J.S45042/14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


LY PHAM VU,                                 :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellant         :
                                            :
                    v.                      :
                                            :
                                            :
MARVIN DURNELL,                             :
                                            :
                          Appellee          :     No. 3338 EDA 2013


               Appeal from the Judgment Entered January 7, 2014
              In the Court of Common Pleas of Philadelphia County
               Civil Division No(s).: March Term, 2012 No. 01774

BEFORE: BOWES, WECHT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                    FILED SEPTEMBER 30, 2014

        Appellant, Ly Pham Vu, appeals from the judgment entered in the

Philadelphia County Court of Common Pleas in favor of Appellee, Marvin

Durnell.1 Appellant contends the trial court erred in instructing the jury as




*
    Former Justice specially assigned to the Superior Court.
1
 Appellant purports to appeal from the November 4, 2013 order denying the
post-trial motion for a new trial. However,

           the appeal properly lies from entry of final judgment in this
           matter. [The] appeal was perfected when the trial court
           entered final judgment on [January 7, 2014].            See

           announcement of a determination but before the entry of
J. S45042/14

      Appellant and Appellee were involved in a motor vehicle accident on

January 21, 2011. On March 16, 2012, Appellant filed a complaint against

Appellee sounding in negligence. At the time of trial, Appellee testified, inter

alia, as follows:

         [Counsel for Appellant]: .
         that happened January 21st, 2011, correct?

         A: Yes.

                                  *    *    *

         Q: Sir, when you got in your car to go home . . . when you
         walked to your car, could you see snow on the ground?

         A: Yes.

         Q: Could you see ice on the ground?

         A: Some places maybe. But it was snow underneath them


                                  *    *    *

         Q: . . . You drove your car to this intersection; is that
         right?

         A: Yes.

         Q: And you made a right-hand turn on 10th Street. And
         when you made that right-hand turn on 10th Street, could
         you see the traffic light immediately?

         an appealable order shall be treated as filed after such


Health Care & Ret. Corp. of Am. v. Pittas, 46 A.3d 719, 721 n.1 (Pa.
Super. 2012), appeal denied, 63 A.3d 1248 (Pa. 2013). We have amended
the caption accordingly.




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         A: Yes.

         Q: And when you first saw your traffic light, it was red,
         correct?

         A: Yes.

         Q: Steady red light?

         A: Yes.

         Q: There were no vehicles ahead of you?

         A: No.

                                *    *     *


         red light, you slide through the intersection past the red


         A: Yes.

N.T., 10/16/13, at 43, 48-49. Appellee also testified he

                       Id. at 51.

      At trial, Appellee contended the basis for a sudden emergency

instruction was black ice on the roadway. N.T., 10/16/13, at 11. Appellant

opposed the instruction.   Id. at 85-88.   The court charged the jury, inter

alia, as follows:

             In this case, [Appellee] claims he is not liable for

         and responded reasonably under the circumstances. In
         order to establish this defense, [Appellee] must prove to
         you all of the following:

           [Appellee] faced a sudden           emergency   requiring
         immediate responsive action.


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            [Appellee] did not create the sudden emergency.


         emergency was reasonable under the circumstances.

N.T., 10/18/13, at 61-62.



post-trial motion was denied.    Judgment was entered in favor of Appellee

and this timely appeal followed.      Appellant filed a timely court-ordered

Pa.R.A.P. 1925(b) statement of errors complained of on appeal.       The trial

court filed a Pa.R.A.P. 1925(a) opinion.2

      Appellant raises the following issue for our consideration:



2

issue raised on appeal. In the Rule 1925(b) statement, Appellant raised
seven issues. Six of the issues addressed the sudden emergency doctrine.
Appellant also averred the court erred in denying the post trial motion
without oral argument. The court stated that because the trial transcripts
were not part of the record it could not determine whether Appellant had
preserved the issues raised on appeal or whether they had any merit. Trial
Ct. Op., 1/23/14, at 3. As a result, the trial court suggested that Appellant
has waived the issues raised on appeal and that we should affirm the
judgment.

   The trial transcripts are likewise not included in the certified record on
appeal, but copies are included in the reproduced record. This Court has
                           uracy of the reproduction has not been disputed . .
                         Commonwealth v. Brown, 52 A.3d 1139, 1145 n.4
(Pa. 2012). Appellee does not dispute the accuracy of the reproduced
record. We note that Appellant raised this issue before the trial court at the
time of trial and in a post trial motion, thus preserving the issue on appeal.
See N.T., 10/16/13, at 85-
2.




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         1. Whether the trial court abused its discretion and
         otherwise committed an error of law when it charged the

         [Appellee] failed to prove all the required elements of the




      Appellant argues the sudden emergency doctrine was inapplicable in



                                                      Lockhart v. List, 665



that the charge on the sudden emergency doctrine was not harmless error

and as such a new trial is warranted. Id.

instruction indicated that Appellee could avoid liability if the jury believed

that he faced a sudden emergency and responded reasonably.          Id. at 21.

Appellant concludes the jury instruction controlled the verdict in this case

and constituted prejudicial error. Id. We agree.

      Our Supreme Court has stated:

         In examining jury instructions, our scope of review is
         limited to determining whether the trial court committed a
         clear abuse of discretion or error of law controlling the
         outcome of the case. Error in a charge is sufficient ground
         for a new trial if the charge as a whole is inadequate or not
         clear or has a tendency to mislead or confuse rather than
         clarify a material issue. Error will be found where the jury
         was probably [misled] by what the trial judge charged or
         where there was an omission in the charge. A charge will
         be found adequate unless the issues are not made clear to
         the jury or the jury was palpably misled by what the trial
         judge said or unless there is an omission in the charge
         which amounts to a fundamental error. In reviewing a trial



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        its entirety. Because this is a questio
        review is plenary.

Passarello v. Grumbine, 87 A.3d 285, 296-97 (Pa. 2014) (citation

omitted).

           Our Supreme Court first recognized the sudden
        emergency doctrine 160 years ago. More recently, our
        Supreme Court described the sudden emergency doctrine
        as follows:

            The sudden emergency doctrine . . . is available as a
            defense to a party who suddenly and unexpectedly
            finds him or herself confronted with a perilous
            situation which permits little or no opportunity to
            apprehend the situation and act accordingly. The
            sudden emergency doctrine is frequently employed
            in motor vehicle accident cases wherein a driver was
            confronted with a perilous situation requiring a quick
            response in order to avoid a collision. The rule
            provides generally, that an individual will not be held


            with a sudden and unexpected position of peril
            created in whole or in part by someone other than
            the person claiming protection under the doctrine.
            The rule recognizes that a driver who, although
            driving in a prudent manner, is confronted with a
            sudden or unexpected event which leaves little or no
            time to apprehend a situation and act accordingly
            should not be subject to liability simply because
            another perhaps more prudent course of action was
            available. Rather, under such circumstances, a
            person is required to exhibit only an honest exercise
            of judgment. The purpose behind the rule is clear: a
            person confronted with a sudden and unforeseeable
            occurrence, because of the shortness of time in
            which to react, should not be held to the same
            standard of care as someone confronted with a
            foreseeable occurrence. It is important to recognize,
            however, that a person cannot avail himself of the
            protection of this doctrine if that person was himself
            driving carelessly or recklessly.


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                                                                   [3]

                                                       o whether
        an emergency situation existed, wholly independent of and

        recklessness, it is incumbent upon the trial [court] to


Drew v. Work, 95 A.3d 324, 330 (Pa. Super. 2014) (citations omitted).

This Court stated in Drew        road conditions, such as gravel or ice,

are not sudden emergencies                  Id. at 338 (citing Kukowski v.

Kukowski, 560 A.2d 222, 225 (Pa. Super. 1989)) (emphasis added).

     In Kukowski, this Court found that the sudden emergency doctrine

was inapplicable where the driver lost control of his vehicle after hitting

several potholes. Kukowski, 560 A.2d at 225. We reasoned:

        In motor vehicle accident cases, the sudden emergency
        doctrine may be invoked where there is testimony

        into a vehicle's path of travel. Brown v. Schriver, [ ] 386

        of confrontation with pre-existing, static road conditions
        does not properly call for an instruction on the applicability
                                                   McKee et al. v.
        Evans et al., 551 A.2d 260, 274 ( Pa. Super. 1988)]. In
        Brown v. Schriver, for example, the driver of a car had
        lost control of his vehicle when it apparently slipped on
        some gravel or cinders on the roadway surface. The driver
        had testified that he did not notice the gravel prior to
        losing control of his car. We granted a new trial in Brown,

3

affirmative defense . . . and thus, unlike an affirmative defense, the sudden
                                                                    Shiner v.
Ralston, 64 A.3d 1, 4 (Pa. Super. 2013), appeal denied, 72 A.3d 604 (Pa.
2013).



                                    -7-
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        because the trial court had not charged the jury
        concerning the assured clear distance ahead rule, but had
        instead charged them regarding the sudden emergency

                                                                 ts

        moving instrumentalities suddenly and unexpectedly thrust
                                      Brown, [ ] 386 A.2d at 46
        (footnote and citations omitted). In Brown, the jury
        determined that the driver of the car which had
        encountered the gravel was not negligent in his operation
        of the vehicle. See also Hanlon v. Sorenson, [ ] 433
        A.2d 60 ([Pa. Super.] 1981) (trial court erred in charging

        to the fact that the highway was covered   with gravel);
        McErlean v. McCartan, [ ] 421 A.2d 849     ([Pa. Super.]
        1980) (where jury returned a verdict in    favor of the
        defendant-driver, new trial was required   because the
                                                        d in the
        jury instructions, does not apply to a wet road surface
        involved in an auto accident); Sullivan v. Wolson, [ ]
        396 A.2d 1230 ([Pa. Super.] 1979) (snow and ice on
        road, as well as presence of stopped automobile,
        were all preexisting conditions so that defendant
        motorist was not entitled to sudden emergency
        doctrine).

Id. (emphasis added).

     Analogously, in the instant case, we find that black ice on the roadway

did not constitute a sudden emergency.       See Drew, 95 A.3d at 330;

Kukowski, 560 A.2d at 225. Accordingly, the trial court erred as a matter

                                                                        See

Passarello, 87 A.3d at 296-97.     The jury returned a verdict in favor of

Appellee, therefore, a new trial is required because of the sudden emergency

jury instruction. See Drew, 95 A.3d at 330; Kukowski, 560 A.2d at 225.




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     We   vacate    the   judgment   and   remand   for   further   proceedings

consistent with this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/30/2014




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