J-A25004-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

INDERJIT  BHARGAVA         AND
                           VIJAY : IN THE SUPERIOR COURT OF
BHARGAVA,                        :      PENNSYLVANIA
                                 :
              Appellants         :
                                 :
         v.                      :
                                 :
LOU’S TOWING, INC. AND KYLE V. :
BALL, AND REAGAN’S SERVICE, INC. :
AND FRANK REAGAN, JR.,           :
                                 :
              Appellees          : No. 412 EDA 2015

             Appeal from the Judgment entered March 10, 2015,
                 Court of Common Pleas, Delaware County,
                       Civil Division at No. 2012-4178

BEFORE: DONOHUE, MUNDY and FITZGERALD*, JJ.

MEMORANDUM BY DONOHUE, J.:                        FILED OCTOBER 20, 2015

      Appellants, Inderjit Bhargava (“Mr. Bhargava”) and Vijay Bhargava

(“Mrs. Bhargava”) (collectively “the Bhargavas”), appeal from the judgment

entered on March 10, 2015 by the Court of Common Pleas of Delaware

County, Civil Division. After careful review, we affirm.

      We summarize the relevant facts and procedural history of this case as

follows. It is undisputed that on September 3, 2010, Kyle Ball (“Ball”) was

driving a 2002 International flatbed tow truck (“the flatbed truck”) when he

struck the rear of the Bhargavas’ vehicle, causing the Bhargavas’ vehicle to

careen into a third vehicle. The Bhargavas sustained serious and permanent

bodily injuries because of the accident.




*Former Justice specially assigned to the Superior Court.
J-A25004-15


      On May 17, 2012, the Bhargavas, filed a complaint raising multiple

counts of negligence and loss of consortium against Ball, Lou’s Towing, Inc.

(“Lou’s Towing”), Reagan’s Service, Inc. (“Reagan’s Service”), and Frank

Reagan, Jr. (“Reagan”). The Bhargavas alleged that Ball was an employee

of Reagan’s Service and/or Lou’s Towing and that Reagan was the owner of

those two businesses. Complaint, 5/17/12, ¶¶ 2-5, 8. Thus, the Bhargavas

contended that Reagan was liable to them as Ball’s employer. See id. ¶¶ 2-

10. Alternatively, the Bhargavas asserted that Reagan was liable to them

for negligently entrusting the flatbed truck to Ball or for negligently failing to

secure it and prevent Ball from driving it. See id.

      On January 24, 2013, Reagan filed his answer to the Bhargavas’

complaint and specifically denied that Ball was his employee.           Reagan’s

Answer with New Matter, 1/24/13, ¶ 2. Reagan averred that he had no legal

interest in Reagan’s Service or Lou’s Towing. Id. ¶ 4. Reagan asserted that

he did not at “any time conduct business as or engage workmen, servants,

agents and/or employees of [Reagan’s Service.]”         Id. ¶ 6.    Reagan also

denied that he was the owner of the flatbed truck. Id. ¶ 7. Ball, Reagan’s

Service, and Lou’s Towing all failed to answer the Bhargavas’ complaint. On

August 20, 2013, the Bhargavas entered judgments, jointly and severally as

to liability, against, Ball, Reagan’s Service, and Lou’s Towing.

      On November 13, 2014, the trial court held a nonjury trial on the

outstanding liability claim against the remaining defendant, Reagan, and an



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assessment of damages hearing. The Bhargavas did not send any notice to

Reagan requesting his presence at trial, and consequently, Reagan did not

appear in court on the day of trial. N.T., 11/13/14, at 5-6. As Reagan was

the only witness the Bhargavas intended to question, the trial court

permitted counsel for the Bhargavas to read portions of Reagan’s deposition

testimony into the record. See id. at 20-28.

      The transcript of the nonjury trial therefore reveals the following.

Reagan testified that he was not the owner of Lou’s Towing or Reagan’s

Services and that his father, Frank Reagan, Sr., was the owner of those

businesses. Id. at 20-21. Reagan stated that either his father or one of his

father’s businesses owned the flatbed truck.     Id. at 21.    Reagan further

testified that he was the owner of the business “Reagan’s Getty.” Id. at 20.

Reagan explained that Ball had never been an employee of his or his father,

but that Ball would wander around his business from time to time doing odd

jobs for a small amount of cash or cigarettes.       Id. at 23.   Additionally,

Reagan recalled that approximately six years ago, Ball took his Jaguar S-

Type without his permission, but that it caught on fire because it was

“completely apart” when Ball took it. Id. at 24-25. Regarding the instant

matter, Reagan testified that the flatbed truck was parked in an open lot at

Reagan’s Getty. See id. at 25. Reagan stated that he keeps the keys to the

flatbed truck in the office of Reagan’s Getty, which is unlocked, and that Ball

had access to that office. See id. at 28.



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      At the conclusion of the liability phase of the trial, Reagan motioned

for a directed verdict and the trial court granted the motion, determining

that the Bhargavas failed to meet their burden of proof on the liability claim

against Reagan.   N.T., 11/13/14, at 36, 46. The trial court then held the

assessment of damages hearing.       The Bhargavas testified regarding their

injuries and their exhibits included photographs, itemized hospital bills and

medical reports. See id. at 47-81. On November 24, 2014 the trial court

entered a directed verdict against the Bhargavas and in favor of Reagan.

The same day, the trial court also entered judgments against Ball, Reagan’s

Service, and Lou’s Towing, jointly and severally, in the amount of

$750,000.00 in favor of Mr. Bhargava, and in the amount of $300,000.00 in

favor of Mrs. Bhargava.

      On December 1, 2014, the Bhargavas filed a motion for post-trial relief

pursuant to Rule 227.1 of the Pennsylvania Rules of Civil Procedure. In their

post-trial motions the Bhargavas asserted that the directed verdict in favor

of Reagan was improper for the following reasons: (1) Reagan was liable to

the Bhargavas for the tortious actions of Ball, as Ball’s employer, under the

doctrine of respondeat superior; (2) Reagan was liable to the Bhargavas for

negligently entrusting the flatbed truck to Ball; and (3) Reagan was liable to

the Bhargavas even if Ball did not have permission to use the flatbed truck

for negligently failing to secure the truck. Post-Trial Motions, 12/1/14, at 2-

7. On January 22, 2015, the trial court denied the Bhargavas post-trial



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motions.   On February 6, 2015, the Bhargavas filed a timely notice of

appeal. On February 9, 2015, the trial court ordered the Bhargavas to file a

concise statement of the errors complained of on appeal pursuant to Rule

1925(b) of the Pennsylvania Rules of Appellate Procedure. On February 25,

2015, the Bhargavas filed a timely Rule 1925(b) statement.

     On appeal, the Bhargavas raise the following issues for review:

           1.    Did the [t]rial [c]ourt err in denying [the
                 Bhargavas’] [m]otion for [p]ost-[t]rial [r]elief
                 pursuant to Pa.R.C.P. 227.1 when the evidence
                 presented establishes that [Reagan] failed to
                 secure [the flatbed truck] on his premises from
                 foreseeable unauthorized use and where this
                 failure served as the proximate cause of [the
                 Bhargavas’] injuries?

           2.    Did the [t]rial [c]ourt commit an error of law
                 when it cited [Reagan’s] non-ownership of the
                 subject tow truck in support of its position that
                 [Reagan] is not liable for [the Bhargavas’]
                 injuries?

           3.    Did the [t]rial [c]ourt abuse its discretion in
                 finding that [Ball] did not have a history of
                 negligent motor vehicle operation?

The Bhargavas’ Brief at 4.1



1
  In their Rule 1925(b) statement, the Bhargavas raised the following three
arguments in support of their claim that the trial court erred in finding
Reagan not liable for their injuries:

           First, that Reagan is vicariously liable for the tortious
           actions of Ball as his employer under the doctrine of
           respondeat superior. Second, that Reagan is liable
           for negligently entrusting the truck involved in the
           accident to Ball. Finally, that Reagan is liable even if


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      Though the Bhargavas raise three issues on appeal, each issue relates

to the third argument in their post-trial motions: that the trial court erred in

finding that Reagan was not liable to the Bhargavas because he negligently

failed to secure the flatbed truck. See The Bhargavas’ Brief at 11-15. Our

standard of review when considering the propriety of a directed verdict is as

follows:

                In reviewing a trial court’s decision whether or not
            to grant judgment in favor of one of the parties, we
            must consider the evidence, together with all
            favorable inferences drawn therefrom, in a light most
            favorable to the verdict winner. Our standard of
            review when considering motions for a directed
            verdict and judgment notwithstanding the verdict are
            identical. We will reverse a trial court’s grant or
            denial of a judgment notwithstanding the verdict
            only when we find an abuse of discretion or an error
            of law that controlled the outcome of the case.
            Further, the standard of review for an appellate court
            is the same as that for a trial court.




            Ball did not have Reagan’s permission to use the
            vehicle, because Reagan was negligent in his
            supervision of Ball and failed to secure the truck.

Rule 1925(b) Statement, 2/25/15, at 1-2. The Bhargavas did not raise or
include any argument in support of the first two arguments and have
therefore waived them.       See Pa.R.A.P. 2116(a) (“No question will be
considered unless it is stated in the statement of questions involved or is
fairly suggested thereby.”); Commonwealth v. Johnson, 985 A.2d 915,
924 (Pa. 2009) (“[W]here an appellate brief fails to provide any discussion
of a claim with citation to relevant authority or fails to develop the issue in
any other meaningful fashion capable of review, that claim is waived.”);
Bolick v. Commonwealth, 69 A.3d 1267, 1269 (Pa. Super. 2013) (finding
an issue raised on appeal waived because the appellant failed to present any
argument), appeal denied, 84 A.3d 1061 (Pa. 2014).


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               There are two bases upon which a judgment
            N.O.V. can be entered; one, the movant is entitled to
            judgment as a matter of law and/or two, the
            evidence is such that no two reasonable minds could
            disagree that the outcome should have been
            rendered in favor of the movant. With the first, the
            court reviews the record and concludes that, even
            with all factual inferences decided adverse to the
            movant, the law nonetheless requires a verdict in his
            favor. Whereas with the second, the court reviews
            the evidentiary record and concludes that the
            evidence was such that a verdict for the movant was
            beyond peradventure.

Janis v. AMP, Inc., 856 A.2d 140, 143-44 (Pa. Super. 2004) (citations

omitted).

      In any case alleging negligence, the plaintiff has the burden to prove

the following four elements: “‘1. [a] duty or obligation recognized by law[,]

2.[a] breach of the duty[,] 3. [c]ausal connection between the actor’s breach

of the duty and the resulting injury[, and] 4. [a]ctual loss or damage

suffered by complainant.’” Wilson v. PECO Energy Co., 61 A.3d 229, 232

(Pa. Super. 2012) (quoting Cooper v. Frankford Health Care System,

Inc., 960 A.2d 134, 140 n.2 (Pa. Super. 2008) (citation omitted), appeal

denied, 970 A.2d 431 (Pa. 2009)).       Importantly, “it is incumbent on a

plaintiff to establish a causal connection between defendant’s conduct, and it

must be shown to have been the proximate cause of plaintiff’s injury.” Lux

v. Gerald E. Ort Trucking, Inc., 887 A.2d 1281, 1286 (Pa. Super. 2005)

(quotations and citation omitted).




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      The Bhargavas cite two cases in support of their argument that

Reagan was liable for their injuries – Liney v. Chestnut Motors, Inc., 218

A.2d 336 (Pa. 1966), and Jamison v. City of Philadelphia, 513 A.2d 479

(Pa. Super. 1986). In Liney, employees of the defendant, who operated an

automobile sales agency and garage, allowed a customer’s vehicle to remain

outside the building, double-parked in the street with the keys in the

ignition. Liney, 218 A.2d at 337. An adult stranger stole the vehicle and

then drove it around the block in such a careless manner that it mounted a

sidewalk and struck the plaintiff, causing her serious injury. Id. The trial

court sustained the defendant’s preliminary objections and dismissed the

complaint for failure to state a cause of action. Id. On appeal, our Supreme

Court affirmed, concluding as follows:

               Assuming also that the defendant should have
            foreseen the likelihood of the theft of the automobile,
            nothing existed in the present case to put it on
            notice that the thief would be an incompetent or
            careless driver. Under the circumstances, the thief’s
            careless operation of the automobile was a
            superseding cause of the injury suffered, and
            defendant’s negligence, if such existed, only a
            remote cause thereof upon which no action would lie.

Id. at 338 (citations omitted).

      Similarly, in Jamison, the defendant, a parking garage operator,

parked a customer’s vehicle on the upper level of one of its garages.

Jamison, 513 A.2d at 479.         An adult individual stole the vehicle, which

subsequently resulted in a high-speed police chase. Id. at 480. During this



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pursuit, the stolen vehicle collided with a vehicle in which the plaintiff was a

passenger, causing the plaintiff serious injury. Id. The trial court sustained

the defendant’s preliminary objections and entered judgment in favor of the

defendant.    Id. at 479.    On appeal, our Supreme Court affirmed, holding

that the defendant neither knew nor “should have known that the vehicle

was likely to be stolen by an incompetent driver or that the thief would drive

the vehicle in a negligent or reckless manner.”        Id. at 481.     Similar to

Liney, our Supreme Court explained,

              [i]f in fact [the defendant] was careless in allowing
              the vehicle to be stolen, it cannot be said to have
              been negligent toward [the plaintiff], whose injury
              was not a foreseeable consequence of the theft. The
              thief’s careless operation of the stolen vehicle was a
              superseding cause of [the plaintiff]’s injuries, for
              which [the defendant] cannot be held liable.

Id. at 482.

      Here, the Bhargavas argue that their case differs from Liney and

Jamison. See The Bhargavas Brief at 13-15. First, the Bhargavas assert

that even if Reagan did not own the flatbed truck, it was an instrumentality

within Reagan’s control because it was parked at Reagan’s Getty and the

keys to it were stored in a Reagan’s Getty office. Id. at 14. Second, the

Bhargavas contend that Reagan knew or should have known that Ball was

likely to take the flatbed truck. Id. at 13-14. The keys to the flatbed truck

were left unsecured in a Reagan’s Getty office and Ball had previously stolen

the keys to Reagan’s Jaguar and attempted to take the vehicle from



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Reagan’s possession.     Id.   Third, the Bhargavas claim that Ball had “a

known track record for operating vehicles in a negligent manner” and

therefore, the injuries to the Bhargavas were foreseeable to Reagan and

Ball’s actions were not a superseding intervening cause of their injuries. Id.

at 14-15.

     The trial court, however, determined that Reagan was not liable to the

Bhargavas, finding: “There is no evidence of record that [Ball] had a history

of negligent driving.”   Trial Court Opinion, 4/7/15, at 11.      We agree.

Assuming, arguendo, that Reagan was negligent for failing to secure the

flatbed truck and that he should have known Ball was likely to attempt steal

or otherwise take the truck, the Bhargavas failed to present evidence that

Ball had a known history for driving vehicles in a negligent manner.

     The Bhargavas did present evidence of Ball’s failed attempt to take

Reagan’s Jaguar without his permission, during which the vehicle caught fire

because Ball attempted to drive it while it was “completely apart.”      N.T.,

11/13/14, at 25.   At the outset, we note that it is unclear, based on the

record before us, what exactly transpired during this event, as there is no

testimony or evidence describing the state of the Jaguar other than that it

was “completely apart” when Ball attempted to drive it without permission.

See id. We do not know what “completely apart” means. It could mean the

Jaguar was disassembled in some manner that would have been obvious to

Ball. Conversely, it could also mean that everything under the hood of the



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vehicle was disassembled, of which Ball may have been unaware as he was

trying to take the vehicle. The record simply does not detail what transpired

when Ball attempted to take the Jaguar.        Additionally, this was a single

incident that occurred approximately six years ago.         Thus, viewing the

evidence in the light most favorable to Reagan as the verdict winner, we

cannot say, based on the limited amount of information we have, that Ball’s

operation of the Jaguar was negligent or that this represented proof that Ball

has a history of negligently operating vehicles.

      Moreover, the incident involving the Jaguar provides no evidence

regarding Ball’s driving skills and whether he is a negligent or careless driver

or whether Reagan knew or should have known that Ball is a negligent or

careless driver.   Such information would have been far more pertinent to

this case, as the Bhargavas’ injuries resulted from Ball’s negligent driving.

      Therefore, the Bhargava’s injuries were not a foreseeable consequence

of Ball taking the flatbed truck without Reagan’s permission.      As in Liney

and Jamison, Ball’s negligent operation of the flatbed truck was a

superseding cause of the Bhargava’s injuries, for which Reagan cannot be

held liable.   See Jamison, 513 A.2d at 482; Liney, 218 A.2d at 338.

Therefore, the trial court did not err in finding that the Bhargavas failed to

meet their burden of proof on their liability claim against Reagan and by

entering a directed verdict against the Bhargavas in favor of Reagan.

      Judgment affirmed.



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J-A25004-15


     Mundy, J. joins the Memorandum.

     Fitzgerald, J. notes his dissent.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/20/2015




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