Rawle’s Reports

Rawle’s Reports, Volume 17, Number 11

PENNSYLVANIA: APPELLATE — Affirmed
by Carl D. Buchholz, III

Plaintiff John Keffer was involved in a motor vehicle accident on Interstate 95 in Philadelphia on September 24, 2007.  Keffer sustained serious injuries when he rear-ended a tow truck being driven by defendant James Gladu and owned by defendant Bob Nolan’s Auto Service, Inc.  At the time of the collision, defendant Gladu was driving south on I-95 and was slowing down to make a turn into the median opening separating the north and south bound lanes of I-95 to assist a motorist stranded on the shoulder of northbound I-95.

Thomas A. Kuzmick, chair of our Product Liability group, defended Gladu and Bob Nolan’s Auto Service at trial in Philadelphia County.  At trial, plaintiff’s counsel argued that Gladu was not operating an “authorized vehicle” permitted to use the median opening under state law and that he had negligently proceeded to make the turn into the median opening from the middle lane of I-95.  Defense counsel convinced the trial judge that the uncontradicted evidence established, as a matter of law, that Gladu was operating an “authorized vehicle” entitled to use the median opening at the time of the accident although it remained a question of fact for the jury whether Gladu executed his turn “in a reasonable and safe manner” and took “every precaution…[to] ensure that the safety of all motorist and pedestrians” as required by state law.

After a 14-day trial, the jury returned a verdict in favor of Gladu and Bob Nolan’s, finding that Gladu had executed his turn into the median opening “in a reasonable and safe manner.”  Plaintiff filed a post-trial motion seeking a judgment notwithstanding the verdict or a new trial.  The trial court denied plaintiff’s post-trial motion and plaintiff filed an appeal to the Pennsylvania Superior Court.

On appeal, plaintiff argued that the trial court had erred in ruling that Gladu’s tow truck was an “authorized vehicle” permitted to use the turnaround in the median opening and that the trial court had abused its discretion by precluding testimony from a Pennsylvania State Police Trooper that Gladu’s tow truck was not an “authorized vehicle” entitled to use the median opening as well as permitting the State Police Trooper to testify that debris from the impact was found in the left lane of southbound I-95, not the middle lane where plaintiff claimed the impact occurred.

Carl D. Buchholz, III, represented defendants Gladu and Bob Nolan’s in plaintiff’s appeal to the Superior Court.  In response to plaintiff’s appellate arguments, Carl responded that the issue of whether Gladu’s tow truck was in an “authorized vehicle” permitted to use the turn-around in the median strip was in fact an issue of law correctly decided by the trial court.  In addition, Carl argued that the trial court correctly precluded the State Trooper from testifying that Gladu’s tow truck was not “an authorized vehicle entitled to use the median opening” since this was an issue of law to be decided by the trial court, not an issue that was appropriate for testimony from a State Trooper.  Lastly, Carl argued that although the State Trooper was properly precluded from giving an opinion about the cause of the accident since he did not have any personal knowledge of the accident, he was properly allowed to testify about where he personally observed the debris on the road after the accident.

The Superior Court subsequently affirmed the jury verdict in favor of defendants Gladu and Bob Nolan’s.  Initially, the Superior Court ruled that the issue of whether Gladu’s tow truck was an “authorized vehicle” was an issue of law for the trial court to resolve, not a question of fact for the jury, and that the trial court had correctly analyzed the relevant regulations in determining that the tow truck was permitted to use the median opening to assist the stranded driver in the northbound side of I-95, and had properly precluded the State Trooper from giving an “expert opinion” on this issue.

As to the trial court’s alleged error of allowing the State Police Trooper to testify regarding his observation of the debris at the accident scene, the Superior Court found that the trial court had correctly limited the Trooper’s testimony to his actual observations made at the accident scene.

Keffer v. Bob Nolan’s Auto Service, Inc., Case No. 2958 EDA 2011 (PA Superior Ct ., Nov. 26, 2012)

Carl D. Buchholz, III, is Chair of the Maritime, Insurance Coverage and Appellate Sections. His federal appellate practice includes an argument before the United States Supreme Court, as well as numerous arguments before the U.S. Court of Appeals for the Third Circuit. His state appellate practice includes seven arguments before the Pennsylvania Supreme Court, as well as numerous arguments before the Pennsylvania Superior Court and Commonwealth Court. In 2006, the Pennsylvania Supreme Court appointed Carl to the Disciplinary Board of the Supreme Court of Pennsylvania. In 2010, the Pennsylvania Supreme Court designated Carl as Chair of the Disciplinary Board. He graduated from Muhlenberg College in 1967 and Villanova Law School in 1970 where he was a member of the Villanova Law Review and graduated with honors.

For more information, contact Carl at: (215) 575-4235 • cbuchholz@rawle.com


PENNSYLVANIA: GENERAL CASUALTY — Favorable Verdict in Ruby Parks v. GW Construction and Volodymyr Gakh, PCCP
by Daniel J. Rucket

On November 5, 2011, 59-year-old Ruby Parks was walking down 27th Street in North Philadelphia.  As she approached Girard Avenue, the light turned green and, without looking in either direction to see if any vehicles were coming, she started to cross Girard Avenue. 

At the same time, a van driven by Volodymyr Gakh was making a left turn from 27th Street onto Girard Avenue.  The van clipped Ms. Parks from behind as she crossed the street, knocking her to the ground.  She complained immediately of pain in her legs.  An ambulance took her to Hahnemann Hospital, where she was treated for a nondisplaced fracture of her ankle.  Her ankle was placed in a cast.  She had no complaints of neck or back pain at the time of the accident or in the hospital.  Ms. Parks claims that she started feeling pain in her neck and back later that evening. 

On November 8, Ms. Parks began treatment with a chiropractic and a physical therapy group.  She was treated by this group for five and a half months for neck and back pain.  She had a MRI of her neck which revealed two herniated discs.  She had a MRI of her back which revealed four herniated discs.  She saw an orthopedic surgeon twice, who noted that the herniated discs were caused by this accident.  He offered her epidural injections, which she declined.  Over four months after being discharged from therapy, Ms. Parks had an EMG and nerve conduction study of her lumbar spine that purportedly showed nerve damage at two of the four herniated disc levels.  She then had an EMG of her cervical spine that purportedly showed nerve damage at both herniated disc levels.

At the time of the accident, Ms. Parks was working several days a week cleaning offices and homes.  She was paid cash for this work.  She lived in a group home in which she had her own room and shared a kitchen and bathroom with five other people.

Ms. Parks claimed that she suffered from neck and back pain all the time.  On bad days, she took Tylenol for the pain.  She also claimed that it took her over twice as long to perform activities of daily living, such as cooking and cleaning.

The case was prepared by Rawle & Henderson partner, Catherine N. Walto.  Due to Ms. Walto’s trial schedule, the case was defended at trial by Daniel J. Rucket.  Plaintiff’s counsel demanded the defendant’s $300,000 insurance policy limits. The defendants offered $100,000 to settle.  The case was tried before Judge Ricardo Jackson of the Philadelphia Court of Common Pleas from March 25, 2013 through March 27, 2013.  The defendants admitted negligence, but challenged causation for the alleged injuries.  Ms. Parks’ counsel presented testimony from the orthopedic surgeon, by videotape deposition, and the EMG physician, who appeared live at trial.  He also presented the testimony of economist Andrew Verzilli that Ms. Parks sustained a loss of household services of $72,000.  He did not present a wage loss claim.  The defendants presented the videotape testimony of John Duda, M.D., who testified that the herniated discs were pre-existing, were not caused by this accident, and were not causing the pain claimed by Ms. Parks based on physical examinations performed by her own doctors.  The jury spent three hours deliberating and returned a verdict for $45,000.

Ruby Parks v. GW Construction and Volodymyr Gakh, PCCP, November Term, 2011, No. 1248

Daniel J. Rucket concentrates his practice in general casualty litigation, including premises, motor vehicle, construction, product liability, and catastrophic injury. Dan graduated from the William and Mary Law School in 1993 and subsequently clerked for the Honorable Albert R. Subers in the Montgomery County Court of Common Pleas.  Mr. Rucket is admitted to practice in Pennsylvania and the U.S. District Courts for the Eastern and Middle Districts of Pennsylvania. He has been selected as a Pennsylvania Super Lawyer every year since 2010. He was selected as a Pennsylvania Rising Star in 2005, 2006 and 2007.

For more information, contact Dan at: (215) 575-4217 • drucket@rawle.com

UNIVERSITY OF MARYLAND LAW SCHOOL
David Ira Rosenbaum
, chairperson of the firm’s Commercial Transaction and Commercial Litigation practice groups, gave a presentation on contract negotiation and drafting to students enrolled in the Business Law Program at the University Of Maryland Frances King Carey School Of Law in October, 2013.

David regularly represents clients in a wide variety of transactional matters including complex, multi-million dollar asset purchase agreements, employment contracts, real property leases and purchase agreements, joint ventures and simple vendor contracts.  He is the author of an award winning article on The Top Ten Mistakes When Drafting and Negotiating Contracts.  David has also served as an Adjunct Professor at Temple University’s School of Law and as a Judge Pro Tem in the Court of Common Pleas of Philadelphia County. David is a cum laude graduate of Temple University School of Law and obtained an A.B. Degree in Political Economy from Vassar College.  David is admitted to practice law in both Pennsylvania and New Jersey as well as in the U.S. District Courts for the Eastern and Middle Districts of Pennsylvania and the District of New Jersey. He also has been admitted to perform appellate work in both the Third Circuit Court of Appeals and U.S. Supreme Court.

For more information, contact David at: (215) 575-4378 • drosenbaum@rawle.com

  RRV17N11.pdf