the salvage yard and specifically instructed the proprietor to preserve the remains for further investigation. On June 12, a fire investigator examined the vehicle remains. The investigator determined that the fire originated in the engine compartment. The extensive fire damage, however, prevented him from determining causation or the specific area of origin. Sometime thereafter, the remains were destroyed contrary to Mr. Smitley's explicit instructions. ³

In the opinion filed with its October 11, 1996 order, the trial court found that Mr. Smitley's evidence on causation was insufficient to sustain a negligence cause of action. The court based this finding on the fire investigator's inability to determine the cause of the fire with a reasonable degree of certainty. The court also found that Mr. Smitley's strict product liability cause of action was barred by the spoliation doctrine. The October 15 order granting summary judgment in favor of Holiday expressly relied on the October 11 opinion.

In Appeal 1, Mr. Smitley presents the following two questions:

1. Did the trial court fail to allow [Mr. Smitley] the time to respond to a motion for summary [judgment] required by the rules of civil procedure?

2. Did the [t]rial [c]ourt incorrectly decide that the destruction of the vehicle prior to the trial of this action precludes [Mr. Smitley] from proving a product liability claim under the malfunction theory of product liability as established by decisions of the Pennsylvania Supreme Court and Pennsylvania Superior Court?

Brief of appellant Donald Smitley, 935 Harrisburg 1996, at 4.

In Appeal 2, Mr. Smitley reiterated the foregoing questions and added the following:

Did the trial court err by ordering that [Mr. Smitley] could not present evidence as to his damages which were covered by insurance?

Brief of appellant Donald Smitley, 3 Harrisburg 1997, at 5.

In Appeal 3, Landmark presents the following single question:

Can the time for filing an appeal be enlarged when the appellant does not claim fraud, breakdown in the processes of the court, or any other allowable reason for the untimely filing?

Brief of appellant Landmark Dodge, Inc., 20 Harrisburg 1997, at 2.

We first consider the question presented by Landmark in Appeal 3. Mr. Smitley apparently petitioned the trial court for allowance to file Appeal 2 nunc pro tunc because Mr. Smitley believed that the challenge of the October 11 order in Appeal 1 was untimely. ⁴ This, however, is not the case. In fact, the October 11 order did not become appealable until the October 15 order was entered. Thus, Appeal 1 properly preserved Mr. Smitley's challenge to both orders. Therefore, we quash Appeal 2. This determination renders Appeal 3 moot.

The time for filing appeal is measured from the date an appealable order is entered. See Pa.R.A.P. 903; see also Civil Service Comm'n v. Rogers, 118 Pa.Cmwlth. 226, 544 A.2d 1115, 1117 (1988). "Under Pennsylvania law, an appeal may only be taken from an interlocutory order as of right (Pa.R.A.P.311), from a final order (Pa.R.A.P.341), from a collateral order (Pa.R.A.P.313), or from an interlocutory order by permission (Pa.R.A.P. 313, 1311, 42 Pa.C.S.A. § 702(b))." Continental Bank v. Andrew Bldg. Co., 436 Pa.Super. 559, 648 A.2d 551, 553 (1994). None of these appeals are taken from an interlocutory order as of right. See Pa.R.A.P. 311. Nor has the trial court granted permission for an interlocutory appeal. Consequently, the October 11 order was only immediately appealable if either final or collateral.

The October 11 order was not final when entered. Under Rule of Appellate Procedure 341, ⁵ an order granting summary judgment to several, but not all, defendants named in a civil complaint is not a final order unless the trial court expressly determines the order should be treated as such. See Pa.R.A.P. 341, Note (listing "an order dismissing an action ... as to less than all defendants" as an order that is not appealable absent an express determination by the trial court); see also Bonner v. Fayne, 441 Pa.Super. 432, 657 A.2d 1001 (1995). Instead, the partial grant of summary judgment only becomes final after entry of an order disposing of all claims or of all parties. Appeal must be taken within thirty days thereafter. ⁶ See id.; Pa.R.A.P. 341. The October 11 order only granted Landmark's motion for summary judgment. It was not until the October 15 order, granting Holiday's motion for summary judgment, that all claims or parties were disposed. The trial court made no finality determination within the thirty days provided by Rule 341(c)(1). Consequently, the October 11 order did not become final until the October 15 order was entered.

The October 11 order is not collateral. Where an order is not final it may, nevertheless, be appealable under the collateral order rule. See Pa.R.A.P. 313. "A collateral order is an order separable from and collateral to the main cause of action where the right involved is too important to be denied review and the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost." Id. Although not adopted until 1992, Rule 313 codifies a body of common law dating back to the United States Supreme Court decision in Cohen v. Beneficial Industrial Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). As the Commonwealth Court later explained, the U.S. Supreme Court limited the rule to orders that are separate from and collateral to the main cause of action in order to avoid "piecemeal adjudication of a single cause of action." Bollinger v. Obrecht, 122 Pa.Cmwlth. 562, 552 A.2d 359, 362 (1989). Hence, in order to qualify as collateral, an order must not be of such "an interlocutory nature as to affect, or be affected by " the merits of the main cause of action. Id. (quoting Cohen v. Beneficial Industrial Corp., 337 U.S. at 546-47, 69 S.Ct. at 1225-26)...