J-A26042-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 TERENA REPPOND, A MINOR, BY           :   IN THE SUPERIOR COURT OF
 TERESE REPPOND, GUARDIAN AND          :        PENNSYLVANIA
 NATURAL PARENT, INDIVIDUALLY          :
 AND IN HER OWN RIGHT                  :
                                       :
                     Appellant         :
                                       :
                                       :
              v.                       :   No. 351 MDA 2017
                                       :
                                       :
 ERIKA FERRANTE AND BONITA             :
 MILKE

            Appeal from the Judgment Entered March 24, 2017
   In the Court of Common Pleas of Berks County Civil Division at No(s):
                                 13740


BEFORE: BOWES, J., OLSON, J., and RANSOM, J.

MEMORANDUM BY RANSOM, J.:                        FILED JANUARY 17, 2018

      Terese Reppond and Terena Reppond appeal from the March 24, 2017

judgment entered in favor of Appellees, Erika Ferrante and Bonita Milke,

following a jury trial. We affirm.

      The following statement of relevant facts and procedure is garnered

from the trial court’s opinion and the record.    See Trial Court Opinion,

4/19/2017, at 1-3.

      In May 2012, Appellant Terena’s leg was fractured when she drove her

bicycle onto Ridgeway Street from an intersecting alley and was struck by

Appellee Ferrante. There was no signage where the alley and Ridgeway Street

met. In January 2013, Appellant Terese Reppond filed a complaint on behalf

of her daughter, Terena, alleging Appellee Ferrante was negligent in the
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operation of a vehicle. Prior to trial, Appellants stipulated to the withdrawal,

with prejudice, of the claim against Appellee Bonita Milke as the owner of the

vehicle.

       During a jury trial in October 2016, two disputes arose regarding the

court’s instructions to the jury.          First, the trial court declined to grant

Appellants’ request for a supplemental jury instruction pursuant to Byrne v.

O.G. Schultz, Inc., 160 A. 125 (Pa. 1932) (outlining a higher duty of care

placed on drivers at intersections). Rather, the court conveyed the standard

charge of negligence from Section 13.10 of the Pennsylvania Suggested

Standard Civil Jury Instructions.1             Second, Appellants objected to an

instruction on Section 3324 of the Vehicle Code.           Following deliberations,

Appellee was found not negligent by the jury.

       Appellants moved for judgment notwithstanding the verdict, which the

court denied. In November 2016, Appellants filed a motion for post-trial relief.

Following argument, Appellants’ motion was denied in January 2017.




____________________________________________


1 The trial court utilized the following pertinent portion of Section 13.10 of the
Pennsylvania Suggested Standard Civil Jury Instructions, “A person must act
in a reasonably careful manner to avoid harming others. The care required
varies according to the degree of danger at a particular time. You must decide
how a reasonably careful person would act under the circumstances
established by the evidence of the case. A person who does something a
reasonably careful person would not do under the circumstances is negligent.”
Combined Notes of Testimony (N.T.), 10/27-28/2016, 10/ 31/2016, at 384.



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Appellants timely filed a notice of appeal and a court-ordered 1925(b)

statement.2 The trial court filed a responsive opinion.

       Appellants present the following issues for our review:

       1.    Whether the court erred in failing to give the jury instruction
       requested by the [Appellants,] which included a supplemental
       charge of negligence regarding the duties and responsibilities of a
       driver at an intersection.

       2.    Whether the court erred in charging the jury that 75 Pa.C.S.
       § 3324 was applicable to this case; and that a violation of this
       statute constituted “negligence per se.”

Appellants’ Brief at 2-3 (some formatting applied).

       Both of Appellants’ claims challenge the court’s instruction to the jury.

We review such claims in the following manner:

       Our standard of review regarding jury instructions is limited to
       determining whether the trial court committed a clear abuse of
       discretion or error of law which controlled the outcome of the case.
       Error in a charge occurs when the charge as a whole is inadequate
       or not clear or has a tendency to mislead or confuse rather than
       clarify a material issue. Conversely, a jury instruction will be
       upheld if it accurately reflects the law and is sufficient to guide the
       jury in its deliberations.



____________________________________________


2 In February 2017, Appellants filed an appeal to this Court; however, final
judgment had not been entered at the time of the appeal. Accordingly, we
directed Appellants to praecipe the trial court prothonotary to enter final
judgment and file a certified copy of judgment entered with this Court for the
instant matter to be deemed properly filed. See Order, 3/22/2017; Pa.R.A.P.
301(a)(1). The Berks County Prothonotary entered judgment on March 24,
2017, thereby perfecting this Court’s jurisdiction. See Pa.R.A.P. 905(a)(5)
(“A notice of appeal filed after the announcement of a determination but
before the entry of appealable order shall be treated as filed after such entry
and on the day thereof.”).

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         The proper test is not whether certain portions or isolated
         excerpts taken out of context appear erroneous. We look to
         the charge in its entirety, against the background of the
         evidence in the particular case, to determine whether or not
         error was committed and whether that error was prejudicial
         to the complaining party.

      In other words, there is no right to have any particular form of
      instruction given; it is enough that the charge clearly and
      accurately explains the relevant law.

Krepps v. Snyder, 112 A.3d 1246, 1256 (Pa. Super. 2015), appeal denied,

125 A.3d 778 (Pa. 2015) (citations and internal punctuation omitted).

Additionally, “a trial judge may properly refuse a litigant's requested

instruction when the substance thereof has been adequately covered in the

general charge.” Perigo v. Deegan, 431 A.2d 303, 306 (Pa. Super. 1981).

      In their first claim on appeal, Appellants challenge the trial court’s

decision not to give a supplemental jury instruction pursuant to Byrne, in

which our Supreme Court recognized the special vigilance required of drivers

approaching an intersection and held that the operator of a vehicle is required

to “look, and see what is visible, before attempting to cross the intersecting

street.” Byrne, 160 A. at 127. According to Appellants, an intersection is

created where an alley meets a street, thus necessitating the Byrne

instruction in the instant case. Appellants’ Brief at 8-9 (citing 75 Pa.C.S. §

102). We disagree. Here, the trial court declined to give the Byrne instruction

because the accident did not occur at an intersection under the definition of

the Vehicle Code. 75 Pa.C.S. § 102.




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      Appellants rely on definitions in the Vehicle Code to establish that an

intersection is created where an alleyway meets a highway. An intersection

is defined as:

      (1) The area embraced within the prolongation or connection of
      the lateral curb lines, or, if none, then the lateral boundary lines
      of the roadways of two highways which join one another at, or
      approximately at, right angles, or the area within which vehicles
      traveling upon different highways joining at any other angle may
      come in conflict.

75 Pa.C.S. § 102. A highway is defined as:

      [T]he entire width between the boundary lines of every way
      publicly maintained when any part thereof is open to the use of
      the public for purposes of vehicular travel.

75 Pa.C.S. § 102. An alleyway is defined as:

      [A] street or highway intended to provide access to the rear side
      of lots or buildings in urban districts and not intended for the
      purpose of through vehicular travel.

75 Pa.C.S. § 102. A roadway is defined as:

      [T]hat portion of a highway improved, designed or ordinarily used
      for vehicular travel, exclusive of the sidewalk, berm or shoulder
      even though such sidewalk, berm or shoulder is used by
      pedacycles. In the event a highway includes two or more separate
      roadways the term “roadway” refers to each roadway separately
      but not to all such roadways collectively.

75 Pa.C.S. § 102.

      An examination of the plain language of the definitions reveals that an

alleyway, which may consist of a “highway,” can create an intersection where

it is joined by another highway. Id. It is also clear that a highway must be

(1) open to the public and (2) publicly maintained. Id. Therefore, to properly


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warrant the trial court’s inclusion of the Byrne instruction outlining a higher

duty of care, Appellants were obligated to establish that the alleyway at issue

was both open to the public and publicly maintained in order for it to be

defined as a highway, capable of creating an intersection.

       Instantly, Appellants failed to establish that the accident occurred at an

intersection, as so defined by 75 Pa.C.S. § 102. Appellants established that

the alleyway was open to the public; yet, they introduced no testimony to

determine how the alleyway was maintained. See N.T., at 177-80, 228-89,

252; Plaintiffs’ Exhibit 8; and Defendant's Exhibit 7 (collectively outlining that

the alleyway consisted of two, thin paved paths with a continuous row of grass

growing in the middle, intersected multiple streets in the neighborhood, was

open to the public, and was used for vehicular and pedestrian traffic).

       Therefore, we conclude that the trial court did not abuse its discretion

in declining to give Appellants’ supplemental instruction, as Appellants did not

establish that the alley was publicly maintained and could not thereby

establish that the alley formed an intersection where it met Ridgeway Street.

Trial Court Opinion, 4/19/2017, at 4 (concluding, based on the specific facts

of this case, that no supplemental charge was required).3 The trial court’s

instruction of negligence from Section 13.10 of the Pennsylvania Suggested


____________________________________________


3 The trial court’s use of terms describing the location of the accident is not
entirely consistent with the definitions provided in the Vehicle Code.
Nevertheless, where the court’s conclusions are correct, we may affirm on any
ground. Commonwealth v. Gatlos, 76 A.3d 44, 62 (Pa. Super. 2013).

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Standard Civil Jury Instructions accurately reflected Appellee’s duty of care

and was sufficient to guide the jury in its deliberations. Krepps, 112 A.3d at

1256.

        Appellants’ second claim has two parts.     First, Appellants assert the

court abused its discretion when it included 75 Pa.C.S. § 3324 in the jury

charge. Appellants’ Brief at 9-11. According to Appellants, Section 3324 is

inapplicable to this case. Id. Because the record supports the trial court’s

conclusion that the instant alleyway was not a roadway, we discern no error

in the trial court’s use of 75 Pa.C.S. § 3324 in the jury charge, as it accurately

reflects the law pertinent to the case.

        Section 3324 provides, “the driver of a vehicle about to enter or cross a

roadway from any place other than another roadway shall yield the right-of-

way to all vehicles approaching on the roadway to be entered or crossed.” 75

Pa.C.S. § 3324. This duty is equally applicable to bicycle drivers. 75 Pa.C.S.

§ 3501 (persons riding a pedacycle on a roadway are granted all of the rights

and are subject to the same duties applicable to drivers of vehicles); see also

Commonwealth v. Sisca, 369 A.2d 325, 328–29 (Pa. Super. 1976).

        The conduct proscribed in 75 Pa.C.S. § 3324 is also consistent with the

responsibilities required of drivers of vehicles emerging from alleyways,

driveways, and private roads. See 75 Pa.C.S § 3344. A single statute of the

Vehicle Code, Section 3344, governs the conduct of drivers of vehicles

emerging from alleyways, driveways, and private roads, and this statute


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specifically directs vehicles emerging from an alleyway to stop prior to

entering a street:

      Unless otherwise directed by official traffic-control devices erected
      in accordance with provisions of Subchapter B of Chapter 31
      (relating to traffic-control devices), the driver of a vehicle
      emerging from an alley, building, private road or driveway within
      an urban district shall stop the vehicle immediately prior to driving
      onto a sidewalk or onto the sidewalk area extending across the
      alley, building entrance, private road or driveway or, in the event
      there is no sidewalk area, shall stop at the point nearest the street
      to be entered where the driver has a view of approaching traffic.

75 Pa.C.S. § 3344 (footnote omitted).

      When Appellant Terena emerged on her bicycle from someplace other

than a roadway, here, an alleyway, she had a duty under the Vehicle Code to

yield prior to entering the roadway of Ridgeway Street. Accordingly, viewing

the charge in its entirety in the context of the evidence presented, we

determine that no error was committed by the trial court.

      Part two of Appellants’ second claim concerns the portion of the jury

instruction which outlined that a violation of 75 Pa.C.S. § 3324 constitutes

“negligence per se.” However, we will not address this issue as the challenge

was not properly preserved. Appellants concede that they failed to object to

the charge of negligence per se; accordingly, this portion of Appellants’ second

claim is waived. See Appellants’ Brief at 4; Pa.R.A.P. 302(a) (“Issues not

raised in the lower court are waived and cannot be raised for the first time on

appeal.”).

      Judgement affirmed. Jurisdiction relinquished.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 01/17/2018




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