IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOHN H. GREGORY & PEGGY : No. 4:CV-04-2438

GREGORY, :

Plaintiffs : (Judge Jones)

:

v. : (Magistrate Judge Mannion)

:

TIMOTHY J. SEWELL & K.A.M. :

TRUCKING, INC., :

Defendants :

__________________________________________________________________

FRANK R. DAMIANO & : No. 4:CV-04-2439

GWENDOLYN DAMIANO, :

Plaintiffs :

:

v. :

:

TIMOTHY J. SEWELL & K.A.M. :

TRUCKING, INC., :

Defendants :

__________________________________________________________________

PORNCHAI JIEMJITPOLCHAI, : No. 4:CV-04-2440

Plaintiff :

:

v. :

:

TIMOTHY J. SEWELL & K.A.M. :

TRUCKING, INC., :

Defendants :

MEMORANDUM AND ORDER

September 18, 2006

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 Civil Action Nos. 04-2438, 04-2439, and 04-2440 arose from the same factual

transaction, the same Defendants defend each action, and the parties’ filings in each action are

common to all the actions, therefore, Magistrate Judge Mannion addressed the Defendants’

motions in a single Report and Recommendation. 

2

 Because the filings in each case are common to all of the cases, the Court cites them as

“Common Doc.” rather than cite separately to each case’s docket.

2

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

On August 23, 2006, Magistrate Judge Mannion issued a Report and

Recommendation (doc. 37) recommending that this Court deny in part and grant in

part Defendants Timothy J. Sewell (“Sewell”) and K.A.M. Trucking’s (“K.A.M.”)

motions for summary judgments for dismissal of the Plaintiffs’ punitive damages

claims.1

 Objections to the Report and Recommendation were received on

September 11, 2006. Accordingly, this matter is ripe for our review.

PROCEDURAL HISTORY:

The Plaintiffs commenced these actions on November 9, 2004 by filing their

complaints. (Common Doc. 12

). The three complaints raise seven counts for

which relief is sought, three of which are relevant to the instant motions. Count 4

of each of the complaints seeks punitive damages against Sewell. Count Five of

each of the complaints seeks punitive damages against K.A.M. Count Six of each

of the complaints seeks punitive damages on a theory of vicarious liability against

K.A.M. After waiving service in March 2005 (Common Docs. 5 & 6), the

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Defendants answered the complaints on August 19, 2005. (Common Doc. 13). 

This case was referred to Magistrate Judge Mannion for preliminary review.

On November 7, 2005, the Defendants filed the instant motions for summary

judgment on Counts 4, 5 and 6, with supporting briefs. (Common Doc. 16). The

Plaintiffs filed briefs in opposition and exhibits on December 2, 2005. (Common

Doc. 19). The Defendants filed reply briefs and exhibits on December 15, 2005. 

(Common Doc. 21). By leave of Magistrate Judge Mannion, the Plaintiffs filed

sur-reply briefs (Common Docs. 22, 23, 24, & 25) and the Defendants filed sursur-reply briefs. (Common Docs. 26, 27 & 29). Magistrate Judge Mannion issued

the Report and Recommendation on August 23, 2006, recommending this Court

deny summary judgment with respect to Counts Four and Six and grant summary

judgment with respect to Count Five, and accordingly dismiss Count Five of the

complaints.

FACTUAL BACKGROUND:

In the Report and Recommendation, Magistrate Judge Mannion summarizes

the intricate factual background supporting the instant actions based upon his

reading of the parties submissions. We find Magistrate Judge Mannion’s factual

summary to be accurate and exhaustive, and accordingly we shall reiterate it in this

Memorandum and Order.

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 Defendant Sewell was a trained driver with over thirty years professional experience

who was familiar with safe driving techniques, including provisions of Canadian and U.S. law

and Defendant K.A.M. Trucking’s driving manual and other safety training, and the dangers of

winter driving, including wet ice, black ice, and jack-knifing on slippery surfaces. (Common

Docs. 16 at Ex. E, 19 & 20 at Exs. E,O, & P).

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“ The accident underlying the actions occurred late on the night of March 2,

2003. Defendant Sewell, a tractor-trailer driver for Defendant K.A.M. Trucking,3

was heading south on Interstate 81 in Harford Township, Susquehanna County,

Pennsylvania. It had snowed off and on as Defendant Sewell drove from Ontario

to southern New York. By the time Defendant Sewell entered Pennsylvania, the

snow had stopped. Defendant Sewell believed that Interstate 81 was merely wet

and not icy, though the temperature was below freezing. He further believed that

the roadway had been salted. The Plaintiffs argue that the roadway was icy and

that Defendant Sewell should have been aware of the hazard. A salt truck salted

the right lane of the roadway at the point of the accident from which the actions

arose immediately prior to the accident. (Common Docs. 16 at Ex. C & 20 at Exs.

A, B, & N).

Plaintiff Jiemjitpolchai had been in an automobile accident on Intersate 81 in

Harford Township, and he and the operator of the other vehicle were parked facing

north on the verge of the southbound lanes of traffic. They sat in the other driver’s

car. Their hazard lights were flashing. Plaintiffs John H. Gregory and Frank R.

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Damiano, Pennsylvania State Police troopers, responded to the accident. The

troopers parked their patrol car, with its lights flashing, and investigated the

accident. From north to south, the cars were parked in the following order: the

troopers’ patrol car, Plaintiff Jiemjitpolchai’s car, and the other car. (Common

Docs. 1 & 21 at Ex. A).

Defendant Sewell approached the section of Interstate 81 where the

Plaintiffs were parked. Approximately one mile north of where the Plaintiffs were

parked, Defendant Sewell passed a motor vehicle accident that closed the right lane

of traffic and forced Defendant Sewell to pass into the left lane. Defendant Sewell

claims the accident was not indicative of hazardous weather conditions, and he

proceeded through the area at fifty miles per hour. The Plaintiffs claim that other

traffic at the accident scene was traveling at a much-reduced speed, from between

five and ten miles per hour or twenty and twenty-five miles per hour, indicating

that Defendant Sewell’s speed was excessive under the conditions. (Common

Docs. 1, 16 at Ex. C, 19, & 20 at Exs. A, B, D, J, & K).

According to the Plaintiffs, as Defendant Sewell neared the Plaintiffs, at a

point where the interstate curved downhill, he was driving in the left, or passing,

lane in excess of a safe speed in light of the weather and road conditions – between

fifty miles per hour according to witnesses and the Plaintiffs’ expert. The

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Plaintiffs argue that the roadway was slippery because of ice and Defendant Sewell

improperly applied both of his brakes in contravention of sound operating

principles because of the danger of jack-knifing. The Plaintiffs’ expert believes

that Defendant Sewell was driving recklessly indifferently at up to three times the

safe speed limit. According to the Defendants, Defendant Sewell was driving

approximately fifty miles per hour in the right lane around the curve when he

noticed the patrol car’s flashing lights. They claim other vehicles, including

tractor-trailers, passed Defendant Sewell. They further claim that, when Defendant

Sewell saw the patrol car’s lights, he moved into the passing lane and attempted to

slow down. (Common Docs. 1, 16 at Ex. C, 19, 20 at Exs. A, B, E, J & N, & 24). 

Apparently hitting black ice, Defendant Sewell’s tractor-trailer jack-knifed

and careened towards the verge, where the trailer collided with the patrol car, in

which sat the two troopers. The tractor-trailer began a chain reaction in which the

tractor-trailer and the patrol car continued forward to hit Plaintiff Jiemjitpolchai’s

car and then the other car, in which sat Plaintiff Jiemjitpolchai and the other driver. 

The three Plaintiffs were severely injured. The Plaintiffs claim that, after the

accident, Defendant Sewell pulled to the side of the highway south of the

Plaintiffs’ cars. According to them, a visual inspection of his tractor-trailer led

Defendant Sewell to suspect he had struck the police car, but he remained in his

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cab instead of offering assistance and denied hitting another vehicle to a

Pennsylvania Department of Transportation salt truck driver who approached him. 

According to Defendant Sewell, the driver told him to wait in his cab. (Common

Docs. 1, 16, 19, 20 at Exs. B, E, G, H, & I, & 29 at Ex. B).

The Plaintiffs contend that Defendant Sewell was driving negligently,

carelessly, and grossly recklessly. They argue that Defendant Sewell caused the

accident by ignoring several signs of dangerous road conditions, including a wet

and icy roadway, an accident north of the accident Defendant Sewell allegely

caused, salt trucks, weather-disabled and slow-driving vehicles, weather reports,

and a disregard for safe driving principles. (Common Docs. 1, 19, & 24). 

According to the state trooper who spoke to Defendant Sewell at the scene of the

accident, Defendant Sewell was cooperative, apparently sober, and ‘a gentleman.’

(Common Doc. 16 at Ex. D). Defendant Sewell was charged by the State Police

with and pled guilty to violating 75 Pa. Cons. Stat. Ann. § 3361 (driving at an

unsafe speed) and 75 Pa. Cons. Stat. Ann. § 3741 (driving carelessly), both

summary offenses. (Common Docs. 1, 16 & 20 at Exs. M & R).” (Rec. Doc. 37 at

3-7).

STANDARD OF REVIEW:

When objections are filed to a report of a magistrate judge, we make a de

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 We agree with Magistrate Judge Mannion’s undisputed application of Pennsylvania law

to the instant Motions pursuant to Erie R. Co. v. Tompkins, 304 U.S. 64 (1938).

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novo determination of those portions of the report or specified proposed findings or

recommendations made by the magistrate judge to which there are objections. See

United States v. Raddatz, 447 U.S. 667 (1980); see also 28 U.S.C. §636(b)(1);

Local Rule 72.3l. Furthermore, district judges have wide discretion as to how they

treat recommendations of a magistrate judge. See id. Indeed, in providing for a de

novo review determination rather than a de novo hearing, Congress intended to

permit whatever reliance a district judge, in the exercise of sound discretion,

chooses to place on a magistrate judge's proposed findings and recommendations. 

See id., see also Mathews v. Weber, 423 U.S. 261, 275 (1976); Goney v. Clark,

749 F.2d 5, 7 (3d Cir. 1984).

DISCUSSION:

In the instant Motions, the Defendants argue that the Plaintiffs are not

entitled to punitive damages as a matter of Pennsylvania law 4

 because the

Defendants’ conduct with respect to the accident was not outrageous by reason of

evil motive or reckless indifference, and that Defendant Sewell lacked a subjective

appreciation of the risk of harm. Defendants contend that the events were simply

an accident, and that Defendant Sewell’s conduct cannot support an award of

punitive damages. Further, Defendants argue that Defendant K.A.M. cannot be

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held vicariously liable for punitive damages because Defendant Sewell’s

predicative behavior was not outrageous and does not suffice under Pennsylvania’s

standard for the vicarious imposition of punitive damages.

In response, Plaintiffs contend that Defendant Sewell’s behavior was

outrageous and supports an award of punitive damages because Defendant Sewell

was aware of hazardous road conditions and disregarded them. Plaintiffs further

contend that Defendant K.A.M. is liable for punitive damages because its conduct

in allowing Defendant Sewell to drive for K.A.M. was outrageous. Finally,

Plaintiffs argue that Defendant K.A.M. is vicariously liable as Defendant Sewell’s

employer for Defendant Sewell’s allegedly outrageous conduct on the night of the

accident.

The Defendants specifically object to the Magistrate Judge’s report with

respect to two issues. First, the Defendants argue that Magistrate Judge Mannion

erred as a matter of law when he equated the standard for vicarious liability for

punitive damages with the standard of liability for direct punitive damages. 

Second, the Defendants argue that Magistrate Judge Mannion erred by concluding

that an issue of fact exists with regard to Defendant Sewell’s conduct and that a

reasonable jury could award Plaintiffs punitive damages based on Defendant

Sewell’s conduct. We shall address each of the Defendant’s objections in turn.

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A. Vicarious Liability Objection

Magistrate Judge Mannion recommended that this Court deny summary

judgment with respect to Count 6 in the complaints. Specifically, Magistrate Judge

Mannion concluded that the Court of Appeals for the Third Circuit has not

announced a higher standard for vicarious liability for punitive damages than exists

for direct liability for punitive damages. The Defendants object, arguing that both

the Pennsylvania Supreme Court and the Third Circuit have recognized that the

vicarious imposition of punitive damages must be judged under an even higher

standard than the already high standard of conduct reserved for direct punitive

damages claims.

Our reading of the relevant case law indicates that contrary to the

Defendants’ argument, Magistrate Judge Mannion’s holding was not in error, and

that vicarious imposition of punitive damages are not to be judged under a higher

standard than the already high standard of conduct reserved for direct punitive

damages claims.

In Skeels v. Universal C.I.T. Credit Corp., 335 F.2d 846 (3d Cir. 1964), the

Third Circuit explained that under Pennsylvania law, “a corporation is liable for

[punitive] damages for the act of its servant, done within the scope of his authority,

under circumstances which would give such a right to the plaintiff as against the

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servant.” Id. at 852. The Third Circuit went on to note that “recognizing the

harshness of this rule, the Supreme Court of Pennsylvania has warned that ‘too

great caution cannot be exercised in permitting the recovery of punitive damages

for the willful or reckless act of a servant not authorized or approved by the

master.’” Id. (citing Funk v. Kerbaugh, 222 Pa. 18, 19 (1908)). The Third Circuit

concluded its analysis of the issue by stating, “[t]he sum of the matter seems to be

that the conduct of the agent who inflicts the injury complained of must be rather

clearly outrageous to justify the vicarious imposition of exemplary damages upon

the principle.” Id. (citing Chambers v. Montgomery, 411 Pa. 339 (1963)).

The Defendants contend that the language of the Skeels opinion necessarily

implicates, and in fact creates, a higher standard for vicarious punitive damages

than that applied to claims of direct punitive damages. Magistrate Judge Mannion,

however, finds it apparent, as do we, that the Skeels opinion merely reiterates

Pennsylvania’s already high punitive damages standard. We cannot accept the

invitation of the Defendants to find the qualifying language of “rather clearly” as

applied to the phrase “outrageous conduct,” to create a second, higher threshold for

vicarious punitive liability. Accordingly, we will reject the Defendant’s objection

as to this portion of the Magistrate Judge’s Report and Recommendation.

B. Genuine Issue of Material Fact Objection

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The Defendants argue that there is no genuine issue of material fact as to

whether Defendant Sewell’s conduct meets the threshold for punitive damages,

alleging there is no evidence to indicate that Defendant Sewell was driving too fast

for the road conditions. We find this assertion to be plainly without merit. First, as

Magistrate Judge Mannion properly noted, an issue of fact remains as to whether

the weather was icy or merely wet such that Defendant Sewell must have

recognized the risk of black ice. Further, a genuine issue of material fact remains

as to whether Defendant Sewell was speeding excessively in light of the road

conditions and whether dangerous road conditions existed that ought to have

alerted Defendant Sewell to the risk of driving as he was. 

Magistrate Judge Mannion properly notes that under the summary judgment

standard, it is not the Court’s task to weigh the conflicting evidence, but rather to

determine whether the conflict presented by that evidence is genuine and material. 

The above-stated factual conflicts are all relative to the determination of whether

Defendant Sewell’s conduct was so outrageous as to support an award for direct or

vicarious punitive damages. Accordingly, we must reject the Defendants’

objections on this point and adopt the Magistrate Judge’s reasoning.

As stated, our review of this case and disposition of the Defendants’

objections confirms Magistrate Judge s Mannion’s determinations and wellCase 4:04-cv-02440-JEJ Document 40 Filed 09/19/06 Page 12 of 14
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 We agree with Magistrate Judge Mannion’s reasoning that Defendant K.A.M. cannot be

held directly liable for punitive damages. Pennsylvania law requires that in such a case a

defendant must have a conscious appreciation of the risk of harm he creates by outrageous

behavior. It is obvious that a defendant cannot consciously appreciate the risk of harm in a

situation at which it is not present and of whose risky conditions it is not immediately aware. 

There is no evidence that Defendant K.A.M. acted in any outrageous fashion, neither in

employing the admittedly experienced Defendant Sewell nor when it tasked him to travel on

Interstate 81 on March 2, 2003. Accordingly, the Defendants’ motion will be granted with

respect to Count Five.

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reasoned analysis. Accordingly, because we find no error in Magistrate Judge

Mannion’s Report and Recommendation, we will adopt it as our own for the

reasons cited herein.

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. The Report and Recommendation (doc. 37) is ADOPTED in its

entirety.

2. Defendant Sewell’s and Defendant K.A.M. Trucking’s Motions for

Summary Judgment (Civ. No. 04-2438 Doc. 16; Civ. No. 04-2439

Doc. 16; Civ. No. 04-2440 Doc. 16) are GRANTED in part AND

DENIED in part to the following extent:

a. DENIED with respect to Counts Four and Six;

b. GRANTED with respect to Count Five.5

3. Count Five of Plaintiffs Gregory’s, Damiano’s, and Jiemjitpolchai’s 

respective complaints are DISMISSED.

4. This case is REMANDED to Magistrate Judge Mannion for further

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pre-trial matters.

s/ John E. Jones III

John E. Jones III

United States District Judge

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