J-A03015-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 STUART GAMBLE, ADMINISTRATOR            :   IN THE SUPERIOR COURT OF
 OF THE ESTATE OF EVA GAMBLE             :        PENNSYLVANIA
                                         :
                   Appellant             :
                                         :
                                         :
              v.                         :
                                         :
                                         :   No. 1330 MDA 2019
 COREY SHAEFFER AND KEVIN                :
 VINTON AND MARIAH MELLOT                :
          v.                             :
                                         :
                                         :
 JULIO VILLARREAL, LORNE SWOPE           :
 AND ROBERT HUFFMAN                      :

               Appeal from the Order Entered August 2, 2019
   In the Court of Common Pleas of Fulton County Civil Division at No(s):
                               2017-00262


BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.

MEMORANDUM BY LAZARUS, J.:              FILED: JUNE 8, 2020

      Stuart Gamble, administrator for the estate of Eva Gamble, appeals

from the order, entered in the Court of Common Pleas of Fulton County,

granting Corey Shaeffer’s motion for judgment on the pleadings. After careful

review, we reverse and remand.

      On September 19, 2017, Gamble filed a complaint asserting the

negligence of Defendants Shaeffer, Kevin Vinton, and Mariah Mellot gave rise

to wrongful death and survival actions against each defendant. That

complaint, in relevant part, rested on the following factual averments:
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     The facts and occurrences hereinafter stated took place on
     October 19, 2016, at approximately 6:30 [p.m.] on the
     southbound lane of State Route 522 (SR-522) (Great Cove Road)
     about one (1) mile south of the Borough of McConnellsburg, Fulton
     County, Pennsylvania.

     [] Shaeffer was the operator of a 1990 Chevrolet Prism, and was
     driving south on SR-522, behind a 2005 Kenworth T800 tractor-
     trailer, operated by Julio Villarreal.

     [] Shaeffer pulled out into the opposing northbound lane in an
     attempt to pass [] Villarreal.

     A third vehicle, a 2001 Mercury Village, owned and operated by
     Lorne Swope, was driving in the northbound lane of SR-522 at the
     time of this crash.

     In order to avoid a head-on collision with []Shaeffer, []Swope
     braked and steered left, into the southbound lane.

     In doing so, [] Swope drove into the tractor-trailer being operated
     by [] Villarreal.

     [] Villarreal pulled his tractor-trailer off to the side of the
     southbound lane, while [] Swope’s vehicle came to a final resting
     place facing west in the center of the roadway.

     [] Shaeffer left the scene of the crash following the collision.

     A vehicle, owned and operated by Robert Huffman, was also
     driving south on SR-522, and [Huffman] pulled his vehicle
     partially off the [roadway] and partially into the travel lane.

     [] Huffman’s vehicle was approximately 2/3 off the roadway
     (berm), and 1/3 on the roadway in the travel portion and within
     the fog line.

     Eva Gamble, [now] deceased, was a passenger in [] Huffman’s
     vehicle.

     The travel portion of the road was blocked by debris from the
     accident caused by [] Shaeffer.




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     Kevin Vinton, operating a 2012 Ford F[-]150, was also driving
     south on SR-522, and stopped at the top of a hill, behind []
     Huffman’s vehicle.

     Mariah Mellot was the right front[-]seat passenger in [] Vinton’s
     vehicle.

     [] Huffman and [Eva] Gamble exited the Huffman vehicle, in order
     to clear the roadway of debris so that traffic would not back up.

     [] Vinton also exited his vehicle, and walked towards the crash
     scene, while [] Mellot remained in [] Vinton’s vehicle.

     [Eva] Gamble was reentering [] Huffman’s vehicle. She was at
     the front right bumper. The car was up against an embankment.
     She had to squeeze between the vehicle and embankment to open
     the door.

     [] Vinton’s vehicle started to roll forward, down the hill towards
     the Huffman car.

     Defendant Vinton’s vehicle struck the back of [] Huffman’s car,
     pushing it forward and causing it to run over [] Gamble.

                                   ***

     The injuries ultimately led to [Eva Gamble’s] death.

Complaint, 9/19/17, at 2-4 (paragraph numerals omitted).

     On December 27, 2017, Defendant Shaeffer filed a praecipe to join

additional defendants Villarreal, Swope and Huffman. On February 14, 2018,

Shaeffer filed a joinder complaint, alleging claims of contribution and

indemnification against each additional defendant. Swope filed preliminary

objections in the form of a demurrer to Shaeffer’s complaint. On March 15,

2018, Shaeffer filed both a response to Swope’s preliminary objections and a




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motion for judgment on the pleadings, in which he argued Gamble’s complaint

failed to state a valid cause of action against him.

       On August 14, 2018, the Honorable Jeremiah D. Zook heard oral

argument from Gamble, Shaeffer, and Swope. On September 13, 2018, Judge

Zook sustained Swope’s preliminary objections and granted Shaeffer’s motion

for judgment on the pleadings. The court found Gamble failed to plead facts

establishing Shaeffer’s conduct was the proximate cause of Eva Gamble’s

injuries.1 On August 9, 2019, Gamble timely filed a notice of appeal. 2 Both

Gamble and the court complied with Pa.R.A.P. 1925.

       Gamble raises the following claims on appeal:

       1.     Whether the trial court erred in its application of Lux v.
              Gerald E. Ort Trucking, Inc., 887 A.2d 1281 (Pa. Super.
              [] 2005)[,] to this instant case, resulting in the trial court
              incorrectly concluding that [Gamble] did not state a cause
              of action in tort for Defendant Shaeffer’s driving in a
              negligent manner, causing debris to litter the roadway and
              mak[ing] it unsafe for other motorists, thereby causing []
              Huffman to park his vehicle with Eva Gamble as his
              passenger[] along the roadway to help clear the scene and
              permitting Eva Gamble to be struck by another vehicle?

       2.     Whether the trial court erred when it ruled as a matter of
              law that the conduct of [] Vinton and [] Huffman were


____________________________________________


1  The court, by extension, found Swope could not be responsible for
indemnification or contribution to Shaeffer.

2 Gamble later settled with Vinton and Mellot. Motion to Discontinue, 7/8/19,
at 2. He timely filed a notice of appeal after the court granted his motion to
discontinue as to Huffman and Villarreal on July 23, 2019, rendering the
September 13, 2018 order final and appealable. See Pa.R.A.P. 341(b)(1) (“A
final order is any order that . . . disposes of all claims and of all parties.”)

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             superseding and/or intervening causes based on the
             allegation in the [c]omplaint?

Brief of Appellant, at 4.

      We consider Gamble’s interrelated claims together. The following scope

and standard of review apply:

      A motion for judgment on the pleadings should be granted only
      where the pleadings demonstrate that no genuine issue of fact
      exists, and the moving party is entitled to judgment as a matter
      of law. Thus, in reviewing a trial court’s decision to grant
      judgment on the pleadings, the scope of review of the appellate
      court is plenary; the reviewing court must determine if the action
      of the trial court is based on a clear error of law or whether there
      were facts disclosed by the pleadings which should properly go to
      the jury. An appellate court must accept as true all well-pleaded
      facts of the party against whom the motion is made, while
      considering against him only those facts which he specifically
      admits. Neither party can be deemed to have admitted either
      conclusions of law or unjustified inferences.          Moreover, in
      conducting its inquiry, the court should confine itself to the
      pleadings themselves and any documents or exhibits properly
      attached to them. It may not consider inadmissible evidence in
      determining a motion for judgment on the pleadings. Only where
      the moving party’s case is clear and free from doubt such that a
      trial would prove fruitless will an appellate court affirm a motion
      for judgment on the pleadings.

Wilcha v. Nationwide Mut. Fire Ins. Co., 887 A.2d 1254, 1257 (Pa. Super.

2005) (citations omitted); see also Cornwall Mountain Investments, L.P.

v. Thomas E. Proctor Heirs Trust, 158 A.3d 148, 153 (Pa. Super. 2017)

(“Judgment on the pleadings should only be granted when there are no

genuine issues of fact and the moving party is entitled to judgment as a matter

of law.”).




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      To recover for an action in negligence, a plaintiff must prove the

elements of duty, breach, causation, and harm. See Lux, supra at 1287

(listing elements of negligence).       Under Pennsylvania law, causation

encompasses both “cause-in-fact” and “legal, or proximate, cause[.]” Straw

v. Fair, 187 A.3d 966, 993 (Pa. Super. 2018). A negligent act “is a cause-in-

fact of the plaintiff’s injuries if the harmful result would not have come about

but for the negligent conduct.” Id. “[C]onduct is a proximate cause of the

plaintiff’s harm where the conduct was a substantial factor in bringing about

the harm inflicted upon a plaintiff.”   Id.   “Proximate cause does not exist

where the causal chain of events resulting in [the] plaintiff’s injury is so

remote as to appear highly extraordinary that the conduct could have brought

about the harm.” Lux, supra at 1286–87; see Dudley v. USX Corp., 606

A.2d 916, 923 (Pa. Super. 1992) (affirming grant of summary judgment,

finding USX’s history of knowingly purchasing stolen copper did proximately

cause trespasser to risk injury by attempting to steal additional copper).

      The substantial factor test assesses whether “a party’s negligence was

the proximate or legal cause of another’s injury[.]” Lux, supra at 1286. As

set forth in Wisniewski v. Great Atlantic & Pacific Tea Co., 323 A.2d 744,

748 (Pa. Super. 1974), that test provides:

      [T]he actor’s negligent conduct is a legal cause of harm to another
      if:




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              (a)    his conduct is a substantial factor[3] in bringing about
                     the harm[;] and

              (b)    there is no rule of law relieving the actor from liability
                     because of the manner in which his negligence has
                     resulted in harm.

Lux, supra at 1287, quoting Wisniewski, 323 A.2d at 748 (citing

Restatement (Second) of Torts, § 431 (1965)).

       In Grainy v. Campbell, 425 A.2d 379 (Pa. 1981), our Supreme Court

addressed the issue of whether an intervening negligent act of a second actor

will discharge the first actor’s liability. The Court stated that, since 1973, the

controlling law in Pennsylvania on “the extent of liability of a negligent actor,

i.e., the law of proximate causation, where that question is presented in the

light of an intervening act of negligence, is contained in section 447 of the

Restatement (Second) of Torts (1965).”             Id. at 381, citing Estate of


____________________________________________


3 The following considerations are of importance in evaluating whether
negligent conduct is a substantial factor in producing an injury:

       (a) the number of other factors which contribute in producing
       the harm and the extent of the effect which they have in producing
       it;

       (b) whether the actor’s conduct has created a force or series of
       forces which are in continuous and active operation up to the time
       of the harm, or has created a situation harmless unless acted upon
       by other forces for which the actor is not responsible;

       (c)    lapse of time.

Lux, supra at 1287 (citations omitted).



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Flickinger v. Ritsky, 305 A.2d 40 (Pa. 1973) (adopting Restatement (Second)

of Torts, § 447).       Under section 447, liability of an initial negligent actor

persists where: 1) “the first actor should have realized that the second actor

might so act[;]” 2) “a reasonable man would not regard the second actor’s

action as highly extraordinary[;]” or 3) “the second actor’s conduct is a normal

consequence of the situation created by the first actor and not extraordinarily

negligent.[4]” Grainy, 425 A.2d at 381 (emphasis added).



____________________________________________


4   Section 447, in full, reads as follows:

        The fact that an intervening act of a third person is negligent in
        itself or is done in a negligent manner does not make it a
        superseding cause of harm to another which the actor’s negligent
        conduct is a substantial factor in bringing about, if


              a) the actor at the time of his negligent conduct should
                 have realized that a third person might so act, or



              b) a reasonable man knowing the situation existing when
                 the act of the third person was done would not regard
                 it as highly extraordinary that the third person had so
                 acted, or



              c) the intervening act is a normal consequence of a
                 situation created by the actor’s conduct and the
                 manner in which it is done is not extraordinarily
                 negligent.


Restatement (Second) of Torts § 447 (emphasis added).



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      The trial court, relying on Lux, supra, found the facts pleaded in the

instant case required it to grant Shaeffer’s motion for judgment on the

pleadings, as to do otherwise “would essentially render toothless the

requirement that plaintiff plead proximate causation. [In other words, t]he

[c]ourt f[ound] that [Gamble] has plead[ed] ‘a situation harmless’ that was

‘acted upon by other forces for which’ . . . Shaeffer is not responsible.”

Pa.R.A.P. 1925(a) Opinion, 9/13/18, at 13 (quoting Lux, supra at 1287).

      We, however, find Lux distinguishable from the instant case. In Lux,

supra, this Court affirmed the trial court’s decision to grant a defendant’s

preliminary objections where the complaint lacked averments that could have

established that the defendant proximately caused the plaintiff’s injuries. See

id. at 1287–88.    Lux involved a superficially similar scenario, involving a

plaintiff who was grievously injured while assisting in the aftermath of a

serious car accident, wherein the plaintiff pleaded the following facts:    (1)

Eddie Roberts fell asleep at the wheel and collided with objecting defendant

Jaime Parker; (2) Parker fled the scene; (3) James Lux arrived at the scene

in his capacity as a police officer; (4) a state police officer, who had been

securing the scene of the accident, left upon learning Parker was at a nearby

truck stop; and (5) during the state police officer’s absence, Samuel Knight

fell asleep at the wheel and collided with Lux’s rescue vehicle, paralyzing Lux.

See id. at 1284.




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        The Lux Court found the trial court properly granted preliminary

objections dismissing Parker from Lux’s suit on the grounds that the pleaded

facts failed to establish that Parker’s conduct proximately caused Lux’s injury.

See id. at 1288 (“Proximate cause does not exist between Appellee’s conduct

. . . and Appellant’s injury.”). We determined that “[i]t was the negligence of

Roberts, who fell asleep at the wheel and then wrecked into [Parker’s vehicle],

that was the cause of the first accident.” Id.    Further, we found it “highly

extraordinary that [Parker] fleeing from the scene could have caused Knight,

who also fell asleep at the wheel, to collide with Appellant’s vehicle and

ultimately result in Appellant’s injuries.” Id.

        The Lux court affirmed the trial court’s decision to dismiss the case

against Parker on the grounds it was Roberts’ negligence that caused the crash

that inadvertently led to Parker’s role in Lux’s accident. See Lux, supra at

1288. This critically differs from the instant situation, wherein Gamble asserts

Shaeffer caused the initial crash and fled. See Complaint, 9/19/17, at 2–3.

The pleadings further assert Shaeffer fled in spite of the accident producing

such a quantity of debris that two drivers and two passengers chose to pull

over and aid in clearing the road. See id. Shaeffer’s role in the accident,

therefore, is not analogous to that of Parker, but to that of Roberts.

Accordingly, we do not find Lux dispositive.

        Rather, we find the instant situation controlled by Grainy, supra, and

apply    section 447   to determine “when intervening negligence will relieve


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antecedent negligence.” Grainy, supra at 381. The facts of Grainy are as

follows: A group of Boy Scouts were hiking on a berm alongside a highway.

Id. at 380. A natural gas company, in the process of replacing a gas pipeline,

had obstructed the berm along which the children hiked. Id. An oncoming

truck observed the approaching Boy Scouts and the excavation and moved his

truck partially over the double yellow line. Id. Two Boy Scouts proceeded

around the obstruction and walked along the paved roadway. Id. The truck

driver drifted back into the lane as he passed the boys, striking one, who

suffered severe injuries. Id.

      The jury returned a verdict in favor of the injured Boy Scout against the

truck driver, his employer, the contractor and the gas company. Id. This

Court later affirmed the judgment against the truck driver and his employer,

but reversed the judgment against the contractor and gas company, “holding

that the truck driver’s intervening negligence discharged the liability of the

contractor and gas company as a matter of law.” Id. Our Supreme Court,

relying on the section 447, overturned our order reversing judgment on the

grounds that all three rationales under section 447 supported continuing

liability for the initial negligent actor. Id. at 381. Of particular relevance here

is the fact that the Grainy Court found liability persisted because the gas

company and contractor, the initial negligent actor, created “a realizable

likelihood” that another individual would be “forced to use the roadway and

be struck by a negligently driven passing vehicle.”


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      Instantly, we find the facts pleaded by Gamble, averring Shaeffer’s

negligence created a dangerous situation conducive to producing further

negligent acts, give rise to a colorable theory of liability under Grainy. See

id. at 381. We, therefore, find the court erred by granting Shaeffer’s motion

for judgment on the pleadings. See Wilcha, supra at 1257 (“Only where the

moving party’s case is clear and free from doubt such that a trial would prove

fruitless will an appellate court affirm a motion for judgment on the

pleadings.”).

      Order reversed. Remanded for further proceedings consistent with this

memorandum. Jurisdiction relinquished.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 06/08/2020




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