J-A28005-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DAWN GILLEY                                      IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

ALYSA WOLOSZYN

                            Appellee                  No. 437 EDA 2016


              Appeal from the Judgment Entered January 27, 2016
              In the Court of Common Pleas of Philadelphia County
              Civil Division at No(s): May Term, 2014 1405-02943


BEFORE: PANELLA, J., SHOGAN, J., and PLATT, J.

DISSENTING MEMORANDUM BY PANELLA, J.                 FILED MARCH 29, 2017

        I respectfully dissent from my esteemed colleagues in the Majority.

Gilley claims she is entitled to JNOV as there was no evidence presented at

trial to establish that she was contributorily negligent. After reviewing the

testimony presented at trial—in the light most favorable to the verdict

winner, Woloszyn—I am constrained to agree. The jury engaged in pure

speculation to find Gilley 60% liable for the accident. Accordingly, I would

reverse the judgment, enter judgment on liability in favor of Gilley, and

remand for a new trial on damages. My reasoning follows.




____________________________________________



    Retired Senior Judge assigned to the Superior Court.
J-A28005-16


       Contributory negligence is an affirmative defense that Woloszyn had

the burden to prove. See, e.g., Smith v. Port Authority Transit, 390 A.2d

249, 251 (Pa. Super. 1978).

       There was conflicting testimony presented at trial about the accident

and its location. Gilley testified that she had gotten off I-76 West at the exit

for City Avenue. See R.R. at 102a.1 At the end of the ramp, she stopped at a

red light and was then rear-ended by Woloszyn. See id. The jury obviously

disbelieved Gilley’s version of events. And I must accept Woloszyn’s version

of the accident as true.

       Woloszyn testified that she too got off at the exit for City Avenue from

I-76 and turned right at the light. See id., at 77a. This is the same traffic

light where Gilley testified she stopped and where she claims the accident

occurred. Woloszyn then drove down City Avenue towards the cross street

Presidential Boulevard. See id. The far right lane on City Avenue is a merge

lane for Presidential Boulevard. There is a traffic light at the intersection of

City Avenue and Presidential Boulevard. But to drive on Presidential

Boulevard from City Avenue a driver does not go through the intersection.

Rather, the driver stays in that far right hand lane and enters the merge

lane onto Presidential Boulevard. There is a yield sign at the merge.


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1
  The notes of testimony are in the certified record. I utilize citations to the
reproduced record solely for ease of reference.



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       Woloszyn testified that she “was rounding a corner, and Ms. Gilley’s

car was stopped in a street that had a yield sign where there was no cars in

front of her, so I’m not sure why she was stopped.” Id., at 82a. She

“agree[d] to bumping [Gilley’s] car,” but did “not know why she was stopped

in the middle of the street with no cars in front of her.” Id., at 83a. She

continued, “I’m in the fault [sic] for bumping her car while her car was

stopped on the street with no one in front of her on a yield street where

there is no light on that lane. I don’t know why she stopped there.” Id., at

84a.

       The key to the resolution of this appeal is Woloszyn’s testimony that

Gilley’s “car was stopped in a street that had a yield sign where there was

no cars in front of her, so I’m not sure why she was stopped.” That there

were no cars in front of Gilley’s car is of no significance. Under Woloszyn’s

version of the accident, which I accept as true, Gilley was in a merge lane

with a yield sign. It was not the absence of cars in front of her that were

necessarily the issue, but the cars coming across the intersection—the cars

coming across City Avenue on Presidential Avenue. “The driver of a vehicle

approaching a yield sign shall in obedience to the sign slow down to a speed

reasonable for the existing conditions and, if required for safety to stop….”

75 Pa.C.S.A. § 3323. Stop signs and yield signs.

       Woloszyn presented no evidence at all as to traffic coming across

Presidential Boulevard. As she said, “I’m not sure why she was stopped.” It


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was pure speculation on the jury’s part to attribute, as they surely did, this

stop to an improper purpose constituting negligence in the absence of any

evidence whatsoever.

      The trial court, writing in support of its denial of JNOV, notes that

“[t]he jury was free to rely on the credibility of one witness over another to

determine … whether Plaintiff was stopped in traffic when she should have

been moving.” Trial Court Opinion, filed 5/4/16 at 7. When the jury is

equipped with adequate evidence this is undoubtedly true. But here there is

a complete absence of such evidence—“I’m not sure why she was stopped.”

The jury was not free to engage in pure speculation and conjecture to

fashion a reason and then attribute negligence, especially in light of 75

Pa.C.S.A. § 3323.

      The trial court and Woloszyn also rely on the fact that Gilley was using

a cellular phone at the time of the accident. Gilley testified that she was not

on the phone at the time of the accident and that, in any event, she used a

hands-free cellular phone. See R.R. at 104a, 106a, and 108a. Cellular phone

records indicate that Gilley was on the phone from 10:01 am until 10:03 am.

See id., at 249a-251a. She called 911 at 10:04 am, which was “less than a

minute” after the accident. Id., at 103a.

      It appears the jury disbelieved Gilley’s claim that she did not use her

cellular phone during the accident. But there is no evidence from which the

jury could find that use of the phone was negligent. This, like the jury’s


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other finding, was pure speculation and conjecture.2 Mere use of the cellular

phone, without more, cannot establish negligence. Here, there was no

evidence of, for example, erratic driving. And there was no plausible

evidence offered to her being unreasonably stopped in the road.

       Woloszyn bore the burden to establish the affirmative defense of

contributory negligence. All she did was to establish that an accident took

place—one in which she rear-ended the other vehicle. “Negligence is not

shown by circumstances that are merely consistent with its existence.” Kolb

v. Hess, 323 A.2d 217, 220 (Pa. Super. 1974).

       There is no legal foundation for the jury’s finding of contributory

negligence. Accordingly, I would reverse the judgment, enter judgment on

liability in favor of Gilley, and remand for a new trial on damages.3




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2
 Texting while driving is a violation of the vehicle code, but speaking on a
hand held cellular phone while driving is not. See 75 Pa.C.S.A. § 3316(a).
3
 My disposition makes it unnecessary to reach Gilley’s other issue presented
on appeal. See Appellant’s Brief, at 5.



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