               IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Blair S. Mitchell,                        :
                     Appellant            :
                                          :    No. 344 C.D. 2017
             v.                           :
                                          :    Argued: November 13, 2018
Michelle M. Milburn and James V.          :
Lewis and Commonwealth of                 :
Pennsylvania, Department of               :
Transportation                            :



BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION BY
JUDGE McCULLOUGH                                            FILED: December 6, 2018


             In this motor vehicle accident case, Blair S. Mitchell (Plaintiff) appeals
from the judgment entered on May 1, 2017, in favor of Plaintiff on her negligence
claim against Michelle M. Milburn (Defendant Milburn).
             The three-car accident occurred at an inverted “T” intersection on June
30, 2002, at approximately 8:15 p.m., on State Road 73 (Skippack Pike) at the road’s
juncture point with Weber Road, in Worcester Township, Montgomery County. The
evening was clear and dry and it was still daylight, with sunset occurring around 8:34
p.m. Skippack Pike is a two-lane highway with one lane of travel east and one lane
of travel west, i.e., the horizontal part of the “T.” Weber Road is a two-lane roadway
with one lane of travel north and one lane of travel south, i.e., the vertical part of the
“T.” (Trial court op. at 1, 7.)
              Plaintiff was proceeding eastbound on Skippack Pike preparing to turn
left onto Weber Road.          No traffic control device governed the intersection of
Skippack Pike and Weber Road, and there was no special left-turn lane for eastbound
vehicles turning north from Skippack Pike onto Weber Road.                   Plaintiff came to a
stop in the eastbound lane of Skippack Pike and waited with her turn signal on for the
westbound traffic to clear. While she was stopped and waiting to turn left, Plaintiff
was struck from behind, apparently at a peculiar angle, by a vehicle operated by
Defendant Milburn, which was traveling between 50 and 55 miles per hour. The
dramatic force of the collision caused Plaintiff’s vehicle to flip and roll over and slide
on its roof into the westbound lane of Skippack Pike. At the same time, Defendant
James V. Lewis was driving his vehicle in the westbound lane of Skippack Pike,
approximately 40 to 50 miles per hour and within the posted speed limit, in close
proximity to the intersection. Upon seeing Plaintiff’s vehicle hurtling toward him in
the westbound lane, Defendant Lewis immediately applied his brakes, but was unable
to avoid colliding with Plaintiff’s vehicle. As a result of the accident, Plaintiff
sustained serious personal injuries. Id. at 1-2, 7.
              Thereafter, Plaintiff initiated a negligence action against Defendants
Milburn, Lewis, and the Department of Transportation (DOT). A trial commenced
on October 5, 2016. The next day, Plaintiff and Defendant Milburn settled on the
record and agreed to enter into a pro-rata joint tortfeasor settlement agreement,
whereby Milburn would remain on the verdict sheet for the jury to assess the
proportionate share of liability among the Defendants.1 The trial then proceeded to

       1
         The terms and conditions of the agreement are located in the reproduced record in a related
appeal pending before this Court, Mitchell v. Milburn __ A.3d __ (Pa. Cmwlth., No. 1261 C.D.
2017, filed December 6, 2018). The written agreement itself is in the Supplemental Reproduced
Record at 45b-47b, and the hearing transcript regarding the settlement agreement is in Plaintiff’s
(Footnote continued on next page…)

                                                 2
determine whether Plaintiff could establish liability against the remaining non-
settling parties, Defendant Lewis and Defendant DOT. Id. at 2.
              During the course of trial, and as part of her negligence claim against
Defendant DOT, Plaintiff sought to introduce evidence that discussed and depicted
design changes that Defendant DOT made at the intersection after the accident
occurred. More specifically, Plaintiff proffered testimony and photographic evidence
that showed road markings on Skippack Pike, eight years after the subject accident,
that contained a lane specifically dedicated for a left-turn.       The Court of Common
Pleas of Montgomery County (trial court) ruled that the evidence was inadmissible as
a subsequent remedial measure under Pa.R.E. 407. (Trial court op. at 2.)
              At the close of Plaintiff’s case-in-chief, Defendant Lewis and Defendant
DOT made oral motions for a compulsory non-suit pursuant to Pa.R.C.P. No. 230.1.
The trial court granted Defendant Lewis’ motion, based on the sudden emergency
doctrine, determining that no reasonable jury could find that Defendant Lewis acted
in a negligent manner. The trial court denied Defendant DOT’s motion. (Trial court
op. at 2.)
              On October 7, 2016, the jury returned a verdict. On the verdict sheet,
the jury found that Defendant Milburn (the defendant who settled) was negligent and
that Defendant DOT was not negligent. The jury attributed 100% of the negligence
to Defendant Milburn and awarded Plaintiff damages in the amount of $2,315,693.00.
(Trial court op. at 2; Reproduced Record (R.R.) at 340a-41a.)


(continued…)

Reproduced Record at 46a-52a. For a discussion of joint tortfeasor and pro-rata settlement
agreements, see Taylor v. Solberg, 778 A.2d 664 (Pa. 2001); Charles v. Giant Eagle Markets, 522
A.2d 1 (Pa. 1987).



                                              3
               On October 17, 2016, Plaintiff filed motions for post-trial relief,
contending that the trial court erred in granting Defendant Lewis’ motion for a non-
suit and sustaining Defendant DOT’s objection at trial to Plaintiff’s attempt to
introduce into evidence the post-accident testimony and photograph mentioned
above. On February 21, 2017, the trial court issued an order denying Plaintiff’s
motions, and Plaintiff filed a notice of appeal on March 16, 2017. (Trial court op. at
2-3.)
               By order dated April 27, 2017, this Court directed Plaintiff to reduce the
verdict to a judgment within 14 days, and Plaintiff filed a praecipe to enter judgment
on May 1, 2017, pursuant to Pa.R.C.P. No. 227.4. (R.R. at 293a.)2, 3


                                            Discussion
               On appeal to this Court, Plaintiff raises two issues for review: (1)
whether the trial court erred in granting Defendant Lewis a non-suit, and (2) whether
the trial court abused its discretion in ruling that evidence of post-accident changes
made to the intersection by Defendant DOT was inadmissible.

        2
          “[T]he proper, procedural course to pursue in perfecting an appeal from [a] jury verdict is
to reduce the verdict to judgment and take an appeal therefrom and not from an order denying post-
trial motions.” Crosby v. Department of Transportation, 548 A.2d 281, 283 (Pa. Super. 1988).
Technically, an “[a]ppeal lies from the judgment entered and not the denial of post-trial motions,”
id., and a “verdict did not become final for purposes of appeal until properly reduced to and entered
as a formal judgment under Pa.R.C.P. [No.] 227.4.” Crystal Lake Camps v. Alford, 923 A.2d 482,
488 (Pa. Super. 2007).

        3
          After judgment was formally entered on the docket, on May 16, 2017, Defendant Milburn
filed a petition to strike/vacate or open the judgment, requesting that a new judgment be entered that
marks the matter settled as to her and entering judgment in favor of Defendants Lewis and DOT.
On August 3, 2017, the trial court denied this petition, and Defendant Milburn filed an appeal to this
Court, which is the subject matter of Mitchell v. Milburn (Pa. Cmwlth., No. 1261 C.D. 2017, filed
December 6, 2018). See supra note 1.



                                                  4
             “When reviewing a trial court’s denial of a motion for post-trial relief,
our scope of review is limited to a determination of whether the trial court abused its
discretion or committed an error of law.” Logans’ Reserve Homeowners’ Association
v. McCabe, 152 A.3d 1094, 1103 (Pa. Cmwlth. 2017).
             In her first issue, Plaintiff argues that the trial court erred in granting
Defendant Lewis a non-suit because Defendant Lewis had seen Plaintiff’s vehicle
with an activated turn signal and waiting to turn left, yet he continued to maintain or
increase his speed while arriving at the intersection. According to Plaintiff, the issue
of whether or not Defendant Lewis acted reasonably under the circumstances is one
that should have been left to the jury to decide.
             A motion for compulsory non-suit allows a defendant to test the
sufficiency of a plaintiff’s evidence and may be entered only in cases where it is clear
that the plaintiff has not established a cause of action. Kramer v. Port Authority of
Allegheny County, 876 A.2d 487, 493 (Pa. Cmwlth. 2005).                 In making this
determination, the plaintiff must be given the benefit of all evidence favorable to her,
together with all reasonable inferences of fact arising therefrom, and any conflict in
the evidence must be resolved in her favor. Id. A judgment of non-suit is properly
entered if a plaintiff has not introduced sufficient evidence to establish the elements
necessary to maintain an action, and it is the duty of the trial court, prior to sending
the case to a jury, to determine whether or not the plaintiff has met this burden. Id. at
493-94.
             As observed by the Superior Court, our Supreme Court first recognized
the sudden emergency doctrine in 1854. Drew v. Work, 95 A.3d 324, 333 (Pa. Super.
2014); Papandrea v. Hartman, 507 A.2d 822, 825 n.2 (Pa. Super. 1986) (citing
Railroad Company v. Aspell, 23 Pa. 147 (1854)). The sudden emergency doctrine is



                                            5
an absolute defense to an allegation of negligence and is available to any defendant
who suddenly and unexpectedly finds himself confronted with a perilous situation
that permits no opportunity to assess the danger and respond appropriately. Cannon
v. Tabor, 642 A.2d 1108, 1112 (Pa. Super. 1994); McKee v. Evans, 551 A.2d 260,
272 (Pa. Super. 1988) (en banc). The doctrine is applicable where a defendant
establishes that he did not create the emergency and reacted in a reasonable fashion,
for the law recognizes that an individual encountering peril simply is not expected to
exercise the same degree of care that is mandated by normal and foreseeable
circumstances. Cannon, 642 A.2d at 1112. As our Supreme Court explained:

            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 to the ‘usual
            degree of care’ or be required to exercise his or her ‘best
            judgment’ when confronted 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.
Levey v. DeNardo, 725 A.2d 733, 735 (Pa. 1999) (internal citation omitted).
            Under this well-developed and longstanding legal precept, a sudden and
clear emergency may be caused by “the sudden swerving of other vehicles,” Drew,
95 A.3d at 335, or “moving instrumentalities thrust into a driver’s path of travel.”
Papandrea, 507 A.2d 826. Significantly, for the doctrine to apply, “the approaching
driver need not anticipate the negligence of the other driver.” Fleishman v. Reading,
130 A.2d 429, 431 (Pa. 1957); Unangst v. Whitehouse, 344 A.2d 695, 699 (Pa. Super.


                                          6
1975). “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.” Levey, 725 A.2d at 736.
              In its Pa.R.A.P. 1925(a) opinion, the trial court provided a
comprehensive and commendable evaluation of the evidence presented at trial and
the pertinent case law. In sum, given the precipitous and startling nature of the events
surrounding and comprising the accident, the evidence, even when viewed in the light
most favorable to Plaintiff, was insufficient to support a jury finding that Defendant
Lewis breached his duty of care. (Trial court op. at 4-20.) For instance, the evidence
demonstrated that at the time of the accident, Defendant Lewis was traveling between
40 to 50 miles per hour, which was within the posted speed limit, while traveling
slightly downhill on a straight roadway. (Trial court op. at 7.) In her case-in-chief,
Plaintiff was unable to describe the manner in which Defendant Lewis operated his
vehicle. Likewise, her expert did not offer any testimony regarding the operation of
Defendant Lewis’ vehicle, and he failed to render an opinion that Defendant Lewis’
actions contributed to the accident. Id. at 6, 10-12. For his defense, Defendant Lewis
testified that he was driving down Skippack Pike, “heard a loud bang,” and
“simultaneously with the bang,” saw “a car on its roof coming right at [him].” Id. at
8. He said, perhaps fittingly: “It was like out of a movie.” Id. Defendant Lewis
further stated that Plaintiff’s vehicle was propelled into his “direct path”; he “hit the
brakes as soon as [Plaintiff’s] car starting coming at [him] within a split second”; and
that he “tried to stop, but [] couldn’t.” Id. at 6, 8.
              Based on this record, there are no genuine issues of material fact or
conflicts in the evidence for the jury to resolve. Instead, the uncontroverted evidence
established the existence of a sudden emergency as a matter of law, and there is no



                                              7
evidence from which a reasonable jury could find or infer that Defendant Lewis had
sufficient time to stop his vehicle, drove at an unsafe or inappropriate speed, or
otherwise acted negligently in operating his vehicle. As such, although the facts of
this case are relatively unique, they evince a situation that is analogous to the factual
patterns in other cases where the courts have concluded that the driver was
confronted with a sudden and unexpected emergency and, therefore, did not breach a
legal duty in failing to avoid the accident. See Fleischman, 130 A.2d at 431 (“When
a driver approaches the crest of a hill . . . he can reasonably be assured that no one
will be insane enough to approach the crest of the road from the other side of the
summit, using the contrary lane of travel. If such a predicament should develop and a
collision result, the motorist on his own side of the thoroughfare cannot be declared
guilty of contributory negligence as a matter of law.”); Long v. Pennsylvania Truck
Lines, 5 A.2d 224, 225 (Pa. 1939) (“Appellant was not under a duty to anticipate that
the driver of a vehicle coming in the opposite direction around the curve would
occupy the center of the highway in violation of the law of the road.”); Drew, 95
A.3d at 335 (concluding that a vehicle changing lanes directly in front of a motorist
qualified as sudden emergency where the evidence, if credited, would “establish that
the initial leftward movement of [the defendant’s] vehicle unexpectedly presented
[the plaintiff] with a perilous situation that permitted [the plaintiff] little or no time to
rationally contemplate a response.”); see also Greene v. Morelli Brothers, 463 F.2d
725, 729 (3d Cir. 1972) (“This evidence affords but one conclusion, and that is that
[the defendant] suddenly turned into [the plaintiff’s] lane of travel and was hit almost
immediately. Even according to [the defendant], split-second timing was involved.
In any event, the record does not afford a reasonable conclusion that [the plaintiff]
had, if he were attentive and driving at a lawful rate of speed, the necessary time to



                                             8
avoid the collision. Such a conclusion could only be the result of conjecture.”); cf.
Kline v. Kachmar, 61 A.2d 825, 828 (Pa. 1948) (“Even if the [defendant’s] truck at
the time was somewhere on College Street, [the plaintiff] was under no obligation to
look all the way down the street to ascertain whether or not some motorist was
coming at a reckless rate of speed that would carry him across the intersection.”).
             In Pennsylvania, it is well-settled that “[t]he mere happening of an
accident is no evidence of negligence” and “conduct is negligent only if the harmful
consequences thereof could reasonably have been foreseen and prevented.” Butler v.
City of Pittsburgh, 537 A.2d 112, 114-15 (Pa. Cmwlth. 1988). “The jury may not be
permitted to reach its verdict on the basis of speculation or conjecture; there must be
evidence upon which its conclusion may be logically based.” Cuthbert v. City of
Philadelphia, 209 A.2d 261, 264 (Pa. 1965); accord Fitzpatrick v. Natter, 961 A.2d
1229, 1241-42 (Pa. 2008). Because the record contained insufficient evidence to
support a jury finding that Defendant Lewis was negligent, we conclude the trial
court did not err in granting Defendant Lewis a non-suit.
             In her second issue, Plaintiff contends that the trial court abused its
discretion in excluding evidence pertaining to the dedicated, left-hand turn lane that
Defendant DOT installed or implemented after the accident. Plaintiff asserts that this
evidence was admissible to establish that an alternative and safer design was
available and appropriate.
             The exclusion of evidence is within the sound discretion of the trial
court. Department of General Services v. United States Mineral Products Co., 927
A.2d 717, 731 (Pa. Cmwlth. 2007), aff’d 956 A.2d 967 (Pa. 2008). To constitute
reversible error, an evidentiary ruling must not only be erroneous, but also harmful or
prejudicial to the complaining party. Id.       “The exclusion of evidence may not be



                                            9
grounds for a new trial where the evidence would not have affected the verdict or
where other evidence of the same fact was introduced by the party applying for the
new trial.” Commonwealth v. Fox, 328 A.2d 872, 876 (Pa. Cmwlth. 1974).
               Pa.R.E. 407 prohibits the admission of subsequent remedial measures
except in certain, delineated circumstances. Blumer v. Ford Motor Co., 20 A.3d
1222, 1227 (Pa. Super. 2011). In its entirety, Pa.R.E. 407 states:

               When measures are taken by a party that would have made
               an earlier injury or harm less likely to occur, evidence of the
               subsequent measures is not admissible against that party to
               prove:

               • negligence;
               • culpable conduct;
               • a defect in a product or its design; or
               • a need for a warning or instruction.

               But the court may admit this evidence for another purpose
               such as impeachment or—if disputed—proving ownership,
               control, or the feasibility of precautionary measures.
Pa.R.E. 407.
               In Duchess v. Langston Corporation, 769 A.2d 1131, 1142 (Pa. 2001),
our Supreme Court explained that Pa.R.E. 407 is consistent with “the common law
doctrine precluding the use of evidence of subsequent remedial measures to prove
fault or negligence,” id. at 1137, and determined that the rule “extends to preclude
use of a subsequent design change as substantive evidence of a product defect in a
strict products liability case.”     Id. at 1147.     The Supreme Court cited the two
“traditional justifications” for the rule, that is, “the exclusion of evidence that lacks
relevance, and the promotion of salutary social policy objectives.” Id. at 1137. With
regard to the first point, the Supreme Court stated that “[s]ince the employment of a
subsequent remedial measure by definition occurs in a different time frame, the


                                              10
evidence is said to be of diminished relevance,” id. at 1140, in proving negligence or
a product’s defect; this is primarily because “it applies to conduct before an accident
a standard of duty determined by after-acquired knowledge.” Id. at 1137 n.7. On the
latter point, the Supreme Court declared that “the aim is to encourage measures that
further necessary or added safety, or at least to avoid discouraging such measures, by
removing the concern that they will be employed adversely in an action at law,” id. at
1137; in other words, admission of the subsequent remedial measure would
discourage manufacturers and the like from continuing to update and improve upon
the safety features of their products and instrumentalities after their initial
manufacture or implementation. See id.
              Here, as previously mentioned, Plaintiff’s proffered evidence discussed
and depicted the dedicated left-turn lane that Defendant DOT installed in the
eastbound lane on Skippack Pike subsequent to the accident. In its Pa.R.A.P. 1925(a)
opinion, the trial court addressed and resolved Plaintiff’s evidentiary issue in an apt
and able manner, concluding that, pursuant to the plain language of Pa.R.E. 407,
Plaintiff’s proposed evidence was inadmissible to demonstrate that Defendant DOT
acted negligently or that Skippack Road was defective in that it required a traffic
control, warning device, or a new design. (Trial court op. at 20-24.)4 We find no
error in the trial court’s evidentiary ruling.

       4
         In her brief, Plaintiff places heavy reliance on Wenger v. West Pennsboro Township, 868
A.2d 638 (Pa. Cmwlth. 2005), but that case is inapposite. In Wenger, this Court held that facts
contained within a post-accident engineering study performed by the township’s engineer was not a
remedial measure as “the whole purpose of [the] investigation was to determine whether remedial
measures were warranted.” Id. at 644. As such, we concluded that the facts in the engineering
study could be used by the plaintiff’s expert to support his opinion that a proposed traffic device
was an appropriate measure that the defendant could have employed to prevent the accident.
However, in Wenger, the plaintiff did not seek to introduce evidence showing that the defendant
did, in fact, install the traffic device after the accident, which would have been evidence of a
(Footnote continued on next page…)

                                                11
              Nonetheless, Plaintiff contends that she offered to introduce this
evidence, not to prove negligence, but to establish feasibility or control. However, as
noted by the trial court, Defendant DOT conceded control and feasibility at trial.
(Trial court op. at 21-22.) Because the issues of control and feasibility were never
“disputed,” Pa.R.E. 407, or otherwise contested by Defendant DOT, we conclude that
the trial court did not err in ruling that Plaintiff could not submit the proffered
evidence for these limited purposes. This aspect of the trial court’s evidentiary ruling
finds strong support in our case law.
              For example, in Mendenhall v. Department of Transportation, 537 A.2d
951 (Pa. Cmwlth. 1988), the plaintiffs attempted to introduce evidence that, after the
accident, DOT placed an advisory speed plate on a “Curve Ahead” sign before the
curve and also placed a large arrow sign in the curve. The plaintiffs asserted that they
offered this evidence not to prove negligence by DOT, but rather, to establish the
availability of an affordable and feasible remedy to improve the safety of the curve
consistent with the recommendations of their expert. On appeal, this Court concluded
that since DOT “made no effort to dispute” the matters, “there simply was no issue of
feasibility or affordability of different signs at the curve”; consequently, “the
plaintiffs’ proffered evidence did not relate to any material fact in issue, and hence
was irrelevant” and inadmissible.           Id. at 956.     We further added that, in these
circumstances, “the only use the jury could have made of the proffered evidence
would have been to impute antecedent evidence, to the prejudice of [DOT].” Id.; see
Haas v. Department of Transportation, 536 A.2d 865, 867 (Pa. Cmwlth. 1988)

(continued…)

subsequent remedial measure barred by Pa.R.E. 407. In this case, by contrast, Plaintiff attempted to
introduce such evidence.



                                                12
(rejecting the plaintiff’s argument that evidence that DOT erected a sign within one
year of the accident was admissible to prove that it was feasible to erect such a sign
“because feasibility was not an issue raised by DOT”). Therefore, we conclude that
the trial court did not abuse its discretion in excluding Plaintiff’s proposed evidence
concerning the changes that Defendant DOT made to the intersection after the
accident.5
               For the above-stated reasons, the Court concludes that the two issues that
Plaintiff raises on appeal lack merit and fail to establish that the trial court abused its
discretion or committed an error of law in granting Defendant Lewis a non-suit and




       5
          In any event, the trial court permitted Plaintiff’s expert to testify that a dedicated left-turn
lane was not in place at the intersection at the time of the accident; Skippack Pike could
accommodate a dedicated left-turn lane without changes to the road’s configuration; it would have
been feasible and appropriate for Defendant DOT to create a dedicated left-turn lane by re-striping
Skippack Pike; and that if a dedicated left-turn had been implemented by Defendant DOT prior to
the accident, the measure could have prevented the accident. (Trial court op. at 22-23.)
Consequently, notwithstanding the trial court’s ruling that evidence reflecting the subsequent
remedial measures was inadmissible, Plaintiff was able to introduce other evidence to demonstrate
the facts that she sought to submit to the jury, including proof that Defendant DOT had authority
and control over Skippack Pike and the intersection, it was practical and viable for Defendant DOT
to construct a dedicated left-turn, and Defendant DOT acted negligently in failing to do so. See id.

         Hence, with the exception of offering evidence that displayed the subsequent remedial
measure itself, Plaintiff admitted evidence at trial that was duplicative and cumulative of her
proffered but excluded evidence. In this context, if the trial court committed any evidentiary error
(which we conclude it did not), the error would have been harmless and not one which would
require a new trial. See Hass, 536 A.2d at 866-67 (concluding that even though the trial court
properly refused to admit evidence that DOT had posted a warning sign after the accident, the
plaintiffs nonetheless introduced evidence that DOT was negligent in failing to erect a warning sign
and witnesses testified that no warning sign existed at the time of the accident; therefore, the
plaintiffs would not be entitled to a new trial because the exclusion of evidence may not be grounds
for a new trial where other evidence of the same fact was introduced by the party seeking a new
trial); see also Commonwealth v. Hawkins, 701 A.2d 492, 508 (Pa. 1997).



                                                   13
ruling that evidence of subsequent remedial measure undertaken by Defendant DOT
was inadmissible. Accordingly, we affirm the judgment.




                                           ________________________________
                                           PATRICIA A. McCULLOUGH, Judge




Judge Cohn Jubelirer did not participate in this decision.




                                          14
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Blair S. Mitchell,                    :
                     Appellant        :
                                      :    No. 344 C.D. 2017
             v.                       :
                                      :
Michelle M. Milburn and James V.      :
Lewis and Commonwealth of             :
Pennsylvania, Department of           :
Transportation                        :


                                   ORDER


             AND NOW, this 6th day of December, 2018, the judgment entered on
May 1, 2017, in the Court of Common Pleas of Montgomery County is hereby
affirmed.




                                          ________________________________
                                          PATRICIA A. McCULLOUGH, Judge
