J-A29024-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LINDA GORTON,                                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                           Appellant

                      v.

ERIE INSURANCE EXCHANGE,

                           Appellee                 No. 1925 WDA 2014


            Appeal from the Judgment Entered October 29, 2014
               In the Court of Common Pleas of Erie County
                     Civil Division at No(s): 13002-2012


BEFORE: FORD ELLIOTT, P.J.E., BOWES AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                        FILED FEBRUARY 29, 2016

      Linda Gorton appeals from the trial court’s determination in this

declaratory judgment action that Erie Insurance Exchange (“Erie”) was not

obligated to provide liability coverage for a traffic accident pursuant to its

policy with its insured Dorris Walters. We affirm for the reasons that follow.

      Ms. Walters owned a 2001 Jeep Cherokee that was insured with Erie.

On May 8, 2009, Andre Dunlap, Ms. Walters’ daughter’s boyfriend, was

operating the vehicle. He ran a red light and collided with a vehicle driven

by Linda Gorton’s husband and in which she was a passenger. Ms. Gorton

sustained injuries.

      Ms. Gorton filed a lawsuit against Mr. Dunlap seeking damages for the

injuries she sustained in the accident.     A default judgment was entered
J-A29024-15


against Mr. Dunlap on November 1, 2010.           Ms. Gorton thereafter sought

coverage from Erie, the insurer of Ms. Walters’ vehicle.            Erie denied

coverage based on its determination that Mr. Dunlap was not operating the

vehicle at the time of the accident with the named insured’s permission. Ms.

Gorton filed the within declaratory judgment action to resolve the coverage

issue.

         The following occurred at the non-jury trial on October 2, 2014. The

parties stipulated that Dorris Walters owned the vehicle and that Andre

Dunlap was operating it.      Plaintiff introduced the insurance policy and the

deposition of Officer Justin Griffith, the police officer who responded to the

accident. Objections to portions of the deposition were sustained, including

the officer’s testimony that Mr. Dunlap represented that he had permission

to use the vehicle. Plaintiff rested largely on the presumption that the driver

of a motor vehicle had permission from the owner to do so.

         Counsel for Erie asked the court for a ruling confirming that Ms. Gorton

had the burden of proving eligibility for insurance coverage by proving

permissive use. N.T., 10/2/14, at 27. The court so ruled and noted that the

presumption operated to satisfy Ms. Gorton’s burden of production and to

shift the burden of producing evidence to the defense. Id. at 29. Based on

that ruling, Erie called Dorris Walters to the stand.

         Ms. Walters testified that Mr. Dunlap is the father of her daughter’s

children. Id. at 31. She confirmed that Mr. Dunlap and her daughter had


                                       -2-
J-A29024-15


an ongoing relationship for several years prior to the accident but they did

not reside in the same household. On the day of the accident, Ms. Walters

had no interaction with Mr. Dunlap, and there was no opportunity for him to

ask her permission to drive her car. He did not have a set of keys to the

car. She had never seen him drive the Jeep before, and he had never asked

her permission to do so.       She acknowledged that he had picked up her

daughter from college in one of her former cars. Since he was previously

involved in an accident while driving one of her cars, Ms. Walters told the

court that Mr. Dunlap knew that he was not allowed to use her Jeep or any

of her cars. Id. at 32, 42. Specifically, she told Mr. Dunlap that he was not

permitted to drive her cars.

      On the date in question, Ms. Walters believed that Mr. Dunlap took the

keys from her daughter’s counter. She explained that the keys were present

in that location because she regularly permitted her daughter to borrow her

car to run errands. Upon being advised of the accident, Ms. Walters went to

the police station and reported the theft of her keys and a cell phone.

However, Ms. Walters did not charge Mr. Dunlap with unauthorized use of a

motor vehicle purportedly because she was unaware that she could bring

charges. Id. at 64.

      The trial court issued an opinion on October 8, 2014, in which it set

forth its findings.   Specifically, the court found that Mr. Dunlap was not a

“relative” of Ms. Walters as defined in the policy.    Furthermore, it found


                                     -3-
J-A29024-15


credible Ms. Walters’ testimony that Mr. Dunlap did not have her permission

to use the Jeep on that day or any other day; that she was unaware that he

would drive her Jeep that day; that she had never observed Mr. Dunlap

driving her Jeep and had not been apprised that he used her Jeep prior to

the accident; and that neither Mr. Dunlap nor Ms. Walters’ daughter ever

asked for permission for Mr. Dunlap to drive the Jeep. Opinion, 10/8/14, at

2. In conclusion, the court found no “evidence that Mr. Dunlap had implied,

express, or apparent permission to use the Jeep on the day of the accident

or at any time prior thereto.”     Id.   It specifically found that neither Mr.

Dunlap’s self-serving statement to the officer that he had permission to drive

Ms. Walters’ car nor the officer’s apparent belief in the truth of that

statement established permission.

      Ms. Gorton filed a motion for post-trial relief, which the trial court

denied.     She appealed, complied with the court’s order to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal, and the trial

court issued its Rule 1925(a) opinion.

      Ms. Gorton presents three issues for our review:

      I.      Whether the trial court erred by failing to consider highly
              relevant evidence of the opinion of Officer Justin Griffith
              that he believed Andre Dunlap had permission.

      II.     Whether the trial court erred by excluding evidence of
              Officer Griffith’s deposition testimony that Andre Dunlap
              told him he had permission when its admission was
              stipulated to and no timely objection made.




                                      -4-
J-A29024-15


      III.     Whether the trial court erred in denying Plaintiff’s motion
               for judgment notwithstanding the verdict given Dorris
               Walters[’] inconsistent testimony.

Appellant’s brief at 4.

      Appellant’s first two issues challenge the trial court’s exclusion of

certain evidence from the deposition of Officer Griffith.     In reviewing the

propriety of an evidentiary ruling, “It is well settled that the admission or

exclusion of evidence is a matter within the sound discretion of the trial

court, which may only be reversed upon a showing of a manifest abuse of

discretion.”    Eichman v. McKeon, 824 A.2d 305, 319 (Pa.Super. 2003).

"[A]n abuse of discretion may not be found merely because an appellate

court might have reached a different conclusion, but requires a result of

manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such

lack of support so as to be clearly erroneous." Betz v. Pneumo Abex LLC,

44 A.3d 27 (Pa. 2012) (quoting Paden v. Baker Concrete Constr., 658

A.2d 341, 343 (Pa. 1995)).

      Ms. Walters was the named insured on the Erie insurance policy

covering the 2001 Jeep.       Mr. Dunlap was not related to her by blood or

marriage, nor was he a member of her household.             Thus, he would be

protected under the policy only if he was using Ms. Walters’ motor vehicle

with her permission. Ms. Gorton conceded at the outset that she was not

proceeding on a theory of express permission. She maintained that her case




                                       -5-
J-A29024-15


consisted of the legal presumption that one who is driving the car of another

has permission to do so. In addition, she would prove implied permission.

       Under Pennsylvania law, there is a presumption that the operator of a

motor vehicle has the permission of the owner.                Waters v. New

Amsterdam Casualty Co., 144 A.2d 354, 356-57 (Pa. 1958).                      The

presumption shifts the burden of producing evidence to the defense that no

permission was given. The burden of persuasion, however, remains on the

plaintiff.

       Implied permission may “result by implication from the relationship of

the parties or a course of conduct in which the parties have mutually

acquiesced.” Adamski v. Miller, 681 A.2d 171, 174 (Pa. 1996). However,

permission requires “more than mere sufferance or tolerance without taking

steps to prevent the use of the automobile,” and where the named insured

has no knowledge of the use, permission cannot be implied.               Federal

Kemper Ins. Co. v. Neary, 530 A.2d 929, 931 (Pa.Super. 1987).

       Ms. Gorton alleges that the trial court abused its discretion in failing to

consider and evaluate Officer Griffith’s “highly relevant” opinion that Mr.

Dunlap had permission to operate Ms. Walters’ car and Mr. Dunlap’s

statement to that effect to the officer in making that determination.         She

suggests further that, since the parties stipulated to the admissibility of the

Officer’s deposition and Erie did not object to his opinion or to the hearsay




                                       -6-
J-A29024-15


nature of Mr. Dunlap’s statement to the officer, the court was required to

consider it.

      Erie counters first that the stipulation as to the admissibility of Officer

Griffith’s deposition was entered to avoid the need for the police officer to

appear in person.    It objected to the relevance of the Officer’s subjective

belief as to whether Mr. Dunlap had permission and objected to Mr. Dunlap’s

statement as inadmissible hearsay.

      We glean the following from the record.       Ms. Gorton initially offered

Exhibit 1, the insurance policy, and Exhibit 2, Officer Griffith’s deposition.

The court accepted the proffered exhibits, but noted that they were not

probative of the issue in contention. Furthermore, the court recognized that

the officer’s deposition would contain considerable hearsay in addition to

establishing that Mr. Dunlap was the driver. The court questioned whether

the exhibits contained any other relevant evidence. N.T., 10/2/14, at 8. In

response, counsel for Ms. Gorton argued that the officer’s perception of Mr.

Dunlap’s demeanor at the time, as well as the officer’s belief that Mr. Dunlap

had permission, would support an inference of permission. Erie objected to

such an inference and the court pointed out that the officer’s good faith

belief was irrelevant as he was not the factfinder in this case. Id. at 10.

      Then, Plaintiff’s counsel proposed to read an excerpt from the

deposition where, in response to Officer Griffith’s inquiry as to whether he

had permission to drive the vehicle, Mr. Dunlap responded in the affirmative.


                                      -7-
J-A29024-15


Erie objected that the statement was hearsay. Id. at 11. Plaintiff’s counsel

countered that the hearsay objection was waived because it was not leveled

at the time of the deposition. Id. Counsel for Erie argued that the objection

was substantive, not merely to the form of the question, and hence,

preserved.   The court reviewed the deposition testimony, agreed that the

statement was hearsay, rejected the Plaintiff’s argument that it was

admissible due to the unavailability of the declarant, and sustained the

hearsay objection. Id. at 14, 15.

      In its Rule 1925(a) opinion, the trial court disputed Ms. Gorton’s

premise that it sua sponte excluded the officer’s subjective opinion.        The

record confirms that Erie objected when Ms. Gorton asked the court to infer

permission based upon the officer’s belief and challenged the admissibility of

Mr. Dunlap’s statement that he had permission on hearsay grounds.            The

trial court found the officer’s opinion irrelevant; Mr. Dunlap’s statement

constituted inadmissible hearsay.

      Ms. Gorton appears to suggest further that, since the parties stipulated

to the admissibility of the officer’s deposition before Erie raised any objection

to the officer’s opinion or to the hearsay nature of Mr. Dunlap’s statement to

the officer, the court was required to credit this evidence. That is not the

case. Moreover, the trial court concluded that even the combination of the

officer’s subjective belief, Mr. Dunlap’s self-serving hearsay statement, and

the presumption did not establish implied permission in the face of credible


                                      -8-
J-A29024-15


contrary evidence from Ms. Walters.1             We find no error or abuse of

discretion.

       Next Ms. Gorton contends that the trial court erred in denying her

post-trial motion seeking judgment n.o.v. based upon the fact that the

judgment was against the weight of the evidence.

       A JNOV can be entered upon two bases: (1) where the movant is
       entitled to judgment as a matter of law; and/or, (2) the evidence
       was such that no two reasonable minds could disagree that the
       verdict should have been rendered for the movant. When
       reviewing a trial court's denial of a motion for JNOV, we must
       consider all of the evidence admitted to decide if there was
       sufficient competent evidence to sustain the verdict. In so doing,
       we must also view this evidence in the light most favorable to
       the verdict winner, giving the victorious party the benefit of
       every reasonable inference arising from the evidence and
       rejecting all unfavorable testimony and inference. Concerning
       any questions of law, our scope of review is plenary. Concerning
       questions of credibility and weight accorded the evidence at trial,
       we will not substitute our judgment for that of the finder of fact.
       If any basis exists upon which the court could have properly
       made its award, then we must affirm the trial court's denial of
       the motion for JNOV. A JNOV should be entered only in a clear
       case.

Brown v. Trinidad, 111 A.3d 765, 769-770 (Pa.Super. 2015).

       Furthermore,

       Appellate review of a weight claim is a review of the trial court's
       exercise of discretion, not of the underlying question of whether
       the verdict is against the weight of the evidence. Because the
       trial judge has had the opportunity to hear and see the evidence
____________________________________________


1
  Officer Griffith admittedly did not conduct an investigation into whether Mr.
Dunlap had permission to use Ms. Walters’ vehicle. Furthermore, at his
deposition, he testified based on what he routinely does in such
circumstances, not based on any specific recollection of the events herein.



                                           -9-
J-A29024-15


         presented, an appellate court will give the gravest consideration
         to the findings and reasons advanced by the trial judge when
         reviewing a trial court's determination that the verdict is against
         the weight of the evidence. One of the least assailable reasons
         for granting or denying a new trial is the lower court's conviction
         that the verdict was or was not against the weight of the
         evidence and that a new trial should be granted in the interest of
         justice.

In re Estate of Smaling, 80 A.3d 485, 490 (Pa.Super. 2013).

         Ms. Gorton claims that Ms. Walters’ testimony was so inconsistent as

to render the judgment against the weight of the evidence. She directs our

attention to Adamski, supra, which she contends involves analogous facts,

a contrary result, and which compels a finding of implied permission herein.

In that case, the trial court credited the testimony of Mr. Miller, daughter’s

boyfriend with whom she lived, over the conflicting testimony of daughter

and her mother and concluded that Mr. Miller had the mother's implied

consent to use her vehicle.         This Court reversed, finding an abuse of

discretion.     The Supreme Court reversed this Court and reinstated the

judgment of the trial court, finding that we failed to apply the proper

standard of review. Our High Court found that, viewing the evidence in its

proper light, with all reasonable inferences drawn in favor of Mr. Miller, the

evidence deemed credible by the trial court “amply supported” its verdict

and that the trial court did not abuse its discretion in denying judgment

n.o.v.

         Instantly, the trial court, sitting as factfinder, believed Ms. Walters’

testimony that Mr. Dunlap did not have her permission to use the Jeep on

                                       - 10 -
J-A29024-15


the date of the accident or at any time prior thereto.        The gist of that

testimony was that, on an occasion years before, she permitted Mr. Dunlap

to drive the vehicle she formerly owned to pick up her daughter at college.

He was involved in an accident, and thereafter, the car was “off limits to

him.”    N.T., 10/2/14, at 50.   Ms. Walters subsequently acquired the 2001

Jeep Cherokee that was involved herein.        She testified that she did not

specifically tell him not to use the Jeep on the date in question, that use of

the Jeep never came up between them that day as she did not see him, but

that she previously told him he could not use any vehicle she owned.

According to Ms. Walters, Mr. Dunlap knew he was not allowed to use that

vehicle.

        Ms. Gorton would have us ignore our standard of review and repeat

the mistake we made in Adamski. Viewing the evidence herein in the light

most favorable to Erie, as we must, we find that Ms. Walters’ testimony,

credited by the trial court, amply supported the verdict.         We attribute

inconsistencies in her testimony to confusing compound questions and

inquiries lacking specificity as to time. In any event, the factfinder was “free

to believe all, part, or none of the evidence and to determine the credibility

of the witnesses.” Brown, supra at 770 (quoting Samuel-Bassett v. Kia

Motors Am., Inc., 34 A.3d 1, 39 (Pa. 2011)).            We find no abuse of

discretion on the part of the trial court in denying judgment n.o.v.

        Judgment affirmed.


                                     - 11 -
J-A29024-15




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/29/2016




                          - 12 -
