J-S63032-19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37


    ROBERT CASEY,                              :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                 Appellant                     :
                                               :
                     v.                        :
                                               :
    XPEDX, XPEDX, VERITIV, VERITIV             :
    CORPORATION, FORD MOTOR                    :
    COMPANY AND FORD                           :
                                               :
                 Appellees                     :   No. 3698 EDA 2018


              Appeal from the Order Entered November 14, 2018
             in the Court of Common Pleas of Philadelphia County
                 Civil Division at No(s): July Term, 2016 02028

BEFORE:      GANTMAN, P.J.E., MURRAY, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                       FILED DECEMBER 17, 2019

        Robert Casey appeals from the orders entered on November 14 and

15, 2018, in which the trial court granted summary judgment in favor of

Xpedx,1 Veritiv,2 and Ford Motor Company (collectively, Appellees) and

against him, and dismissed the case with prejudice.             Upon review, we

reverse the orders of the trial court and remand for proceedings consistent

with this memorandum.
____________________________________________


1Casey has listed two separate addresses for Xpedx in his complaint. See
Amended Complaint, 9/6/2016, at 1.

2 Casey has listed two separate entities and two separate addresses for
Veritiv and Veritiv Corporation. See Amended Complaint, 9/6/2016, at 1. In
2014, Xpedx merged with another company, and the new entity became
Veritiv. Veritiv is a packaging distribution company.


*   Retired Senior Judge assigned to the Superior Court.
J-S63032-19


       We provide the following background. Casey was hired as a delivery

driver by Pacifico Ford in November 2013. One of his job responsibilities

included delivering auto parts. According to Casey, on July 29, 2014, he was

charged with delivering a Ford replacement hood3 to Rocco’s Collision in

Berlin, New Jersey. Casey typically loaded his delivery van himself, and then

would drive to the locations where parts were supposed to be delivered.

When he arrived at Rocco’s Collision, the shop manager met Casey at the

delivery van to sign for the hood. Casey believed the shop manager’s name

was John or Jerry and that he had an Italian-sounding last name. Deposition

of Robert Casey, 8/30/2017, at 30.

       Casey stated that when he attempted to remove the hood from his

van, he “reached in for [the box with the hood] and the cardboard gave way.

[His] arm snapped back, [and his] head snapped back.” Id. at 31. Casey

indicated that “[t]he cardboard ripped” and his “hand came out of the

handle.” Id. at 39.         Casey “heard a cracking sound in [his] neck and

[experienced] extreme pain in [his] elbow.” Id.      Casey believed that the

shop manager completed the delivery,4 and Casey drove back to Pacifico

Ford to report the incident to his manager, Keith Reedell. Casey filled out an

____________________________________________
3Casey sets forth that the Ford model number for the replacement hood was
CT4Z-16612-A. Amended Complaint, 9/6/2016, at ¶ 9.

4 Casey did not know what happened to the box at issue and made no effort
to preserve it at the time of the incident.



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incident report and also spoke with another shop manager, Johnny

Castillano, about the incident.         Casey was sent to Mercy Work Care for

treatment the same day. Casey was able to work for approximately three

weeks after the incident,5 but then had to cease working due to his injuries.

       Casey required surgery on his elbow and neck due to this incident.

Casey was medically cleared to return to work as of April 2015, and although

he was offered a position at Pacifico Ford, he elected not to return to work.

       On June 21, 2016, Casey filed a complaint against Appellees. He filed

an amended complaint on September 6, 2016, which included causes of

action for negligence, products liability, and breach of warranty.         See

Amended Complaint, 9/6/2016.

       On February 6, 2017, a case management order was issued that

required discovery to be completed by March 5, 2018, for Casey to submit

curricula vitae and expert reports by April 2, 2018, and for Appellees to

submit their curricula vitae and expert reports by May 7, 2018. Casey did

not file his expert reports until May 7, 2018. At that time, he submitted four

reports from previously undisclosed experts.       Three of those reports were

from doctors and were related to Casey’s current and future medical needs.

The fourth report was from a packaging expert, Dr. Douglas C. Moyer (Moyer

Report).     Dr. Moyer opined, inter alia, that it is his “opinion within a
____________________________________________
5On one of the occasions he was working, Casey took photographs of boxes
he believed to be similar to the box that caused his injury. Deposition of
Robert Casey, 8/30/2017, at 33. Those boxes were manufactured by Xpedx.


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reasonable degree of engineering certainty that the box which injured []

Casey was defective at the time it left [Appellees’] control.” Moyer Report,

4/19/2018, at 2.

         Also on May 7, 2018, Appellees filed motions for summary judgment.

First, Appellees contended that summary judgment should be granted

because neither Pacifico Ford nor Rocco’s Collision has any records indicating

that a Ford replacement hood delivery was made on July 29, 2014. See

Motion for Summary Judgment (Xpedx and Veritiv), 5/7/2018, at ¶¶ 10-11;

Motion for Summary Judgment (Ford), 5/7/2018, at ¶¶ 15, 25. According to

Appellees, Casey’s “failure to provide any evidence other than his own

unsupported speculation regarding the box         allegedly involved in this

incident alone warrants summary judgment.” Motion for Summary Judgment

(Ford), 5/7/2018, at ¶ 27; see also Motion for Summary Judgment (Xpedx

and Veritiv), 5/7/2018, at ¶¶ 65-66. Moreover, Appellees argued that Ford

ships replacement hoods with the aforementioned model number in its

PH056 boxes. It was Veritiv’s position that it does not manufacture PH056

boxes.    Motion for Summary Judgment (Xpedx and Veritiv), 5/7/2018, at

¶ 8.

       In addition, Appellees contended that Casey’s failure to produce

timely-filed expert reports required that the trial court grant summary




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judgment with respect to all claims.6            Further, Appellees argued that

summary judgment should be granted on the basis of spoliation, because

the actual box which purportedly injured Casey was not available for

inspection.

       Casey responded that the fact that there was no invoice or other

evidence of a delivery from Pacifico Ford to Rocco’s Collision on July 29,

2014, “creates a genuine issue of material fact which must be decided by

the jury at the time of trial.” Casey’s Response to Motions for Summary

Judgment, 7/27/2018, at 2 (unnumbered).            In addition, Casey contended

that it indeed filed expert reports, albeit late, but well prior to the scheduled

trial in this case.

       By orders entered November 14, 2018 and November 15, 2018, the

trial court granted summary judgment in favor of Appellees and against

Casey.    According to the trial court, Casey’s responses to the motions for

summary judgment “did not cite to any specific pages in [Casey’s]

deposition, and did not attach [Casey’s] deposition as an exhibit (although

Ford did).” Order (Ford), 11/14/2018, at 3; Order (Veritiv and Xpedx),

11/15/2018, at 3.        “Similarly, [Casey’s] answer to the present summary

judgment motion failed to identify any specific pages in his deposition or
____________________________________________
6 In addition, on May 16, 2018, and May 18, 2018, Appellees filed motions to
strike Casey’s expert reports due to their late filing. Those motions were
referred to a different judge, who has not ruled on the motions. See Order
(Ford), 11/14/2018, at 3 n.3; Order (Veritiv and Xpedx), 11/15/2018, at 4
n.5.


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expert reports that supported his factual averments and general denials.

[Casey] had the duty to identify the precise pages in [his] deposition

testimony and in the expert reports that supported his claims.” Order (Ford),

11/14/2018, at 4; Order (Xpedx and Veritiv), 11/15/2018, at 4. Thus, the

trial court determined that Casey did not satisfy his burden and the entry of

summary judgment against him was proper.

      Casey moved for reconsideration of both orders, arguing that due to a

clerical error, he neglected to attach accompanying memoranda to his

answers to summary judgment. Casey’s Motion for Reconsideration (Ford),

11/20/2018, at 1-2; Casey’s Motion for Reconsideration (Xpedx and Veritiv),

11/20/2018, at 1-2. The trial court denied the motions for reconsideration,

concluding that even after reviewing the attached memoranda, summary

judgment was still proper in this case because Casey failed to set forth

citations to the record in support of his arguments. Order (Ford),

11/30/2018; Order (Xpedx and Veritiv), 11/30/2018.

      Casey timely filed a notice of appeal.   The trial court did not order

Casey to file a concise statement of errors complained of on appeal pursuant

to Pa.R.A.P. 1925, but did file an opinion pursuant to Pa.R.A.P. 1925(a).

      On appeal, Casey contends that the trial court erred in granting

summary judgment. It is his position that the trial court erred because it

failed to consider the documentation available to it, including both Casey’s

deposition and the Moyer Report. Casey’s Reply Brief at 2.       In response,



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Appellees contend the trial court did not err in granting summary judgment

because Casey violated the rules of civil procedure by failing to supply facts

and citations to support his general denials of the claims made in their

motions. We review this issue mindful of the following.

          Our standard of review of an order granting summary
     judgment requires us to determine whether the trial court
     abused its discretion or committed an error of law.

                   Judicial discretion requires action in conformity
            with law on facts and circumstances before the trial
            court after hearing and consideration. Consequently,
            the court abuses its discretion if, in resolving the
            issue for decision, it misapplies the law or exercises
            its discretion in a manner lacking reason. Similarly,
            the trial court abuses its discretion if it does not
            follow legal procedure.

     Miller v. Sacred Heart Hospital, 753 A.2d 829, 832 (Pa.
     Super. 2000) (internal citations and quotation marks omitted).
     Our scope of review is plenary. In reviewing a trial court’s grant
     of summary judgment,

            we apply the same standard as the trial court,
            reviewing all the evidence of record to determine
            whether there exists a genuine issue of material fact.
            We view the record in the light most favorable to the
            non-moving party, and all doubts as to the existence
            of a genuine issue of material fact must be resolved
            against the moving party. Only where there is no
            genuine issue as to any material fact and it is clear
            that the moving party is entitled to a judgment as a
            matter of law will summary judgment be entered. All
            doubts as to the existence of a genuine issue of a
            material fact must be resolved against the moving
            party.

                   Motions for summary judgment necessarily and
            directly implicate the plaintiff’s proof of the elements
            of [a] cause of action. Summary judgment is proper
            if, after the completion of discovery relevant to the


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            motion, including the production of expert reports,
            an adverse party who will bear the burden of
            proof at trial has failed to produce evidence of
            facts essential to the cause of action or defense
            which in a jury trial would require the issues to be
            submitted to a jury. In other words, whenever there
            is no genuine issue of any material fact as to a
            necessary element of the cause of action or defense,
            which could be established by additional discovery or
            expert report and the moving party is entitled to
            judgment as a matter of law, summary judgment is
            appropriate. Thus, a record that supports summary
            judgment either (1) shows the material facts are
            undisputed or (2) contains insufficient evidence of
            facts to make out a prima facie cause of action or
            defense.

                  Upon appellate review, we are not bound by
            the trial court’s conclusions of law, but may reach
            our own conclusions.

      Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 61 (Pa.
      Super. 2006) (internal citations and quotation marks omitted)
      (emphasis added).

Kardos v. Armstrong Pumps, Inc., __ A.3d __, 2019 WL 5540994, at *3–

4 (Pa. Super. 2019) (some citations omitted).

      We begin by considering the aforementioned procedural dispute

between the parties.    As the trial court pointed out, it granted summary

judgment not on the merits, but because Casey failed to comply with certain

rules of civil procedure. Specifically, the trial court rejected Casey’s claims

“because they were not supported by citations to pages in his deposition

that supported [Casey’s] factual averments. [Casey] never set forth the gist

of [his] testimony and [Casey] did not attach a copy of his deposition to his

answer.” Order (Ford), 11/30/2018; Order (Xpedx and Veritiv), 11/30/2018.


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The trial court further pointed out that Casey produced 60 pages of expert

reports, and referenced only the Moyer Report, but not specific pages of it,

in his response:

           Both the Pennsylvania [] and Philadelphia Rules of Civil
     Procedure [] are clear in what is required to respond properly to
     the allegations presented in a motion for summary judgment.
     The Pennsylvania rule states:

           (a) Except as provided in subdivision (e) [not applicable to
           this matter], the adverse party may not rest upon the
           mere allegations of denials of the pleadings but must file a
           response within thirty days after service of the motion
           identifying

                   (1) one or more issues of fact arising from evidence
                   in the record controverting the evidence in support
                   of the motion or from a challenge to the credibility of
                   one or more of the witnesses testifying in support of
                   the motion, or

                   (2) evidence in the record establishing the facts
                   essential to the cause of action or defense which the
                   motion cites as not having been produced.

           (b) An adverse party may supplement the record or set
           forth the reasons why the party cannot present evidence
           essential to justify opposition to the motion and any action
           proposed to be taken by the party to present such
           evidence.

          Note: Procedural requirements with respect to argument
     and briefs are governed by local rule.

     Pa.R.C.P. 1035.3(a)(1), (2).

           Additionally, the Note to Pa.R.C.P. 1035.2 states: “Rule
     239.7 requires every court to promulgate Local Rule 1035.2(a)
     describing the local court procedure governing motions for
     summary judgment.”




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           The Philadelphia Rules of Civil Procedure have similar
     substantive requirements but also direct the respondent as to
     the proper form of response. The Philadelphia Rule states, in
     relevant part:

                 Response to Motion for Summary Judgment.
           The adverse party or parties must file a response to
           the motion for summary judgment within thirty (30)
           days of the service of the motion, as provided by
           Pa.R.C.P. 1035.3. The response to the motion shall
           be divided into paragraphs, numbered consecutively,
           corresponding to the numbered paragraphs of the
           motion for summary judgment. The response shall
           state whether each of the allegation is admitted or
           denied. No general denial is acceptable. The factual
           reasons for the denial or dispute must be specifically
           stated and the “record,” (as that term is defined in
           Pa.R.C.P. 1035.1) supporting the denial or dispute
           must be attached as an exhibit. A response may also
           include additional allegations demonstrating any
           genuine issue of material fact, in which event the
           responding party must reference and attach a copy
           of the “record,” (as that term is defined in Pa.R.C.P.
           1035.1) which demonstrates the existence of a
           genuine issue of material fact.

     Phila.Civ.R. 1035.2(a)(4).

          The rules of civil procedure require both movant and
     respondent to supply specific citation to the record to
     support averments.

Welsh v. Nat’l R.R. Passenger Corp., 154 A.3d 386, 392-93 (Pa. Super.

2017) (emphasis added).

     We recognize that pursuant to the aforementioned rules, Casey indeed

should have cited to, and even quoted from, specific pages in his deposition

and the Moyer Report.     However, we point out that the Moyer Report

consists of only ten double-spaced pages. It was somewhat overreaching of



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the trial court to point out that Casey filed 60 pages of expert reports, when

the only report relevant to the summary judgment motion was the ten-page

Moyer Report.     Moreover, the gist of Casey’s claim is clear from the

complaint and a cursory review of the deposition testimony.             Casey’s

position was simple to discern – he believes he was injured when a

cardboard box manufactured by Xpedx, which contained a Ford product,

malfunctioned. The trial court did not need to scour the entire deposition to

understand those facts, and in fact, the trial court was required to consider

all facts of record before making its decision. See Estate of Agnew v.

Ross, 152 A.3d 247 (Pa. 2017) (“When considering a motion for summary

judgment, the trial court must take all facts of record and reasonable

inferences therefrom in a light most favorable to the non-moving party.”)

(emphasis added). Accordingly, we conclude that despite Casey’s failure to

cite to specific pages of his deposition and the Moyer Report, because those

facts were available in the record, the trial court erred in granting summary

judgment on this basis alone.

      Appellees also argue that even had the trial court considered all facts

of record, summary judgment would still have been proper. See Ford’s Brief

at 16-21, 23-27 (arguing that Casey did not set forth sufficient evidence to

identify the allegedly defective box which is fatal to all claims); id. at 21-23

(arguing that Casey did not present expert testimony); id. at 27-29 (arguing

that Casey did not establish that a warning would have caused Casey to act



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differently, which is fatal to his failure to warn claim); see also Brief of

Xpedx and Veritiv at 18-19 (arguing that Casey failed to present evidence

that he actually delivered a Ford replacement part in a Veritiv box on July

29, 2014); id. at 24-27 (arguing that the Moyer Report is conclusory and

inadequate); id. at 27-28 (arguing that Ford, not Veritiv, designed the

defective box).

       “On summary judgment, as our governing standard makes clear, all

doubts are to be resolved in favor of the non-moving party.” K.H. ex rel.

H.S. v. Kumar, 122 A.3d 1080, 1109-10 (Pa. Super. 2015).          Here, while

Appellees present arguments as to why Casey’s case and the Moyer Report

are weak or should not be believed, we must resolve all doubts in favor of

Casey as the non-moving party. A jury could believe Casey’s testimony, as

set forth in his deposition, that he delivered a Ford replacement hood in a

box with the name Xpedx on it, which malfunctioned and caused his injuries.

A jury could also credit the Moyer Report, which sets forth that the box was

defective and did not meet industry standards.       This testimony creates

genuine issues of material fact, which must be resolved by a jury, and

preclude summary judgment.7

       Orders reversed. Case remanded. Jurisdiction relinquished.
____________________________________________
7 We recognize that much of Appellees’ argument hinges on the fact that
Casey’s expert reports were filed late. That issue has not yet been resolved
by the trial court, and we will not consider it at this juncture. Our standard
of review requires us to examine the evidence of record; and those late-filed
expert reports are indeed evidence of record at this time.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/17/19




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