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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
ROBERT CASEY, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
XPEDX, XPEDX, VERITIV, VERITIV :
CORPORATION, FORD MOTOR :
COMPANY AND FORD :
:
Appellees : No. 3698 EDA 2018
Appeal from the Order Entered November 14, 2018
in the Court of Common Pleas of Philadelphia County
Civil Division at No(s): July Term, 2016 02028
BEFORE: GANTMAN, P.J.E., MURRAY, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED DECEMBER 17, 2019
Robert Casey appeals from the orders entered on November 14 and
15, 2018, in which the trial court granted summary judgment in favor of
Xpedx,1 Veritiv,2 and Ford Motor Company (collectively, Appellees) and
against him, and dismissed the case with prejudice. Upon review, we
reverse the orders of the trial court and remand for proceedings consistent
with this memorandum.
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1Casey has listed two separate addresses for Xpedx in his complaint. See
Amended Complaint, 9/6/2016, at 1.
2 Casey has listed two separate entities and two separate addresses for
Veritiv and Veritiv Corporation. See Amended Complaint, 9/6/2016, at 1. In
2014, Xpedx merged with another company, and the new entity became
Veritiv. Veritiv is a packaging distribution company.
* Retired Senior Judge assigned to the Superior Court.
J-S63032-19
We provide the following background. Casey was hired as a delivery
driver by Pacifico Ford in November 2013. One of his job responsibilities
included delivering auto parts. According to Casey, on July 29, 2014, he was
charged with delivering a Ford replacement hood3 to Rocco’s Collision in
Berlin, New Jersey. Casey typically loaded his delivery van himself, and then
would drive to the locations where parts were supposed to be delivered.
When he arrived at Rocco’s Collision, the shop manager met Casey at the
delivery van to sign for the hood. Casey believed the shop manager’s name
was John or Jerry and that he had an Italian-sounding last name. Deposition
of Robert Casey, 8/30/2017, at 30.
Casey stated that when he attempted to remove the hood from his
van, he “reached in for [the box with the hood] and the cardboard gave way.
[His] arm snapped back, [and his] head snapped back.” Id. at 31. Casey
indicated that “[t]he cardboard ripped” and his “hand came out of the
handle.” Id. at 39. Casey “heard a cracking sound in [his] neck and
[experienced] extreme pain in [his] elbow.” Id. Casey believed that the
shop manager completed the delivery,4 and Casey drove back to Pacifico
Ford to report the incident to his manager, Keith Reedell. Casey filled out an
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3Casey sets forth that the Ford model number for the replacement hood was
CT4Z-16612-A. Amended Complaint, 9/6/2016, at ¶ 9.
4 Casey did not know what happened to the box at issue and made no effort
to preserve it at the time of the incident.
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incident report and also spoke with another shop manager, Johnny
Castillano, about the incident. Casey was sent to Mercy Work Care for
treatment the same day. Casey was able to work for approximately three
weeks after the incident,5 but then had to cease working due to his injuries.
Casey required surgery on his elbow and neck due to this incident.
Casey was medically cleared to return to work as of April 2015, and although
he was offered a position at Pacifico Ford, he elected not to return to work.
On June 21, 2016, Casey filed a complaint against Appellees. He filed
an amended complaint on September 6, 2016, which included causes of
action for negligence, products liability, and breach of warranty. See
Amended Complaint, 9/6/2016.
On February 6, 2017, a case management order was issued that
required discovery to be completed by March 5, 2018, for Casey to submit
curricula vitae and expert reports by April 2, 2018, and for Appellees to
submit their curricula vitae and expert reports by May 7, 2018. Casey did
not file his expert reports until May 7, 2018. At that time, he submitted four
reports from previously undisclosed experts. Three of those reports were
from doctors and were related to Casey’s current and future medical needs.
The fourth report was from a packaging expert, Dr. Douglas C. Moyer (Moyer
Report). Dr. Moyer opined, inter alia, that it is his “opinion within a
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5On one of the occasions he was working, Casey took photographs of boxes
he believed to be similar to the box that caused his injury. Deposition of
Robert Casey, 8/30/2017, at 33. Those boxes were manufactured by Xpedx.
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reasonable degree of engineering certainty that the box which injured []
Casey was defective at the time it left [Appellees’] control.” Moyer Report,
4/19/2018, at 2.
Also on May 7, 2018, Appellees filed motions for summary judgment.
First, Appellees contended that summary judgment should be granted
because neither Pacifico Ford nor Rocco’s Collision has any records indicating
that a Ford replacement hood delivery was made on July 29, 2014. See
Motion for Summary Judgment (Xpedx and Veritiv), 5/7/2018, at ¶¶ 10-11;
Motion for Summary Judgment (Ford), 5/7/2018, at ¶¶ 15, 25. According to
Appellees, Casey’s “failure to provide any evidence other than his own
unsupported speculation regarding the box allegedly involved in this
incident alone warrants summary judgment.” Motion for Summary Judgment
(Ford), 5/7/2018, at ¶ 27; see also Motion for Summary Judgment (Xpedx
and Veritiv), 5/7/2018, at ¶¶ 65-66. Moreover, Appellees argued that Ford
ships replacement hoods with the aforementioned model number in its
PH056 boxes. It was Veritiv’s position that it does not manufacture PH056
boxes. Motion for Summary Judgment (Xpedx and Veritiv), 5/7/2018, at
¶ 8.
In addition, Appellees contended that Casey’s failure to produce
timely-filed expert reports required that the trial court grant summary
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judgment with respect to all claims.6 Further, Appellees argued that
summary judgment should be granted on the basis of spoliation, because
the actual box which purportedly injured Casey was not available for
inspection.
Casey responded that the fact that there was no invoice or other
evidence of a delivery from Pacifico Ford to Rocco’s Collision on July 29,
2014, “creates a genuine issue of material fact which must be decided by
the jury at the time of trial.” Casey’s Response to Motions for Summary
Judgment, 7/27/2018, at 2 (unnumbered). In addition, Casey contended
that it indeed filed expert reports, albeit late, but well prior to the scheduled
trial in this case.
By orders entered November 14, 2018 and November 15, 2018, the
trial court granted summary judgment in favor of Appellees and against
Casey. According to the trial court, Casey’s responses to the motions for
summary judgment “did not cite to any specific pages in [Casey’s]
deposition, and did not attach [Casey’s] deposition as an exhibit (although
Ford did).” Order (Ford), 11/14/2018, at 3; Order (Veritiv and Xpedx),
11/15/2018, at 3. “Similarly, [Casey’s] answer to the present summary
judgment motion failed to identify any specific pages in his deposition or
____________________________________________
6 In addition, on May 16, 2018, and May 18, 2018, Appellees filed motions to
strike Casey’s expert reports due to their late filing. Those motions were
referred to a different judge, who has not ruled on the motions. See Order
(Ford), 11/14/2018, at 3 n.3; Order (Veritiv and Xpedx), 11/15/2018, at 4
n.5.
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expert reports that supported his factual averments and general denials.
[Casey] had the duty to identify the precise pages in [his] deposition
testimony and in the expert reports that supported his claims.” Order (Ford),
11/14/2018, at 4; Order (Xpedx and Veritiv), 11/15/2018, at 4. Thus, the
trial court determined that Casey did not satisfy his burden and the entry of
summary judgment against him was proper.
Casey moved for reconsideration of both orders, arguing that due to a
clerical error, he neglected to attach accompanying memoranda to his
answers to summary judgment. Casey’s Motion for Reconsideration (Ford),
11/20/2018, at 1-2; Casey’s Motion for Reconsideration (Xpedx and Veritiv),
11/20/2018, at 1-2. The trial court denied the motions for reconsideration,
concluding that even after reviewing the attached memoranda, summary
judgment was still proper in this case because Casey failed to set forth
citations to the record in support of his arguments. Order (Ford),
11/30/2018; Order (Xpedx and Veritiv), 11/30/2018.
Casey timely filed a notice of appeal. The trial court did not order
Casey to file a concise statement of errors complained of on appeal pursuant
to Pa.R.A.P. 1925, but did file an opinion pursuant to Pa.R.A.P. 1925(a).
On appeal, Casey contends that the trial court erred in granting
summary judgment. It is his position that the trial court erred because it
failed to consider the documentation available to it, including both Casey’s
deposition and the Moyer Report. Casey’s Reply Brief at 2. In response,
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Appellees contend the trial court did not err in granting summary judgment
because Casey violated the rules of civil procedure by failing to supply facts
and citations to support his general denials of the claims made in their
motions. We review this issue mindful of the following.
Our standard of review of an order granting summary
judgment requires us to determine whether the trial court
abused its discretion or committed an error of law.
Judicial discretion requires action in conformity
with law on facts and circumstances before the trial
court after hearing and consideration. Consequently,
the court abuses its discretion if, in resolving the
issue for decision, it misapplies the law or exercises
its discretion in a manner lacking reason. Similarly,
the trial court abuses its discretion if it does not
follow legal procedure.
Miller v. Sacred Heart Hospital, 753 A.2d 829, 832 (Pa.
Super. 2000) (internal citations and quotation marks omitted).
Our scope of review is plenary. In reviewing a trial court’s grant
of summary judgment,
we apply the same standard as the trial court,
reviewing all the evidence of record to determine
whether there exists a genuine issue of material fact.
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. Only where there is no
genuine issue as to any material fact and it is clear
that the moving party is entitled to a judgment as a
matter of law will summary judgment be entered. All
doubts as to the existence of a genuine issue of a
material fact must be resolved against the moving
party.
Motions for summary judgment necessarily and
directly implicate the plaintiff’s proof of the elements
of [a] cause of action. Summary judgment is proper
if, after the completion of discovery relevant to the
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motion, including the production of expert reports,
an adverse party who will bear the burden of
proof at trial has failed to produce evidence of
facts essential to the cause of action or defense
which in a jury trial would require the issues to be
submitted to a jury. In other words, whenever there
is no genuine issue of any material fact as to a
necessary element of the cause of action or defense,
which could be established by additional discovery or
expert report and the moving party is entitled to
judgment as a matter of law, summary judgment is
appropriate. Thus, a record that supports summary
judgment either (1) shows the material facts are
undisputed or (2) contains insufficient evidence of
facts to make out a prima facie cause of action or
defense.
Upon appellate review, we are not bound by
the trial court’s conclusions of law, but may reach
our own conclusions.
Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 61 (Pa.
Super. 2006) (internal citations and quotation marks omitted)
(emphasis added).
Kardos v. Armstrong Pumps, Inc., __ A.3d __, 2019 WL 5540994, at *3–
4 (Pa. Super. 2019) (some citations omitted).
We begin by considering the aforementioned procedural dispute
between the parties. As the trial court pointed out, it granted summary
judgment not on the merits, but because Casey failed to comply with certain
rules of civil procedure. Specifically, the trial court rejected Casey’s claims
“because they were not supported by citations to pages in his deposition
that supported [Casey’s] factual averments. [Casey] never set forth the gist
of [his] testimony and [Casey] did not attach a copy of his deposition to his
answer.” Order (Ford), 11/30/2018; Order (Xpedx and Veritiv), 11/30/2018.
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The trial court further pointed out that Casey produced 60 pages of expert
reports, and referenced only the Moyer Report, but not specific pages of it,
in his response:
Both the Pennsylvania [] and Philadelphia Rules of Civil
Procedure [] are clear in what is required to respond properly to
the allegations presented in a motion for summary judgment.
The Pennsylvania rule states:
(a) Except as provided in subdivision (e) [not applicable to
this matter], the adverse party may not rest upon the
mere allegations of denials of the pleadings but must file a
response within thirty days after service of the motion
identifying
(1) one or more issues of fact arising from evidence
in the record controverting the evidence in support
of the motion or from a challenge to the credibility of
one or more of the witnesses testifying in support of
the motion, or
(2) evidence in the record establishing the facts
essential to the cause of action or defense which the
motion cites as not having been produced.
(b) An adverse party may supplement the record or set
forth the reasons why the party cannot present evidence
essential to justify opposition to the motion and any action
proposed to be taken by the party to present such
evidence.
Note: Procedural requirements with respect to argument
and briefs are governed by local rule.
Pa.R.C.P. 1035.3(a)(1), (2).
Additionally, the Note to Pa.R.C.P. 1035.2 states: “Rule
239.7 requires every court to promulgate Local Rule 1035.2(a)
describing the local court procedure governing motions for
summary judgment.”
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The Philadelphia Rules of Civil Procedure have similar
substantive requirements but also direct the respondent as to
the proper form of response. The Philadelphia Rule states, in
relevant part:
Response to Motion for Summary Judgment.
The adverse party or parties must file a response to
the motion for summary judgment within thirty (30)
days of the service of the motion, as provided by
Pa.R.C.P. 1035.3. The response to the motion shall
be divided into paragraphs, numbered consecutively,
corresponding to the numbered paragraphs of the
motion for summary judgment. The response shall
state whether each of the allegation is admitted or
denied. No general denial is acceptable. The factual
reasons for the denial or dispute must be specifically
stated and the “record,” (as that term is defined in
Pa.R.C.P. 1035.1) supporting the denial or dispute
must be attached as an exhibit. A response may also
include additional allegations demonstrating any
genuine issue of material fact, in which event the
responding party must reference and attach a copy
of the “record,” (as that term is defined in Pa.R.C.P.
1035.1) which demonstrates the existence of a
genuine issue of material fact.
Phila.Civ.R. 1035.2(a)(4).
The rules of civil procedure require both movant and
respondent to supply specific citation to the record to
support averments.
Welsh v. Nat’l R.R. Passenger Corp., 154 A.3d 386, 392-93 (Pa. Super.
2017) (emphasis added).
We recognize that pursuant to the aforementioned rules, Casey indeed
should have cited to, and even quoted from, specific pages in his deposition
and the Moyer Report. However, we point out that the Moyer Report
consists of only ten double-spaced pages. It was somewhat overreaching of
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the trial court to point out that Casey filed 60 pages of expert reports, when
the only report relevant to the summary judgment motion was the ten-page
Moyer Report. Moreover, the gist of Casey’s claim is clear from the
complaint and a cursory review of the deposition testimony. Casey’s
position was simple to discern – he believes he was injured when a
cardboard box manufactured by Xpedx, which contained a Ford product,
malfunctioned. The trial court did not need to scour the entire deposition to
understand those facts, and in fact, the trial court was required to consider
all facts of record before making its decision. See Estate of Agnew v.
Ross, 152 A.3d 247 (Pa. 2017) (“When considering a motion for summary
judgment, the trial court must take all facts of record and reasonable
inferences therefrom in a light most favorable to the non-moving party.”)
(emphasis added). Accordingly, we conclude that despite Casey’s failure to
cite to specific pages of his deposition and the Moyer Report, because those
facts were available in the record, the trial court erred in granting summary
judgment on this basis alone.
Appellees also argue that even had the trial court considered all facts
of record, summary judgment would still have been proper. See Ford’s Brief
at 16-21, 23-27 (arguing that Casey did not set forth sufficient evidence to
identify the allegedly defective box which is fatal to all claims); id. at 21-23
(arguing that Casey did not present expert testimony); id. at 27-29 (arguing
that Casey did not establish that a warning would have caused Casey to act
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differently, which is fatal to his failure to warn claim); see also Brief of
Xpedx and Veritiv at 18-19 (arguing that Casey failed to present evidence
that he actually delivered a Ford replacement part in a Veritiv box on July
29, 2014); id. at 24-27 (arguing that the Moyer Report is conclusory and
inadequate); id. at 27-28 (arguing that Ford, not Veritiv, designed the
defective box).
“On summary judgment, as our governing standard makes clear, all
doubts are to be resolved in favor of the non-moving party.” K.H. ex rel.
H.S. v. Kumar, 122 A.3d 1080, 1109-10 (Pa. Super. 2015). Here, while
Appellees present arguments as to why Casey’s case and the Moyer Report
are weak or should not be believed, we must resolve all doubts in favor of
Casey as the non-moving party. A jury could believe Casey’s testimony, as
set forth in his deposition, that he delivered a Ford replacement hood in a
box with the name Xpedx on it, which malfunctioned and caused his injuries.
A jury could also credit the Moyer Report, which sets forth that the box was
defective and did not meet industry standards. This testimony creates
genuine issues of material fact, which must be resolved by a jury, and
preclude summary judgment.7
Orders reversed. Case remanded. Jurisdiction relinquished.
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7 We recognize that much of Appellees’ argument hinges on the fact that
Casey’s expert reports were filed late. That issue has not yet been resolved
by the trial court, and we will not consider it at this juncture. Our standard
of review requires us to examine the evidence of record; and those late-filed
expert reports are indeed evidence of record at this time.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/17/19
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