J-A28005-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DAWN GILLEY IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
ALYSA WOLOSZYN
Appellee No. 437 EDA 2016
Appeal from the Judgment Entered January 27, 2016
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): May Term, 2014 1405-02943
BEFORE: PANELLA, J., SHOGAN, J., and PLATT, J.
DISSENTING MEMORANDUM BY PANELLA, J. FILED MARCH 29, 2017
I respectfully dissent from my esteemed colleagues in the Majority.
Gilley claims she is entitled to JNOV as there was no evidence presented at
trial to establish that she was contributorily negligent. After reviewing the
testimony presented at trial—in the light most favorable to the verdict
winner, Woloszyn—I am constrained to agree. The jury engaged in pure
speculation to find Gilley 60% liable for the accident. Accordingly, I would
reverse the judgment, enter judgment on liability in favor of Gilley, and
remand for a new trial on damages. My reasoning follows.
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Retired Senior Judge assigned to the Superior Court.
J-A28005-16
Contributory negligence is an affirmative defense that Woloszyn had
the burden to prove. See, e.g., Smith v. Port Authority Transit, 390 A.2d
249, 251 (Pa. Super. 1978).
There was conflicting testimony presented at trial about the accident
and its location. Gilley testified that she had gotten off I-76 West at the exit
for City Avenue. See R.R. at 102a.1 At the end of the ramp, she stopped at a
red light and was then rear-ended by Woloszyn. See id. The jury obviously
disbelieved Gilley’s version of events. And I must accept Woloszyn’s version
of the accident as true.
Woloszyn testified that she too got off at the exit for City Avenue from
I-76 and turned right at the light. See id., at 77a. This is the same traffic
light where Gilley testified she stopped and where she claims the accident
occurred. Woloszyn then drove down City Avenue towards the cross street
Presidential Boulevard. See id. The far right lane on City Avenue is a merge
lane for Presidential Boulevard. There is a traffic light at the intersection of
City Avenue and Presidential Boulevard. But to drive on Presidential
Boulevard from City Avenue a driver does not go through the intersection.
Rather, the driver stays in that far right hand lane and enters the merge
lane onto Presidential Boulevard. There is a yield sign at the merge.
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1
The notes of testimony are in the certified record. I utilize citations to the
reproduced record solely for ease of reference.
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Woloszyn testified that she “was rounding a corner, and Ms. Gilley’s
car was stopped in a street that had a yield sign where there was no cars in
front of her, so I’m not sure why she was stopped.” Id., at 82a. She
“agree[d] to bumping [Gilley’s] car,” but did “not know why she was stopped
in the middle of the street with no cars in front of her.” Id., at 83a. She
continued, “I’m in the fault [sic] for bumping her car while her car was
stopped on the street with no one in front of her on a yield street where
there is no light on that lane. I don’t know why she stopped there.” Id., at
84a.
The key to the resolution of this appeal is Woloszyn’s testimony that
Gilley’s “car was stopped in a street that had a yield sign where there was
no cars in front of her, so I’m not sure why she was stopped.” That there
were no cars in front of Gilley’s car is of no significance. Under Woloszyn’s
version of the accident, which I accept as true, Gilley was in a merge lane
with a yield sign. It was not the absence of cars in front of her that were
necessarily the issue, but the cars coming across the intersection—the cars
coming across City Avenue on Presidential Avenue. “The driver of a vehicle
approaching a yield sign shall in obedience to the sign slow down to a speed
reasonable for the existing conditions and, if required for safety to stop….”
75 Pa.C.S.A. § 3323. Stop signs and yield signs.
Woloszyn presented no evidence at all as to traffic coming across
Presidential Boulevard. As she said, “I’m not sure why she was stopped.” It
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was pure speculation on the jury’s part to attribute, as they surely did, this
stop to an improper purpose constituting negligence in the absence of any
evidence whatsoever.
The trial court, writing in support of its denial of JNOV, notes that
“[t]he jury was free to rely on the credibility of one witness over another to
determine … whether Plaintiff was stopped in traffic when she should have
been moving.” Trial Court Opinion, filed 5/4/16 at 7. When the jury is
equipped with adequate evidence this is undoubtedly true. But here there is
a complete absence of such evidence—“I’m not sure why she was stopped.”
The jury was not free to engage in pure speculation and conjecture to
fashion a reason and then attribute negligence, especially in light of 75
Pa.C.S.A. § 3323.
The trial court and Woloszyn also rely on the fact that Gilley was using
a cellular phone at the time of the accident. Gilley testified that she was not
on the phone at the time of the accident and that, in any event, she used a
hands-free cellular phone. See R.R. at 104a, 106a, and 108a. Cellular phone
records indicate that Gilley was on the phone from 10:01 am until 10:03 am.
See id., at 249a-251a. She called 911 at 10:04 am, which was “less than a
minute” after the accident. Id., at 103a.
It appears the jury disbelieved Gilley’s claim that she did not use her
cellular phone during the accident. But there is no evidence from which the
jury could find that use of the phone was negligent. This, like the jury’s
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other finding, was pure speculation and conjecture.2 Mere use of the cellular
phone, without more, cannot establish negligence. Here, there was no
evidence of, for example, erratic driving. And there was no plausible
evidence offered to her being unreasonably stopped in the road.
Woloszyn bore the burden to establish the affirmative defense of
contributory negligence. All she did was to establish that an accident took
place—one in which she rear-ended the other vehicle. “Negligence is not
shown by circumstances that are merely consistent with its existence.” Kolb
v. Hess, 323 A.2d 217, 220 (Pa. Super. 1974).
There is no legal foundation for the jury’s finding of contributory
negligence. Accordingly, I would reverse the judgment, enter judgment on
liability in favor of Gilley, and remand for a new trial on damages.3
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2
Texting while driving is a violation of the vehicle code, but speaking on a
hand held cellular phone while driving is not. See 75 Pa.C.S.A. § 3316(a).
3
My disposition makes it unnecessary to reach Gilley’s other issue presented
on appeal. See Appellant’s Brief, at 5.
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