J-A03009-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    CARL F. MILLER, JR., AN INDIVIDUAL,        :    IN THE SUPERIOR COURT OF
                                               :          PENNSYLVANIA
                  Appellant                    :
                                               :
                       v.                      :
                                               :
    DAVIES FORD, INC., A CORPORATION,          :
                                               :
                  Appellee                     :   No. 424 WDA 2018

             Appeal from the Judgment Entered February 14, 2018
              in the Court of Common Pleas of Washington County
                        Civil Division at No(s): 2012-19

BEFORE: BOWES, J., SHOGAN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                              FILED APRIL 9, 2019

        Carl F. Miller, Jr. appeals pro se from the judgment entered on February

14, 2018, after the trial court denied Miller’s motion to remove the nonsuit it

entered against him and in favor of Davies Ford, Inc. We affirm.

        We   provide   the    following   background,   as    summarized   by   the

Commonwealth Court in a prior appeal, which reversed an order granting

summary judgment in favor of Davies Ford.1




* Retired Senior Judge assigned to the Superior Court.

1 As the Commonwealth Court acknowledged, an appeal from an order
granting summary judgment in a civil action between two private parties
would normally be within the purview of the Superior Court, not the
Commonwealth Court. However, since Miller appealed to the Commonwealth
Court and neither party objected to the Commonwealth Court’s considering
the appeal, the Commonwealth Court elected to dispose of the appeal. See
Miller v. Davies Ford, 152 A.3d 405 (Pa. Cmwlth. 2016) (unreported
decision at 1 n.1).
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     In 2009, Ford Motor Company (Ford) issued a recall notice
     informing consumers that a speed control deactivation switch
     (SCDS) installed in certain vehicles could potentially cause a fire
     in the engine compartment. Miller was the owner of a 1993 Ford
     E150 conversion van subject to the recall. On or about October 9,
     2009, Miller received the recall notice. Soon thereafter, Miller
     delivered the van to Davies Ford, a Ford dealership, to have the
     SCDS replaced. That same day, Miller returned to retrieve his
     vehicle and was informed that the SCDS had been repaired. On
     October 14, 2009, the van caught fire, resulting in damage to the
     engine compartment and interior. At the time of the fire, the van
     was unattended and the engine was off. Miller alleged that the fire
     and resulting damage were directly caused by Davies Ford’s
     negligence in failing to properly repair the defective SCDS.

            [Miller filed an arbitration complaint on January 19, 2012.]
     The case was eventually referred to an arbitration panel on
     January 20, 2014. The panel issued an award in favor of Davies
     Ford, concluding that Miller had failed to offer sufficient evidence
     to prove his claim. Miller then appealed the panel’s decision to the
     trial court on February 20, 2015. Davies Ford filed a motion for
     summary judgment on March 19, 2015, arguing that Miller had
     failed to offer evidence to prove two elements of his claim for
     negligence. On April 14, 2015, Miller filed a response to Davies
     Ford’s motion, attaching a copy of an expert report by a mechanic.
     The expert report stated that the fire originated from the area in
     the engine compartment where the SCDS was located and was
     likely caused by the malfunctioning SCDS.

            After oral argument, the trial court granted Davies Ford’s
     motion, concluding that Miller had failed to offer evidence showing
     that Davies Ford was negligent, and, moreover, even if Miller had
     shown that Davies Ford was negligent, he had failed to
     demonstrate that Davies Ford’s actions were the cause-in-fact of
     the fire. In its opinion, the trial court noted that Miller’s expert
     report specifically stated that “the entire left front portion of the
     engine compartment and its components had been completely
     destroyed and [were] incapable of being recognized.” (Response
     to Motion for Summary Judgment, Attachment at 1). The trial
     court emphasized that the expert had admitted that the engine
     contents were unrecognizable, yet he was still able to determine
     that either a master cylinder or the SCDS had caused the fire.

Miller, 152 A.3d 405 (unreported decision at 1) (footnotes omitted).

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      Miller filed a notice of appeal to the Commonwealth Court arguing that

the trial court erred in “(1) concluding that he had failed to present sufficient

evidence of the breach and causation elements of negligence; (2) requiring

expert testimony to prove his claim for negligence; and (3) failing to apply the

doctrine of res ipsa loquitor.” Id. at 2. On appeal, the Commonwealth Court

agreed with the trial court that expert testimony was indeed required to prove

Miller’s negligence action. Id. The Commonwealth Court also concluded the

trial court did not err in concluding that the doctrine of res ipsa loquitur was

not applicable in this case. Id. at 3. However, the Commonwealth Court

concluded that the trial court erred in discounting the expert opinion offered

by Miller’s expert, concluding that the expert “unequivocally concludes that

the SCDS was the cause of the fire and the method used by Davies Ford to

repair the SCDS was not the proper method to correct the malfunctioning

component.” Id. at 4. Thus, the Commonwealth Court reversed the order

granting summary judgment on this basis.

      The case returned to the trial court, and a jury trial was scheduled for

October 24, 2017.

            On the morning of trial, [Miller], appearing pro se
      throughout this proceeding, took the stand and told the jury about
      his ownership of the van, the recall notice, the repair and the
      subsequent fire. He next called James Davies, the president of
      Davies Ford []. [Miller] examined Davies closely on the issues of
      whether a road test occurred, or should have occurred, after the
      [SCDS] was repaired or replaced. Finally, [Miller] called one
      Daniel Reed, a friend who had accompanied him to [Davies Ford]
      on the day of the repair. Reed testified that he spoke to one of
      [Davies Ford’s] salesmen who said the repair was only half done.

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      There was no testimony as to exactly who the salesman was or
      why a salesman would be conversant or knowledgeable about
      service work.

            Daniel Reed concluded his testimony shortly after the lunch
      break.    At that point [Miller] had no other witnesses.
      Apparently[,] he intended to rely on the expert testimony of Paul
      Reed to establish causation and damages, but Paul Reed (Daniel’s
      brother) was not present.

            The Court: And this is the time for him to be here to
            tell us about [causation and damages].

            [] Miller: Exactly. I thought he was – I had written
            him, but I didn’t subpoena him, and that is my fault.
            I just figured you subpoenaed him, [counsel for
            Davies Ford].

            [Counsel for Davies Ford]: I never gave any indication
            of that.

      [N.T., 10/24/2017, at 117-18.]

            Whereupon, [Miller] seemed to request a continuance to
      obtain [] his expert witness. “I mean, [all] I can request of the
      [c]ourt, and we could have this tied up in the morning, is I’m going
      to go get the expert witness…” [Id. at 119.] [The trial court]
      denied the motion because on the day set for trial, [Miller] had no
      evidence of causation and no excuse for his failure to provide that
      evidence. The date had been set for seven months, there had
      been extensive discovery, the jury was waiting. [Davies Ford]
      was present with its expert witness. [Davies Ford’s attorney]
      advised that the case could be concluded that day. [Id.] at 121.
      At this point, [Davies Ford] moved for a nonsuit, which [the trial
      court] granted.

Trial Court Opinion, 1/30/2018, at 2-3.

      On November 6, 2017, Miller filed a motion for post-trial relief, wherein

he claimed that the trial court erred in granting various motions in limine filed




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by Davies Ford prior to trial, by granting a nonsuit,2 and denying his request

for a continuance. Miller also argued the trial judge acted improperly toward

him during trial.3 See Motion for Post-Trial Relief, 11/6/2017.

      On January 30, 2018, the trial court filed an opinion and order denying

Miller’s post-trial motion. Miller entered judgment on February 14, 2018, and

filed a notice of appeal to the Commonwealth Court the same day.              The

Commonwealth Court transferred the appeal to this Court.4

      On appeal, Miller’s argument is confusing and difficult to follow.5 See

Miller’s Brief at 14-23. To the extent we can discern Miller’s argument, he

claims the trial court erred in several respects. He first claims that he set

forth sufficient evidence to establish his case for negligence against Davies

Ford. Id. at 14-17. He further claims the trial court erred in granting summary


2A motion to remove a nonsuit is properly filed in a motion for post-trial relief.
See Pa.R.C.P. 227.1(a)(3).

3  Miller does not argue on appeal that the trial court erred in denying a
continuance request or that the trial judge acted improperly toward him during
trial.

4 The trial court did not order Miller to file a concise statement of errors
complained of on appeal, and no new opinion has been filed by the trial court.
However, the trial court did file a comprehensive opinion, as cited supra, in
support of its denying Miller’s motion for post-trial relief.

5 We also observe that Miller’s argument section violates several Rules of
Appellate Procedure. For example, Miller sets forth four questions for our
review, see Miller’s Brief at 5-6, but he does not divide his argument “into as
many parts as there are questions to be argued,” in violation of Pa.R.A.P.
2119(a). In addition, Miller’s brief does not contain a single citation to the
transcript of the jury trial in violation of Pa.R.A.P. 2119(c).


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judgment on his negligence claim where he satisfied the elements of res ipsa

loquitur. Id. at 17-23.    He then faults Davies Ford because it “has not

presented any testimony or evidence whatsoever that proved the fire to

[Miller’s] vehicle was caused by any other component in the vehicle.” Id. at

23.

      In considering the aforementioned, we point out that

      [i]n reviewing the entry of a nonsuit, our standard of review is
      well-established: we reverse only if, after giving appellant the
      benefit of all reasonable inferences of fact, we find that the
      factfinder could not reasonably conclude that the essential
      elements of the cause of action were established. When a nonsuit
      is entered, the lack of evidence to sustain the action must be so
      clear that it admits no room for fair and reasonable
      disagreement.... The fact-finder, however, cannot be permitted to
      reach a decision on the basis of speculation or conjecture.

Vicari v. Spiegel, 936 A.2d 503, 509 (Pa. Super. 2007) (internal citations

and quotation marks omitted).

      Here, as discussed supra, Miller was claiming that Davies Ford was

negligent in its replacement of the SCDS, and this negligence caused the fire

that ruined his vehicle. The Commonwealth Court held expert testimony was

both required and necessary to prove negligence in this case.

      Expert testimony is not required in all negligence cases; however,
      it is required “when the subject matter of the inquiry is one
      involving special skills and training not common to the ordinary
      lay person.” Storm v. Golden, 538 A.2d 61, 64 (Pa. Super. 1988)
      (internal citations omitted). [] Miller’s claim for negligence hinges
      upon whether the faulty SCDS was the cause-in-fact of the fire,
      and, if so, whether Davies Ford correctly serviced the van as
      instructed by the recall notice. A defect or mechanical failure in an
      automobile is a case involving special skills and training which
      requires expert testimony to prove negligence. Brandon v.

                                      -6-
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      Ryder Truck Rental, Inc., 34 A.3d 104, 110 (Pa. Super. 2011).
      Whether the SCDS was correctly serviced and whether the SCDS
      malfunctioned are determinations beyond the skills and training
      of an ordinary lay person. The trial court, therefore, did not err in
      determining that an expert witness is required to prove negligence
      in this case.

Miller, 152 A.3d 405 (unreported decision at 2).

      Instantly, it is undisputed that at trial Miller did not have his expert

available to testify. Therefore, Miller could not establish that Davies Ford was

negligent because “the factfinder could not reasonably conclude that the

essential elements of the cause of action were established.” Vicari, 936 A.2d

at 509. Thus, we conclude trial court did not err in granting Davies Ford’s

motion for nonsuit.6

      Judgment affirmed.




6 With respect to Miller’s claim that the trial court should have let him pursue
a res ipsa loquitur theory, the Commonwealth Court has already ruled that
such a theory is inapplicable in this case. Therefore, the law of the case has
been established with respect to this theory. See Commonwealth v. Starr,
664 A.2d 1326, 1331 (Pa. 1995) (The law of the case “doctrine refers to a
family of rules which embody the concept that a court involved in the later
phases of a litigated matter should not reopen questions decided by another
judge of that same court or by a higher court in the earlier phases of the
matter.”).

      Furthermore, we point out that the trial court here granted Davies Ford’s
motion for nonsuit; thus, Davies Ford was not required to produce any
evidence whatsoever because the trial court concluded that Miller had not
produced sufficient evidence to establish his claim.
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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/9/2019




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