J-A24007-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    KATHY MARIE HUFF,               :          IN THE SUPERIOR COURT OF
    ADMINISTRATRIX OF THE ESTATE OF :               PENNSYLVANIA
    MELISSA ANN HUFF, DECEASED      :
                                    :
                   Appellant        :
                                    :
                                    :
               v.                   :
                                    :          No. 475 MDA 2018
                                    :
    JEFFREY A. MOSER, JOHN DOE,     :
    ACUMEN CONTRACTING, INC., AND   :
    PETE VITI                       :

                Appeal from the Order Entered February 16, 2018
                 In the Court of Common Pleas of Adams County
                    Civil Division at No(s): 2014-SU-0000773


BEFORE: OTT, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OTT, J.:                          FILED FEBRUARY 22, 2019

       Kathy Marie Huff, Administratrix of the Estate of Melissa Ann Huff,

Deceased (Appellant), appeals from the order entered February 16, 2018, in

the Court of Common Pleas of Adams County, that made final the order of

April 11, 2017, and clarified by the order of April 18, 2017, granting summary

judgment in favor of Acumen Contracting, Inc. and Pete Viti (collectively,

Appellees).1 Appellant contends “genuine issues of material fact exist as to

____________________________________________


1 It bears mention that Appellant’s previous appeal at 751 MDA 2017 from the
order of April 11, 2017, and clarified by the order of April 18, 2017, was
quashed because, following the trial court’s grant of summary judgment in
favor of Appellees, claims remained pending against two defendants, Jeffery
A. Moser and John Doe. The Amended Complaint alleges John Doe was an
J-A24007-18



whether defendants, Acumen/Viti/Doe (Head), are vicariously liable for errors

or omissions of its employees.” Appellant’s Brief at 3.

       The facts and procedural history of this case are well known to the

parties and there is no need to repeat the background of this case. We simply


____________________________________________


employee of Acumen; the John Doe defendant was later identified as Coty
Head.

       In February, 2018, Appellant and Moser entered into a stipulation
whereby Moser agreed to accept full and complete liability and responsibility
for the accident and injuries and death of Melissa Huff in exchange for the
withdrawal of the lawsuit against him without prejudice. Appellant and Moser
further stipulated that “the Stipulation marks the official end of this case and
request a final order by the trial court to permit the appeal to proceed.” The
trial court, on February 16, 2018, entered the following order:

       [P]ursuant to the stipulation of the remaining parties in this
       action, it is hereby Ordered that the Plaintiff shall file appropriate
       documentation withdrawing the claim against Jeffery A. Moser
       without prejudice pursuant to an agreement of the parties within
       ten (10) days of the date of this order.

       The video conference scheduled for February 16, 2018 is
       cancelled. This matter is stricken from the trial term commencing
       March 5, 2018.

       Plaintiff’s counsel shall file the stipulation entered between the
       parties with the Adams County Prothonotary’s Office prior to or
       concurrent with the withdrawal entered in this action.

Order, 2/16/2018. The Stipulation was filed of record on February 16, 2018.
Furthermore, Appellant’s notice of appeal states the Stipulation and
withdrawal were filed as one document. The claims against the John Doe
defendant (identified as Coty Head) are effectively dismissed by the trial
court’s February 16, 2018 order. Hence, the order under appeal is a final
order. See Pa.R.A.P. 341.




                                           -2-
J-A24007-18



state this case arose on November 21, 2013, at approximately 7:00 p.m., as

a result of a tragic motor vehicle accident that fatally injured Melissa Ann Huff

(decedent).2 At the time of the accident, Jeffrey A. Moser was driving a vehicle

owned by his employer, Acumen Contracting, Inc. (Acumen) and Pete Viti,

sole owner and president. Moser worked for Acumen as a general contractor,

but was not permitted by Acumen to drive the vehicle at any time; however,

Moser was allowed to keep the vehicle at his residence. Coty Head, who lived

in Moser’s residence, transported Moser to work in the Acumen vehicle for

Acumen.

       Appellant commenced an action to recover damages arising out of the

November 21, 2013 motor vehicle accident. Moser, Acumen, Viti and John

Doe (later identified as Coty Head) were named as defendants. 3 Appellees

filed a motion for summary judgment, which the trial court granted on April

11, 2017. On April 18, 2017, the trial court entered an order that clarified the

claims against Moser and John Doe remained pending for trial. Thereafter, as

a result of a Stipulation between Appellant and Moser, the trial court entered


____________________________________________


2 We note a typographical error in the first sentence of the trial court’s opinion
that states the name of the decedent as Kathy Marie Huff, rather than Melanie
Ann Huff.

3 The Amended Complaint also included Dram Shop claims against a number
of defendants (Dram Shop Defendants); however, on January 11, 2016,
Appellant withdrew the causes of action against the Dram Shop Defendants.




                                           -3-
J-A24007-18


an order on February 16, 2018, directing Appellant to file appropriate

documentation withdrawing the claim against Moser without prejudice

pursuant to the agreement of the parties,        4   and further directing the matter

stricken from the trial list. This appeal timely followed.5

        Our standard of review is well settled:

        On an appeal from a grant of summary judgment, a reviewing
        court must examine the record in a light most favorable to the
        nonmoving party, accepting as true all well-pleaded facts and
        giving that party benefit of all reasonable inferences which can be
        drawn from those facts. Hoffman v. Brandywine Hospital, 443
        Pa. Super. 245, 661 A.2d 397 (Pa. Super. 1995). The Superior
        Court will reverse a grant of summary judgment only when the
        trial court has committed an error of law or abused its discretion.
        Butterfield v. Giuntoli, 448 Pa. Super. 1, 670 A.2d 646 (Pa.
        Super. 1995).

Brezenski v. World Truck Transfer, Inc., 755 A.2d 36, 38 (Pa. Super.

2000).

        After a thorough review of the record, the briefs of the parties, the

applicable law and standard of review, and the well-reasoned opinion of the

Honorable Michael A. George, we conclude Appellant’s claim presents no basis

upon which to grant relief. The trial court’s opinion comprehensively discusses

and properly disposes of the question presented. See Trial Court Opinion,

5/14/2018, 2-7 (finding: (1) there is no factual dispute in the record that



____________________________________________


4   As noted earlier, the Stipulation was filed on February 16, 2018.

5Appellant timely complied with the order of the trial court to file a Pa.R.A.P.
1925(b) statement of errors complained of on appeal.

                                           -4-
J-A24007-18


Moser was not acting in the course and scope of his employment at the time

of the fatal accident; (2) although the Amended Complaint alleges Doe was

employed by Acumen, the Amended Complaint lacks any allegation Doe, at

any relevant time, acted within the course of his employment; if Doe was not

acting in the course or scope of his employment, Acumen is not vicariously

liable for his conduct; (3) assuming Appellant had properly pled a claim of

Acumen’s vicarious liability for the actions of Doe, Appellant’s allegations of

negligence on the part of Doe for Moser’s unauthorized access to the vehicle

cannot establish negligence, as there is no case law which places a duty on

one to take affirmative steps to avoid criminal acts where there is no obvious

known risk; the suggestion that an unlicensed driver living in the same

residence as the permissive user6 of the vehicle provides knowledge of such a

risk finds no support in current Pennsylvania case law, and when extended to

its logical conclusion, produces an absurd result – practically every household

would need to keep car keys under lock and key; (4) if Doe did intentionally

permit Moser to operate the vehicle during after-work hours, Doe’s action goes


____________________________________________


6 Regarding this point, it appears the trial court inadvertently referred to Doe
as the owner of the vehicle. See Trial Court Opinion at 5-6. Moser lived with
Doe, the permissive user, not Viti (Acumen), the owner. Nevertheless, the
point remains valid, and perhaps even stronger. Not only does Pennsylvania
law not impute knowledge of the risk of criminal activity from unlicensed driver
to permissive user, such knowledge cannot be imputed to a non-resident
owner.




                                           -5-
J-A24007-18


far beyond the authorized time or space limits and is directly different in kind

than authorization granted by Acumen). Therefore, we affirm on the basis of

the trial court’s well-reasoned opinion.7

       Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/22/2019




____________________________________________


7In the event of further proceedings, the parties are directed to attach a copy
of the trial court’s May 14, 2018 opinion to this memorandum.

                                           -6-
                                                                       Circulated 01/30/2019 02:32 PM




    IN THE COURT OF COMMON PLEAS OF ADAMS COUNTY, PENNSYLVANIA
                               CIVIL

 KATHY MARIE HUFF,                                             14-S-773
 Administratrix of the Estate of
 MELISSA ANN HUFF, Deceased,
                     Plaintiff
              v.
 JEFFREY A. MOSER; JOHN DOE;
 ACUMEN CONTRACTING, INC.;
 and PETE VITI,
                Defendants


                    OPINION PURSUANT TO Pa. R.A.P. 1925(a)

       This litigation arises from a tragic motor vehicle accident occurring on

November 21, 2013, which resulted in fatal injuries to Kathy Marie Huff. The litigation

was commenced by the Administratrix of Huff's estate ("Appellant") by Complaint filed

on June 18, 2014. The Complaint included claims against Jeffrey A Moser ("Moser")

as operator of the motor vehicle which struck the decedent; negligence claims

against Acumen Contracting, Inc. and Pete Viti (collectively referred to as "Acumen")

as Moser's employer; causes of action for negligent entrustrnent and negligent

supervision against Acumen; and Dram Shop Act. claims against Taverna, Inc.,

Taverna 5450, Tom M. Kalathas, Nick Kalathas, Lashay Kalathas, John Doe 2, and

Jane Doe (collectively "Dram Shop Defendants") who were alleged to be instrumental

in providing alcohol to Moser prior to the accident. Following the filing of Preliminary

Objections by the various Defendants, an Amended Complaint was filed on

September 17, 2014. · The Amended Complaint substantively mirrored the original

Complaint and was · similarly met by Preliminary Objections by the Dram Shop Act

Defendants.   On January 11, 2016, the Appellant withdrew the causes of action
    against the Dram Shop Act Defendants leaving only the remaining claims against

    Moser and Acumen. This Court subsequently granted summary judgment in favor of

    Defendant Acumen.             Following resolution of the claim against the remaining

    Defendant Moser, Appellant files the current appeal challenging this Court's grant of

    summary judgment in favor of Acumen. A review of Appellant's Concise Statement

    of Errors Complained of on Appeal reveals Appellant does not challenge dismissal of

    the claims related to negligent entrustment and negligent supervision but rather

    challenges only this Court's ruling on the claim of vicarious liability.

             In order to fully understand this issue, it is necessary to identify the precise

    nature of Appellant's vicarious liability claim as raised in the Amended Complaint. In

    Count I, the count which alleges the factual basis for vicarious liability, Appellant

    identifies only Moser· and Acumen as negligent parties." The count thereafter goes

    on to Identify specific acts of negligence on the part of Moser. 2 The count further

    identifies two specific theories against Acumen: (1) "Moser was operating a vehicle

owned and maintained by [Acumen] and was a permissive driver in the course and

scope of his employment. .. "; and (2) "Acumen, Viti and Doe3 negligently permitted

[Moser} access to the subject vehicle or entrusted him with said vehicle."4 Appellant

then goes on to specifically Identify the specific acts of vicarious liability as follows:

1.          Failing to exercise          the   degree     of   care    required     under the
            circumstances;

2.          Failing to properly train drivers, specifically Defendant Moser;

1   Pa.   R. Civ. P. 1020(b) requires a heading for each count "naming the parties to the cause of action
theretn set forth!                ·
2·Appellant's Amended Complaint paragraph 30
e John Doe is identlfied earlier In the Complaint as an employee of Acumen. He has subsequently
been identified as Coty Head. He will be referred to as "Doe" ln the remainder of this Opinion.
4 Appellant's Amended Complaint paragraph 34



                                                      2
 3.    Failing to monitor driver's behavior and driving habits, specifically
       Defendant Moser;

 4.    Failing to properly screen and hire drivers, specifically Defendant
       Moser; and

 5.    Failing to adhere to and comply with general state and local vehicle
       operating ordinances; [and]

6.     Carelessly and negligently permitting access to or failing to properly
       restrict access to the subject truck by Defendant Moser, its employee,
       when it or they knew or should have known he did not have a valid
       operator's license as a result of a history of DUI arrests and had a
       history of negligent/careless accident prone driving.

Each of the specific acts presumes conduct on behalf of Moser in the course of his

employment by Acumen. Yet, as evidenced by Appellant's failure to challenge this

Court's dismissal of the claims of negligent entrustment and negligent supervision,

there is no factual dispute in the record that Moser was not acting in the course or

scope ·of his employment at the time of the fatal accident.

       Appellant attempts to avoid this conclusion by interpreting the language of the

Amended Complaint to include a claim that Doe was negligent in 'permitting Moser

access to the vehicle thus making Acumen vicariously liable to Appellant for Doe's

negligent acts.   Unfortunately for Appellant, this theory is not developed in the

Amended Complaint. In fact, although the Cqmplaint alleges Doe was employed by

Acumen, the Amended Complaint lacks any allegation Doe, at any relevant time,

acted within the course of his employment. If Doe was not acting in the course or

scope of his employment, Acumen is not vicariously liable for his conduct.

      It is hornbook law in Pennsylvania that the primary purpose of a pleading is to

form a clear and distinct issue for trial between the parties.       For this reason,



                                           3
 Pennsylvania law instructs that a complaint should place the defendants on notice of

 the claims which they will have to defend and identify the material facts which will

 support those claims.     Carlson v. Cmty. Ambulance Servs., tnc., 824 A.2d 1228,

 1232 (Pa. Super. 2003). "[TJhe· pleadings must define the issues and thus every act

 or performance essential to that end must be set forth in the complaint." Swift v.

 Northeastern Hosp. of Phi/a., 690 A.2d 719, 723 (Pa. Super. 1997).

       The elements necessary to establish vicarious liability are summarized in R.A.

 ex rel. N.A. v. First Church of Christ as follows:

                  It is well· settled that an employer is held vicariously liable for the
         negligent acts bf his employee which cause injuries to a third party,
      . provided that such acts were committed during the course of and within
        the scope of the employment. Fitzgerald v. Mccutcheon, 270 Pa:
        Super. 1021 410 A.2d 1270, 1271 (1979). In certain circumstances,
        liability of the employer may also extend to intentlonal or criminal acts
        committed by the employee. Id. The conduct of an employee is
        considered "within the scope of employment" for purposes of vicarious
        liability if: (1) it is of a kind and nature that the employee is employed to
        perform; (2) it occurs substantially within the authorized time and space
        limits; (3) it is actuated, at least in part, by a purpose to serve the
       employer; and (4) if force is intentionally used by the employee against
       another, the use of force is not unexpected by the employer.

748 A.2d 692, 699 (Pa. Super. 2000)

      As mentioned, Appellant's Complaint makes no reference to Doe acting in the

course of or .within the scope of his employment at the time any alleged negligence

on his behalf occurred.      Their claim that Acumen and Doe were "carelessly and

negligently permitting access to or failing to properly restrict access to the subject

truck" does not equate to an allegation that Acumen Is vicariously responsible for the

conduct of Doe who, working within the scope and course of his employment,

permitted access or failed to properly restrict access to the truck.               Appellant's



                                              4
attempts to skirt this issue by assuming specific allegations which are not in the

pleading is unsupported by law.

        Even assuming Appellant has properly pied a claim for Acumen's vicarious

liability for the actions of Doe, there. remains a lack of any factual dispute which may

lead to recovery by Appellant. The undisputed factual history viewed in the light most

favorable to Appellant is that Acumen employed both Moser and Doe.               Moser

performed as a general contractor, however, was expressly instructed by Acumen he

may not operate the Acumen vehicle at any time. Doe was employed primarily to

drive Moser, and occasionally assisted with labor, was aware of this prohibition

concerning Moser's use of the vehicle. Nevertheless, Moser claims Doe Was aware

Moser drove the subject vehicle during non-work hours in violation of Acumen's clear

direction to the contrary. On the night of the fatal accident, during non-work hours

unrelated to any employment, Moser accessed the vehicle while under the influence

of alcohol and ultimately was involved in the accident. The entire cornerstone of

Appellant's claim for relief is that Acumen had a duty to secure a vehicle from an

unlicensed driver who had been expressly prohibited from operating the vehicle.

Unavoidably implicit in this theory is the conclusion that both Moser and Doe acted

intentionally and potentially criminally.5

       Arter diligent search, this writer has been unable to find any case law which

places a duty on one to take affirmative steps to avoid criminal acts where there is no

obvious known risk.     The suggestion that an unlicensed driver living in the same

residence as the owner of a motor vehicle provides knowledge of such a risk finds no




                                             5
    support in current Pennsylvania case law and, when extended to its logical

    conclusion, produces an absurd result; practically every household would need to

    keep car keys under lock within the residence.

          Appellant's only remaining argument is that Moser's use of the vehicle was

    actually known and authorized by Doe, an employee for whom Acumen ls

    responsible.     Although Moser's deposition testimony supports this argument, its

    Achilles heel lies in Appellant's inability to establish Doe acted in the course and

    scope of employment; an element necessary to establish vicarious liability.              The

    Restatement (Second) of Agency, Section 228, adopted by the court in Fitzgerald v.

    Mccutcheon, 410 A.2d 1270. 1271 (Pa. Super. 1979), provides;

          (1)      Conduct of a servant is within the scope of employment if, but
                   only if: (a) it is of the kind he is employed to perform; (b) it
                   occurs substantially within the authorized time and space limits;
                   (c) it is actuated, at least in part, by   a
                                                              purpose to serve the
                   master, and (d) if force is intentionally used by the servant
                   against another, the use of the force is not unexpectable by the
                   master.

          (2)      Conduct of a servant is not within the scope of employment if it is
                   different in kind from that authorized, far beyond the authorized
                   time or space limits, or too little actuated by a purpose to serve
                   the master.

          There· is no dispute that Acumen expressly directed and prohibited Moser's

use of the subject vehicle. There is also no dispute that this prohibition was known

by both Moser and Doe.           Finally, there is no evidence in the record that Doe was

employed for any purpose other than to transport Moser to and from the jobsite. If

Doe did indeed intentionally permit Moser to operate the vehicle during after-work



6 A person is guilty of a misdemeanor of the second degree if they operate an automobile owned by
another without consent of the owner. 18 Pa. C.S.A. § 3928


                                                6
hours, it goes far beyond the authorized time or space limits and is directly different in

kind than authorization granted by Acumen.           Moreover, it cannot arguably be

considered, even in part, to be a purpose to serve Acumen when it is expressly

contrary to Acumen's instructions. As Appellant is unable to establish negligence on

the part of Doe for unauthorized access by Moser or, conversely, within the scope or

course of work for intentional misconduct by Doe, summary judgment was granted.

      For the foregoing reasons, it is respectfully requested that the grant of

summary judgment be affirmed.



                                          BY THE COURT:




Date filed: May 14, 2018




                                           7
