J-A28014-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 JOHN AND DEBRA HOAGLAND                  :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 JODY HOFFMASTER AND COUNTY               :
 LINE QUARRY, INC.                        :
                                          :   No. 572 MDA 2018
                                          :
 APPEAL OF: JOHN HOAGLAND                 :

             Appeal from the Judgment Entered March 29, 2018
     In the Court of Common Pleas of Lancaster County Civil Division at
                           No(s): CI-14-01373


BEFORE: LAZARUS, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.:                              FILED MARCH 07, 2019

      Appellant, John Hoagland, appeals from the judgment entered on March

29, 2018. We affirm.

      The trial court ably summarized the underlying facts and procedural

posture of this case. As the trial court explained:

        This case arises out of a motor vehicle accident which
        occurred on April 20, 2011, at the Prospect Road exit off
        Route 30 West in West Hempfield Township, Lancaster
        County, Pennsylvania. At approximately 2:20 p.m., a [tri-
        axle dump truck, owned by Country Line Quarry, Inc.
        (hereinafter “Defendant CLQ”) and driven by Defendant
        CLQ’s employee, Jody Hoffmaster (hereinafter “Defendant
        Hoffmaster”)], failed to completely stop before colliding with
        [Appellant’s] vehicle[,] which was sitting at a red light at the
        end of the ramp. While the exact speed of the truck was
        never determined, there were four large skid marks
        indicating that there was an attempt to stop the vehicle prior
        to the collision. . . .
J-A28014-18


       Upon [arriving at] the scene, police took [Defendant]
       Hoffmaster into custody on suspicion of driving while
       intoxicated.    Further testing revealed [that Defendant
       Hoffmaster had a] blood alcohol level of .292%. [Defendant]
       Hoffmaster acknowledged drinking [alcohol] and explained
       that he began [to do so] only after he left [Defendant] CLQ's
       premises. He was charged with, and subsequently pled guilty
       to, driving under the influence, highest rate of alcohol, and
       careless driving.[fn.1] The day after the accident [Defendant]
       Hoffmaster was fired by [Defendant] CLQ pursuant to their
       zero-tolerance drug and alcohol policy.

          [fn.1. 75 Pa.C.S.A. §§ 3802(c) and 3714, respectively.]

       On April 30, 2013, [Appellant] filed a Lancaster County suit
       against [Defendant Hoffmaster and Defendant CLQ
       (hereinafter, collectively, Defendants)].                Without
       explanation, [Appellant] withdrew that case and refiled in
       Philadelphia County against [Defendant] Hoffmaster,
       [Defendant] CLQ, and six other defendants. After two sets
       of preliminary objections, three complaints and ten months
       of litigation, [Appellant] voluntarily dismissed the six new
       defendants and[,] on February 21, 2014, the action against
       [Defendants] was transferred back to Lancaster County. In
       a second amended complaint, [Appellant] asserted a direct
       punitive damage claim against [Defendant] CLQ to which
       Defendant CLQ filed preliminary objections. On July 8, 2014,
       [the trial court] sustained the preliminary objections without
       prejudice and with the understanding that the [punitive
       damages] claim [against Defendant CLQ] could be reasserted
       should [Appellant] be able to produce any evidence that
       [Defendant] Hoffmaster was drinking at any time before he
       left [Defendant] CLQ’s premises on the day of the accident.
       After over three years of discovery and investigation
       consisting of numerous interrogatories, depositions, and
       expert reports, and five days of trial[, Appellant] was not able
       to produce a scintilla of evidence to rebut [Defendant]
       Hoffmaster's consistent statements that he began drinking
       only after he left CLQ's premises. Without that evidence[,
       the trial court] was constrained to find that a punitive damage
       claim was not appropriate [against Defendant CLQ] in this
       case.




                                    -2-
J-A28014-18


       Apparently recognizing this flaw shortly before trial,
       [Appellant] tried a new theory[,] arguing that punitive
       damages were warranted because [Defendant] CLQ violated
       its employment policies on employee retention.             In so
       claiming, [Appellant] relied heavily on the last-minute
       deposition of [Defendant] CLQ's Safety Director, Anthony
       Mangabat, who testified that he would have fired [Defendant
       Hoffmaster] in 2009 for three safety violations if he had had
       the authority to do so.[fn.2] Plaintiff also retained a "trucking
       expert" to claim that [Defendant] CLQ violated Federal Motor
       Carrier Safety Administration Regulations by not providing a
       sixty-minute reasonable suspicion training to supervisors.
       [The trial court] found these last-minute allegations to be
       wholly insufficient to support a claim for punitive damages
       under the facts of this case and denied [Appellant’s] motion
       . . . without prejudice, again with the understanding that [the
       trial court] would entertain an oral motion to amend should
       any evidence that [Defendant] Hoffmaster began to consume
       alcohol at any time prior to leaving [Defendant CLQ’s]
       premises on the day of the accident emerge.

          [fn.2.] The first violation occurred on March 18, 2009 as
          a result of [Defendant] Hoffmaster backing his truck into
          a tool box. The second violation occurred on June 18,
          2009 after [Defendant] Hoffmaster operated his vehicle
          without functioning brake lights. He received a five-day
          suspension and returned to work. The third incident
          occurred on October 30, 2009[, when Defendant]
          Hoffmaster rear ended another vehicle after the other
          vehicle abruptly stopped mid turn in a four-way
          intersection. After each of these incidents [Defendant
          Hoffmaster] was tested for drugs and alcohol pursuant to
          company policy. The tests were negative, although the
          second test could not be produced at trial. While there
          was some discussion as to whether [Defendant
          Hoffmaster] should [have been] fired after the third
          violation, [Defendant] CLQ ultimately made the decision
          to retain [Defendant] Hoffmaster over Mr. Mangabat's
          suggestion that [Defendant Hoffmaster] be fired[,] and
          [Defendant Hoffmaster] continued to drive for [Defendant
          CLQ] after serving the five-day suspension.

       The only testimony presented at trial relevant to the time at
       which [Defendant] Hoffmaster began to drink came from

                                     -3-
J-A28014-18


       Nelson Klinedinst, [Defendant] CLQ's Dispatcher and Weight
       Master, and [Defendant] Hoffmaster himself. Mr. Klinedinst
       was the only one to see [Defendant] Hoffmaster on the day
       of the accident. On that day, [Defendant] Hoffmaster picked
       up three separate loads of stone for delivery to [Defendant
       CLQ’s] customers. Mr. Klinedinst explained that [Defendant]
       Hoffmaster appeared normal during each of the three
       interactions he had with him. He testified that during all
       three interactions [Defendant] Hoffmaster acted in his usual
       manner, his eyes were not bloodshot and glassy and [Mr.
       Klinedinst] did not detect an odor of alcohol on [Defendant
       Hoffmaster’s] person.

       Most telling of all was the testimony of [Defendant]
       Hoffmaster himself, who, as he had consistently and without
       exception in the six-and-a-half years since the accident,
       explained he only began drinking after he picked up the third
       load and left [Defendant CLQ’s premises]. [Defendant]
       Hoffmaster testified that after receiving the third load of
       stone, he pulled his vehicle into the company parking lot,
       stepped out of the dump truck, and retrieved a bottle of rum
       from his personal vehicle. He was adamant that he began
       drinking from this bottle only after he left [Defendant] CLQ's
       property and continued to do so until the accident.
       Nonetheless, and without presenting any counter-factual
       evidence regarding when [Defendant] Hoffmaster began to
       drink, [Appellant] made an oral motion to reinstate the direct
       punitive damage claim [against Defendant CLQ,] which [the
       trial court] once again denied.

       After five days of trial, on October 20, 2017, the jury awarded
       [Appellant] compensatory damages in the amount of
       $210,000 against both Defendants jointly and an award of
       $30,000 in punitive damages against [Defendant]
       Hoffmaster.      The jury apportioned 75% liability to
       [Defendant] Hoffmaster and 25% liability to [Defendant]
       CLQ. On October 27, 2017, [Appellant] filed a post-trial
       motion with th[e trial] court for a new trial solely on the issue
       of punitive damages. Defendant CLQ and Defendant
       Hoffmaster filed timely responses to the motion and after oral
       argument on the motion [the trial court] denied [Appellant’s]
       motion on March 12, 2018.




                                     -4-
J-A28014-18



Trial Court Opinion, 6/29/18, at 1-5 (internal citations and emphasis and some

internal capitalization and footnotes omitted).

      On March 29, 2018, judgment was entered on the verdict. Appellant

filed a timely notice of appeal and now raises the following claims to this Court:

        A. Whether the trial [court] erred in refusing to instruct the
        jury that it could consider awarding punitive damages against
        Defendant CLQ.

            1. Whether the evidence would have supported a finding
            by the jury that punitive damages against CLQ were
            warranted based on the CLQ's own conduct because CLQ's
            corporate designee/safety manager testified that
            Hoffmaster should have been fired due to three prior
            incidents, and was a "safety risk," but Hoffmaster was
            permitted to remain employed at CLQ because CLQ
            needed truck drivers more than it cared about safety.

            2. Whether CLQ's admissions that it was required but
            failed to comply with the Federal Motor Vehicle Carrier
            Safety Regulations including section Sections 382.603
            and 382.307, and CLQ's failure to train supervisors to
            determine reasonable suspicion of alcohol use supported
            punitive damages against CLQ.

            3. Whether the testimony of Plaintiff's expert witness
            relating to CLQ's violations of federal regulations and its
            own policies supported punitive damages against CLQ.

            4. Whether the trial court erred in restricting [Appellant’s]
            ability to pursue punitive damages against CLQ to
            producing evidence that Defendant Hoffmaster was
            drinking on or before he left CLQ's premises on the day of
            the accident.

            5. Whether the evidence would have supported a finding
            by the jury that CLQ was vicariously liable for punitive
            damages based on the conduct of its employee,
            Defendant Hoffmaster.



                                      -5-
J-A28014-18


        B. Whether the trial court erred in entering the order dated
        July 8, 2014, sustaining preliminary objections to
        [Appellant’s] claim for punitive damages as to Defendant
        CLQ, and the orders of June 1, 2017 and October 6, 2017,
        refusing to reinstate that claim.

        C. Whether the trial court erred granting in part Defendant's
        motion for protective order dated July 12, 2017, limiting
        [Appellant’s] discovery and preventing him from deposing
        CLQ's owner at an earlier stage.

        D. Whether the trial court erred in refusing to allow
        [Appellant] to subpoena CLQ's owner, Tony Depaul, to testify
        at trial as to why Mr. Hoffmaster was not terminated prior to
        the accident date.

        E. Whether a new trial should be limited to punitive damages
        against CLQ when a new trial on all issues has not been
        requested by any party and would be prejudicial to all parties.

Appellant’s Brief at 6-8 (some internal capitalization omitted).

      We have reviewed the briefs of the parties, the relevant law, the certified

record, the notes of testimony, and the opinion of the able trial court judge,

the Honorable Jeffery D. Wright. We conclude that Appellant is not entitled to

relief in this case and that Judge Wright’s June 29, 2018 opinion meticulously

and accurately disposes of Appellant’s issues on appeal. Therefore, we affirm

on the basis of Judge Wright’s thorough opinion and adopt it as our own. In

any future filing with this or any other court addressing this ruling, the filing

party shall attach a copy of Judge Wright’s June 29, 2018 opinion.

      Judgment affirmed. Jurisdiction relinquished.




                                      -6-
J-A28014-18


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/07/2019




                          -7-
                                                                           Circulated 02/26/2019 09:22 AM




                                                                                               \
IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVA�
.. .   . .          .   CIVIL ACTION - LAW          . .       �
                                                        \'
                                                          . . c'.'�
                                                               ·�: �



JOHN HOAGLAND

       vs.                                        Cl-14�01373

- JODYHOFFMASTER and
COUNTY LINE.QUARRY, INC.

                                       OP.INION

BY: WRJG.HT, J.                                                           June    2� , 2018
       This Opinion is written pursuantto Rule. 1925(a) of the Pennsylvania Rule$ of

App.ellate Pro.cedure. Jotm Hoagland, Plaintiff, appeals from this Court's March 12,

2018 Order denying his Motion. for a New Trial and asserts eight issues in his Statem�nt

of Errors. PlainUff's primary chall�nge is to the denial of a direct punitive damage_ claim

against County   Line Quarry (hereinafter "CLQ"). A review of the record and .applicable
law will demonstrate that punitive damages were not warranted in this. case.and

Plaintiff's appeal. should therefore be dismissed.

                                      BACKGROUND.

       This caae arises out of a motor vehicle accident which occurred on April 20,

201 t, at the Prospect Ro.ad exit off Route 30 West in West Hempfield Township,

Lancaster County, Pennsylvania. (Third Amended Complaint at ,r 1). At approximately

2:20 P.M.; a CLO td-axle dump truck being driven by Defendant Jddy Hoff.master, failed

to completely stop before colliding with Plaintiff;s vehicle which was sitting ata red light

at the end of the ramp. (Notes ofTestimony, Jury Trial, 10/16/18-10/20/18      at 203
(hereinafter "N.T."). Whil.e the exact speed of the truck was never determined, there

were. four large Skid marks indicating that there was an attempt to stop. the vetiJde prior
     to the collision. Id� .at 208. Upon arrival of the scene) police took Mr. Hoffmaster into

     custody on suspicion of driving while intoxicated'. Id. at 205. Further testing revealed a

     blood alcohol level of .292%. Id. at 61 O. Mr; Hoffmaster a¢knowledged d.rinking and

     explained<that he began only after he left CLQ's premises. !!;L, at 611, 615. He was

     charged with, and suoseqoenny pied guilty toidriving under the influence, highest rate

     of alcohol, 1 and careless driving.2 Id. at 611. The day after the accident Mr. Hoffmaster

     was fired by CLQ pursuant to their zero-tolerance drug and alcohol policy, ld .. at 626 ..

                On April 30, 2013, Plaintiff filed a Lancaster County suit against Mr. Hoffmaster

     and CLQ. Without explanation, Plaintiff withdrew that case and refiled In Philadelphia

     County against Mt. Hoffmaster, CLQ, and six other defendants. After two sets of

     Preliminary Objections, three Complaints and ten months of iitigation, Plaintiff voluntarily

     d.isrriissed the six new defendants and on February 21; 2014,·the action against Mr.

     Hoffmasterand CLQwastransferred back to Lancaster County. In a Second Amended

     Complaint, Plaintiff asserted a directpunitive damage claim.againstC�Q to which

     Defendant CLQ filed Preliminary Objections. On July 8, 2014) I sustained the

     Preliminary Objections wlthout prejudice and with the understanding that the claim could

     be-reasserted should Plaintiff be able to produce any evidence that Mr. Hoffmasterwas

     drinking al any time before he left CLQ's premises on the day of the accident. After over

     three years of discovery and investigation consisting of numerous interrogatories,

     depositions, and expert reports, and five. days of trial Plaintiff was notable to produce a

     s.cihtilla of evidence to rebut Mr. Hoffmaster's eonslstent statements that he began




     175   Pa. C. S; A.§ 380i {c).
    27SPa. C. S. A,.§ 3714...




·---------------------------------------------
                             drinking only after he left CLq's premises.3 Without that evidence. I was constrained to

                             find that a punitive damage claim was notappropnate in this case.

                                         Apparently recognizing this flaw shortly before trial) Plaintiff, tried a new theory

                          .arguingthatpunitive damages were warranted because CLQviolated its employment

                             policies on employee retention. hi so claiming. Pla.intiff relied heavily on the Jast-mmute

                             deposition of CLQ's Safety Direetor.Anthony Mangabat, Who testified that he would

                             have fired Mr. ,Hoagland in 2009 for three safety violations if he had had the authority to

                          do so:4 Plaintiff also retained a "trucking expert" to claim that CLQ viotc1ted Federal

                          Motor Carrier Safety Administration Regulations by not providing a sixty-minute

                          reasonable suspicion training to supervisors. I found these last-mmute allegations to be

                          wholly insufficient to· support a claim for punitive damages under the facts of this case

                          and denied Plaintiffs Motion for the same Without prejudice, again with the

                          understanding that I would entertain an oral Motion to Amend should any evidence that

                          Mr. Hoffmaster began to consume alcohol at any time prior .to leaving CLQ premises on

                         the day ofthe accident em.erge.




                         3
                            Indeed.Jess than three months before the scheduled trial, Plaintiff went so .far as to. subpoena, without prior Court
                          approve], sevente.enyears of Defendant Hoffmaster's HIPAApr<>tected medicalrecords, When counsel for
                          Defendant Hoffmaster objected, Plaintiff'arguedthe records were necessary for the purpose ofimpeaching
                        · Defendant's testimony that he had never sought any drug or alcohol counseling, Alth.ough this was a. blatantly
                          transparent attempt to fjnd. information .E>laiµdffhoped existed, I nonetheless permitted the records to be, produced
                          initially for an in ca�er.i, inspection, Not surprisingly, there was,nothing in the records. so produced which was in
                         any way relevant to this case:               .
                         4
                           The fil'.st vi.olatioil occurred on March 18, 2009 as.a result of Mr. Hoffinast.erbacking his truck into. atcol box. Id.
                         at 142. The second violation occurred on June 18, 2009 after Mr. Hoffmaster operated his vehicle without                   ·
                         functioning brake. lights. Id..· at 143. He received a five-day suspension and returned to work. M. at 144. The third
                         inc.ident.. occurred on October 30, 2009 in. Which Mr. Hoffmaster rear ended another vehicle after the other vehicle
                         abruptly stopped mid tum in a four-way intersection. M. at 145; After. each of these incidents he. was tested for
                         drugs and alcohol pursuant to company policy. The tests. were negative, although the second test could not be
                         proc:luced at .triatid. at 193-195, 600. · While there was some discussion as to whether he should be fired after the
                         third vioiation, CLQ ultimately made the decision to retain' Mr, Hoffmaster over Mr. · Mangabat • s suggestion that he..
                         be fired and he continued to. drive for them afte.- ser.vi�s the   five-day suspension • .W:, at430 ..

                                                                                       j




· ··-··--·--·..··--····-··--·· ·····-····-------··· ······ ......••
                 l"he only testimony presented at trial relevant to the time at w.hich Mr. Hoffmaster

          bega11 to drink came from Nelson Klinedinstt CLQts Dispatcher and \tVeightMaste.r, and

          Mr. Hoffmaster himself. Mr. Kline'dinst was the only one to see Mr. Hoffmaster on.the

          day ofthe accident Id. at 51.1. Onthat dc1y;       Mr:   Hoffmaster picked up three separate

          loads of stone for delivery to CLO customers. Id. at 803. Mr; Klinedinst explained that

         Mr. Hoffmaster appeared normal during each of the thr'3e interactions he had With him.

          Id .. at 803; 804. He testified that during .all three interactions Mr. Hoffmaster acted in his

         usual manner, his. eyes were not bloodshot.and glassy and he did not.detect an odor of

         alcohol on hi.s person. Id. at 805-807.

                 Most telling of all was the testimony of Mr. Hoffmaster himselt, who, as he had

         consistently and without exception in the six-and-a-half yeare.slncethe accident,

         explained he only began drinking after he picked up the third load .and left CLO. Mr        e.




         Hoffmaster testified that after receiving the third load of stone, he pulled his vehlcle into

         the. company parkin9. Jot, stepped out of the dump truck; and retrieved a bottle of tum

         from his personal vehicle;<ld. at 614. He Was adamant tl'.lathe began drinking from this

         bottle ohJy after he left CLQ's property and continued to do so until the accident. Id. at

         615.. Nonetheless, and without presenting.any counter-factual eviden�eregardingwhen

         Mr: Hoffmaster began to drink, Plaintiff made. an oral Motion to reinstate the direct
         punitive. damage clalrn which J once again denied • .!!l at 526.

                After five days ottrlat, on October 20, 2017,.thejuryawarded Plaintiff

         compensatory damages in ttie amount of$210,000 against.both Defendants Jointly and
         an award of $30,000 in punitive damages against Mr. Hoffmaster. .Id. a1934;.:935. The
         jury apportioned 75% liability to Mr. Hoffmaster and 25.% liabmty to CLO� � at 9.3.4. On


                                                         4



····-······--·-··--·-·· . .. ·---·--·-··------·-""""'""'"'""·----------------------
          October 27, 2017, Pia intiff filed a post-triel motion with this Court for a new trial solely

          on the issue of punitive damages. Defendant.CLO and Defendant Hoffmasterfiled
          timely responses to the Motion and after oral argument on the motion I denied Plaintiffs

          Motion on March 12, 2018. Plaintiff filed ah appeal of that Orderon April 6, 2018.

                                                   ANALYSIS.

                  The primary focus of Plaln,titrs appealts whether direct punitive damages were

         warranted against CLQ when there was a complete absence ofany evidence.of any

          type that Mr. Hoffmaster was intoxicated or even consumed any· alcoholon their·

          premises. I will first discuss why direct punitive damages were not.warranted iii .this

          case and in doing: so will address issues one, two., three, four, and eight of Plaintifr$

          statement of Errors. t: Will then address Plaintitrs fifth issue regar�:iing the alleged

         vicarious lia.bility of CLO andPlairititrs sixth issue te.gardlng my July 12. 2017Ptoteclive

         Order. Finally, I will address Plaintiff's seventh issue regarding the request to subpoena

         Tony DePaul.

                                               Punitive . Damages

                  ltis well settled under Pennsylvania law that "a puhitive damages claim must be
         supported by evidence sufficient to establish that (1) a defendant had a subjective

         c:1pprec.iation of the rlsk of harm to-whlch the plaintiff was exposed and that (2) he.acted,

         or failed to act, as the case may be, in conscious disregard of that risk'; Hutchison ex rel.

         Hutchison. v. Luddy, 896 A,2d 1260, 1266 (Pa. Super. Ct.2006). The "purpose of

         punitive damages is to punish a tortfeasor for outrageous conduct and to deter him or

         others like him from slmllar conduct•." Kirkbride v; Lisbon Contractors, Irie.,. 555 A:2d

         800, ..803 (Pa. 1989); However. it must also be recognized that it is "impossible to deter



                                                         5



··-····----··--
a person from taking risky action if he is notconscious of the risk." Hutchison ex rel.
Hutchison v. Luddy, 870 A.2d 766, 770 (Pa. 2()05)         quoting Martin v. Johhs-Mamiille
Com .• 494 A;2d 1088,, 1.097 n. 12 (Pa. 1985) (plu.rality opinion overruled on other

grounds).

       It has never been contested that punitive damages against Mr; Hoffmaster were
appropriate. Focht .v. Rabada� 268 A.2d 157; 161 (Pa. Super. Ct 1970) ("under.the

appropriate circumstances, .evidence of driving while under the influence of intoxicating

liquors may constitute a sufficientgrolindJor allowing punitive damages,") However, for

an employer to be held directly liable for punitive damages they must also act in. some

manner that demonstrates outrageous
                              .
                                    conduct which .goes beyond. mere negligence.
                                                                        ...


Dillow v. Myers; .916 A.2d 698, 702 (Pa. Super. Ct. 2007) (punitive damages-were

appropriate against employer who allowed a truck to go out on the road that was unable

to properly distrib.ute the weight of its load due to a   broken loading rack) see also
Darden-Munsell v. Dutch Maid Logistics; No. CA 10403; 2011 WL 3325863, at *3 .(W.D.

Pa. July 13,.2011 ), . re po.rt and recommendation adopted, No. CIV .A. 10-103, 2011 W.L

3299067' (W.D. Pa. Aug. :2, 2011) (Federal Court applying PA law finding that a pleading

of punitive. damages was appropnate wher, it was alleged that employer knew that the

driver had been driving over the hour liniit, that the truck was negligently overloaded,

and had   not �ppropriatety trained the, cf river).
       Here, Plaintiff's repeated attempts to lmpose direct punitive damages against

CLQ were not supported ln law or fact. Based on the uncentrovertsd record that Mr,

Hoffmaster did not obtain the. alcohol or t;,egin drinking until after he left Cl..Q's. property,

there is no way CLQ could have had a sµbJective appreciatlon of any risk of harm in


                                                 6
allowing Mr. Hoffmaster to deliver the third load of stone on the day ofthe accident. It

was entirely unforeseeable that an employee who had no documented histQry of alcohol

abuse, no positive random drug scre.ens,5 no criminal history related to driving whJI�

intoxicated, arid who did not display any-signs of intoxication prior to leaving the

company premises would       consume alcohol en route to his destination. It is
inconceivable what deterrence purposewouldbe served in punishing a company for

failing to see that which is invisible. CLO did not have the opportunity to either

appreciate the risk nor did itact"in conscious disregard of that risk" so as to Justify a

claim of direct punitive' damages.

          Nevertheless, J will address Plaintiff's three assertions which they claim should

have been the basis for punitive darnaqes.Flrst, thatCLQJailed to train employees like

Mt Klinedinst in reasonable suspicion training; second, that the Jury could have
disbelieved that Mr. Hoffmaster could have begun drinking prior to leaving CLCl's

· premises: and, third,· that Mr� Hoffmaster was retained by CLQ despite three prior safety

violations.

         Plaintiffs first assertion was th1:1tCLQ's failure to provide reasonable suspicion

training to their employees was so outrageous as to warrant punitive damages'. The

WeightMasterand Dispatcher on duty that day for CLQ, Nelson Klinedinst, was the·

only employee to have..interactions With Mr.. Hoffmaster, Plaintiff's truckirrg expert. Jon

Paul Dillard, testified that; Mr. Klinedinst, as a dispatcher was required by Federal

regulations to undergo a sixty-minute reasonable suspicion trainlhg, but had riot. Id. at

567. The. glaring flaw in this argumentis that the qnly evldsnce ever presented was that



'.Id. at600.
     Mr. Hoffmaster did not begin drinking until after he left the CLQ's premises.6 In other

     words, there was nothing even the best trained reasonable .susptciorr investigator could

     have orwould have observed before any alcohol was consurned.
              Plaintiff's.second assertion is that the jury could have disbelieved Mr; Hoffmaster

     as towhen he started drinking! While. the role. of the jury is to be the tact finder, the trial         11




     judge must determine Wtlether'the plaintiff has presented sufficlentevidence to support

     a punitive damages claim,i.e�. facts from Which the ]ury might reasonably conclude that

     the preponderance of the evidence establishes outrageous conduct by the defendant"
     Martin, 494 A2d at 1098; see also Smith v; Bell Tel. Co. of Pa.; 153 A.2d 477, 479 (Pa,

     1959)("the evidence presented. must be such that by reasoning from It, without resort to

     prejudice orguess, ajtJry can reach the concluslon.souqht by plaintiff. and net.thatfhat

     conclusion must be the only one which logically can be reached") ..

              In this case; Mr. Hoffmaster's narrative ofthe events of that day have remained

     unchanged in. the six-and-a-half years since the accident in question. Through

     deposinons, interrogatories, and the passage of time, his story has remained entirely

     consistent. His testimony is corroborated by Mr. Klinedinst's testim�my that Hoffmaster

     displayed no evidence of intoxication While on CLQ's premises. Plaintiff did net present

     any evidence attrial that conflicted with the narrative, of these two witnesses. Without
    any counter-factual evidence, any finding by the jury that Mt: Hoffmaster began drinking

    While. on CLQ's premises would be based purely on speculation. Acoordirigly, I found

     that Plaintiff did not present sufficient evidence           to support a punitive damage, claim.

     6
      Plaintiff also tails .to mention that the, preceding section in the federal Motor Carrier Safety ,Admh,istration
     Regulations states thatreasonable suspicion must be based on, "�pedfic, contemporaneous, artictiiable observations
     concerning the appearance, behavior, speech or body odors of the driver;' 49 C:F.It § §:l82..307(b),. of which
     Plaintiff has failed to produceruril evidence.                                                      .

                                                             8




--------#-----------------------------------
    ·
             Apparently recognizing the absence of any legitimate punitive damage claim

    relatin_g to the alcohol consumptlon, late ir, the case Plaintiff altered his focus to an

    aHegation that the decision to retain Mr. Hoffmaster after the three safety violations in

    2009. was so outraqeous conduct as to warrant punitive damages. 7 None of these

    incideht$ involved any.allegation of intoxication and CLQ appropriately reprimanded Mr.

    Hoffmaster pursuant to company policy, WhUe incidents like backing over a tool box

    may allude to a pattern of carelessness by Mr1 Hoffmaster, they certainly do not

    demonstrate thatheacted with an lntentlonal disregard for others' safety like. that which

    ultimately occurred in this case. The violations in 200� �ind the case at bar are so

    separated by time, nature of the act, and intent of the act, such that CLQ could not have

    possibly foreseen that this incident would occur. The nexus between the safety

violations in question and Mr. Hoffmaster's operation of a company vehicle While

 intoxicated tWo years later .simply does not exist and the lack of evidence reg�rdJng

CLQ'-s bad motive or conscious disregard otthe risk in this case rendered a direct

punitive damages claim unwarranted..

            Thatts not to say thatthe decision to retain Mr. Hoffmaster was not in some way

negligent CLCYs decision to retain Mr. Hoffmaster after the third vlolatlon may have

been inappropriate .. Accordingly, the jury was properly instructed on ne.gligent hiring,

supervision, and retention and indeed the jury did fi"'d CLQ to be 2.5% Hable. However,

mere negligence without .a demonstration of something more cannot give rise to punitive

damages. see e.g. PhiUips v. Cricket Lighters; .883 A.2d 439, 447 (Pa. 2005)




7
    See Footnote 3.,

                                                  9



                             ·----------------· -------------
                                                         Vicarious Liability

                  Plaintiff next claims that.I erred in failing to instruct the jury that CLQ was "subject

       to the payment of punitive damages based on the reckless conduct of their employee."

          Exactly what he is arguing in this regard. is far from clear in his St�tement of Errors.

          Accotdinglyj J am left to try to divi.rie what is meant. The language he uses, coupled.with

          his heavy rensnce on B.utterfield v. Gluntoli, 670 A.2d 64(3, 655 (Pa. Super. Ct. 1995}

          (subrogation claim by.an insurance company seekingJndemnificat1on.from the

          responsibility to pay punitive damages assessed against the insured employer), leads

          me to believe thatPlalntlff is claiming thatCLQ.is.responsible for paying the. punitive

       damages .assessed against Mr; Hoffmaster. To my knowledge that is a non-issue as

       Defendant CLQ has already tendered paym.entof theentire judgment, including punitive

      damages awarded. .against Mr. Hoffmaster.8 CLO may be vicariously liable, and
      · therefore responsible. for Mr! Hoffmaster's $JO.OOO punitive damages apportionment,

      but under Butterfield, that is a coverage.issue that neither I, nor the juryi need have

      addressed • .Accordingly, this issue should be dismissed;

                  It is possible, but by no means clear, that Plaintiff is challenging my decision not

      to instruct the jury on Independent punitive damages againstCLQ on a theory of

      vicarious liability. If this Isthe case, the analysis is quite different, but once again

      demonstrates that no such claim was warranted in this case.

                  While an employer can be vicariously liable 'for the harm caused by his employee

      to a third party; the employee must be acting within the scope of his employment, Costa



      8
          Parenthetically, Mr, Hoagliind has refused to. acc;ept this tender.

                                                                     10




····---····----..·---.. -------·-----------------·---------
                       v. Roxborough Mem'I Hosp., 708 A.2d 490i 493 (Pa. Super'. Ct. 1998). The Restatement

                       (Second) .of Agency defines conduct within the scope of employment as. follows:

                               (1) Conductof a servant is within the scope of employment if,                  but only if:
                                     (a) it is ofthe kind he is employed to perform;                             .
                                         (b) ttcccurs substantially within. the authorized time and space limits;
                                         (c) it.ls actuated, at least in part, by a purpose to serve the master, and
                                         (d) if force ls intentionally used by the servant.aqalnst another, the use of
                                         theforceis. not unexpectable byfhe master,
                               (2) Conduct of a servant is not within the scope of employment if lt is differentin
                               kind from that authorized, far beyond the authorized time or-space limits, or too
                               little actuated by a purpose to serve the master:"

                                         Restateroent(Second) of Agency, § 228

                               Moreover, "a master is not liable for the Willful misconduct of his servant; and that.

                       such willful misconduct, while                  it may be within the course of the employment, Is riot
                      within the scope thereotnMcMaster v. Reale, 110 A.2d 831, 832 (Pa. Super. Gt.1955.)

                       quoting MacPhail v. Pinkerton's National Detective Agency, Inc., s A.2d 9.6S, 970 (Pa!

                      Super.. Ct); see also Fitzgerald v. McCutcheori, 41 O A.2d 1270, 1272 (Pa. Super; Ct

                      1979) ("act was so outrageous, -so cr,iminal, and so Incapable of anticipation                  by his
                      employer, that it must be held as a matter otlaw to exceed the. scope of (employees]

                      employment").

                               Here,   Mr. Horfrnaster's conduct was indeed so outrageous, criminal,                 and

                      incapable. of anticipation by CLQ thaUt must .be held as a matter of law to exceed the

                      scope of his employment. Drinking to a point of intoxication that was almosttour times

                      the regal limit for non-commercial drivers and fourteen times the legal limif for

                      commercial drivers was manifestly beyond CLQ's expectations for the.irdrivers. Even

                      though   Mr� Hoffmasterwas drivin9 hlsthlrd.load ofstone and, therefore, may have been
                      acting within the         course <>f his employment he certainly.was not acting within the scope


                                                                                   II



                                    -------·· ••• •••·--   •v--·- .:




····-···.,-·--·-··---··-..   ·--·------------------------------------
       not raise this issue In his M.otion for a New Trial1 I considerthisissue waived as well,

       even if ithad been preserved, it too lacks merit.

                  In his. effort to establish that there was some outrageous or illicit rnonve behind

       CLQ�s decislon to retain Mt Hoffmaster so as to Justify a claim for punitive damaqes,

       Plaintiff called CLQ;s Safety. Manager, Eric Snowadzky; a$ on cross. Mr. Soowadzky

       tesJified, Just as he had at his depos.ition only weeks before, that the decision to retain

       Mr: Hoffmaster was made by Tony DePaul, part owner of the DePaul Group which

       manages. �LQ. Despite years of litigation.and for reasons never disclosed, Plaintiff

       neversouphtte depose Mr. DePaul, nor made any other effort to learn his reasons for.

       retaining this employee .. Apparehtly (and belatedly), realizing that oversight was fatal 'to

       his: �ffort to show evil motive. Plaintiff sought to subpoena him on.the third day of trial.

                  The error ofthat, however, w�a 'that Mr.           DePaul was never identified as a

       potential witness in his: Pretrial. Memo or in. any other pretrial documents. 9 Under the

       Rules of Civil Procedure, pretrial statements-must contain a list.of                  an witnesses to be
       csued.at trial. Pa.R.C.P. No. 212�2 (emphasis added). ''Ultimately the most critical

       factors are the importance ofJhewitnesses' testimony balanced against the-prejudice

       that would be imputed to.the other party." Feingold v. SEPTA, 517 A.2d 12701 1273 (Pa.

       1986).

                  lf this testimony was so ctiticaf      to h.is case; Plaintiff had no legitimate excuse for
       not recognizing thatfactend properly putting the parties and tJ'lis Court on notice of this

       potential witness. I found that the proposed last minute surprise subpoena created




       9   Mr. DePaulwasnotlisted as.a potential witness in Defendants'.Pretrial Memos either.




·--···· -----··-· · ·· ---·------------------------------------·--·-
               prejudice to the Defendants that greatly oulwei�hed the limited importance .ofwhy Mr.

               Hoffmaster was retained after the safety vlolatlons,

                      In an effort to circumvent these limitations, Plaintiff disingenuously claimed that

               .he was. exempt from the pretrial memo limitation because he     was (;alllng Mr.   DePaul as

               a "rebuttal witness." The fallacy of that argument is that Mr. De Paul's proposed

               testlmonywas "rebutting'.' n9thing. Plaintiff called Mr. Snowadzky in his own case in

               chief, knowing exactly what he would testify to. Mr. DePaul's testimony on the other

               hand, would not be "answering new matter" introduced by the defe,nse, but rather, it

               would be to fill ih the gaps.of Plaintiff's own case In chiet That is nQt the. purpose of

               rebuttal testimony. Mr. DePaul's 'testimony was properly excluded from trial and

               Plaintiffs appeal on this issue should be dismissed.

                                                      CONCLUSION

                      Because there was absolutely no credible, evidence that CLO could have

               appreciated the risk of harm   by allowing Mr. Hoffmaster to drive on the day of the
               accident, any claim for punitive damages, direct or vicarious,. was not appropriate in this

               case. Therefore, Plaintiff's appeal should be dismissed.
                        In the event; however, that itis determined that this case should be remanded

               for a trial Oh punitive damages against the CLQ, it Is my requestand recommendation

               that the remanded matter would be for a retrial .onal/ of the issues . Aside from the fact

               that the question of punitive damages Is inextricably intertwined wit� the jury's

               eveluatlons of the amount of compensatory damages. See. e.g. BMW of N. Am., Inc. v.

               Gore, 517U.S. 559, 581 (1996); Kirkbride, 555A.2d.at802, a        new trial on the
               compensatory damages is warranted to address any injustice th�t may have resulted


                                                            14


·-----·-�-·-   ·-----------------------------------
          from Plaintiff counsel's repeated             m.Jsconduct during the trial. I will outline some of the
          more.egreqlous examples.

                     Ori the third day of the tn$1, Plaintiff catted Mr. Ho.ffmaster as on cross. After his

          initial questioning and that of defense counsel,on re-cross examination, Plaintiffs

          counsel asked questions which elicited answers revealing the existence of liability

          insurance inviolation ot Pa.RE. 411.

                             Now, you were .asked a question about; was my client's property
                     Q: Ok.ay.
                     damage, his damage
                                      . to his car
                                                .  paid for, and your answer was yes,.correct?

                   A: Yes.

                   Q: Now, there's no claim because we're not making a claim for that in this
                   lawsuit Do you know who paid it?
                   A: County line's lnsurance,

                   N.T. at 648.

                   Defense .counsel immediately ol:>jected claiming, among other thin.gs, thatthe

         question was �deliberately improper'�� Had I so concluded, a mistrial was required.

         see e.g. Trimble v. Merloe, 197 A.2d 457 (Pa. 1964). At this point, however, I decided to

         give Plaintiff's counsel the benefit of the doubt and simply gave a curative instruction. 10

         In lightof the subsequent conduct of Pfalntiff's counsel, .1 am constrained to believe that

         this misconduct was indeed deliberate. I nonetheless, and perhaps erroneously; allowed

         the trial   to connnue;
                  While Plaintiff's.counsel soughtto excuse the reference to lnsurance E.iS

         une><pectedly given or inadvertently solicited, the same cannot be said about this next

         action which occurred onthe following day; SpecificaUy,·while Plaintiff Was being


         10
           Ironically, Plaintiff's. counsel later claimed that even the curative instruction was. in error, disingenuously arguing
         that it.was the wimess's ow.n fault.for answering the qeestion. N::r. at 657; 821.               · · ·· · · ·      ·

                                                                     15



·--·------··--
                                   questioned on dire.ct examination; counsel directly and deliberately violated Pa.R.E. 408

                                   as follows;

                                                    Q: You .atso heard earlier that -.during the opening of Mr. Hoffmaster's
                                                    counsel, that they know you were hurt and they think that you should be
                                                    compensated. If they had compensated you fairly or offered to
                                                    compensate you fairly; would you behere today?

                                                    A:.   No;

                                                    N.T.at742.

                                   There could be no legitirn.ate claim of surprise or inadvertence                 or any possible
                                   explanation for such a clear violation .of the law. Although once again a curative

                                   instruction was given, the effect of this ongoing improper conduct continued to

                                  accumulate.

                                               Finally,. prior to closing arguments, the parties submitted and I ruled on

                                  proposed points for charge. In his submission, Plaintiff included i:1 series of points

                                  requesting that the jury be charged that, in addition to m�king a victim whole,

                                  compensatory damages included punishing the wrongdoer as ameans of deterring

                                  futureconduct.jq, at 827. These points were denled.forcbvlous reasons."

                                           At a subsequent oh the record points conference, I repeated my ruling that the

                                  Plaintiff. may. not argue for punishment or deterrence in his compensatory
                                                                                                   .         damages

                                  claim. Id� at 827. Plaintiff's counsel .reitera.ted his understanding ofthis limitation by

                                  repeatedly. asking      to preserve     his objE!CtionJo     my ruling on this point. !9..:. at 837, 878.


                                  11
                                      "Ccmpensatory.damages aieawardedto·a person as compensation.for harmsustajned and are.designed to give the
                                  injured person some pecuniary returnfor What he suffered oris likely to suffer." Restatement (211d) of Tons,
                                  Sectioli9.03, comment [a]. Punitive damages, by contrast. are damages otherthan compensatory damages, awarded.
                                  against. a party to punish them for outrageous conduct and to deter them, and others like them, from similar conduct
                                  in the future; Restatement (Second) ofTorts, Section 908 (i). Indeed, th� fundamental purpose ofpunitiv¢ damages·
                                  is. to deter futuri::.outr:ageotis conduct. Hutchinson,896 A.2d at 1266.

                                                                                          16



····--·-····--·············-..   ------- --·------------------------------------
     ..

              Despite what appeared to .. be a Very clear understanding ofthe limitations that

 this Court had imposed upon him, Plaintiffs counsel nonetheless proceeded to spend                                         a
 considerable portion of his closing argument directly and repeatedly violating this ii.Jling,

 demanding a verdict •• ... so large that every company in· this county, in this state,                          wm
 read about it" telling the jury that they are the " ...voice               of the community, and as th�
 conscience of the community [theyJ                set the standards ilithe community. Id. at 9Q0..90t.
 Perhaps most outrageous of all was his conclusion that if they don't give a large verdlct

 '!,.�what happens? If You don't, all these companies are going to cut corners. TheY,re

 .going to create a safety rtsk. They're going to make more                       money.,... f d ·suggest
 whatever amount you gJve here, evenif [Plaintiff] is made wealthy by yourverdlct ..... If

 you don't•. every company in Lancaster County; in York County, Montgomery County,

 Chester County. in Pennsylvania and around are going to be a heck o.f                             a lot richer.
 Corporate greed is prevalent And, again, you need to decide what you think is

 appropriate and fair for this community." Id. at 901.

          These are but .three of the mostnotable examples of Plaintitrs counsel's

 rnisconducfthroughout the course of this case.P Indeed, in the decade thatl have

been a Common Pleas Judge, I have presided over dozens. of criminal and civil jury

trial� and hundreds of other hearings and yet; I cannot recall any instance with an

attorney.showing more discourtesy to opposing counselor more deliberate disregard for

the rulln.gs and authority of this Court. There is, however, no way to precisely determine.



12
     Other examples include subpoenaing witnesses without notice to opposing counsel (N. T. at 16, 27), providing
· previously unknown medical records <>.f Plaintiff the Friday before trial (N.T, at 14 ), asl.dng a question regarding ·
  attorney/client privilege (N.T. 'at 630)1.attempiirigto introduce new evidence and witnessesthree weeks before trial
  [Plaintiff Second Amended Pretrial.Memo),.and improperly inflating .his request for delaydamages. {Plaintiff's
  Mption to. ?vJo.ld Jury Verdict. to Inc.lude Delay Damil.ges, .i 0/26117: Order 3115/l.8 FN, i).

                                                            17
        the cumµlative effect this behavior had on the ultimate compensatory damages award.

        Accordingly, the only way to be .sure that no improper benefit was conferred is to retry
        the entire caseln the. event of a remand,




                                                    18



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