by Carl D. Buchholz, III
cbuchholz@rawle.com

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

Plaintiff John Keffer was involved in a motor vehicle collision on I-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 his tow truck 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 Rawle & Henderson’s 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 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 post-trial motions seeking a judgment notwithstanding the verdict or a new trial.  The trial court denied plaintiff’s post-trial motions 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 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 an “authorized vehicle” permitted to use the median opening 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 opinion 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.

Oral argument was held before a three-judge panel of the Superior Court on October 2, 2012.  On November 26, 2012 the Superior Court issued its opinion, affirming 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 errors regarding the State Police Trooper’s testimony, the Superior Court found that the trial court had correctly allowed the Trooper to testify regarding his actual observation of the crash debris made at the scene, and correctly excluded his opinion testimony regarding the cause of the accident.

Carl D. Buchholz, III is Chair of the Maritime, Insurance Coverage and Appellate Sections of Rawle & Henderson LLP. 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.