J-A26024-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MICHAEL L. SONOGA, EXECUTOR OF                    IN THE SUPERIOR COURT OF
THE ESTATE OF ELSIE T. SONOGA                           PENNSYLVANIA

                           Appellants

                      v.

PRESTON FORD, INC., AND PRESTON
HYUNDAI OF SHARON

                                                       No. 209 WDA 2016


                     Appeal from the Order January 15, 2016
                in the Court of Common Pleas of Allegheny County
                        Civil Division at No(s): GD12-4034


BEFORE: BENDER, P.J.E., RANSOM, J., and MUSMANNO, J.

MEMORANDUM BY RANSOM, J.:                        FILED NOVEMBER 28, 2016

         Michael L. Sonoga, Executor of the Estate of Elsie T. Sonoga, appeals

from the order entered on January 15, 2016, granting summary judgment to

Preston Ford, Inc. and Preston Hyundai of Sharon. We reverse.

         Viewing the record in the light most favorable to Appellant as the non-

moving party, see Summers v. Certainteed Corp., 997 A.2d 1152, 1161

(Pa. 2010), produces the following summary of the events leading up to the

litigation.   Elsie Sonoga purchased a new Hyundai Sonata in December of

2010. Deposition of Theresa Magdits, 2/13/13, at 59. In July, 2011, Ms.

Sonoga was driving when the car accelerated backwards without driver

input.     Id. at 9, 14.     She made an appointment to have the brakes
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examined and informed the representative that during the incident, green

and red lights on the dashboard were illuminated. Id. at 9-10, 45.

       On July 13, 2011, Ms. Sonoga and her sister Theresa Magdits went to

the appointment at the dealership. Id. at 10-11. A representative told Ms.

Sonoga that no one was available to look at the car and she could either

leave it for further inspection or bring it back on another date. Id. at 10-11,

25-26. Ms. Sonoga chose to bring the car back another day, as she did not

have a ride home. Id. at 26.

       As Ms. Sonoga drove home, the Sonata accelerated out of her control.

Id. at 11, 28. Ms. Sonoga cried out to her sister that she could not stop the

car. Id. The Sonata collided with a vehicle stopped at a red light, before

striking a second vehicle.       Id. at 11, 28; see also Police Incident Report,

7/13/11, at 1-4. Ms. Sonoga was killed.1

       On March 5, 2012, Appellant filed a wrongful death and survival action

against Appellees. The complaint raised counts of negligence, strict liability,

and breach of warranty, averring that the 2011 Hyundai Sonata driven by

Ms. Sonoga was defective. Compl. at ¶ 38. On April 4, 2012, Appellees filed

an answer to the complaint with new matter and crossclaim. On April 26,

2012, Appellant filed a reply to the new matter.
____________________________________________


1
  The only piece of the evidentiary record which states that Ms. Sonoga died
as a result of her injuries is the expert report of Thomas Lacek, which the
trial court struck as evidence. However, the pleadings indicate that Ms.
Sonoga did, in fact, pass away as a result of her injuries.



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     During discovery, Appellant produced the expert report of Thomas

Lacek, P.E., which opined that the floor mat of the Sonata may have covered

the accelerator, causing it to stick.   Additionally, Appellant deposed the

service representative who spoke to Ms. Sonoga on the day of the accident.

The representative felt the problem was serious and claimed to have offered

Ms. Sonoga a ride home, which she declined.          Deposition of Matthew

Impton, 2/12/13, at 29-30, 39.

     On January 12, 2016, the case proceeded to jury selection.           On

January 15, 2016, the case was assigned to the trial court for the resolution

of pending motions in limine.     Appellant’s Brief at 6-7.   On that date,

however, the trial court heard only Appellees’ motion to strike Appellant’s

expert report on the basis that it did not opine to a reasonable degree of

professional certainty that the floor mat was the factual cause of the

accident. Motion in Limine to Strike Expert Report, ¶ 1-5.

     After argument, the court granted the motion in limine. At that time,

Appellees made an oral motion for summary judgment, arguing that without

expert testimony as to causation, Appellant would be unable to establish a

cause of action for any of the counts raised.   Motions Hearing Transcript,

1/15/16, at 32-33. Appellant argued that expert testimony was unnecessary

and that there was a factual dispute over whether Appellee’s representatives

had warned Ms. Sonoga of the danger in driving the car or offered her a

rental car or ride home. Id. at 34. After argument, the trial court granted

the motion for summary judgment.

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       On January 15, 2016, the trial court entered an order granting the oral

motion for summary judgment for the reasons it had stated on the record.

See Order, 1/15/16, at 1, see also Motions Hearing Transcript at 47-49.

On January 28, 2016, the trial court entered an order dismissing Appellant’s

complaint with prejudice and directing the Department of Court Records to

enter a judgment in favor of Appellees against Appellant. Order, 1/28/16, at

1.

       Appellant timely appealed and now raises the following issue:2

       Whether the trial court erred by granting [Appellees’] oral
       motion for summary judgment after jury selection without even
       knowing the contents of the full evidentiary record, including and
       especially, [Appellees’] own admissions of record, which would
       have been sufficient to defeat summary judgment and allow the
       case to proceed to the jury for determination absent expert
       testimony?

Appellant’s Brief at 3. Our standard of review is well-settled.

       The standards which govern summary judgment are well settled.
       When a party seeks summary judgment, a court shall enter
       judgment whenever there is no genuine issue of any material
       fact as to a necessary element of the cause of action or defense
       that could be established by additional discovery. A motion for
       summary judgment is based on an evidentiary record that
       entitles the moving party to a judgment as a matter of law. In
       considering the merits of a motion for summary judgment, a
       court views the record in the light most favorable to the
       nonmoving party, and all doubts as to the existence of a genuine
       issue of material fact must be resolved against the moving party.
       Finally, the court may grant summary judgment only when the
____________________________________________


2
  The trial court did not direct compliance with Pa.R.A.P. 1925, nor did it
issue an opinion in support of its decision.



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     right to such a judgment is clear and free from doubt. An
     appellate court may reverse the granting of a motion for
     summary judgment if there has been an error of law or an abuse
     of discretion....

Swords v. Harleysville Ins. Companies, 883 A.2d 562, 566–67 (Pa.

2005) (citations omitted). To the extent this Court must resolve a question

of law, we shall review the grant of summary judgment in the context of the

entire record. Truax v. Roulhac, 126 A.3d 991, 996 (Pa. Super. 2015).

     Appellant argues that the trial court erred in determining that an

expert was required to opine on the issue of causation. Appellant avers that

because of this predetermination, the trial court failed to consider the full

evidentiary record. We agree.

     A plaintiff may establish causation with any evidence, direct or

circumstantial, which tends to show the defendant’s actions as the legal

cause of harm.    Hamil v. Bashline, 392 A.2d 1280, 1285 (Pa. 1978).

Expert testimony is not needed in every general negligence case, as it is in

medical malpractice cases, however, “[e]xpert testimony becomes necessary

when the subject matter of the inquiry is one involving special skills and

training not common to the ordinary lay person.” Brandon v. Ryder Truck

Rental, Inc., 34 A.3d 104, 108 (Pa. Super. 2011).       In certain situations

involving physical injury, it is possible for a jury to reasonably infer

causation from the circumstances of an accident or occurrence and expert

testimony is not needed. Hamil, 392 A.2d at 1285; see, e.g., French v.

Commonwealth Associates, Inc., 980 A.2d 623, 633-634 (Pa. Super.

2009) (noting that expert testimony as to causation of defects is not always

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required in cases of strict liability and breach of warranty); see also

Topelski v. Universal South Side Autos, 180 A.2d 414, 418 (Pa. 1962).

        In Topelski, a negligence action, the plaintiff was injured when his

motorcycle collided with defendant’s automobile.        Topelski, 180 A.2d at

415-16.     On the issue of causation, lay testimony established that the

defendant applied the brakes, but the car would not stop.       Topelski, 180

A.2d at 417-18.       On appeal, defendant automobile shop challenged the

sufficiency of the evidence, arguing that lay testimony was insufficient to

prove    causation.     Topelski,   180   A.2d   at   417-18.   However,   the

Pennsylvania Supreme Court rejected the argument and adopted the lower

court’s discussion.    Specifically, in Topelski, defendant’s statements that

the brakes had failed were direct evidence to show causation, and he did not

need to be an expert to attest to that fact: such a matter could be

understood by any person without special knowledge, training, or skill.

Topelski, 180 A.2d at 418.

        Here, Sonoga cites the following evidence, which was sufficient to

establish causation if believed by a fact finder, namely that 1) Ms. Sonoga

informed Appellee of a previous instance where the brakes had failed; she

had made an appointment to have her breaks examined; 2) Mr. Impton had

serious concerns about the safety of the car; and, 3) in the moments

immediately preceding the crash, Ms. Sonoga exclaimed that she could not

engage the breaks. Thus, as in Topelski, there was sufficient evidence of

causation without expert testimony.

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     Thus, the lack of expert testimony as to causation was not fatal to

Appellant’s claims, as a jury could have reasonably inferred that a

malfunction was the cause of Appellant’s injuries. It was thus error for the

trial court to grant an oral motion for summary judgment without examining

the entirety of the record. Accordingly, we reverse the order of the court

and remand for further proceedings.

     Order reversed; case remanded; jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/28/2016




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