Gladys MCCLINTOCK, Individually and as Administratrix of the Estate of Robert D. McClintock, Deceased, Appellant, v. Bernard WORKS, Jr., t/d/b/a “Works Towing Service” and/or Bernard Works, Raymond Works and David A. Works, t/d/b/a “Works Auto and Truck Service” and Keystone Lime Co., Inc., a Corporation, Appellees, v. James Robert MILLER, Appellee.
Superior Court of Pennsylvania.
July 29, 1998.
Reargument Denied Oct. 2, 1998.
716 A.2d 1262
Argued April 15, 1998.
Having determined that Mr. Perry has failed to raise any claim that will excuse the untimely filing of his second petition, we find that his PCRA petition was time-barred, and the PCRA court lacked jurisdiction to grant relief. As a result, the dismissal of the petition without a hearing was proper.
Order affirmed.
1996 he discovered case law that supported a defense of intoxication and within 60 days of the discovery, he filed his second PCRA petition.
Even if we were to consider Mr. Perry‘s claim, we cannot agree that the discovery of preexisting case law qualifies under this exception.
John D. Newborg, Pittsburgh, for Bernard Works, Jr., etc., appellees.
James F. O‘Malley, Johnston, for James Robert Miller, appellee.
Before DEL SOLE, TAMILIA and EAKIN, JJ.
TAMILIA, Judge:
Appellants, Gladys McClintock and the Estate of Robert D. McClintock, appeal from the judgment entered on October 1, 1997, following a trial in which the jury found no negligence on the part of appellees, Bernard Works, Jr., t/d/b/a “Works Towing Service” and Bernard Works, Raymond Works and David A. Works, t/d/b/a “Works Auto Truck Service” (hereinafter Works). Appellants claim the trial court committed reversible error by refusing to instruct the jury as to the standard of care mandated by certain provisions of the Vehicle Code and regulations of the Pennsylvania Department of Transportation.
The trial court summarized the facts of this case as follows.
On August 19, 1988, Works became involved in the removal of a tractor-trailer1 rig which had gone over an embankment off the eastbound lane of U.S. Route 40 in Addison Township, Somerset County, Pennsylvania. In order to remove the rig, the Works crew had to obstruct normal traffic flow at times.
Works received authorization from the owner of the rig to begin its task at approximately 10:00 A.M. and actually began to work at approximately 12:30 P.M. once the necessary equipment had been brought to the site.
At some point during the afternoon, the Pennsylvania State Police called out a crew from the Pennsylvania Department of Transportation (hereafter “PennDOT“) to direct traffic. One of the members of the PennDOT crew was [appellants‘] decedent, Robert [D.] McClintock. The PennDOT crew set up warning signs and positioned themselves along Route 40 in order to control traffic around the work site.
During the evening hours, the PennDOT crew became concerned about darkness, and at least one member of the crew expressed this concern to a representative of Works. The Works representative responded by stating that they were going to continue to work until the job was completed. The work then continued into the nighttime hours.
At approximately 11:00 P. M., Mr. [McClintock] was performing his duties as a member of the PennDOT crew. [Appellee] Miller was operating his vehicle in a westerly direction along Route 40 and struck another vehicle as he approached the work site. Either Miller‘s vehicle or the vehicle with which he collided struck Mr. McClintock, who later died of his injuries.
(Trial Court Opinion, Cascio, J., 7/1/97, at 2-3.)
On August 17, 1990, appellants filed suit against Works and Keystone Lime Company, Inc.1 Works thereafter filed a complaint to join James Robert Miller as an additional
On June 20, 1994, Works filed a motion for summary judgment, which was denied by the court. The case then moved forward, however, appellants and Keystone subsequently entered into a “Pro Rata Joint Tortfeasor Release Agreement.” After trial had commenced, the court granted appellants’ motion to voluntarily discontinue its action against Keystone.
On November 19, 1996, the jury found appellee Works was not negligent. Consequently it did not address the alleged negligence of appellee Miller, as Miller remained in the case only on a claim of contribution pursued by Works. Appellants’ motion for post-trial relief was denied following which they filed notice of this appeal.3
Before addressing appellants’ argument on appeal, this Court must first address appellee Miller‘s contention that appellants waived any issues pertaining to him by failing to raise them in a motion for post-trial relief.
In order to preserve an issue for appeal, a party must usually raise it both at trial and in a motion for post-trial relief.
We find this appeal does not fit within the above-mentioned general rule. Although Miller contends the jury ruled in his favor, the jury in fact never addressed his alleged negligence and/or liability. Miller remained in the case only on a claim of contribution pursued by Works. Since the jury found Works was not liable to appellants, it simply never reached the question of Works’ right to claim recovery from Miller. Parties cannot be expected to raise issues related to questions that the jury never addressed.
More importantly, by challenging an issue related to Works’ liability, appellants necessarily implicate Works’ right to recover from Miller on a claim of contribution. The soundness of this principle is illustrated by the parties’ various interests in this case. Appellants have no incentive to raise an issue directly related to Miller because, of course, they have already settled with him. Works also has no reason to make claims related to Miller. In order to recover from Miller, Works would have to be liable to appellants. Essentially, Works would have to argue that it was liable to appellants so as to preserve an issue for appeal. The Rules of Civil and Appellate Procedure were obviously not intended to create such a situation. Consequently, appellee Miller‘s claim is without merit.
On appeal, appellants argue the trial court improperly refused to charge the jury as to the particular standard of care required of Works. When reviewing a trial court‘s charge to the jury, this Court will grant a new trial only if the record reveals an abuse of discretion or an error of law that controlled the outcome of the case. D‘Ardenne v. Strawbridge & Clothier, Inc., 712 A.2d 318 (Pa.Super. 1998), citing Stewart v. Motts, 539 Pa. 596, 654 A.2d 535, 540 (1995). An inadequate jury instruction may amount to reversible error if it has a tendency to mislead the jury or if it omits material, which is basic or fundamental. Santarlas v. Leaseway Motorcar Transport Co., 456 Pa.Super. 34, 37-38, 689 A.2d 311, 312 (1997). Although a trial court need not use the specific
In this case, appellants’ proposed points for charge concerned provisions of the Vehicle Code and the concept of negligence per se. Proposed Point for Charge No. 3 stated “[t]he provisions of a statute and of an administrative regulation may establish a standard of conduct whose violation is negligence as a matter of law.” Proposed Point for Charge No. 4 then described the laws and regulations which are the subject of this appeal. One portion of the charge addressed section 6123 of the Vehicle Code, Erection of traffic-control devices while working, and its accompanying regulations. Section 6123 states: “Any person performing any work on or near the roadway which may create hazards shall erect traffic-control devices in accordance with the rules and regulations of the department for the maintenance and protection of traffic.” The accompanying regulations provide, “Final responsibility for the protection of the public and the employees in work zones shall rest with the contractor or agency performing the work.”
The other portion of proposed charge No. 4 dealt with section 3351(a) of the Vehicle Code, Stopping, standing and parking outside business and residence districts, (a) General rule, which states that if a vehicle is stopped on the roadway, “an unobstructed width of the highway opposite the vehicle shall be left for the free passage of other vehicles and the vehicle shall be visible from a distance of 500 feet in each direction.”
We find that appellants’ proposed jury instructions concern a basic or fundamental aspect of the law about which the jury should have been informed. The above statutes and regulations were intended to prevent the harm of which appellants complain. See Gravlin v. Fredavid Builders & Developers, 450 Pa.Super. 655, 661-63, 677 A.2d 1235, 1239 (1996). The concept of negligence per se does not, of course, establish liability on the part of Works. Id. at 659-61, 677 A.2d at 1238. Nevertheless, it is relevant to the facts of this case and possibly could have controlled the case‘s outcome.
Although the trial court determined the aforementioned statutes were applicable (T.T. Excerpt, 11/14/96, at 9), it refused to instruct the jury accordingly. It found Works was performing emergency recovery work and that section 6123 only “govern[ed] the conduct of construction, maintenance and similar projects.” (Trial Court Opinion at 6.) See also
Throughout the trial, Works argued that it was not responsible for the safety of persons in the work zone as PennDOT had taken charge of directing traffic around the recovery operation (T.T. Excerpts, 11/13/96, at 19-21; 11/14/96, at 32, 34-36; 11/15/96, at 34). This argument is plainly prohibited by Department of Transportation regulations.
With regard to
As previously indicated section 3351(a) provides that if a vehicle is stopped on the roadway, “an unobstructed width of the highway opposite the vehicle shall be left for the free passage of other vehicles and the vehicle shall be visible from a distance of 500 feet in each direction.” In this case, the record contains testimony that an unobstructed lane was not kept open (T.T. Excerpt, 11/13/96, at 21, 45-46). Moreover, there was testimony that the rain and darkness made visibility of Works’ equipment and non-electric warning signs “improbable” within 500 feet (T.T. Excerpt, 11/14/96, at 47-48, 52-53). The above evidence, although disputed, is sufficient to support a charge on section 3351(a). Appellants’ proposed jury charge accurately stated the law and would have helped the jury determine Works’ responsibilities in regard to the work site. As a result, the trial court erred in refusing to so instruct the jury.
Reversed and remanded for a new trial in accordance with this Opinion.
Jurisdiction relinquished.
Dissenting Opinion by EAKIN, J.
EAKIN, Judge, dissenting:
While I agree the appellants have not waived the issues raised, I am constrained to dissent. I believe the decision of the trial court declining to give the proposed points for charge at issue was justifiable under the facts of the case, and accordingly would find no error.
COMMONWEALTH of Pennsylvania, Appellee, v. Mark A. SEBEK, Appellant.
Superior Court of Pennsylvania.
Submitted Jan. 19, 1998.
Filed July 30, 1998.