J-A28014-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 JOHN AND DEBRA HOAGLAND : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JODY HOFFMASTER AND COUNTY : LINE QUARRY, INC. : : No. 572 MDA 2018 : APPEAL OF: JOHN HOAGLAND : Appeal from the Judgment Entered March 29, 2018 In the Court of Common Pleas of Lancaster County Civil Division at No(s): CI-14-01373

BEFORE: LAZARUS, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.: FILED MARCH 07, 2019 Appellant, John Hoagland, appeals from the judgment entered on March 29, 2018. We affirm.

The trial court ably summarized the underlying facts and procedural posture of this case. As the trial court explained: This case arises out of a motor vehicle accident which occurred on April 20, 2011, at the Prospect Road exit off Route 30 West in West Hempfield Township, Lancaster County, Pennsylvania. At approximately 2:20 p.m., a [tri- axle dump truck, owned by Country Line Quarry, Inc. (hereinafter “Defendant CLQ”) and driven by Defendant CLQ’s employee, Jody Hoffmaster (hereinafter “Defendant Hoffmaster”)], failed to completely stop before colliding with [Appellant’s] vehicle[,] which was sitting at a red light at the end of the ramp. While the exact speed of the truck was never determined, there were four large skid marks indicating that there was an attempt to stop the vehicle prior to the collision. . . .

J-A28014-18

Upon [arriving at] the scene, police took [Defendant] Hoffmaster into custody on suspicion of driving while intoxicated. Further testing revealed [that Defendant Hoffmaster had a] blood alcohol level of .292%. [Defendant] Hoffmaster acknowledged drinking [alcohol] and explained that he began [to do so] only after he left [Defendant] CLQ's premises. He was charged with, and subsequently pled guilty to, driving under the influence, highest rate of alcohol, and careless driving.[fn.1] The day after the accident [Defendant] Hoffmaster was fired by [Defendant] CLQ pursuant to their zero-tolerance drug and alcohol policy.

[fn.1. 75 Pa.C.S.A. §§ 3802(c) and 3714, respectively.]

On April 30, 2013, [Appellant] filed a Lancaster County suit against [Defendant Hoffmaster and Defendant CLQ (hereinafter, collectively, Defendants)]. Without explanation, [Appellant] withdrew that case and refiled in Philadelphia County against [Defendant] Hoffmaster, [Defendant] CLQ, and six other defendants. After two sets of preliminary objections, three complaints and ten months of litigation, [Appellant] voluntarily dismissed the six new defendants and[,] on February 21, 2014, the action against [Defendants] was transferred back to Lancaster County. In a second amended complaint, [Appellant] asserted a direct punitive damage claim against [Defendant] CLQ to which Defendant CLQ filed preliminary objections. On July 8, 2014, [the trial court] sustained the preliminary objections without prejudice and with the understanding that the [punitive damages] claim [against Defendant CLQ] could be reasserted should [Appellant] be able to produce any evidence that [Defendant] Hoffmaster was drinking at any time before he left [Defendant] CLQ’s premises on the day of the accident.

After over three years of discovery and investigation consisting of numerous interrogatories, depositions, and expert reports, and five days of trial[, Appellant] was not able to produce a scintilla of evidence to rebut [Defendant] Hoffmaster's consistent statements that he began drinking only after he left CLQ's premises. Without that evidence[, the trial court] was constrained to find that a punitive damage claim was not appropriate [against Defendant CLQ] in this case.

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Apparently recognizing this flaw shortly before trial, [Appellant] tried a new theory[,] arguing that punitive damages were warranted because [Defendant] CLQ violated its employment policies on employee retention. In so claiming, [Appellant] relied heavily on the last-minute deposition of [Defendant] CLQ's Safety Director, Anthony Mangabat, who testified that he would have fired [Defendant Hoffmaster] in 2009 for three safety violations if he had had the authority to do so.[fn.2] Plaintiff also retained a "trucking expert" to claim that [Defendant] CLQ violated Federal Motor Carrier Safety Administration Regulations by not providing a sixty-minute reasonable suspicion training to supervisors. [The trial court] found these last-minute allegations to be wholly insufficient to support a claim for punitive damages under the facts of this case and denied [Appellant’s] motion . . . without prejudice, again with the understanding that [the trial court] would entertain an oral motion to amend should any evidence that [Defendant] Hoffmaster began to consume alcohol at any time prior to leaving [Defendant CLQ’s] premises on the day of the accident emerge.

[fn.2.] The first violation occurred on March 18, 2009 as a result of [Defendant] Hoffmaster backing his truck into a tool box. The second violation occurred on June 18, 2009 after [Defendant] Hoffmaster operated his vehicle without functioning brake lights. He received a five-day suspension and returned to work. The third incident occurred on October 30, 2009[, when Defendant] Hoffmaster rear ended another vehicle after the other vehicle abruptly stopped mid turn in a four-way intersection. After each of these incidents [Defendant Hoffmaster] was tested for drugs and alcohol pursuant to company policy. The tests were negative, although the second test could not be produced at trial. While there was some discussion as to whether [Defendant Hoffmaster] should [have been] fired after the third violation, [Defendant] CLQ ultimately made the decision to retain [Defendant] Hoffmaster over Mr. Mangabat's suggestion that [Defendant Hoffmaster] be fired[,] and [Defendant Hoffmaster] continued to drive for [Defendant CLQ] after serving the five-day suspension.

The only testimony presented at trial relevant to the time at which [Defendant] Hoffmaster began to drink came from -3- J-A28014-18

Nelson Klinedinst, [Defendant] CLQ's Dispatcher and Weight Master, and [Defendant] Hoffmaster himself. Mr. Klinedinst was the only one to see [Defendant] Hoffmaster on the day of the accident. On that day, [Defendant] Hoffmaster picked up three separate loads of stone for delivery to [Defendant CLQ’s] customers. Mr. Klinedinst explained that [Defendant] Hoffmaster appeared normal during each of the three interactions he had with him. He testified that during all three interactions [Defendant] Hoffmaster acted in his usual manner, his eyes were not bloodshot and glassy and [Mr. Klinedinst] did not detect an odor of alcohol on [Defendant Hoffmaster’s] person.

Most telling of all was the testimony of [Defendant] Hoffmaster himself, who, as he had consistently and without exception in the six-and-a-half years since the accident, explained he only began drinking after he picked up the third load and left [Defendant CLQ’s premises]. [Defendant] Hoffmaster testified that after receiving the third load of stone, he pulled his vehicle into the company parking lot, stepped out of the dump truck, and retrieved a bottle of rum from his personal vehicle. He was adamant that he began drinking from this bottle only after he left [Defendant] CLQ's property and continued to do so until the accident.

Nonetheless, and without presenting any counter-factual evidence regarding when [Defendant] Hoffmaster began to drink, [Appellant] made an oral motion to reinstate the direct punitive damage claim [against Defendant CLQ,] which [the trial court] once again denied.

After five days of trial, on October 20, 2017, the jury awarded [Appellant] compensatory damages in the amount of $210,000 against both Defendants jointly and an award of $30,000 in punitive damages against [Defendant] Hoffmaster. The jury apportioned 75% liability to [Defendant] Hoffmaster and 25% liability to [Defendant] CLQ. On October 27, 2017, [Appellant] filed a post-trial motion with th[e trial] court for a new trial solely on the issue of punitive damages. Defendant CLQ and Defendant Hoffmaster filed timely responses to the motion and after oral argument on the motion [the trial court] denied [Appellant’s] motion on March 12, 2018.

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Trial Court Opinion, 6/29/18, at 1-5 (internal citations and emphasis and some internal capitalization and footnotes omitted).

On March 29, 2018, judgment was entered on the verdict. Appellant filed a timely notice of appeal and now raises the following claims to this Court: A. Whether the trial [court] erred in refusing to instruct the jury that it could consider awarding punitive damages against Defendant CLQ.

1. Whether the evidence would have supported a finding by the jury that punitive damages against CLQ were warranted based on the CLQ's own conduct because CLQ's corporate designee/safety manager testified that Hoffmaster should have been fired due to three prior incidents, and was a "safety risk," but Hoffmaster was permitted to remain employed at CLQ because CLQ needed truck drivers more than it cared about safety.

2. Whether CLQ's admissions that it was required but failed to comply with the Federal Motor Vehicle Carrier Safety Regulations including section Sections 382.603 and 382.307, and CLQ's failure to train supervisors to determine reasonable suspicion of alcohol use supported punitive damages against CLQ.

3. Whether the testimony of Plaintiff's expert witness relating to CLQ's violations of federal regulations and its own policies supported punitive damages against CLQ.

4. Whether the trial court erred in restricting [Appellant’s] ability to pursue punitive damages against CLQ to producing evidence that Defendant Hoffmaster was drinking on or before he left CLQ's premises on the day of the accident.

5. Whether the evidence would have supported a finding by the jury that CLQ was vicariously liable for punitive damages based on the conduct of its employee, Defendant Hoffmaster.

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B. Whether the trial court erred in entering the order dated July 8, 2014, sustaining preliminary objections to [Appellant’s] claim for punitive damages as to Defendant CLQ, and the orders of June 1, 2017 and October 6, 2017, refusing to reinstate that claim.

C. Whether the trial court erred granting in part Defendant's motion for protective order dated July 12, 2017, limiting [Appellant’s] discovery and preventing him from deposing CLQ's owner at an earlier stage.

D. Whether the trial court erred in refusing to allow [Appellant] to subpoena CLQ's owner, Tony Depaul, to testify at trial as to why Mr. Hoffmaster was not terminated prior to the accident date.

E. Whether a new trial should be limited to punitive damages against CLQ when a new trial on all issues has not been requested by any party and would be prejudicial to all parties.

Appellant’s Brief at 6-8 (some internal capitalization omitted).

We have reviewed the briefs of the parties, the relevant law, the certified record, the notes of testimony, and the opinion of the able trial court judge, the Honorable Jeffery D. Wright. We conclude that Appellant is not entitled to relief in this case and that Judge Wright’s June 29, 2018 opinion meticulously and accurately disposes of Appellant’s issues on appeal. Therefore, we affirm on the basis of Judge Wright’s thorough opinion and adopt it as our own. In any future filing with this or any other court addressing this ruling, the filing party shall attach a copy of Judge Wright’s June 29, 2018 opinion.

Judgment affirmed. Jurisdiction relinquished.

-6- J-A28014-18

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 03/07/2019

-7- Circulated 02/26/2019 09:22 AM

\ IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVA� .. . . . . CIVIL ACTION - LAW . . � \' . . c'.'� ·�: �

JOHN HOAGLAND vs. Cl-14�01373 - JODYHOFFMASTER and COUNTY LINE.QUARRY, INC. OP.INION BY: WRJG.HT, J. June 2� , 2018 This Opinion is written pursuantto Rule. 1925(a) of the Pennsylvania Rule$ of App.ellate Pro.cedure. Jotm Hoagland, Plaintiff, appeals from this Court's March 12, 2018 Order denying his Motion. for a New Trial and asserts eight issues in his Statem�nt of Errors. PlainUff's primary chall�nge is to the denial of a direct punitive damage_ claim against County Line Quarry (hereinafter "CLQ"). A review of the record and .applicable law will demonstrate that punitive damages were not warranted in this. case.and Plaintiff's appeal. should therefore be dismissed.

BACKGROUND.

This caae arises out of a motor vehicle accident which occurred on April 20, t, at the Prospect Ro.ad exit off Route 30 West in West Hempfield Township, Lancaster County, Pennsylvania. (Third Amended Complaint at ,r 1). At approximately 2:20 P.M.; a CLO td-axle dump truck being driven by Defendant Jddy Hoff.master, failed to completely stop before colliding with Plaintiff;s vehicle which was sitting ata red light at the end of the ramp. (Notes ofTestimony, Jury Trial, 10/16/18-10/20/18 at 203 (hereinafter "N.T."). Whil.e the exact speed of the truck was never determined, there were. four large Skid marks indicating that there was an attempt to stop. the vetiJde prior to the collision. Id� .at 208. Upon arrival of the scene) police took Mr. Hoffmaster into custody on suspicion of driving while intoxicated'. Id. at 205. Further testing revealed a blood alcohol level of .292%. Id. at 61 O. Mr; Hoffmaster a¢knowledged d.rinking and explained<that he began only after he left CLQ's premises. !!;L, at 611, 615. He was charged with, and suoseqoenny pied guilty toidriving under the influence, highest rate of alcohol, 1 and careless driving.2 Id. at 611. The day after the accident Mr. Hoffmaster was fired by CLQ pursuant to their zero-tolerance drug and alcohol policy, ld .. at 626 ..

On April 30, 2013, Plaintiff filed a Lancaster County suit against Mr. Hoffmaster and CLQ. Without explanation, Plaintiff withdrew that case and refiled In Philadelphia County against Mt. Hoffmaster, CLQ, and six other defendants. After two sets of Preliminary Objections, three Complaints and ten months of iitigation, Plaintiff voluntarily d.isrriissed the six new defendants and on February 21; 2014,·the action against Mr. Hoffmasterand CLQwastransferred back to Lancaster County. In a Second Amended Complaint, Plaintiff asserted a directpunitive damage claim.againstC�Q to which Defendant CLQ filed Preliminary Objections. On July 8, 2014) I sustained the Preliminary Objections wlthout prejudice and with the understanding that the claim could be-reasserted should Plaintiff be able to produce any evidence that Mr. Hoffmasterwas drinking al any time before he left CLQ's premises on the day of the accident. After over three years of discovery and investigation consisting of numerous interrogatories, depositions, and expert reports, and five. days of trial Plaintiff was notable to produce a s.cihtilla of evidence to rebut Mr. Hoffmaster's eonslstent statements that he began

175 Pa. C. S; A.§ 380i {c).

27SPa. C. S. A,.§ 3714...

·--------------------------------------------- drinking only after he left CLq's premises.3 Without that evidence. I was constrained to find that a punitive damage claim was notappropnate in this case.

Apparently recognizing this flaw shortly before trial) Plaintiff, tried a new theory .arguingthatpunitive damages were warranted because CLQviolated its employment policies on employee retention. hi so claiming. Pla.intiff relied heavily on the Jast-mmute deposition of CLQ's Safety Direetor.Anthony Mangabat, Who testified that he would have fired Mr. ,Hoagland in 2009 for three safety violations if he had had the authority to do so:4 Plaintiff also retained a "trucking expert" to claim that CLQ viotc1ted Federal Motor Carrier Safety Administration Regulations by not providing a sixty-minute reasonable suspicion training to supervisors. I found these last-mmute allegations to be wholly insufficient to· support a claim for punitive damages under the facts of this case and denied Plaintiffs Motion for the same Without prejudice, again with the understanding that I would entertain an oral Motion to Amend should any evidence that Mr. Hoffmaster began to consume alcohol at any time prior .to leaving CLQ premises on the day ofthe accident em.erge.

Indeed.Jess than three months before the scheduled trial, Plaintiff went so .far as to. subpoena, without prior Court approve], sevente.enyears of Defendant Hoffmaster's HIPAApr<>tected medicalrecords, When counsel for Defendant Hoffmaster objected, Plaintiff'arguedthe records were necessary for the purpose ofimpeaching · Defendant's testimony that he had never sought any drug or alcohol counseling, Alth.ough this was a. blatantly transparent attempt to fjnd. information .E>laiµdffhoped existed, I nonetheless permitted the records to be, produced initially for an in ca�er.i, inspection, Not surprisingly, there was,nothing in the records. so produced which was in any way relevant to this case: .

The fil'.st vi.olatioil occurred on March 18, 2009 as.a result of Mr. Hoffinast.erbacking his truck into. atcol box. Id. at 142. The second violation occurred on June 18, 2009 after Mr. Hoffmaster operated his vehicle without · functioning brake. lights. Id..· at 143. He received a five-day suspension and returned to work. M. at 144. The third inc.ident.. occurred on October 30, 2009 in. Which Mr. Hoffmaster rear ended another vehicle after the other vehicle abruptly stopped mid tum in a four-way intersection. M. at 145; After. each of these incidents he. was tested for drugs and alcohol pursuant to company policy. The tests. were negative, although the second test could not be proc:luced at .triatid. at 193-195, 600. · While there was some discussion as to whether he should be fired after the third vioiation, CLQ ultimately made the decision to retain' Mr, Hoffmaster over Mr. · Mangabat • s suggestion that he.. be fired and he continued to. drive for them afte.- ser.vi�s the five-day suspension • .W:, at430 ..

j

· ··-··--·--·..··--····-··--·· ·····-····-------··· ······ ......•• l"he only testimony presented at trial relevant to the time at w.hich Mr. Hoffmaster bega11 to drink came from Nelson Klinedinstt CLQts Dispatcher and \tVeightMaste.r, and Mr. Hoffmaster himself. Mr. Kline'dinst was the only one to see Mr. Hoffmaster on.the day ofthe accident Id. at 51.1. Onthat dc1y; Mr: Hoffmaster picked up three separate loads of stone for delivery to CLO customers. Id. at 803. Mr; Klinedinst explained that Mr. Hoffmaster appeared normal during each of the thr'3e interactions he had With him.

Id .. at 803; 804. He testified that during .all three interactions Mr. Hoffmaster acted in his usual manner, his. eyes were not bloodshot.and glassy and he did not.detect an odor of alcohol on hi.s person. Id. at 805-807.

Most telling of all was the testimony of Mr. Hoffmaster himselt, who, as he had consistently and without exception in the six-and-a-half yeare.slncethe accident, explained he only began drinking after he picked up the third load .and left CLO. Mr e.

Hoffmaster testified that after receiving the third load of stone, he pulled his vehlcle into the. company parkin9. Jot, stepped out of the dump truck; and retrieved a bottle of tum from his personal vehicle;<ld. at 614. He Was adamant tl'.lathe began drinking from this bottle ohJy after he left CLQ's property and continued to do so until the accident. Id. at 615.. Nonetheless, and without presenting.any counter-factual eviden�eregardingwhen Mr: Hoffmaster began to drink, Plaintiff made. an oral Motion to reinstate the direct punitive. damage clalrn which J once again denied • .!!l at 526.

After five days ottrlat, on October 20, 2017,.thejuryawarded Plaintiff compensatory damages in ttie amount of$210,000 against.both Defendants Jointly and an award of $30,000 in punitive damages against Mr. Hoffmaster. .Id. a1934;.:935. The jury apportioned 75% liability to Mr. Hoffmaster and 25.% liabmty to CLO� � at 9.3.4. On

····-······--·-··--·-·· . .. ·---·--·-··------·-""""'""'"'""·---------------------- October 27, 2017, Pia intiff filed a post-triel motion with this Court for a new trial solely on the issue of punitive damages. Defendant.CLO and Defendant Hoffmasterfiled timely responses to the Motion and after oral argument on the motion I denied Plaintiffs Motion on March 12, 2018. Plaintiff filed ah appeal of that Orderon April 6, 2018.

ANALYSIS.

The primary focus of Plaln,titrs appealts whether direct punitive damages were warranted against CLQ when there was a complete absence ofany evidence.of any type that Mr. Hoffmaster was intoxicated or even consumed any· alcoholon their· premises. I will first discuss why direct punitive damages were not.warranted iii .this case and in doing: so will address issues one, two., three, four, and eight of Plaintifr$ statement of Errors. t: Will then address Plaintitrs fifth issue regar�:iing the alleged vicarious lia.bility of CLO andPlairititrs sixth issue te.gardlng my July 12. 2017Ptoteclive Order. Finally, I will address Plaintiff's seventh issue regarding the request to subpoena Tony DePaul.

Punitive . Damages ltis well settled under Pennsylvania law that "a puhitive damages claim must be supported by evidence sufficient to establish that (1) a defendant had a subjective c:1pprec.iation of the rlsk of harm to-whlch the plaintiff was exposed and that (2) he.acted, or failed to act, as the case may be, in conscious disregard of that risk'; Hutchison ex rel.

Hutchison. v. Luddy, 896 A,2d 1260, 1266 (Pa. Super. Ct. 2006). The "purpose of punitive damages is to punish a tortfeasor for outrageous conduct and to deter him or others like him from slmllar conduct•." Kirkbride v; Lisbon Contractors, Irie.,. 555 A:2d 800, ..803 (Pa. 1989); However. it must also be recognized that it is "impossible to deter

··-····----··-- a person from taking risky action if he is notconscious of the risk." Hutchison ex rel.

Hutchison v. Luddy, 870 A.2d 766, 770 (Pa. 2()05) quoting Martin v. Johhs-Mamiille Com .• 494 A;2d 1088,, 1.097 n. 12 (Pa. 1985) (plu.rality opinion overruled on other grounds).

It has never been contested that punitive damages against Mr; Hoffmaster were appropriate. Focht .v. Rabada� 268 A.2d 157; 161 (Pa. Super. Ct 1970) ("under.the appropriate circumstances, .evidence of driving while under the influence of intoxicating liquors may constitute a sufficientgrolindJor allowing punitive damages,") However, for an employer to be held directly liable for punitive damages they must also act in. some manner that demonstrates outrageous . conduct which .goes beyond. mere negligence. ...

Dillow v. Myers; .916 A.2d 698, 702 (Pa. Super. Ct. 2007) (punitive damages-were appropriate against employer who allowed a truck to go out on the road that was unable to properly distrib.ute the weight of its load due to a broken loading rack) see also Darden-Munsell v. Dutch Maid Logistics; No. CA 10403; 2011 WL 3325863, at *3 .(W.D.

Pa. July 13,.2011 ), . re po.rt and recommendation adopted, No. CIV .A. 10-103, 2011 W.L 3299067' (W.D. Pa. Aug. :2, 2011) (Federal Court applying PA law finding that a pleading of punitive. damages was appropnate wher, it was alleged that employer knew that the driver had been driving over the hour liniit, that the truck was negligently overloaded, and had not �ppropriatety trained the, cf river).

Here, Plaintiff's repeated attempts to lmpose direct punitive damages against CLQ were not supported ln law or fact. Based on the uncentrovertsd record that Mr, Hoffmaster did not obtain the. alcohol or t;,egin drinking until after he left Cl..Q's. property, there is no way CLQ could have had a sµbJective appreciatlon of any risk of harm in

allowing Mr. Hoffmaster to deliver the third load of stone on the day ofthe accident. It was entirely unforeseeable that an employee who had no documented histQry of alcohol abuse, no positive random drug scre.ens,5 no criminal history related to driving whJI� intoxicated, arid who did not display any-signs of intoxication prior to leaving the company premises would consume alcohol en route to his destination. It is inconceivable what deterrence purposewouldbe served in punishing a company for failing to see that which is invisible. CLO did not have the opportunity to either appreciate the risk nor did itact"in conscious disregard of that risk" so as to Justify a claim of direct punitive' damages.

Nevertheless, J will address Plaintiff's three assertions which they claim should have been the basis for punitive darnaqes.Flrst, thatCLQJailed to train employees like Mt Klinedinst in reasonable suspicion training; second, that the Jury could have disbelieved that Mr. Hoffmaster could have begun drinking prior to leaving CLCl's · premises: and, third,· that Mr� Hoffmaster was retained by CLQ despite three prior safety violations.

Plaintiffs first assertion was th1:1tCLQ's failure to provide reasonable suspicion training to their employees was so outrageous as to warrant punitive damages'. The WeightMasterand Dispatcher on duty that day for CLQ, Nelson Klinedinst, was the· only employee to have..interactions With Mr.. Hoffmaster, Plaintiff's truckirrg expert. Jon Paul Dillard, testified that; Mr. Klinedinst, as a dispatcher was required by Federal regulations to undergo a sixty-minute reasonable suspicion trainlhg, but had riot. Id. at 567. The. glaring flaw in this argumentis that the qnly evldsnce ever presented was that

'.Id. at600.

Mr. Hoffmaster did not begin drinking until after he left the CLQ's premises.6 In other words, there was nothing even the best trained reasonable .susptciorr investigator could have orwould have observed before any alcohol was consurned.

Plaintiff's.second assertion is that the jury could have disbelieved Mr; Hoffmaster as towhen he started drinking! While. the role. of the jury is to be the tact finder, the trial 11

judge must determine Wtlether'the plaintiff has presented sufficlentevidence to support a punitive damages claim,i.e�. facts from Which the ]ury might reasonably conclude that the preponderance of the evidence establishes outrageous conduct by the defendant" Martin, 494 A2d at 1098; see also Smith v; Bell Tel. Co. of Pa.; 153 A.2d 477, 479 (Pa, 1959)("the evidence presented. must be such that by reasoning from It, without resort to prejudice orguess, ajtJry can reach the concluslon.souqht by plaintiff. and net.thatfhat conclusion must be the only one which logically can be reached") ..

In this case; Mr. Hoffmaster's narrative ofthe events of that day have remained unchanged in. the six-and-a-half years since the accident in question. Through deposinons, interrogatories, and the passage of time, his story has remained entirely consistent. His testimony is corroborated by Mr. Klinedinst's testim�my that Hoffmaster displayed no evidence of intoxication While on CLQ's premises. Plaintiff did net present any evidence attrial that conflicted with the narrative, of these two witnesses. Without any counter-factual evidence, any finding by the jury that Mt: Hoffmaster began drinking While. on CLQ's premises would be based purely on speculation. Acoordirigly, I found that Plaintiff did not present sufficient evidence to support a punitive damage, claim.

Plaintiff also tails .to mention that the, preceding section in the federal Motor Carrier Safety ,Admh,istration Regulations states thatreasonable suspicion must be based on, "�pedfic, contemporaneous, artictiiable observations concerning the appearance, behavior, speech or body odors of the driver;' 49 C:F.It § §:l82..307(b),. of which Plaintiff has failed to produceruril evidence. .

--------#----------------------------------- · Apparently recognizing the absence of any legitimate punitive damage claim relatin_g to the alcohol consumptlon, late ir, the case Plaintiff altered his focus to an aHegation that the decision to retain Mr. Hoffmaster after the three safety violations in 2009. was so outraqeous conduct as to warrant punitive damages. 7 None of these incideht$ involved any.allegation of intoxication and CLQ appropriately reprimanded Mr. Hoffmaster pursuant to company policy, WhUe incidents like backing over a tool box may allude to a pattern of carelessness by Mr1 Hoffmaster, they certainly do not demonstrate thatheacted with an lntentlonal disregard for others' safety like. that which ultimately occurred in this case. The violations in 200� �ind the case at bar are so separated by time, nature of the act, and intent of the act, such that CLQ could not have possibly foreseen that this incident would occur. The nexus between the safety violations in question and Mr. Hoffmaster's operation of a company vehicle While intoxicated tWo years later .simply does not exist and the lack of evidence reg�rdJng CLQ'-s bad motive or conscious disregard otthe risk in this case rendered a direct punitive damages claim unwarranted..

Thatts not to say thatthe decision to retain Mr. Hoffmaster was not in some way negligent CLCYs decision to retain Mr. Hoffmaster after the third vlolatlon may have been inappropriate .. Accordingly, the jury was properly instructed on ne.gligent hiring, supervision, and retention and indeed the jury did fi"'d CLQ to be 2.5% Hable. However, mere negligence without .a demonstration of something more cannot give rise to punitive damages. see e.g. PhiUips v. Cricket Lighters; .883 A.2d 439, 447 (Pa. 2005)

See Footnote 3.,

·----------------· ------------- Vicarious Liability Plaintiff next claims that.I erred in failing to instruct the jury that CLQ was "subject to the payment of punitive damages based on the reckless conduct of their employee." Exactly what he is arguing in this regard. is far from clear in his St�tement of Errors.

Accotdinglyj J am left to try to divi.rie what is meant. The language he uses, coupled.with his heavy rensnce on B.utterfield v. Gluntoli, 670 A.2d 64(3, 655 (Pa. Super. Ct. 1995} (subrogation claim by.an insurance company seekingJndemnificat1on.from the responsibility to pay punitive damages assessed against the insured employer), leads me to believe thatPlalntlff is claiming thatCLQ.is.responsible for paying the. punitive damages .assessed against Mr; Hoffmaster. To my knowledge that is a non-issue as Defendant CLQ has already tendered paym.entof theentire judgment, including punitive damages awarded. .against Mr. Hoffmaster.8 CLO may be vicariously liable, and · therefore responsible. for Mr! Hoffmaster's $JO.OOO punitive damages apportionment, but under Butterfield, that is a coverage.issue that neither I, nor the juryi need have addressed • .Accordingly, this issue should be dismissed; It is possible, but by no means clear, that Plaintiff is challenging my decision not to instruct the jury on Independent punitive damages againstCLQ on a theory of vicarious liability. If this Isthe case, the analysis is quite different, but once again demonstrates that no such claim was warranted in this case.

While an employer can be vicariously liable 'for the harm caused by his employee to a third party; the employee must be acting within the scope of his employment, Costa

Parenthetically, Mr, Hoagliind has refused to. acc;ept this tender.

····---····----..·---.. -------·-----------------·--------- v. Roxborough Mem'I Hosp., 708 A.2d 490i 493 (Pa. Super'. Ct. 1998). The Restatement (Second) .of Agency defines conduct within the scope of employment as. follows: (1) Conductof a servant is within the scope of employment if, but only if: (a) it is ofthe kind he is employed to perform; . (b) ttcccurs substantially within. the authorized time and space limits; (c) it.ls actuated, at least in part, by a purpose to serve the master, and (d) if force ls intentionally used by the servant.aqalnst another, the use of theforceis. not unexpectable byfhe master, (2) Conduct of a servant is not within the scope of employment if lt is differentin kind from that authorized, far beyond the authorized time or-space limits, or too little actuated by a purpose to serve the master:" Restateroent(Second) of Agency, § 228 Moreover, "a master is not liable for the Willful misconduct of his servant; and that.

such willful misconduct, while it may be within the course of the employment, Is riot within the scope thereotnMcMaster v. Reale, 110 A.2d 831, 832 (Pa. Super. Gt.1955.)

quoting MacPhail v. Pinkerton's National Detective Agency, Inc., s A.2d 9.6S, 970 (Pa!

Super.. Ct); see also Fitzgerald v. McCutcheori, 41 O A.2d 1270, 1272 (Pa. Super; Ct 1979) ("act was so outrageous, -so cr,iminal, and so Incapable of anticipation by his employer, that it must be held as a matter otlaw to exceed the. scope of (employees] employment").

Here, Mr. Horfrnaster's conduct was indeed so outrageous, criminal, and incapable. of anticipation by CLQ thaUt must .be held as a matter of law to exceed the scope of his employment. Drinking to a point of intoxication that was almosttour times the regal limit for non-commercial drivers and fourteen times the legal limif for commercial drivers was manifestly beyond CLQ's expectations for the.irdrivers. Even though Mr� Hoffmasterwas drivin9 hlsthlrd.load ofstone and, therefore, may have been acting within the course <>f his employment he certainly.was not acting within the scope

II

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····-···.,-·--·-··---··-.. ·--·------------------------------------ not raise this issue In his M.otion for a New Trial1 I considerthisissue waived as well, even if ithad been preserved, it too lacks merit.

In his. effort to establish that there was some outrageous or illicit rnonve behind CLQ�s decislon to retain Mt Hoffmaster so as to Justify a claim for punitive damaqes, Plaintiff called CLQ;s Safety. Manager, Eric Snowadzky; a$ on cross. Mr. Soowadzky tesJified, Just as he had at his depos.ition only weeks before, that the decision to retain Mr: Hoffmaster was made by Tony DePaul, part owner of the DePaul Group which manages. �LQ. Despite years of litigation.and for reasons never disclosed, Plaintiff neversouphtte depose Mr. DePaul, nor made any other effort to learn his reasons for.

retaining this employee .. Apparehtly (and belatedly), realizing that oversight was fatal 'to his: �ffort to show evil motive. Plaintiff sought to subpoena him on.the third day of trial.

The error ofthat, however, w�a 'that Mr. DePaul was never identified as a potential witness in his: Pretrial. Memo or in. any other pretrial documents. 9 Under the Rules of Civil Procedure, pretrial statements-must contain a list.of an witnesses to be csued.at trial. Pa.R.C.P. No. 212�2 (emphasis added). ''Ultimately the most critical factors are the importance ofJhewitnesses' testimony balanced against the-prejudice that would be imputed to.the other party." Feingold v. SEPTA, 517 A.2d 12701 1273 (Pa. 1986).

lf this testimony was so ctiticaf to h.is case; Plaintiff had no legitimate excuse for not recognizing thatfactend properly putting the parties and tJ'lis Court on notice of this potential witness. I found that the proposed last minute surprise subpoena created

9 Mr. DePaulwasnotlisted as.a potential witness in Defendants'.Pretrial Memos either.

·--···· -----··-· · ·· ---·------------------------------------·--·- prejudice to the Defendants that greatly oulwei�hed the limited importance .ofwhy Mr. Hoffmaster was retained after the safety vlolatlons, In an effort to circumvent these limitations, Plaintiff disingenuously claimed that .he was. exempt from the pretrial memo limitation because he was (;alllng Mr. DePaul as a "rebuttal witness." The fallacy of that argument is that Mr. De Paul's proposed testlmonywas "rebutting'.' n9thing. Plaintiff called Mr. Snowadzky in his own case in chief, knowing exactly what he would testify to. Mr. DePaul's testimony on the other hand, would not be "answering new matter" introduced by the defe,nse, but rather, it would be to fill ih the gaps.of Plaintiff's own case In chiet That is nQt the. purpose of rebuttal testimony. Mr. DePaul's 'testimony was properly excluded from trial and Plaintiffs appeal on this issue should be dismissed.

CONCLUSION Because there was absolutely no credible, evidence that CLO could have appreciated the risk of harm by allowing Mr. Hoffmaster to drive on the day of the accident, any claim for punitive damages, direct or vicarious,. was not appropriate in this case. Therefore, Plaintiff's appeal should be dismissed.

In the event; however, that itis determined that this case should be remanded for a trial Oh punitive damages against the CLQ, it Is my requestand recommendation that the remanded matter would be for a retrial .onal/ of the issues . Aside from the fact that the question of punitive damages Is inextricably intertwined wit� the jury's eveluatlons of the amount of compensatory damages. See. e.g. BMW of N. Am., Inc. v. Gore, 517U.S. 559, 581 (1996); Kirkbride, 555A.2d.at802, a new trial on the compensatory damages is warranted to address any injustice th�t may have resulted

·-----·-�-·- ·----------------------------------- from Plaintiff counsel's repeated m.Jsconduct during the trial. I will outline some of the more.egreqlous examples.

Ori the third day of the tn$1, Plaintiff catted Mr. Ho.ffmaster as on cross. After his initial questioning and that of defense counsel,on re-cross examination, Plaintiffs counsel asked questions which elicited answers revealing the existence of liability insurance inviolation ot Pa.RE. 411.

Now, you were .asked a question about; was my client's property Q: Ok.ay. damage, his damage . to his car . paid for, and your answer was yes,.correct?

A: Yes.

Q: Now, there's no claim because we're not making a claim for that in this lawsuit Do you know who paid it?

A: County line's lnsurance, N.T. at 648.

Defense .counsel immediately ol:>jected claiming, among other thin.gs, thatthe question was �deliberately improper'�� Had I so concluded, a mistrial was required.

see e.g. Trimble v. Merloe, 197 A.2d 457 (Pa. 1964). At this point, however, I decided to give Plaintiff's counsel the benefit of the doubt and simply gave a curative instruction. 10 In lightof the subsequent conduct of Pfalntiff's counsel, .1 am constrained to believe that this misconduct was indeed deliberate. I nonetheless, and perhaps erroneously; allowed the trial to connnue; While Plaintiff's.counsel soughtto excuse the reference to lnsurance E.iS une><pectedly given or inadvertently solicited, the same cannot be said about this next action which occurred onthe following day; SpecificaUy,·while Plaintiff Was being

Ironically, Plaintiff's. counsel later claimed that even the curative instruction was. in error, disingenuously arguing that it.was the wimess's ow.n fault.for answering the qeestion. N::r. at 657; 821. · · ·· · · · ·

·--·------··-- questioned on dire.ct examination; counsel directly and deliberately violated Pa.R.E. 408 as follows; Q: You .atso heard earlier that -.during the opening of Mr. Hoffmaster's counsel, that they know you were hurt and they think that you should be compensated. If they had compensated you fairly or offered to compensate you fairly; would you behere today?

A:. No; N.T.at742.

There could be no legitirn.ate claim of surprise or inadvertence or any possible explanation for such a clear violation .of the law. Although once again a curative instruction was given, the effect of this ongoing improper conduct continued to accumulate.

Finally,. prior to closing arguments, the parties submitted and I ruled on proposed points for charge. In his submission, Plaintiff included i:1 series of points requesting that the jury be charged that, in addition to m�king a victim whole, compensatory damages included punishing the wrongdoer as ameans of deterring futureconduct.jq, at 827. These points were denled.forcbvlous reasons." At a subsequent oh the record points conference, I repeated my ruling that the Plaintiff. may. not argue for punishment or deterrence in his compensatory . damages claim. Id� at 827. Plaintiff's counsel .reitera.ted his understanding ofthis limitation by repeatedly. asking to preserve his objE!CtionJo my ruling on this point. !9..:. at 837, 878.

"Ccmpensatory.damages aieawardedto·a person as compensation.for harmsustajned and are.designed to give the injured person some pecuniary returnfor What he suffered oris likely to suffer." Restatement (211d) of Tons, Sectioli9.03, comment [a]. Punitive damages, by contrast. are damages otherthan compensatory damages, awarded. against. a party to punish them for outrageous conduct and to deter them, and others like them, from similar conduct in the future; Restatement (Second) ofTorts, Section 908 (i). Indeed, th� fundamental purpose ofpunitiv¢ damages· is. to deter futuri::.outr:ageotis conduct. Hutchinson,896 A.2d at 1266.

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Despite what appeared to .. be a Very clear understanding ofthe limitations that this Court had imposed upon him, Plaintiffs counsel nonetheless proceeded to spend a considerable portion of his closing argument directly and repeatedly violating this ii.Jling, demanding a verdict •• ... so large that every company in· this county, in this state, wm read about it" telling the jury that they are the " ...voice of the community, and as th� conscience of the community [theyJ set the standards ilithe community. Id. at 9Q0..90t.

Perhaps most outrageous of all was his conclusion that if they don't give a large verdlct '!,.�what happens? If You don't, all these companies are going to cut corners. TheY,re .going to create a safety rtsk. They're going to make more money.,... f d ·suggest whatever amount you gJve here, evenif [Plaintiff] is made wealthy by yourverdlct ..... If you don't•. every company in Lancaster County; in York County, Montgomery County, Chester County. in Pennsylvania and around are going to be a heck o.f a lot richer.

Corporate greed is prevalent And, again, you need to decide what you think is appropriate and fair for this community." Id. at 901.

These are but .three of the mostnotable examples of Plaintitrs counsel's rnisconducfthroughout the course of this case.P Indeed, in the decade thatl have been a Common Pleas Judge, I have presided over dozens. of criminal and civil jury trial� and hundreds of other hearings and yet; I cannot recall any instance with an attorney.showing more discourtesy to opposing counselor more deliberate disregard for the rulln.gs and authority of this Court. There is, however, no way to precisely determine.

Other examples include subpoenaing witnesses without notice to opposing counsel (N. T. at 16, 27), providing · previously unknown medical records <>.f Plaintiff the Friday before trial (N.T, at 14 ), asl.dng a question regarding · attorney/client privilege (N.T. 'at 630)1.attempiirigto introduce new evidence and witnessesthree weeks before trial [Plaintiff Second Amended Pretrial.Memo),.and improperly inflating .his request for delaydamages. {Plaintiff's Mption to. ?vJo.ld Jury Verdict. to Inc.lude Delay Damil.ges, .i 0/26117: Order 3115/l.8 FN, i).

the cumµlative effect this behavior had on the ultimate compensatory damages award.

Accordingly, the only way to be .sure that no improper benefit was conferred is to retry the entire caseln the. event of a remand,

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