J-A27038-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOHN ESTERLY, JR.,                      :   IN THE SUPERIOR COURT OF
                                        :         PENNSYLVANIA
                   Appellant            :
                                        :
                                        :
             v.                         :
                                        :
                                        :
SANFORD R. PORTER                       :
                                        :
             v.                         :
                                        :
MERCEDES PERRINE                        :        No. 690 WDA 2017

                  Appeal from the Order Entered May 2, 2017
              in the Court of Common Pleas of Crawford County
                   Civil Division at No(s): No. AD-2014-88

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

MEMORANDUM BY MUSMANNO, J.:                     FILED JANUARY 11, 2018

      John Esterly, Jr. (“Esterly”), appeals from the Order (1) denying his

Motion for entry of judgment in his favor or, in the alternative, for a new

trial; and (2) directing the entry of judgment against him and in favor of

defendant Sanford R. Porter (“Porter”) and additional defendant Mercedes

Perrine (“Perrine”). We affirm.

      The trial court set forth the factual and procedural background

underlying this appeal as follows:

            This personal injury action stems from a vehicular accident
      in Meadville on the morning of Sunday, March 4, 2012, at the
      driveway of the First Christian Church (“the Church”) on the east
      side of North Main Street Extension (Rt. 86). Porter was driving
      south on Rt. 86 and attempted to turn into the Church parking
      lot when his Toyota Camry became immobilized and was struck
      by a Mercury Mariner driven by Perrine, traveling in the opposite
J-A27038-17


      direction (north on Rt. 86). Perrine’s car then struck Esterly’s
      Ford F350 truck, which was parked in the Church driveway.
      Esterly was sitting in his truck and claims to have suffered a
      shoulder injury as a result of the impact.

            Esterly filed a Praecipe for Writ of Summons against Porter
      on February 13, 2014, and his Complaint on September 22,
      2014. Porter moved on November 3, 2014, to join Perrine as an
      additional defendant. By Order filed March 4, 2015, Perrine was
      added as a party solely in regard to Porter’s right, if any, to
      contribution.

              On Perrine’s [M]otion, and with Porter’s approval and
      Esterly’s opposition, trial was bifurcated as to liability and
      damages. The jury found that Porter was not negligent, thereby
      removing from its consideration whether Perrine and/or Esterly
      were negligent, as well as the parties’ respective percentages of
      liability. This also eliminated the need for a damages trial. The
      verdict was entered on April 12, 2017, and Esterly’s
      timely[-]filed [M]otion for post-trial relief was denied by the
      Order of May 2, 2017, that he now appeals.

Trial Court Opinion, 6/28/17, at 2.

      Esterly filed a timely Notice of Appeal and a court-ordered Pa.R.A.P.

1925(b) Concise Statement of matters complained of on appeal.

      On appeal, Esterly raises the following issues for our review:

      A. Whether the court below erred when it failed to charge the
         jury that Esterly had met his burden by proving that Porter
         had skidded across onto the wrong side of the road[,] and
         that it was Porter’s burden to justify his presence on the
         wrong side of the road without any fault of his own[?]

      B. Whether the lower court erred when it ruled that the
         Complaint lacked sufficient allegations to support a charge of
         violation of statute or negligence per se[,] and denied
         Esterly’s [M]otion to amend to conform to the evidence[?]

Brief for Appellant at 5.




                                      -2-
J-A27038-17



       As Esterly’s issues are related, we will address them together. In his

first issue, Esterly contends that the trial court erred by refusing to instruct

the jury regarding negligence per se and violation of statute.1 Id. at 19-20.

Esterly asserts that, when an accident occurs because the defendant was on

the wrong side of the road, a presumption of negligence arises. Id. at 21.

While Esterly concedes that an exception to the “right side of the road” rule

exists for left turns, he nevertheless claims that the trial court failed to shift

the burden of proving that exception from Esterly to Porter. Id. at 21-22.

Esterly argues that, as soon as he proved that Porter was on the wrong side

of the road when the accident occurred, the burden shifted to Porter to

prove that his vehicle was there through no negligence of his own. Id. at

22.   Esterly asserts that the trial court erred by determining that Esterly

offered no evidence of speeding, or what a reasonable and prudent speed

would be, and claims that this was an issue of fact to be decided by the jury

as part of Porter’s burden of proof. Id. at 27-28. Esterly contends that the

trial court erred in its interpretation of Bohner v. Stine, 463 A.2d 438 (Pa.

Super. 1983), and should not have ignored the legal precedent established




____________________________________________


1
  In his proposed point for charge No. 4, Esterly sought a jury instruction
under Pa.SSJI (Civ) 13.100 Violation of Statute-Negligence Per Se. In his
proposed point for charge No. 5, Esterly sought a jury instruction under
Pa.SSJI (Civ) 13.240 Justification Defense-Violation of Statute (Modified).




                                           -3-
J-A27038-17



therein.2   Brief for Appellant at 25-26.        Esterly claims that the trial court

incorrectly distinguished Bohner on the basis that (1) Porter’s car had

deliberately entered the opposite lane of travel; and (2) Esterly was not an

injured motorist driving in the opposite lane. Id. at 28. Esterly points out

that Porter claimed that his car had skidded out of control into the opposite

____________________________________________


2
  In Bohner, the defendant admitted that his vehicle skidded into the
oncoming lane of traffic and struck plaintiff’s vehicle. At trial, the jury
returned a verdict in favor of the defendant. Bohner, 463 A.2d at 440. In
post-trial motions, the plaintiff unsuccessfully argued that the jury was not
properly advised that skidding on a wet roadway is not, in and of itself,
justification for crossing the center line; and that the trial court’s instructions
regarding the shifting of the burden of proof to defendant, who had crossed
the center line, was misleading. Id. On appeal, this Court reversed and
remanded for a new trial, finding that the evidence offered by the defendant
at trial, to justify the fact that his vehicle skidded into the oncoming lane of
traffic, was insufficient to sustain a finding of no negligence. Id. at 443.
The Bohner Court premised its determination upon the legal maxim that a
driver crossing the center line of a roadway, and thereafter causing a
collision, is negligent per se. Id. The Bohner Court noted that the only
evidence offered by the defendant in an attempt to meet his burden of proof
was that the road was wet, the car in front of him suddenly slowed down to
make a turn, and there were wet leaves in certain places on the road. Id.
The Bohner Court found that the condition of the roadway must be
considered by a driver regulating his speed and controlling his vehicle. Id.
(citing 75 Pa.C.S.A. § 3361). Furthermore, the Bohner Court noted that,
under the assured clear distance rule, a driver must have his vehicle under
such control, and operate it at such a speed, as to safely stop within the
assured clear distance ahead. Id. The Bohner Court pointed to the
testimony by the investigating officer that, immediately after the accident,
the defendant admitted to panicking and hitting his brakes harder than he
had to, thereby losing control of his automobile on the wet roadway. Id.
After reviewing the evidence relevant to the reasons for the skidding of
defendant’s car, the Bohner Court determined that the verdict for the
defendant was against the weight of the evidence, and on this basis
reversed and remanded for a new trial.



                                           -4-
J-A27038-17



lane. Id. at 29. Esterly argues that, “[a]t best, this was a factual matter to

be determined by the jury.” Id.

      In his second issue, Esterly again challenges the trial court’s rejection

of his request to charge the jury on negligence per se and violation of

statute on the basis that these terms were not used in the Complaint. Id. at

35.   Esterly contends that the trial court’s reading of the Complaint was

unduly restrictive, and claims that Porter’s negligence was pled in multiple

paragraphs of the Complaint. Id. at 35-36. Esterly further contends that

the trial court erred by denying his claim that Porter had waived any

objection to Esterly’s request to charge the jury on negligence per se and

violation of statute by failing to raise an objection at the commencement of

the case. Id. at 36-37. Finally, Esterly asserts that the trial court erred by

“denying [his M]otion to amend the Complaint and allow a charge for

negligence per se under the ‘wrong side of the road’ cases ….” Id. at 39.

      When reviewing a trial court’s denial of a jury charge in a civil case, an

appellate court must examine the trial court’s instruction in its entirety,

against the background of all evidence presented, to determine whether an

error has been committed. Buckley v. Exodus Transit & Storage Corp.,

744 A.2d 298, 305 (Pa. Super. 1999). A jury charge is proper unless, as a

whole, it is “inadequate, unclear, or has a tendency to mislead or confuse

the jury....”   Id. at 305-06.    Trial courts are not required to use the

language of requested jury charges, but may utilize different formulations so

long as they “adequately and clearly” cover their subjects. Id. at 306. The

                                     -5-
J-A27038-17



court may refuse to submit for the jury’s consideration a point for charge

that is not strictly in accordance with the facts in evidence or the law in the

case. Id.

      As to charge for negligence per se, it may be required when it is

shown that an individual violates a statute intended to prevent public harm,

but while this establishes the elements of duty and breach, a plaintiff must

still show that such negligence was the proximate cause of the injury

suffered.   See Mahan v. Am-Gard, Inc., 841 A.2d 1052, 1058-59 (Pa.

Super. 2003).

             Our standard of review of a trial court’s order denying a
      plaintiff leave to amend its complaint, ... permits us to overturn
      the order only if the trial court erred as a matter of law or
      abused its discretion. The trial court enjoys “broad discretion” to
      grant or deny a petition to amend. Amendment of pleadings is
      governed by Pa.R.C.P. 1033, which provides: “[a] party, either
      by filed consent of the adverse party or by leave of court, may at
      any time change the form of action, correct the name of a party
      or amend his pleading.”

The Brickman Grp., Ltd. v. CGU Ins. Co., 865 A.2d 918, 926-27 (Pa.

Super. 2004) (internal citations omitted).        Further, the Pennsylvania

Supreme Court has held “the right to amend should be liberally granted at

any stage of the proceedings unless there is an error of law or resulting

prejudice to an adverse party.” Werner v. Zazyczny, 681 A.2d 1331, 1338

(Pa. 1996) (quoting Connor v. Allegheny Gen. Hosp., 461 A.2d 600, 602

(Pa. 1983)).    However, “where a party will be unable to state a claim on




                                     -6-
J-A27038-17



which relief could be granted, leave to amend should be denied.”          The

Brickman Grp., supra, 865 A.2d at 927.

      In its Opinion, the trial court addressed Esterly’s issues, set forth the

relevant law, and determined that the issues lack merit.      See Trial Court

Opinion, 6/28/17, at 11-15. We agree with the reasoning of the trial court,

which is supported by the record and free of legal error, and affirm on this

basis as to Esterly’s issues. See id.

      Judgment affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/11/2018




                                        -7-
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                                                                                                                  04:14 PM




                                             CIVIL ACTION - LAW


      JOHN ESTERLY, JR.,
                      Plaintiff

                              V.


       SANFORD R. PORTER,                                              No. AO 2014 - 88
                      Defendant
                                                                        (690 WDA 2017)
                              v.

       MERCEDES R. PERRINE,
                      Additional Defendant


                                            Pa.R.A.P. 1925 OPINION

       John F. Spataro, J.

              Plaintiff, John Esterly, Jr. (Esterly), appeals the Order entered in the above

       captioned case on May 2, 2017, denying his motion for the entry of judgment in his

       favor or, in the alternative, for a new trial, and directing the Prothonotary to enter

       judgment against him and in favor of the Defendant, Sanford R. Porter ("Porter"), and

       the Additional Defendant, Mercedes R. Perrine ("Perrine").1                 He has timely complied

       with our request, pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate

       Procedure, that he file a concise statement of errors complained of on appeal:2


       1The Notice of Appeal refers only to the Order entered on May 2, 2017, of which there were two, but the
       other Order merely overruled as moot Porter's objection to Esterly's request for a transcript.
       2 Our Order dated and filed on May 11, 2017 (the day after Plaintiffs' notice of appeal was filed) ordered
       the filing of a concise statement within twenty-one days. Esterly's Statement was filed on May 22, 2017.
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                                               AD 2014-88


                                              BACKGROUND

             This personal injury action stems from a vehicular accident in Meadville on the

      morning of Sunday, March 4, 2012, at the driveway of the First Christian Church (the

      "Church") on the east side of North Main Street Extension (Rt. 86). Porter was driving

      south on Rt. 86 and attempted to turn into the Church parking lot when his Toyota

      Camry became immobilized and was struck by a Mercury Mariner driven by Perrine,

      traveling in the opposite direction (north on Rt. 86). Perrine's car then struck Esterly's

      Ford F350 truck, which was parked in the Church driveway. Esterly was sitting in his

      truck and claims to have suffered a shoulder injury as a result of the impact.

             Esterly filed a Praecipe for Writ of Summons against Porter on February 13,

      2014, and his Complaint on September 22, 2014. Porter moved on November 3, 2014,

      to join Perrine as an additional defendant.        By Order filed on March 4, 2015, Perrine

      was added as a party solely in regard to Porter's right, if any, to contribution.

             On Perrine's motion, and with Porter's approval and Esterly's opposition, trial

      was bifurcated as to liability and damages. The jury found that Porter was not negligent,

      thereby removing from its consideration whether Perrine and/or Esterly were negligent,

       as well as the parties' respective percentages of liability. This also eliminated the need

       for a damages trial. The verdict was entered on April 12, 2017, and Esterly's timely filed

       motion for post-trial relief was denied by the Order of May 2, 2017, that he now appeals.

                                        ALLEGED COURT ERRORS

              Esterly alleges (within the paragraphs of his Statement indicated below in square

       brackets) that the Court erred in the following, somewhat duplicative respects, listed in

       more or less chronological order:


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                                                       AD 2014- 88


            1.   Granting Perrine's motion to bifurcate the trial         m 32};
            2.   Denying his (Esterly's) motion in limine to preclude evidence "of prior accidents
                 that occurred around the same time, or within the vicinity, of the [subject
                 accident]" [1135];

            3.   Ruling that his Complaint "lacked sufficient allegations to justify a charge of
                 violation of statute and/or negligence per se" [1121];

           4.    Ruling that his motion to amend the pleadings to conform with the evidence [and
                 allege statutory violations and/or negligence per se] was barred by the statute of
                 limitations e,f 26];

            5.   Failing to permit him to amend the pleadings to conform to the evidence "under
                 Connor [v. Allegheny Gen. Hosp., 501 Pa. 306, 461 A.2d 600 (Pa. 1983),] and
                 the averments of (Paragraph 8 of his] Complaint" [,I 29];

            6.   Granting Porter's untimely objections to his motion to amend and denying the
                 motion    m
                           28);

            7.   Refusing his proposed jury charge of negligence per se in violating the Vehicle
                 Code offenses of "driving on right side of roadway" (75 Pa.C.S.A. § 3301) and
                 "turning movements and required signals" (id. § 3334). requiring a directed
                 verdict (Point No. 4) [ffll 18, 20);3

            8.   Refusing his proposed alternative jury charge (Alternative Point No. 3), which
                 repeated Point No. 4, but omitted a request for a directed verdict [implied in                  �m
                 16, 18];

            9.   Refusing to charge the jury on negligence per se in violating the Vehicle Code
                 offense of "driving vehicle at safe speed" (75 Pa.C.S.A. § 3361) [,I 20];4

            10. Refusing his proposed jury charge modifying the suggested standard jury
                instruction on Justification Defense - Violation of Statute (Pa.SSJI (Civ) 13.240),
                and reciting the Vehicle Code offense of "driving vehicle at safe speed" (75
                Pa.C.S.A. § 3361) (Point No. 5) [1l 18];

            11. Refusing his proposed jury charge on the burden of proof incorporating his claim
                that Porter "violated the law" (Point No. 3) [,I 18];

            12. Failing to charge the jury that Porter was negligent per se "because [he]
                admitted to skidding across the roadway and into the opposing lane" [if 19(a)J;


       3Esterly's Statement errs in indicating that these two statutory violations are set forth in his Proposed
       Points Nos. 3 and 4; both statutes were instead presented in Proposed Point No. 4.
       4
           Esterly's Alternative Proposed Point for Charge No. 5 is identical to his Proposed Point for Charge No. 4.

                                                               3
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                                               AD 2014 - 88




         13. Refusing his (Esterly's) proposed jury charge for a directed verdict (Point No. 1)
             (,I 12];

         14. Refusing to charge the jury that he had met his burden of proof [,I,I 18, 19(b)];

         15. "[G]iving the jury a standard charge on negligence and burden of proof without
             charging on violation of law, negligence per se and the shifting of the burden to
             [Porter] to justify his presence on the wrong side of the road" [,I 24J;

         16. Falling to charge the jury that "the burden shifted to [Porter] to justify his
             presence in the wrong side of the road without any fault of his own" [111l 19(c),
             24};

         17. Giving the jury   a standard negligence charge    m 18);
         18. Charging the jury that the burden of proof remained with him (Esterly)
             throughout the trial [,i 18);

         19. Denying his post-trial motion for a directed verdict       m,r   13, 25, 30, 33, 36); and
             "further" in

         20. Ordering the entry of judgment in favor of Porter and Perrine [1111 13, 25, 30, 33,
             36).

                                                Bifurcation

              The procedural rules allow a trial court, sua sponte or on motion of any party, to

       order a separate trial of any issue "in furtherance of convenience or to avoid prejudice."

       Pa.R.C.P. No. 213(b). The Superior Court has provided the following guidelines:

              Before ordering the separate adjudication of issues, the court should
              carefully consider the issues raised and the evidence to be presented to
              determine whether the issues, here liability and damages, are interwoven.
              Bifurcation is discouraged in those cases in which evidence relevant to
              both issues would be excluded in one portion of the trial and would result
              in prejudice to the objecting party. However, bifurcation is strongly
              encouraged and represents a reasonable exercise of discretion where the
              separation of issues facilitates the orderly presentation of evidence and
              judicial economy, or avoids prejudice.

       Coleman v. Philadelphia Newspapers, lnc., 391 Pa.Super. 140, 146·47, 570 A.2d 552,

       555 ( 1990) ( citations omitted).   Additionally, in personal injury cases, "[w]here liability


                                                      4
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                                                  AD 2014-88


      and damage issues are not interwoven, bifurcation may be used as a means to insure

      against taint of the jury through sympathy occasioned by knowledge of the severity of

      the injury." Pascale v. Hechinger Co. of          Pe., 426 Pa.Super. 426, 438, 627 A.2d 750,
      756 (1993).

             Perrine's bifurcation motion was filed on March 16, 2017, nearly a month before

      the trial. After reviewing Esterly's opposing brief and hearing argument, the Court on

      March 22, 2017, granted the motion. Esterly contends that the Court erred in bifurcating

      the action because "[t]he issues of liability and damages are interwoven and [Perrine]

      could not establish 'actual' or 'manifest' prejudice, only mere inconvenience" (Statement

      ,I 32) (Error No. 1 ).

              In deciding the motion, this Court was well aware of the issues and evidence to

      be presented, having in February of 2015 begun deciding matters raised by the parties.

      All parties were in agreement that Esterly's recovery, if any, was based solely upon his

      truck being hit by Perrine's car, and that Porter's Camry being in the middle of Rt. 86

      was the source of the accident.          It was apparent that the issue of liability (here, for

      negligence, in the sense of breach of a duty owed) could be decided separately, without

      the necessity of hearing evidence as to damages for personal injury, or whether those

      damages stemmed from the accident." Negligence, ln other words, was not interwoven

      with other trial issues.

              Separating the threshold issue of negligence, and presenting damages evidence

      separately, avoided both jury confusion and possible sympathy from learning the extent

       of Esterly's injury and treatment Pascale, supra; Coleman, 391 Pa. Super. at 147, 570


      5 The only expert testimony scheduled for trial pertained to the issue of damages from the impact, as did
      that of many of the other anticipated witnesses and all medical records and invoices listed as exhibits.

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                                                      AD 2014- 88


      A.2d at 555-56 ("bifurcation minimized the possibility of jury confusion in discerning

      what evidence of damage was relevant                 to    the threshold question of whether actual

      malice existed").        Bifurcation thus "facilitated the orderly presentation of evidence and

      avoided prejudice." Ptak v. Masontown Men's Softball League, 414 Pa.Super. 425, 430,

      607 A.2d 297, 300 (1992) (approving bifurcation in a personal injury action where

      corroborating testimony of physicians was unnecessary because causation was

      undisputed, and because it insured that the jury's decision as to liability would not be

      tainted by sympathy for the plaintiff due to the severity of his injuries).

                 Because Esterly had not named Perrine as a defendant, she could only be held

      liable (for contribution) if Porter was negligent.             Furthermore, under the comparative

      negligence statute, she would be liable only if Porter was more than sixty percent liable,

      and Porter could not be held liable if Esterly was more than fifty percent responsible for

      the accident-         See 42 Pa.C.S.A. §§ 7102(a), (a.1 )(3)(iii).          An initial determination of

      each parties' percentage of liability (as all parties requested) thus could potentially

      terminate the action, or at least excuse Perrine's participation in the damages phase,

      ending the complications associated with the joinder of an additional defendant.

                 The jury found that Porter was not negligent, and bifurcation therefore "facilitated

      judicial economy, as the second phase relating                  to   damages was actually avoided."

       Coleman, 391 Pa.Super. at 147, 570 A.2d at 555-56.                       Pending at the time of trial,

       moreover, were multiple motions in limine regarding damage witnesses and calculations

       which, consequently, did not have to be argued and decided.7


       6 Esterly may have been negligent in parking at the entrance to the driveway, or his injury caused in
       reaching to open the passenger door with his shoulder harness engaged and his "arm up over the
       steering wheel" at the moment of impact. Transcript of Proceedings, Jury Trial, Day II (Transcript) 61-62.
       7   See Plaintiff's Brief in Opposition to Motion in Umlne to Limit and/or Preclude Testmony of Mary Howick,

                                                             6
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                                                      AD 2014- 88


              We find no support for Ester1y's assertion that Perrine was required to show

      actual or manifest prejudice in seeking bifurcation.8                  Insuring against potential jury

      prejudice, as in Ptak, may provide sufficient justification, but is not necessary;

      bifurcation may be appropriate "in furtherance of convenience or to avoid prejudice."

      Pa.R.C.P. No. 213(b) (emphasis added). Esterly claimed that he would be prejudiced in

      being "prohibited from offering evidence to establish how the accident did in fact

      produce his shoulder injury and counter the defense on the hotly contested issue of

      causation." Opposing brief at 4.            Because the first collision was acknowledged by all

      parties to be the cause of the second, the only contested issue of causation was

      whether the impact contributed to Esterly's shoulder injury and treatment.                               See

      generally Whitner v. Von Hintz, 437 Pa. 448, 454-57, 263 A.2d 889, 892-94 (1970)

      (discussing proximate cause}. Evidence on that issue was not relevant to ascertaining

      liability for the accident, i.e., the issues, as noted above, were not interwoven. Esterly

      could have offered his causation evidence at the second trial, had there been one.

       Moreover, he never sought to introduce such evidence at the trial, and thus his "case

      was not hindered in the least by the [C]ourt's decision to bifurcate." Coleman, 570 A.2d

      at 147, 570 A.2d at 556.




       0.0. Plaintiffs Brief in Opposition to Motion in Umine to Preclude Causation Testimony of Dr. Mark
       Baratz, Plaintiffs Omnibus Brief in Response to Defendants' Motions in Limine as They Relate to
       Preclusion of Plaintiffs Evidence of Medical Expenses and Testimony from Plaintiffs Witnesses.
       8 Esterly's reliance, in his opposing and post-trial briefs, upon Stevenson v, General Motors Carp., 513
       Pa. 411, 521 A2d 413 (1987) is misplaced. Stevenson, as the Coleman Court observed, was a bifurcated
       products liability case in which the trial court was not condemned for its original decision to bifurcate; the
       Stevenson Court held only "that the trial court's decision against bifurcation of the new trial was a
       reasonable exercise of its discretion." 570 A.2d at 554, 391 Pa.Super. at 144-45.

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                                                   AD 2014-88


                                             Exclusion of Evidence

              Evidence is considered relevant if it tends to make a fact that is of consequence

      to the determination of the action more, or less, probable than it would be without the

      evidence. Pa.RE. 401. Relevant evidence is generally admissible, and "[e]vidence that

      is not relevant is not admissible."        Id. 402. Evidence may be excluded even though

       relevant "if its probative value is outweighed by a danger of one or more of the following:

       Unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time,

      or needlessly presenting cumulative evidence." Id. 403. Evidence is unfairly prejudicial

       if it has "a tendency to suggest decision on an improper basis or divert the jury's

       attention away from its duty of weighing the evidence impartially."               Commonwealth v.

       Wright, 599 Pa. 270, 325, 961 A.2d 119, 151 (2008). "[T]he function of the trial court is

      to balance the alleged prejudicial effect of the evidence against its probative value."

       Commonwealth v. Parker, 882 A.2d 488, 492 (Pa. Super. 2005), quoted in, e.g., Parr v.

       Ford Motor Co., 109 A.3d 682, 696 (Pa. Super. 2014).

              Esterly's motion in limine to preclude Porter from presenting evidence regarding

       "prior accidents that occurred around the same time, or within the vicinity, of the [subject

       accident]" was denied following oral arqurnent.s              Order of March 6, 2017.             Esterly

       claimed that prior accidents were irrelevant to Porter's defense, "as this type of

       evidence is generally only relevant to prove notice on the part of the negligent party,"

       and "Porter was already on notice of the slippery conditions."                    Motion   ffll   12, 13

       (emphasis in original). Porter, moreover, "ha[d] not produced any evidence of similarity

       between the anticipated testimony regarding prior accidents and the at-issue accident."

       9
         By "prior accidents," Esterly meant "evidence or witness testimony of certain individuals who had
       attended the previous church service who experienced slippery road conditions and veered off the road in
       the vicinity of the accident location." Motion ,i 7.

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                                                AD 2014- 88


      Motion ,I16. Even if relevant, prior accidents should be excluded as unfairly prejudicial.

      confusing to the jury, or needlessly wasteful of the Court's time. Motion    ,m 14-18 (Error
      No. 2).

                Esterly's assertion that evidence of similar accidents is generally relevant only to

      notice is in reference to cases in which the plaintiff seeks its admission; here, it was

      anticipated that the defendant would proffer such evidence. See Spino., 448 Pa.Super.

      at 346, 671 A.2d at 735 (noting that ''we have been unable to find a Pennsylvania

      appellate court· decision directly addressing the admissibility of such evidence on the

      issue of causation in the defendant's case") (emphasis in original). Vehicle accidents

      occurring at about the same time and place could make more probable Porter's defense

      that his predicament was the result of unanticipated road conditions. Cf. Spino v John

      S. Tilley Ladder Co .. 448 Pa.Super. 327, 347, 671 A.2d 726, 736 (1996) (holding that

      "the absence of any evidence of a prior product failure in a design defect case ... may

      be admitted if relevant to a contested issue of causation, under appropriate instructions

      from the court and subject to the exercise of the trial court's discretion as to the

      probative value of the evidence. where the requirement of substantially identical

      circumstances is satisfied"), affd, 548 Pa. 286, 696 A.2d 1169 (1997).           Rather than

      purpose. the guiding principal on admissibility should be whether the probative value of

      similar incidents, or lack thereof, exceeds the danger of confusion of issues. Cf. Spino,

      448 Pa.Super. at 347, 671 A.2d at 736 ("we agree that such evidence does raise

       concerns over creation of collateral issues and jury distraction"); Whitman v. Riddell,

       324 Pa.Super. 177, 181, 471 A.2d 521, 523 (1984) ("This limited exception, permitting

      the [plaintiff's) introduction of evidence of similar accidents, is tempered by judicial



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      concern that the evidence may raise collateral issues, confusing both the real issue and

      the jury.").

              The only evidence of other accidents introduced at trial was that a Jeep

      Cherokee was ditched on the north side of the entrance to the Church parking lot, and

      that there were tracks on the south side of the driveway showing that a vehicle had

      gone into a ditch there. Esterly himself, while testifying on own behalf, made the first

      reference to the ditched jeep in explaining how his truck came to be parked in the

      driveway, rather than a designated parking spot. Transcript at 61:21-22 (explaining that

      he stopped to offer assistance).    This evidence was, therefore, relevant to Esterly's

      defense to the charge of contributory negligence.       He was not prejudiced by the

      additional commentary on the issue he himself raised. See Transcript at 109, 138-40.

              Defense counsel published to the jury a photograph of the other vehicle's tracks

      (admitted into evidence as Exhibit M over Esterly's objection).       fd. at 141-43.   The

      photograph depicts a somewhat broader area than that shown in the photographs

      already published to the jury and admitted into evidence as Plaintiffs Exhibits 1, 2, 8,

      and 9, on which those tracks are partially visible. Id. at 37, 40-41, 45, 47. The tracks

      were perhaps indicative of unanticipated road conditions that may have caused the

      subject accident, although no witness testified that they could have been attributable to

      road conditions.     Surely Porter was nevertheless entitled to show where the wayward

      tracks in Esterly's exhibits led. Assuming arguendo, however, that this evidence should

      not have been admitted, it was not unfairly prejudicial to Esterly.    See Whitman, 324

      Pa.Super. at 180, 471 A.2d at 523 ("appellant must demonstrate first. that it was error to

      admit the allegedly irrelevant evidence and, second, that it was prejudiced by the



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                                                      AD 2014 - 88


      admission of the evidence"). The admission of one additional photograph did not waste

      the Court's time, and could not have confused the jury.

                                                  Negligence per Se

              Most of the remaining allegations of error are in respect to our refusal to charge

      the jury on violation of statute/negligence per se. Esterly finds proof of negligence per

      se in Porter's alleged violation of the following three Vehicle Code offenses:

               1. Driving on right side of roadway. Upon all roadways of sufficient width,
                  a vehicle shall be driven upon the right half of the roadway except as
                  follows: ... (5) When making a left turn as provided in sections 3322
                  (relating to vehicle turning left)10 and 3331 (relating to required position
                  and method of turning) ... ;11

              2. Turning movements and required signals. (a) General rule.-Upon a
                 roadway no person shall turn a vehicle or move from one traffic lane to
                 another or enter the traffic stream from a parked position unless and
                 until the movement can be made with reasonable safety nor without
                 giving an appropriate signal in the manner provided in this section .... :
                 and

               3. Driving vehicle at safe speed. No person shall drive a vehicle at a
                  speed greater than is reasonable and prudent under the conditions and
                  having regard to the actual and potential hazards then existing, nor at
                  a speed greater than will permit the driver to bring his vehicle to a stop
                  within the assured clear distance ahead. Consistent with the foregoing,
                  every person shall drive at a safe and appropriate speed when
                  approaching and crossing an intersection or railroad grade crossing,
                  when approaching and going around curve, when approaching a hill
                  crest, when traveling upon any narrow or winding roadway and when
                  special hazards exist with respect to pedestrians or other traffic or by
                  reason of weather or highway conditions.

       75 Pa.C.S.A. §§ 3301, 3334, and 3361, respectively.

       10Section 3322 of the Motor Code provides as follows: "The driver of a vehicle intending to turn left within
       an intersection or into an alley, private road or driveway shall yield the right-of-way to any vehicle
       approaching from the opposite direction which is so close as to constitute a hazard."
       11 Section 3331(b) provides as follows: "Left tum.-The driver of a vehicle intending to turn left shall

       approach the tum in the extreme Jett-hand lane lawfully available to traffic moving in the direction of travel
       of the vehicle. Whenever practicable, the left turn shall be made to the left of the center of the intersection
       and so as to leave the intersection or location in the extreme left-hand lane lawfully available to traffic
       moving in the same direction as the vehicle on the roadway being entered."

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                                                   AD 2014-88


             Esterly cannot use the first offense - "Driving on right side of roadway'' - to

      establish negligence per se because making a left turn is expressly excepted from its

      purview.     Porter was turning left into the Church driveway, and thus did not violate

      Section 3301.12

             The second offense - "Turning movements and required signals" - seems

      inapplicable to left hand turns, which are specifically addressed by Sections 3322

      (Vehicle turning left," quoted at n.10, supra) and 3331 ("Required position and method

      of turning - Left turn," quoted at n.11, supra).           Even if Section 3334 were applicable

      here, a violation would not establish negligent per se. A statutory violation can serve as

      proof of negligence per se only if the statute is "so specific as to leave little question that

      a person or entity found in violation of it deviated from a reasonable standard of care."

      Shamnoski v. PG Energy, Div. of Southern Union Co., 579 Pa. 652, 671, 858 A.2d 589,

      601 (2004). The Shamnoski Court utilized Section 3361 in explaining this precept:

                     Many statutes provide very general statements of what constitutes
             compliance or deviation, while others are quite specific. The Motor [sic]
             Vehicle Code provides a useful example of the distinction. Section 3361
             of the Motor Vehicle Code contains the very general requirement that
             operators of motor vehicles drive at a "reasonable and prudent" speed[.]
             What constitutes a reasonable and prudent speed is unspecified; since
             the statute essentially sets forth a traditional reasonable man
             standard, it would be impracticable to base a finding of negligence
             per se upon this provision. The very next section of the Code, however,
             sets forth the specific numeric limits on vehicle speed which every
             Pennsylvania driver must obey or be deemed at fault. Id. § 3362. Section
             3362 speaks in absolutes; there is no room for the flexibility of the
             reasonable man standard. Exceeding the designated limit is, by statutory
             definition, unreasonable.


      12 Esterly never asserted that Perrine's vehicle was "so close as to constitute a hazard" when Porter

      attempted his turn, which would violate Section 3322; and Perrine's uncontradicted testimony was that
      "[Porter] had plenty of time to make that left turn." Transcript at 102:9·11. The restrictions of Section
      3331 (using the extreme left-hand lane and staying to the left of the intersection) are also not applicable
      here.

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                                                     AD 2014 - 88


      579 Pa. at 672, 858 A.2d at 601 (quotation of Section 3361 omitted; emphasis added).

      Section 3334(a) criminalizes turning "unless and until the movement can be made with

      reasonable safety," and thus "essentially sets forth a traditional reasonable man

      standard," the same as Section 3361.

                The third offense - "Driving vehicle at safe speed," as the Shamnoski Court

      observed, cannot support a charge of negligence per se.                   Porter, moreover, was not

      shown to have violated Section 3361: Esterly offered no evidence of speeding, or what

      a "reasonable and prudent" speed would have been.13

                Thus none of these three statutes provides a foundation upon which Esterly

      could assert negligence per se. All of his proposed jury charges on statutory violation/

      negligence per       se were accordingly rejected, as well as his requests for a directed
      verdict on such basis (Error Nos. 7 through 11 ).

                In addition, it would have been pointless for Esterly to amend his Complaint, after

      the close of evidence, to include violation of statute/negligence per se when that cause

      of action did not exist with respect to these Vehicle Code offenses (Error Nos. 4-6).

      Esterly's counsel, moreover, never moved to amend, merely discussing that possibility

      in chambers. See Transcript of Proceedings Taken at the Time of Trial (April 12, 2017


      13   We do not agree with Esterly that Porter, in the following exchange at the conclusion of his testimony
      as on cross examination, admitted to speeding or to violating Section 3334(a):
              Question: ... isn't it true that when you got to the point of making your tum, you were
                          not concerned about the potential for slipperiness because, at that time, you
                          knew you were going slow enough that you wouldn't have any problem
                          negotiating a left turn?
              Porter.     I assumed at that point I was slow enough to make the turn safely.
              Question: As it turned out, you didn't make that turn safely, did you?
              Porter.     No, I did not.
              QuesUon: So it turned out, isn't it true, sir, that your assumption was wrong?
              Porter.     l guess you could say that
      Transcript 49:2-14; cf id. 25:24-25, 26:1 ("I was gradually braking as I approached the entrance to the
      church and - and slowed down enough to the point where I could assume I could make a left turn.").

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                                                    AD 2014 -88


      Transcript) 4-21.       The ruling that Paragraph 6 of the Complaint was insufficient to

      support a negligence per se cause of action (April 12, 2017 Transcript at 36:6-10) could

      not have been in error when, under Shamnoski, there is no such cause of action for

      either a Section 3334(a) turning or a Section 3361 speeding violation (Error No. 3).

               Most of Esterly's remaining allegations of error (Nos. 12-18) concern his

      assertion that sliding across         a highway into the opposite lane, thereby causing · a
      collision, also constitutes negligence per se, and shifts the burden of proof from the

      plaintiff to the defendant.v His reliance upon Bohner v. Stine, 316 Pa.Super. 426, 430,

      463 A.2d 438, 440 (1983) is misplaced.                    The negligence per se in Bohner was

      erroneously based upon a violation of Section 3361, contrary to the Pennsylvania

      Supreme Court's later directive in Shamnoski.15 The defendant in Bohner, moreover,

      "admitted     to panicking [when the car ahead of him suddenly slowed to make a turn] and

      hitting his brakes harder than he had         to. thereby losing control of his automobile on the
      wet roadway." 316 Pa.Super. at 437, 463 A.2d at 443. Porter's car, in contrast, entered

      the opposing lane deliberately when he attempted a left hand turn.                    This was not a

      'wrong side of the road' accident "where one car suddenly enters the lane of oncoming

      traffic and an accident occurs." Fair v. Snowball Exp., Inc., 226 Pa.Super. 295, 298,

      310 A.2d 386,388 (1973). and similar cases cited therein.                   Esterly was also not an

      injured motorist driving in the opposing lane; there was an intervening motorist (Perrine)

      whose negligence could have been responsible for the second collision. We perceived

      no inequity in Esterly bearing the burden of proof of Porter's alleged negligence; and in



      14   Esterly's burden shifting contention might explain why Perrine was not named as a defendant
      15Thls presumably explains why Bohner appears not to have been relied upon in any subsequent
      appellate decision.

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                                              AD 2014-88


      the absence of negligence per se, the evidence did not entitle him to a directed verdict.

      The standard negligence instruction - applicable to all parties - was accordingly given.

             Esterly's additional allegations of error, in regard to his post-trial motion and the

      entry of judgment (Nos. 19 and 20), reflect the rulings discussed above, which the Court

      believes to have been correctly decided.




                                               ORDER


             AND NOW, this       Zi8t1>-day   of June, 2017, the Court directs the filing of this

      Opinion in compliance with Pa.RAP. 1925(a)(1 ).




                                                        BY THE COURT,




                                                                                            Judge



      cc:   John W. McCandless, Esq., counsel for Plaintiff/Appellant
            R. Sean O'Connell, Esq., counsel for Defendant
            Paul E. Pongrace, Ill, Esq., counsel for Additional Defendant
                                                                            ?     �.,� 0
                                                                                1,'fff-�    1
                                                                                            (9 •   P.tc, J 1




                                                   15
