J-A07019-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 ESTATE OF JEFF S. HINE BY AND           :    IN THE SUPERIOR COURT OF
 THROUGH HIS EXECUTRIX, JOLIE            :         PENNSYLVANIA
 HINE AND JOLIE HINE,                    :
 INDIVIDUALLY                            :
                                         :
                    Appellant            :
                                         :
                                         :
              v.                         :    No. 1039 MDA 2017
                                         :
                                         :
 PENNSY SUPPLY, INC. AND                 :
 MICHELLE D. DULAY                       :

                Appeal from the Order Entered June 2, 2017
  In the Court of Common Pleas of Luzerne County Civil Division at No(s):
                                201406930


BEFORE:    PANELLA, J., OLSON, J., and STEVENS*, P.J.E.

DISSENTING MEMORANDUM BY STEVENS, P.J.E.:

FILED SEPTEMBER 07, 2018

     There is no dispute that Pennsy Supply (“Pennsy”) had performed

sidewalk construction on Coal Street at or near the intersection of North

Empire Court, Wilkes-Barre, Luzerne County, PA, where the motor vehicle

collision at issue occurred.

       The summary judgment record was devoid of testimony or other

evidence that Pennsy either removed a stop sign purportedly controlling traffic

at the intersection or had a duty to erect or maintain such a stop sign during

the relevant time period. Without such evidence, an issue of material fact

does not exist with respect to whether Pennsy breached a duty of care.



____________________________________
* Former Justice specially assigned to the Superior Court.
J-A07019-18



      Additionally, the Opinion of the learned Honorable William H. Amesbury

found that even if a stop sign had been improperly removed from the

intersection, Ms. Dulay's failure to obey the rules of the road requiring her to

stop and yield the right of way to the Hines' vehicle stood as the sole proximate

cause of her injuries.

      For these reasons, I respectfully dissent.

      When reviewing a trial court's grant of summary judgment, our standard

and scope of review are as follows:

      Our scope of review is plenary, and our standard of review is the
      same as that applied by the trial court ... An appellate court may
      reverse the entry of a summary judgment only where it finds that
      the lower court erred in concluding that the matter presented no
      genuine issue as to any material fact and that it is clear that the
      moving party was entitled to a judgment as a matter of law. In
      making this assessment, 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. As our inquiry involves solely questions
      of law, our review is de novo.

Reinoso v. Heritage Warminster SPE, LLC, 108 A.3d 80, 84

(Pa.Super. 2015) (en banc ).

      Here, Ms. Dulay's civil claim is grounded in negligence. In any case

alleging negligence, a claimant must establish the presence of a legal duty or

obligation; a breach of that duty; a causal link between that breach and the

injury alleged; and actual damage or loss suffered by the claimant as a

consequence of thereof. Davis v. Wright, 156 A.3d 1261, 1271 (Pa.Super.

2017) (citation omitted).



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        Given the record as it existed before the trial court, there is no issue of

material fact with respect to the element of breach of duty. Although there

was testimony that a stop sign existed near the intersection in question prior

to the Pennsy project, no witness testified the stop sign was present on the

day when Pennsy arrived, and no witness expressed personal knowledge that

Pennsy removed a stop sign from the location during the performance of its

work.

        Moreover, on the question of whether Pennsy breached a duty to erect

a stop sign at the intersection when it completed its work, testimony taken

during depositions established that the PennDot-approved road and sidewalk

construction plans supplied by the City of Wilkes-Barre did not call for a stop

sign at the location.

        In this regard, the opinion of Judge Amesbury is compelling wherein he

observes the evidence presented thus failed to create an issue of material fact

requiring resolution by a jury:

        There is no evidence of record that Pennsy removed the stop sign,
        or that they deviated from the plans they were required to
        follow. Plaintiff has put forth a theory of circumstantial evidence
        and inferences that could be drawn therefrom, but careful analysis
        of that argument shows that it requires pure conjecture and
        speculation that a stop sign was present the day construction
        began and Pennsy removed it.

Trial Court Opinion, filed 6/5/17, at 3-4.




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J-A07019-18



      Additionally, the court determined Ms. Dulay's failure to yield the right

of way to the Hines' vehicle pursuant to a governing provision of the Motor

Vehicle Code likewise supported summary judgment:

      As Dulay reached the then uncontrolled intersection, she turned
      left onto North Empire Court and collided with Jeff Hine. Dulay's
      actions were violative of 75 Pa.C.S.A. SS 3321(a):

            When two vehicles approach or enter an intersection
            from different highways at approximately the same
            time, the vehicle on the left shall yield the right of way
            to the vehicle on the right.

      Dulay admitted she did not stop at the curbed intersection and
      that she made a left-hand turn onto a roadway when it was not
      safe to do so. Clearly Dulay bears substantial if not sole
      responsibility for the accident.

Trial Court Opinion, at 1.

      The record supports the court's conclusion: Ms. Dulay stated during

depositions that she was familiar with the requirement to stop at intersections

and to yield right-of-way to traffic already traveling on a road she was

approaching. She admitted she did not stop at the intersection in question.

      In this regard, Appellees persuasively argue that the deposition of

Detective Harding, who testified that the former stop sign was located 10 to

15 feet from the intersection, places this case squarely under decisional law

recognizing the right of a driver possessing a right of way to assume an

approaching driver will stop at the intersection even after disregarding a

posted stop sign set back a good distance from the intersection. See Ketzel

v. Lazzini, 63 A.2d 369 (Pa.Super. 1949) (holding "duty on driver on the



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J-A07019-18



'stop' street is to stop at the intersection, not at the sign [posted 26 feet from

intersection].").

       Regardless of the absence of a former stop sign set back from the

intersection, therefore, Ms. Dulay had the legal obligation to stop at the

intersection and yield the right of way to the Hines' vehicle.

      Accordingly, I must dissent from the learned majority's opinion

reversing    the    order   granting    summary      judgment     in   favor   of

Defendant/Appellee Pennsy Supply.




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