BISEL'S PENNSYLVANIA VEHICLE LAW

E-REPORTER

February 1, 2012

Issue #12

 

This reporter is published monthly by the George T. Bisel Company, Inc, and is written by Arthur S. Zanan, Esquire.  Its purpose is to provide Pennsylvania practitioners with timely access to relevant and up-to-date Vehicle Law information.  The content will include brief summaries and headnotes of important motor vehicle and vehicle insurance appellate and trial court decisions, proposed and enacted Vehicle Law legislation and proposed and adopted motor vehicle regulations, as well as links to the full text of the decisions, legislation and regulations.

 

The information contained herein is not intended to constitute legal advice generally or with respect to any particular set of facts or circumstances and should not be relied upon as such by the reader.  Neither the author nor the publisher assume responsibility for errors or omissions as may be contained herein, the use of the information contained herein, or any damages arising or resulting from the use of the information contained herein.

 

Copyright © 2012 by George T. Bisel Company, Inc.  All Rights Reserved.

 

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TABLE OF CONTENTS

 

Vehicle Code – DUI – Suppression of Evidence – Evidence That Defendant's Vehicle Momentarily "Drifted" across Traffic Lines

Commonwealth v. Nelson, 60 Cumberland Co. L. J. 331 (C.C.P. October 11, 2011).

 

Vehicle Code – DUI – Validity of Breath Test

Commonwealth v. Konetsco, 60 Cumberland Co. L. J. 340 (C.C.P. June 22, 2011).

 

Vehicle Code – New Legislation – Motorcycles

Act 2011-103, November 22, 2011, P.L. 416, No. 103, effective in 60 days.

 

Vehicle Code – New Legislation – Motorcycles – Automated Red Light Enforcement Systems in First-Class Cities

Act 2011-129, December 22, 2011, P.L. ___, No. 129.

 

Vehicle Code – New Regulations – Approved Prearrest and Evidential Breath Testing Devices

Approved Prearrest and Evidential Breath Testing Devices, 42 Pennsylvania Bulletin 82, January 7, 2012.

 

Vehicle Code – New Regulations – Minimum Levels of Controlled Substances Or Their Metabolites in Blood to Establish Presence of Controlled Substance

Minimum Levels of Controlled Substances Or Their Metabolites in Blood to Establish Presence of Controlled Substance, 42 Pennsylvania Bulletin 110, January 7, 2012.

 

Vehicle Code – Reasonable Grounds for Chemical Testing

Sisinni v. PennDOT, ___ A.3d ___, No. 482 C.D. 2011 (Pa.Cmwlth. December 2, 2011).

 

Vehicle Insurance – Bad Faith – Discovery of Insurer's Claims Manuals

Platt v. Firemen's Fund Insurance Company, C.A. No. 11-4067 (2011 WL 5598359 (E.D. Pa. November 16, 2011).

 

Vehicle Insurance – ERISA – Reimbursement of Paid Medical Expenses

US Airways, Inc. v. McCutchen, ___ F.3d ___, 2011 WL 5557411 (3d Cir. November 16, 2011).

 

Vehicle Insurance – Medical Expenses – ERISA Plan

Bieber v. Nace, M.D. Pa., Civil Action No. 1:10-CV-0718, 2011 WL 6180719 (M.D. Pa. December 13, 2011).

 

Vehicle Negligence – Discovery – Social Network Profile and Information

Largent v. Reed, 29 Franklin Co. L.J. 128 (C.C.P. November 8, 2011).

 

Arcq v. Fields, C.P. Franklin County, No. 2008-2430 (C.C.P. December 7, 2011).

 

Vehicle Negligence – Negligence Per Se – Vehicle Code Violations

Sodders v. Fry, ___ A.3d ___, No. 403 C.D. 2011 (Pa.Cmwlth. December 9, 2011).

 

Vehicle Negligence – Permissive Use of Vehicle – Vicarious Liability

Price v. Leibfried and Riviera Tavern, ___ A.3d ___, 2011 PA Super 274 (Pa.Super. December 22, 2011).

 

Vehicle Negligence – SEPTA – Sovereign Immunity – Real Estate Exception – Slip and Fall on Icy Platform

Nardella v. SEPTA, ___ A.3d ___, No. 123 C.D. 2011 (Pa.Cmwlth. November 30, 2011).

 

Vehicle Negligence – SEPTA – Sovereign Immunity – Vehicle and Real Estate Exceptions – Assault on Subway Platform

Derrickson v. SEPTA, C.P. Philadelphia, September Term 2010, No. 1067 (C.C.P. December 1, 2011).

 

Vehicle Negligence – Specificity of Pleadings

Tomsky v. EAN Trust, et al., C.P. Lawrence County, No. 10155 of 2011, C.A. (C.C.P. September 12, 2011).

 

 

SUMMARIES

 

Vehicle Code – DUI – Suppression of Evidence – Evidence That Defendant's Vehicle Momentarily "Drifted" across Traffic Lines

 

In Commonwealth v. Nelson, the trial court ruled that the defendant’s pre-trial motion to suppress evidence obtained as a result of a traffic stop should be granted.  Defendant’s constitutional rights were violated due to the fact that the traffic stop was without probable cause and/or reasonable suspicion.

 

In the early morning hours of February 10, 2011, defendant was stopped by a Pennsylvania State Trooper for violation of 75 Pa. C.S.A. §3309(1), Driving on Roadways Laned for Traffic, and also for investigation of what the trooper believed to be an intoxicated driver.  The trooper alleged that the defendant had drifted onto the yellow lines of the roadway and had crossed them at one point.  There was no oncoming traffic on the roadway.  The defendant asserted that the trooper did not have probable cause to believe that he had violated the Vehicle Code and that the trooper did not have reasonable suspicion to believe that he was driving under the influence.

 

The trial court agreed with defendant and granted his motion to suppress the evidence gathered as a result of this traffic stop.  The court explained that to show a proper finding of probable cause for a violation of §3309(1), there would need to be instances that would include some type of serious and dangerous driving infraction.  The court cited Commonwealth v. Feczko, 10 A.3d 1285 (Pa. Super. 2010), as an example.  In that case, the trooper observed defendant cross the double yellow center lane and then drift over the white fog line all while oncoming traffic was visible.  The court found that, in the current case, where defendant's vehicle did not jerk one direction or another or weave between the white fog line and the yellow dividing lines and where there existed a minor and momentary infraction of the proper lanes of travel, defendant's vehicle did not exhibit the serious and dangerous type of driving infraction that would warrant a proper finding of probable cause.

 

The court also agreed with the defendant that the trooper did not have reasonable suspicion to believe that the defendant was DUI at the time of the traffic stop.  Citing Commonwealth v. Anthony, 977 A2d. 1182 (Pa. Super. 2009), the court stated that an officer would only be justified in conducting a stop of a person if the officer can point to specific facts that would lead him to believe that there was criminal activity.  Though the trooper was highly experienced in the field of DUI, the court found that there was nothing more than the defendant’s momentary touching of the roadway’s fog line and yellow lines.  There was no evidence given that the roadway was a common location for drunk driving or any similar evidence.  The court found that the trooper’s observations and the circumstances of the traffic stop were not sufficient to support a finding of reasonable suspicion of DUI.

 

Commonwealth v. Nelson, 60 Cumberland Co. L. J. 331 (C.C.P. October 11, 2011).   Hess, J.

 

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Vehicle Code – DUI – Validity of Breath Test

 

In Commonwealth v. Konetsco, the trial court ruled that the breath test results were valid in this case, even though defendant argued that the results should be invalid on the ground that the observation period prior to the breath test had been conducted by two different individuals.

 

The incident occurred in the late evening hours of August 7, 2009, when a Middlesex Township Patrolman observed defendant driving his vehicle with its rear taillights off.  The patrolman stopped defendant, and when defendant exited the vehicle, he exhibited signs of intoxication.  The patrolman concluded that defendant was under the influence of alcohol to the degree rendering him incapable of safe driving.  Defendant was transported to the Cumberland County Booking Center and was subjected to a twenty minute observation period by two certified breath test operators in tandem before submitting to a chemical breath test.  At trial, defendant argued that the tandem observation during the twenty minute observation period preceding administration of the breath test was not a procedure sanctioned by law, and accordingly the BAC result should be invalid.  The trial court found defendant guilty of the three offenses charged to him, and all defendant appealed.

 

The trial court rejected with defendant’s argument.  The court explained that the breath test procedures contained in §77.24(a) of Title 67 of the Pennsylvania Code (breath test procedure) specifically provides that custody of the person may be transferred to another officer or certified breath test operator during the twenty minute observation period as long as the person to be tested is under observation for at least twenty consecutive minutes prior to the initial administration of the alcohol breath test. The purpose of this procedure is to preclude the possibility that the test will be affected by irrelevant factors. The court found that the observation procedures were followed correctly in this case, and accordingly, defendant's argument that the breath test result in his case should be deemed invalid on the ground that the 20 minute observation period had been conducted by two persons acting in succession was not accepted.

 

Commonwealth v. Konetsco, 60 Cumberland Co. L. J. 340 (C.C.P. June 22, 2011). Oler, J.

 

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Vehicle Code – New Legislation – Motorcycles

 

On November 22, 2011, the Governor signed into law Act 2011-103, which will take effect 60 days from the date of signing.

 

This legislation will create an exemption for land owners who authorized the use of their property for the purpose of an approved motorcycle safety education program. Such owners shall not be held civilly liable for any injury or death to persons that might occur during the course of instruction or training except where there is willful or malicious failure to warn against a dangerous condition, use, structure or activity by the landowner.

 

The legislation amends 75 Pa.C.S. §7911 – Motorcycle Safety Education Program.

 

Act 2011-103, November 22, 2011, P.L. 416, No. 103, effective in 60 days.

 

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Vehicle Code – New Legislation – Motorcycles – Automated Red Light Enforcement Systems in First-Class Cities

 

On December 22, 2011, the Governor signed into law Act 2011-129, which further defines "motorcycle" to include motorcycles with two additional assist wheels and extending the Philadelphia Automated Red Light Enforcement camera pilot program until June 30, 2012.

 

This legislation amends 75 Pa.C.S. §102 to permit a motorcycle to add two additional stabilizing wheels without losing its definition as a motorcycle. The legislation also amends 75 Pa.C.S. §3116 to extend the expiration date of the Philadelphia Automatic Red Light Enforcement until June 30, 2012.

 

The amendment of the definition of "motorcycle" in §102 will take effect in 60 days, and the remainder of the act shall take effect immediately.

 

Act 2011-129, December 22, 2011, P.L. ___, No. 129.

 

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Vehicle Code – New Regulations – Approved Prearrest and Evidential Breath Testing Devices

 

On January 7, 2012, the Pennsylvania Department of Health approved both prearrest and evidential breath taking devices for use by law enforcement officials to determine the alcohol content of blood by analysis of a person's breath. This notice contains the combined list of prearrest breath testing devices and evidential breath testing devices.

 

Prearrest breath testing devices approved under this authority may be used by police officers and officers enforcing the Vehicle Code in conducting preliminary determinations of the alcohol content of blood of persons suspected of driving while under the influence of alcohol. Officers and patrolman use these devices to assist them in determining whether or not a person should be placed under arrest for violation of 75 Pa.C.S. §3802.

 

Approved Prearrest and Evidential Breath Testing Devices, 42 Pennsylvania Bulletin 82, January 7, 2012.

 

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Vehicle Code – New Regulations – Minimum Levels of Controlled Substances Or Their Metabolites in Blood to Establish Presence of Controlled Substance

 

On January 7, 2012, the Department of Health published a notice of the minimum levels of Schedule I, nonprescribed Schedule II and nonprescribed Schedule III controlled substances or their metabolites that must be present in a person's blood for the test results to be admissible in a prosecution for a violation of 75 Pa.C.S. §1543(b)(1.1), §3802(d)(1), (2) or (3) or §3808(a)(2) (relating to driving while operating privilege is suspended or revoked; driving under the influence of alcohol or controlled substance, and illegally operating a motor vehicle not equipped with ignition interlock).

 

Although there are hundreds of controlled substances in Schedules I, II, and III, quantitation limits are listed only for commonly abused controlled substances for which testing procedures are readily available.

 

Minimum Levels of Controlled Substances Or Their Metabolites in Blood to Establish Presence of Controlled Substance, 42 Pennsylvania Bulletin 110, January 7, 2012.

 

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Vehicle Code – Reasonable Grounds for Chemical Testing

 

In Sisinni v. PennDOT, the Commonwealth Court held that glassy eyes, a slight odor of alcohol and defendant's admission that he had two drinks constituted reasonable grounds for a police officer to demand that defendant submit to a chemical test.

 

A police officer observed defendant drive through a red light and he conducted a traffic stop. The officer detected a "slight odor" of alcohol on defendant and noticed that his eyes were red and glassy. The officer conducted several field sobriety test, which defendant passed with a problem. Defendant admitted to the officer when questioned that he had two drinks. The officer testified that defendant had no balance difficulty, was not uncooperative and was not disheveled.

 

The officer indicated that defendant was a "borderline case" and wanted to assess whether he was over the legal limit. Defendant refused to take a preliminary breath tests, pursuant to 75 Pa.C.S. §1547(k), was arrested and taken to a police station for a post-arrest chemical test pursuant to 75 Pa.C.S. §1547(a). Defendant refused the post-arrest chemical test.

 

PennDOT notified defendant by letter that is operating privilege was being suspended for a period of one year pursuant to 75 Pa.C.S. §1547. Defendant appealed.

 

The trial court denied defendant's appeal, holding that there were reasonable grounds to request a chemical test based on the odor of alcohol, glassy eyes, the officer's experience and defendant's admission he had been drinking. Therefore, it was reasonable to require defendant to submit to chemical testing and his refusal justified the suspension of his operating privileges for one year.

 

Defendant appealed, arguing that the officer did not have reasonable grounds to believe he was operating the vehicle while under the influence of alcohol. Defendant argued that reasonable grounds did not exist because he passed the field sobriety tests, did not have balance issues and had only a slight odor of alcohol. Defendant also argued that because the officer was unsure whether he was intoxicated and viewed him as a "borderline case," the officer's suspicions did not rise to the level of reasonable grounds.

 

The Commonwealth Court disagreed and affirmed, finding that the trial court, based on the totality of evidence, properly determined that the officer had reasonable grounds to require a chemical test. The standard for reasonable grounds requires only that an officer could have concluded that licensee was operating a vehicle while under the influence of alcohol. While there is no set list of behaviors or conditions that a person must exhibit for an officer to have reasonable grounds for making an arrest, case law has provided examples of what has been accepted as reasonable grounds, such as: staggering, swaying, falling down, belligerent or uncooperative behavior, slurred speech, and the odor of alcohol.

 

The court determined that there was enough evidence to conclude that defendant could have been operating his vehicle while under the influence of alcohol. The standard for reasonable grounds merely requires that, when looking at the evidence as a whole, an officer could have concluded that licensee was operating the vehicle while under the influence of intoxicating liquor. A police officer need not be correct in his belief that the motorist had been driving while intoxicated.

 

Here, the court held, the officer's indefiniteness did not negate reasonable grounds, but rather supported his belief that, based on his observations, defendant could have been operating his vehicle under the influence. "Nothing in the statute requires an officer to be absolutely certain of intoxication prior to requesting a chemical test." In addition, a motorist does not have to fail a field sobriety test for a police officer to have reasonable grounds. Thus, defendant did not have to be obviously intoxicated to find reasonable grounds to request a chemical test.

 

Sisinni v. PennDOT, ___ A.3d ___, No. 482 C.D. 2011 (Pa.Cmwlth. December 2, 2011).   Brobson, J.

 

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Vehicle Insurance – Bad Faith – Discovery of Insurer's Claims Manuals

 

In Platt v. Firemen's Fund Insurance Company, the Eastern District Federal Court of Pennsylvania ruled that claims manuals and other materials used to process plaintiff's claims may be relevant to the bad-faith counts in a complaint against an insurance carrier and were thus discoverable.

 

Plaintiff filed suit against her insurance carrier for insurance benefits and for statutory bad-faith under 42 Pa.C.S. §8371. As part of discovery, plaintiff requested the production of claims manuals as well as any other material which pertained to instructions and procedures for adjusting claims. The insurance company objected, arguing that the materials were not relevant and also privileged and confidential.

 

The District Court reviewed prior case law as well as the Federal Rules of Civil Procedure and ordered defendant to produce any material pertaining to instructions and procedures for adjusting claims which were given to adjusters who worked on plaintiff's claim. The court found that the claims manuals and other materials used to process plaintiff's claims may be relevant to the bad-faith counts, citing Kaufman v. Nationwide Mutual Insurance Co., No. Civ. A. 97-1114, 1997 WL 703175 (E.D. Pa. November 12, 1997). Such manuals and procedures may be relevant if it requires an adjuster to take certain investigative steps before adjusting a claim and plaintiff can then show the steps were deliberately omitted.

 

In order to make sure the request was not overbroad, the court limited its Order to "instructions and procedures for adjusting claims and which was given to adjusters who worked on [plaintiff's] claim." Plaintiff was also ordered to keep such information confidential.

 

Platt v. Firemen's Fund Insurance Company, C.A. No. 11-4067 (2011 WL 5598359 (E.D. Pa. November 16, 2011).   Buckwalter, J.

 

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Vehicle Insurance – ERISA – Reimbursement of Paid Medical Expenses

 

In US Airways, Inc. v. McCutchen, the United States Court of Appeals for the Third Circuit held that an insurer is not entitled to 100% reimbursement of paid medical expenses when an injured employee has recovered only a fraction of his damages from a third-party.

 

A mechanic for US Airways sustained serious injuries as a result of a head-on collision that left him permanently disabled. US Airways' health insurer paid $66,866 for his medical expenses. The injured party thereafter recovered only a portion of his total alleged damages from third parties, $110,000, including the driver who caused the accident.

 

The health insurer thereafter filed suit against the injured party for all of the money the health insurer had paid out for the injured party's medical treatment, i.e., the carrier sought an ERISA reimbursement. It had not asserted any claim for reimbursement during the pendency of the litigation. The health insurer relied on contract language in the insurance plan to argue that it was entitled to all of its money regardless of how much a plaintiff had recovered from third parties. The health insurer refused a request to reduce its claim by the amount of attorney's fees and costs involved.

 

The Western District Federal Court of Pennsylvania held that the health insurer's lien had to be paid with no reduction for fees and costs, and ordered the injured party to reimburse the entire payment.

 

The Third Circuit Court of Appeals reversed, rejecting the health insurer's position under equitable principles of law. The court ruled that although the benefit plan administered by US Airways required beneficiaries to reimburse it for any money recovered by a third-party, the District Court erred in ordering the injured party to reimburse the insurer where the Order did not constitute appropriate equitable relief under ERISA. The court observed that the relief available under §502(a)(3) of ERISA is limited to "appropriate" equitable relief. The court found that Congress had intended to limit the equitable relief available under this section through the application of equitable defenses and principles that were typically available in equity.

 

Accordingly, the Third Circuit concluded that the District Court's ruling constituted inappropriate and inequitable relief, and remanded the case back to the District Court for a further hearing on the appropriate amount of the reimbursement in light of this decision.

 

US Airways, Inc. v. McCutchen, ___ F.3d ___, 2011 WL 5557411 (3d Cir. November 16, 2011).   Sloviter, J.

 

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Vehicle Insurance – Medical Expenses – ERISA Plan

 

In Bieber v. Nace, the federal Middle District Court ruled that ERISA preempts the MVFRL from operating to bar or reduce recovery of medical expenses by plaintiffs. The MVFRL cannot reduce or bar plaintiff's recovery of medical expenses paid by an ERISA plan.

 

Plaintiffs filed suit arising out of a motor vehicle accident and injuries. Defendants filed affirmative defenses including claims that plaintiffs' recovery was reduced or barred by the provisions of the Pennsylvania Motor Vehicle Financial Responsibility Law. Plaintiffs filed a Motion in Limine, arguing that the defenses should be stricken since the medical bills were paid by a self-funded ERISA plan which was making a claim for reimbursement.

 

The District Court granted the motion. The court reviewed the pertinent statutes and case law and found that the MVFRL cannot serve to reduce or bar plaintiff's recovery of medical expenses paid for by ERISA.

 

Bieber v. Nace, M.D. Pa., Civil Action No. 1:10-CV-0718, 2011 WL 6180719 (M.D. Pa. December 13, 2011). Conner, J.

 

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Vehicle Negligence – Discovery – Social Network Profile and Information

 

In Largent v. Reed, the trial court ruled that information contained on plaintiff's Facebook profile was discoverable because it was relevant, not covered by any privilege and the request was reasonable.

 

This case arose out of the chain-reaction automobile accident. Plaintiffs filed suit, claiming serious, permanent physical and mental injuries, as well as pain and suffering. During the deposition of plaintiff-wife, defendant discovered that she had a Facebook profile that she used regularly and had accessed it the night before her deposition. Defendant filed a motion to compel when plaintiff would not voluntarily turn over information about her Facebook username and password. Defendant alleged that plaintiff's Facebook profile was public and certain posts contradicted her claims of serious and severe injury.

 

The trial court granted defendant's motion to compel, finding that a request for a party to turn over login information to their social networking website profiles is not overbroad, if the requesting party has a good-faith belief that investigation of that data will lead to the discovery of relevant information.

 

The court declared that defendant had asserted a good faith basis for seeking material on plaintiff's Facebook account. The information she sought was relevant and might prove that plaintiff's injuries did not exist or were exaggerated. The court also determined that there was no confidential social networking privilege in Pennsylvania and no reasonable expectation of privacy in material posted on Facebook because almost all information is shared with third parties. Making a Facebook page private does not shield it from discovery because even "private" Facebook posts are shared with others.

 

Finally, the court determined that defendant's discovery request was not overbroad. The reasonableness of the discovery request is made on a case-by-case basis. The court noted that photographs posted on Facebook are not private and Facebook postings are not the same as personal mail. The court declared: "Facebook posts are not truly private and there is little harm in disclosing that information in discovery," citing McMillen v. Hummingbird Speedway, Inc., C.P. Jefferson County, No. 113-2010 CD, 2010 WL 4403285 (C.C.P. September 9, 2010).

 

The court did not believe that allowing defendant access would cause plaintiff unreasonable annoyance. Here, defendant established a good-faith basis for requesting access to plaintiff's private Facebook page because the information was available on the public page – a status update about going to the gym and pictures of plaintiff enjoying life with her family.

 

Largent v. Reed, 29 Franklin Co. L.J. 128 (C.C.P. November 8, 2011).   Walsh, J.

 

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Vehicle Negligence – Discovery – Social Network Profile and Information

 

In Arcq v. Fields, the trial court denied defendants' motion to compel information about plaintiff from social networking websites, as defendants failed to show any reasonable basis for believing that access to plaintiff's profiles would yield any information relevant to the case.

 

Plaintiff and defendant were involved in a motor vehicle accident and plaintiff filed a negligence action against defendant and his employer. Defendant moved to compel information from plaintiff's social networking website profiles, seeking information about plaintiff contained in his social networking profiles such as MySpace, Facebook, LinkedIn and Twitter.

 

Plaintiff objected to interrogatories seeking the social network information and argued that the materials were not relevant and plaintiff had a reasonable expectation of privacy to such information. Defendants countered that under other trial court cases, and one from the same court, the information was discoverable. Defendants' motion alleged that plaintiff had placed his medical, physical, mental and social conditions at issue in the case.

 

The trial court denied defendants' motion to compel. The court emphasized that in the cases cited by defendants, the parties had viewed the public portion of the opposing parties' social networking profile, which contain relevant information and, thus, had some reason to believe that the private portion might contain relevant information as well. The requests at issue in those cases where reasonably calculated to yield information that would lead to admissible evidence.

 

Here, however, the court noted that defendants had not alleged any basis for believing that plaintiff's social networking profiles contained any information relevant to this case. The court stated that there was still a question as to whether or not plaintiff even had a Facebook page or other social media pages. The court also emphasized that defendant in this case had not established that it had even viewed any public pages of any alleged Facebook page for the plaintiff containing any information relevant to the litigation.

 

The court declared: "While it is not an absolute necessity that a plaintiff have a public profile before a defendant can be given access to the private portion, it is necessary that defendant have some good faith belief that the private profile may contain information."

 

The court also distinguished its holding from that in Largent v. Reed, wherein the court in that case held that since the defendant had viewed a public portion of the profile, then a good faith basis existed for the request to access the private portion. "In essence, viewing relevant information on the public profile acts as a gateway to the private profile."

 

Arcq v. Fields, C.P. Franklin County, No. 2008-2430 (C.C.P. December 7, 2011).   Herman, J.

 

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Vehicle Negligence – Negligence Per Se – Vehicle Code Violations

 

In Sodders v. Fry, the Commonwealth Court ruled that plaintiff was entitled to a new trial where the trial court failed to specifically instruct the jury on negligence per se even though both parties admittedly violated separate provisions of the Vehicle Code.

 

Plaintiff was traveling eastbound approaching an intersection waiting to make a left turn. Three police vehicles were approaching from the opposite direction. The officers were admittedly traveling 35 mph in a 25 mph zone while responding to a disturbance call and none of the officers were using their lights or sirens in violation of 75 Pa.C.S. §3105(c). After the first two vehicles passed, plaintiff made a left turn and was struck by the third police vehicle, operated by Officer Fry. Plaintiff was injured and filed a complaint alleging negligence on the part of Officer Fry, Ohioville Borough and Ohioville Borough Police Department.

 

At trial, plaintiff testified that he believed he had ample time to make the turn given the posted 25 mph speed limit and his claim that the third vehicle was approximately half a block away when he began to make his turn. Plaintiff testified he was all the way or almost all the way through the intersection when the collision occurred.

 

Officer Fry testified that he was dispatched for a disturbance at a local bar and that it was standard procedure for officers to respond to disturbance calls in excess of the speed limit without lights or sirens. Officer Fry claimed he was two car lengths behind the police vehicle in front of him when plaintiff began his turn and he was unable to avoid a collision. However, Officer Fry admitted that he was required to use emergency lights and sirens when responding to an emergency and that if he failed to do so, he was not entitled to the privileges afforded to emergency responders under 75 Pa.C.S. §3105. Officer Fry admitted that at the time of the accident, he was operating his vehicle in violation of §3105 (emergency responder privileges) and §3362 (maximum posted speed limits).

 

Both plaintiff and defendants requested that the trial court instruct the jury on the issue of negligence per se. Plaintiff argued that Officer Fry was negligent as a matter of law because he admitted he violated §3362. Defendants argued that plaintiff was negligent per se for violating 75 Pa.C.S. §3322 because he turned left at an intersection and failed to yield the right-of-way to Officer Fry's oncoming vehicle. Defendants requested a jury charge regarding negligence per se, specifically that if the jury found that plaintiff violated §3322, then it had to find him negligent as a matter of law.

 

The trial court denied both requests and charged the jury on negligence, contributory negligence, factual cause and the applicable sections of the Vehicle Code. Six questions were submitted to the jury. The jury found that Officer Fry was not negligent and did not answer the remaining questions as it was instructed. The jury thus did not reach the question regarding factual cause, whether plaintiff was contributorily negligent and the percentage of causal negligence that was attributable to both parties.

 

Plaintiff filed a Motion for New Trial, which was granted by the trial court. The trial court determined that it had erred in not specifically instructing the jury on negligence per se as to both plaintiff and Officer Fry. Defendants appealed the grant of a new trial, arguing that the failure to charge the jury that Officer Fry was negligent per se did not cause plaintiff any prejudice and the charge, as a whole, was correct.

 

The Commonwealth Court affirmed, finding that the trial court did not abuse its discretion in granting plaintiff's motion for a new trial. The court explained that the term negligence per se applies when an individual violates any applicable statute, regulation or ordinance designed to prevent a public harm. The court noted that once a plaintiff proves negligence per se, he still cannot recover unless such negligence is proven to be the proximate cause of the injury.

 

Here, Officer Fry did not use his lights and siren and thus failed to comply with §3105 and was speeding in violation of §3362. Because Officer Fry did not qualify for the privileges found in §3105, he was required to abide by the posted speed limit. Plaintiff clearly proved violation of an applicable statute and the jury should have been instructed on negligence per se. The failure to do so resulted in an inaccurate description of the relative duties of care in this case. It also prejudiced plaintiff because the jury found that Officer Fry was not negligent and never reached any other issues including proximate cause. Even if both Officer Fry and plaintiff were negligent per se, the jury would still have to reach the issue of factual causation, and potentially damages as well. "The trial court admittedly committed an error because it's charge to the jury did not accurately reflect the law regarding negligence per se or the duties of care. … We agree with the trial court that it was error not to instruct the jury on the issue of negligence per se as to both parties, and the trial court did not abuse its discretion in granting [plaintiff's] motion for a new trial."

 

Sodders v. Fry, ___ A.3d ___, No. 403 C.D. 2011 (Pa.Cmwlth. December 9, 2011).   Pellegrini, J.

 

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Vehicle Negligence – Permissive Use of Vehicle – Vicarious Liability

 

In Price v. Leibfried and Riviera Tavern, the Superior Court held that plaintiff violated 75 Pa.C.S. §1574(a) by permitting an unauthorized and unlicensed driver to operate her vehicle and was therefore vicariously liable for defendant's negligence and could not recover damages from him.

 

Plaintiff and defendant Leibfried were involved in an automobile accident where plaintiff was a passenger and defendant Leibfried the driver. Leibfried rear-ended a tractor-trailer. Plaintiff was the owner of the vehicle, and defendant Leibfried was unlicensed and also intoxicated. Just prior to the accident, plaintiff and Leibfried had been drinking alcohol at defendant Riviera Tavern. The blood alcohol content of Leibfried exceeded 0.21%.

 

Plaintiff filed suit against Leibfried and Riviera Tavern. Defendant Leibfried filed a motion for summary judgment, averring that plaintiff was vicariously liable for her own injuries.

 

The trial court granted summary judgment and held that plaintiff could not recover from Leibfried because she was vicariously liable for her own injuries for knowingly permitting an unauthorized/unlicensed person to drive her vehicle and thus violated §1574 of the Vehicle Code.

 

The Superior Court affirmed, holding that summary judgment was proper by the trial court because there was a "complete absence of evidence suggesting that [plaintiff] did not give Leibfried permission to drive her car." Consequently, as a matter of law, plaintiff violated 75 Pa.C.S. §1574(a) and therefore was vicariously liable for Leibfried 's negligence. The court noted that in her deposition, plaintiff stated that she knew, prior to the accident, that Leibfried did not have a valid driver's license and knew that he had been drinking. Plaintiff admitted that she felt impaired after drinking at several bars with Leibfried and gave him the car keys.

 

The court found it was clear that there was no genuine issue of material fact with respect to plaintiff's knowledge that Leibfried was unlicensed and that she authorized him to drive her car. As a matter of law, plaintiff violated §1574(a) and was vicariously liable for Leibfried's negligence. As one vicariously liable for Leibfried 's actions, plaintiff could not recover damages from him.

 

Price v. Leibfried and Riviera Tavern, ___ A.3d ___, 2011 PA Super 274 (Pa.Super. December 22, 2011).   Lazarus, J.

 

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Vehicle Negligence – SEPTA – Sovereign Immunity – Real Estate Exception – Slip and Fall on Icy Platform

 

In Nardella v. SEPTA, the Commonwealth Court ruled that the real estate exception to sovereign immunity in 42 Pa.C.S. §8522(b)(4) did not apply when plaintiff fell on ice on a train boarding platform where the accumulation of ice on the SEPTA platform did not constitute a defective condition derived or originating from the real estate.

 

Plaintiff sustained injuries when she slipped and fell "upon ice and/or other underlying defective conditions" on a SEPTA platform while attempting to board a train. Plaintiff alleged in her complaint that SEPTA owned, managed, possessed, controlled, and was otherwise responsible for the maintenance of the platform, including the removal of ice and snow from the platform, and SEPTA was responsible for keeping the platform in good and safe condition so that the platform would not constitute a menace or danger to those lawfully using the platform. Plaintiff averred that the accident was the sole result of SEPTA's recklessness and negligence and that this negligence was the sole and proximate cause of her injuries.

 

SEPTA filed its Answer in which it claimed it was entitled to the defense of sovereign immunity under 42 Pa.C.S. §8521. SEPTA acknowledged that it had sole responsibility for the station and its platforms, but asserted it was entitled to summary judgment because ice on a platform did not constitute a defective condition derived or originating from the real estate. Therefore, plaintiff's claim did not fall within any exception to sovereign immunity.

 

The trial court agreed and granted summary judgment in favor of SEPTA. The trial court explained that the dangerous condition – ice on the platform – did not derive, originate or have as its source the Commonwealth's realty itself. Rather, the court noted that the condition derived from precipitation and freezing temperatures. The trial court held that this matter was substantially similar to Lingo v. Philadelphia Housing Authority, 820 A.2d 859 (Pa.Cmwlth. 2003) (holding that debris on a stairway did not fall within the real estate exception as it did not derive, originate or have the Commonwealth's realty as its source) and Kahres v. Henry, 801 A.2d 650 (Pa.Cmwlth. 2002) (concluding that sovereign immunity was not waived where the plaintiff did not allege or present evidence that the dangerous condition, a snow mound that encroached on a portion of the roadway, had derived, originated, or had the Commonwealth's realty as the source of the condition).

 

Plaintiff appealed, arguing that (1) the trial court erred in granting summary judgment because it improperly relied on the "on/off distinction" to determine whether the ice on the platform was a dangerous condition of SEPTA's real estate, and (2) that SEPTA's improper maintenance of the platform precluded the grant of summary judgment under Jones v. SEPTA, 772 A.2d 435 (Pa. 2001).

 

The Commonwealth Court affirmed the trial court's Order granting summary judgment to SEPTA. The court held that Jones did not stand for the proposition that any failure to maintain the real estate falls within the real estate exception to sovereign immunity. Allegations of improper maintenance must result from a defect in the real property itself in order to fall within the real estate exception. Thus, in order for a party to assert a claim under this exception for injuries caused by a substance or an object on Commonwealth real estate, the party must allege that the dangerous condition derived, originated or had as its source the Commonwealth realty itself.

 

The court noted that plaintiff's allegations of improper maintenance were premised on SEPTA's failure to apply melting agents to address the accumulation of ice on the platform. "These allegations of improper maintenance did not result from a defect in the real property itself, which remains necessary under Jones in order to fall within the real estate exception pursuant to §8522(b)(4)." Because plaintiff neither alleged or introduced any evidence that the ice on which she slipped was derived, originated from, or had as its source a design or construction defect in the platform itself, the court concluded that the trial court did not err in granting summary judgment in favor of SEPTA.

 

The court also rejected plaintiff's allegation that SEPTA had a responsibility or duty to provide the public with a general standard of care, and that she had a "civil right of personal safety" that SEPTA violated by not providing appropriate warning signs, lighting, and by allowing ice to accumulate on the platform resulting in her fall. The court determined, however, that even if SEPTA had a duty to provide the public a general standard of care or that plaintiff had a civil right to personal safety which SEPTA may have breached, the trial court properly granted summary judgment because plaintiff could not establish that the cause of action was within one of the exceptions to sovereign immunity under §8522(b).

 

Nardella v. SEPTA, ___ A.3d ___, No. 123 C.D. 2011 (Pa.Cmwlth. November 30, 2011).   Jubelirer, J.

 

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Vehicle Negligence – SEPTA – Sovereign Immunity – Vehicle and Real Estate Exceptions – Assault on Subway Platform

 

In Derrickson v. SEPTA, the trial court ruled that where plaintiff's injuries were the direct result of the assaultive conduct of a third party, as opposed to a defect of the land itself, his cause of action did not fall within the real estate exception to sovereign immunity since there was no allegation that plaintiff's injuries were caused by a defective condition of the land itself, but were instead the result of the third party's assault.

 

Plaintiff was assaulted and injured by defendant Oberlton on a SEPTA subway platform concourse in Philadelphia. Plaintiff filed suit against SEPTA, the City of Philadelphia and Oberlton. Plaintiff argued that SEPTA can be held liable under the vehicle liability exception for failing to protect him from the assaultive conduct of third parties while he was on the subway platform concourse.

 

SEPTA filed a Motion for Judgment on the Pleadings, arguing that as a Commonwealth party, it was protected by sovereign immunity and that the allegations in plaintiff's complaint did not allege acts or omissions that fell within any exceptions to sovereign immunity. Specifically, SEPTA argued that the vehicle exception to sovereign immunity, 42 Pa.C.S. §8522(b)(1), did not apply because plaintiff's injuries were caused by Oberlton's assault, not by the movement of a SEPTA vehicle or its parts. SEPTA further argued that the real estate exception to sovereign immunity, 42 Pa.C.S. §8522(b)(4), did not apply because plaintiff's injuries were caused by the conduct of any third party, not by any direct defect of the land itself.

 

The trial court held that the allegations in the pleadings did not fall within either the vehicle liability exception or the real estate exception to SEPTA's sovereign immunity and thus there was no cause of action against SEPTA. The court found that Pennsylvania courts have consistently held that a Commonwealth party cannot be held liable under the vehicle liability exception to sovereign immunity for criminal acts of third persons, citing Greenleaf v. SEPTA, 698 A.2d 170, 173 (Pa.Cmwlth. 1997). The court noted that in order for the vehicle liability exception to apply, Pennsylvania law requires the plaintiff to show that his injuries were caused by the movement of the vehicle or its parts.

 

The court also rejected plaintiff's argument that his cause of action fell under the real estate exception to sovereign immunity. The court held that the real estate exception only applies "where it is alleged that the artificial condition or defect of the land itself causes injury, not merely when it facilitates injury by acts of others."

 

Derrickson v. SEPTA, C.P. Philadelphia, September Term 2010, No. 1067 (C.C.P. December 1, 2011).   Tereshko, J.

 

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Vehicle Negligence – Specificity of Pleadings

 

In Tomsky v. EAN Trust et al., the trial court held that plaintiff failed to plead facts of a chain reaction car accident with sufficient specificity because they failed to specify the order in which the vehicles involved were positioned in the accident and whether they were static or in motion.

 

Plaintiff was involved in a multi-vehicle, chain reaction automobile accident. Plaintiffs, individually and as administrator of the estate of father, filed a complaint which stated that defendant Lowery diverted his attention from the roadway and struck the vehicle immediately in front of his, starting the chain reaction accident. Plaintiff's complaint stated only that defendant Lowery's vehicle was at the end of the chain, but did not specify where the other vehicles were located in the accident or which vehicle was initially struck by defendant Lowery's vehicle.

 

Defendants filed preliminary objections, arguing that the complaint violated the specificity requirements of Pa. R.Civ.P. 1019 in that plaintiffs intentionally pled vaguely with regard to the actual facts of the accident. Defendants objected to plaintiffs' failure to specify the order in which the vehicles involved in the accident were positioned and whether the vehicles were static or in motion. Defendants argued that such factual knowledge was readily available to plaintiffs and that plaintiffs purposefully excluded these facts so as to avoid any potential motions for judgment on the pleadings.

 

The trial court agreed with defendants and granted the preliminary objections, noting that the positioning of the vehicles involved in such a chain reaction accident, and whether the vehicles were moving or static, were essential components of plaintiffs' case. Here, plaintiffs only averred that their vehicle was located somewhere in front of defendant Lowry's vehicle and that it was stopped. The complaint did not contain any facts from which the court could determine the order of the vehicles and their movements. "As plaintiffs' claims against defendants are based on the defendants alleged negligence in operating their vehicle, these facts are vital to the claim and plaintiff must plead them so that the defendants can prepare an adequate defense or file the appropriate pre-trial motions."

 

Tomsky v. EAN Trust, et al., C.P. Lawrence County, No. 10155 of 2011, C.A. (C.C.P. September 12, 2011).   Motto, J.

 

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