J-A29007-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

*Retired Senior Judge assigned to the Superior Court.

SANDRA D. HARVEY, PLENARY GUARDIAN 

OF THE PERSON AND OF THE ESTATE OF 

DENNIS J. HARVEY AND MARGARET 

HORNER, THE ADMINISTRATRIX OF THE 

ESTATE OF SHANNON M. HANRIGHT, 

DECEASED AND MICHELE HAZEL, 

INDIVIDUALLY, AND AS CUSTODIAN OF 

HER MINOR CHILDREN, BRETT 

STEBBING, AND GEORGE STEBBING,

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

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v. :

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GREGORY M. PALUMBO, ADMINISTRATOR 

OF THE ESTATE OF MICHAEL HANRIGHT, 

DECEASED AND CON-WAY FREIGHT, INC. 

AND CON-WAY TRANSPORTATION 

SERVICES, INC.,

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APPEAL OF: SANDRA D. HARVEY, 

MARGARET HORNER, AND MICHELE 

HAZEL

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: No. 278 WDA 2014

Appeal from the Order January 28, 2014,

Court of Common Pleas, Clearfield County,

Civil Division at No. 2009-948-CD

BEFORE: DONOHUE, ALLEN and STRASSBURGER*, JJ.

MEMORANDUM BY DONOHUE, J.: FILED FEBRUARY 20, 2015

Appellants, Sandra D. Harvey, plenary guardian of the person and of 

the estate of Dennis J. Harvey, Margaret Horner, the administratrix of the 

estate of Shannon M. Hanright, deceased, and Michele Hazel, individually, 

and as custodian of her minor children, Brett Stebbing and George Stebbing, 

(hereinafter, Sandra Harvey, Margaret Horner, and Michele Hazel will be 
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referred to collectively as “Appellants”), appeal from the trial court’s order 

granting summary judgment in favor of Con-Way Freight, Inc. and Con-Way 

Transportation Services, Inc. (together, “Con-Way”). For the reasons that 

follow, we conclude that issues of material fact remain for resolution by a 

jury, and thus we reverse the trial court’s order and remand the case for 

trial. 

The parties here do not dispute the factual background giving rise to 

this action, which the trial court summarized as follows: 

This negligence action arises out of a tragic 

automobile accident that occurred on June 9, 2008 

on Pennsylvania U.S. Route 322 in Bradford 

Township, Clearfield County, Pennsylvania. 

[Appellants] allege that [Michael Hanright 

(“Hanright”)] was driving a 1991 Oldsmobile Cutlass 

Supreme in which Michele Hazel, Shannon Hanright,

Dennis Harvey, Brett Stebbing, and George Stebbing 

were passengers. [Hanright] was driving behind a 

truck-tractor combination, being owned by Con-Way 

and driven by Stanley Hale [(“Hale”)], in the 

eastbound lanes of U.S. 322. The portion of the road 

on which the vehicles were travelling is a two-lane 

highway with a double yellow line designating that 

segment as a no-passing zone. There is no question 

that [Hanright[1]] was not driving in a legal manner.

As [Hanright] approached a right-hand turning lane, 

at the intersection of Tipple Lane, he attempted to 

pass the truck driven by [Hale] by using the turning 

 

1

 In its opinion, the trial court here stated that “There is no question that 

Mr. Hale was not driving in a legal manner.” Trial Court Opinion, 

12/17/2013, at 2 (emphasis added). We have substituted Hanright’s name 

here to correct what we consider to be a simple mistake by the trial court. 

There is no question that Hanright was driving illegally at the time of the 

accident, and Appellants have not, conversely, alleged that Hale violated any 

traffic laws. 
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lane. [Hanright] ignored two ‘Right Lane Must Turn 

Right’ signs at the beginning and end of the lane and 

a purported warning from one of the passengers that 

the turn-off was not a passing lane. [Appellants] 

assert that said signage could not be seen due to 

vegetation covering the warning. With the turning 

lane being short in duration, and [Hanright] running 

short of time and distance to pass the truck, 

[Hanright] drove with his driver side tires on the 

berm of the road in an effort to pass the truck driver. 

[Hanright’s] car continued traveling along the gravel 

berm and grassy embankment beside the Hale truck. 

As the Hanright car attempted to reenter the 

eastbound lane it was struck by the truck driven by 

[Hale]. Hanright’s car was propelled into oncoming 

traffic and collided with a Mack dump truck traveling 

in the opposite direction. As a result of the collision, 

Shannon Hanright and Dennis Harvey were ejected 

from the automobile. [Shannon Hanright] 

subsequently passed away due to her infirmities.[2] 

[The other passengers] also sustained permanent 

and grave injuries in the accident.

This litigation commenced on May 13, 2009, with 

[Appellants] filing a Writ of Summons. The action 

was brought on behalf of all persons who were 

passengers in the automobile driven by Hanright. A 

Complaint was subsequently filed on August 9, 2009. 

[Appellants] have alleged in their Complaint that the 

injuries suffered by Dennis Harvey, Michele Hazel, 

Brett Stebbing, and George Stebbing, as well as the 

death of Shannon Hanright, were the direct and 

proximate result of the combined negligence of 

Hanright and Con-Way. Con-Way later filed an 

Answer, New Matter, and Cross-claim on October 30, 

2009. An Amended Answer, New Matter, and CrossClaim were later filed by Con-Way on December 2, 

2009.

Con-Way filed a Motion for Summary Judgment on 

October 30, 2013, seeking to dismiss [Appellants’] 

claims in their entirety against Con-Way. The [trial 

 

2

 Hanright died of a self-inflicted gunshot wound later in the day.
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court] entertained oral arguments on the [m]otion 

on December 11, 2013. Con-Way contends that 

summary judgment is proper, because [Appellants] 

have failed to offer any evidence on which a jury 

could conclude that the driver of the Con-Way truck 

was negligent or that any of his actions proximately 

caused the accident at issue. [Appellants] aver that 

Hale was negligent for failing to see Hanright passing 

him on the right, and, if, in fact, he really did fail to 

see Hanright when was beside the Con-Way truck, 

once he did see him, he neglected, failed or refused 

to allow Hanright re-entry to the traveled portion of 

the roadway, causing Hanright to lose control, and 

enter the westbound lane of travel.

Trial Court Opinion, 12/17/2013, at 1-3 (footnotes omitted).

In an opinion and order dated December 17, 2013, the trial court 

granted Con-Way’s motion for summary judgment. In addressing whether 

Appellants had presented any evidence to create a material issue of fact 

regarding Hale’s negligence as a proximate cause of the accident, the trial 

court focused on a series of older cases, including Mulheim v. Brown, 185 

A. 304 (Pa. 1934) and Smith v. Port Authority Transit, 390 A.2d 249 (Pa. 

Super. 1978), for the proposition that “one is not bound to anticipate 

another’s negligence.” Mulheim, 185 A. at 305; Smith, 390 A.2d at 252. 

Based upon this principle, the trial court ruled as follows:

In applying the principles enunciated in Mulheim and 

Smith to the case at bar, it is obvious that ConWay’s driver had no duty under the circumstances. 

There is no contention that he was not acting in a 

lawful manner when driving his truck. The [trial 

court] would be imposing an onerous duty upon the 

truck driver to look in his mirrors at every few 

seconds no matter what the surrounding 

circumstances.5 Even if the driver had gazed into his 
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mirrors, he would not be required to come to the 

conclusion that [Hanright] was trying to pass him. It 

would be reasonable to deduce that if Hale saw 

Hanright in his mirrors that Hanright was probably 

turning right since he was in a turning lane that was 

clearly marked as such. It would also be a logical 

conclusion to believe that [Hanright] would have 

reduced his speed when he realized that he could not 

pass Hale’s truck or stopped when he saw there was 

not enough space to successfully do so.

5

[Appellants] proffered expert testimony on this 

issue. According to said expert, Mr. Guntharp, a 

driver in [Hale’s] position should have been looking 

in his mirrors every five (5) to eight (8) seconds.

Trial Court Opinion, 12/17/2013, at 7-8. On January 28, 2014, the trial 

court granted Appellants’ motion pursuant to Rule 341(c) of the 

Pennsylvania Rules of Appellate Procedure, ruling that an immediate appeal 

of its grant of summary judgment in favor of Con-Way would facilitate 

resolution of the entire case.

On appeal, Appellants present two issues for our review and 

determination:

1. Whether the [trial court] erred in granting 

[s]ummary [j]udgment in favor of [Con-Way], 

finding that no negligence could be found on the part 

of the Con-Way driver and that the jury could not be 

permitted to find a verdict for [Appellants].

2. Whether the [trial court] erred in disregarding the 

expert report of Walther Guntharp, which concluded 

that [Hale] was negligent.
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Appellants’ Brief at 4. As these issues are interrelated, we will review them 

together.

Our standard of review with respect to a trial court’s decision to grant 

or deny a motion for summary judgment is as follows:

A reviewing court may disturb the order of the trial 

court only where it is established that the court 

committed an error of law or abused its discretion. 

As with all questions of law, our review is plenary.

In evaluating the trial court’s decision to enter 

summary judgment, we focus on the legal standard 

articulated in the summary judgment rule. Pa.R.C.P. 

1035.2. The rule states that where there is no 

genuine issue of material fact and the moving party 

is entitled to relief as a matter of law, summary 

judgment may be entered. Where the non-moving 

party bears the burden of proof on an issue, he may 

not merely rely on his pleadings or answers in order 

to survive summary judgment. Failure of a non[-

]moving party to adduce sufficient evidence on an 

issue essential to his case and on which it bears the 

burden of proof establishes the entitlement of the 

moving party to judgment as a matter of law. 

Lastly, we will 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.

JP Morgan Chase Bank, N.A. v. Murray, 63 A.3d 1258, 1261–62 (Pa. 

Super. 2013) (quoting Murphy v. Duquesne Univ. of the Holy Ghost, 

777 A.2d 418, 429 (Pa. 2001)).

The requisite elements of a negligence action include a duty or 

obligation recognized by the law, requiring the actor to conform to a certain 

standard of conduct; a failure to conform to the standard required; a causal 
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connection between the conduct and the resulting injury; and the actual loss 

or damage resulting to the interest of another. Matthews v. Konieczny, 

527 A.2d 508, 511-12 (Pa. 1987) (quoting Morena v. South Hills Health 

System, 462 A.2d 680, 684 n.5 (Pa. 1983)). The issue in this case centers 

on the first two elements, whether the law imposed a duty under the 

circumstances presented and, if so, whether Con-Way’s driver breached that 

duty.

In concluding that Con-Way had no duty in this case, the trial court 

relied on a series of older cases, including Mulheim v. Brown, 185 A. 304 

(Pa. 1943) and Smith v. Port Authority Transit, 390 A.2d 249 (Pa. Super. 

1978). In these cases, Pennsylvania appellate courts held that a motorist 

cannot be negligent (or contributorily negligent) for a failure to anticipate 

the negligence of another motorist. Mulheim, 185 A. at 305; Smith, 390 

A.2d at 251. In Mulheim, our Supreme Court concluded that a driver was 

not negligent for failing to anticipate that a vehicle approaching from the 

opposite direction would suddenly make a U-turn into his path. Mulheim, 

185 A. at 305. In Smith, this Court found no evidence of contributory 

negligence when a driver failed to anticipate that a bus would suddenly 

move into his lane of traffic without giving him any warning via turn signal 

or horn. Smith, 390 A.2d at 250. Based upon Mulheim and Smith, the 

trial court ruled that Con-Way’s driver had no duty to look in his passenger-
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side mirrors to detect the presence of Hanright attempting to pass him on 

the right. Trial Court Opinion, 12/17/2013, at 7-8. 

On appeal, however, Appellants contend that Mulheim and Smith

have no application, as the issue is instead whether Con-Way’s driver, 

irrespective of any obligation to anticipate the negligence of 

another, violated the standard of care he owed to other motorists. In this 

regard, we note that in another 1943 case our Supreme Court distinguished 

Mulheim by holding that the negligence of another driver “does not, of 

course, excuse this defendant’s negligence.” Sudol v. Gorga, 31 A.2d 119, 

120 (Pa. 1943). And in Smith, after finding no evidence to support a finding 

that the plaintiff could be contributorily negligence, we reminded that “if 

there [were] any evidence upon the consideration of which reasonable 

minded individuals might disagree as to whether or not the plaintiff was 

guilty of negligence which contributed to the accident, then the question of 

such contributory negligence [would be] for the jury, not the court, to 

determine.” Smith, 390 A.2d at 251.

To establish a breach of the standard of care by Con-Way’s driver, in 

response to the motion for summary judgment Appellants submitted an 

expert report from Walter A. Guntharp (“Guntharp”) of Guntharp & 

Associates. In his expert report, Guntharp contends that operators of large 

trucks like the one being driven by Hale have limitations on their 

maneuverability, and that as a result truck drivers, unlike car drivers, must 
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constantly scan all of the mirrors on their truck to be “constantly aware of 

their surroundings.” Reply to Motion for Summary Judgment, 11/27/2013, 

Exhibit C at 5. According to Guntharp, truck drivers are trained to “keep 

your eyes moving,” “get the big picture,” and always be alert to avoid 

potential collisions. Id. To this end, truck drivers are trained to check their 

mirrors in a continuous manner every 3-5

3

or 5-8

4

seconds. Guntharp also 

cites to a report from the Spectrum Consultant Group, which estimated that 

Hanright’s vehicle would have been in the process of passing Hale for a total 

of 14.7 seconds, including 7.1 seconds before the intersection with Tipple 

Lane and 7.6 seconds after the intersection to the time of impact. Motion for 

Summary Judgment, 10/30/2013, Exhibit I at 9. From these calculations, 

Guntharp opined as follows:

A proper mirror scan would have allowed Mr. Hale to 

observe the passing car before it reached the end of 

the turning lane. Given the speed of the car, Mr. 

Hale would have been able to determine that it did 

not intend to turn and recognize that the car would 

run out of room before it could pass his truck. At 

that point, a reasonable [] prudent driver would have 

applied his brakes and assisted Mr. Hanright in safely 

completing the pass. If Mr. Hale had checked his 

mirrors after the turn into Tipple Lane, he could have 

clearly recognized that Mr. Hanright was in trouble 

and applied his brakes at that time. Had he seen 

[Hanright’s vehicle] at either point and applied the 

 

3 Guntharp’s report cites two sources for this requirement, the National 

Safety Council’s Defensive Driving Court – Professional Truck Driver, and the 

Commercial Driver’s License Manual. Id. 

4

 The Smith System, through which (according to Guntharp) Hale 

acknowledged he received training. Id.
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braking necessary to assist Mr. Hanright, there 

would have been time and space for the car to 

recover its proper lane of travel.

Id. at 6-7.

The trial court acknowledged that its decision conflicted with 

Guntharp’s opinions. Trial Court Opinion, 12/17/2013, at 6 n.4. In 

particular, the trial court’s determination that Hale had no obligation to 

check his passenger-side mirrors in the circumstances presented is directly 

at odds with Guntharp’s opinion that truck drivers must do so at all times 

(given their relative inability to brake, swerve, or accelerate in the same 

manner as an automobile). Significantly, the trial court’s conclusion here 

arguably even conflicts with the opinion of Con-Way’s own expert witness, 

Brooks Rugemer (“Rugemer”). According to Rugemer, “Hale didn’t have to 

focus as much on his right hand mirrors because there was not a lane to his 

right for traffic to approach.” Motion for Summary Judgment, 10/31/2013, 

Exhibit G at 4 (emphasis added). In addition, the trial court’s finding that 

even if Hale had checked his mirrors and had seen Hanright’s car he could 

have reasonably assumed that Hanright was turning right onto Tipple Lane is 

also directly contrary to Guntharp’s opinion that given the speed of 

Hanright’s car he was not turning right but rather was attempting to pass on 

the right. Reply to Motion for Summary Judgment, 11/27/2013, Exhibit C at 

6-7. 
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In our view, the trial court’s disregard of Guntharp’s expert opinions in 

deciding Con-Way’s motion for summary judgment was error. While the 

standard of care for motorists is to exercise the ordinary care required in the 

circumstances presented, see, e.g., Fredericks v. Castora, 360 A.2d 696, 

698 (Pa. Super. 1976), “[e]xpert testimony becomes necessary when the 

subject matter of the inquiry is one involving special skills and training not 

common to the ordinary lay person.”5 See, e.g., Storm v. Golden, 538 

A.2d 61, 64 (Pa. Super. 1988). This Court has held that this principle 

applies to truck drivers, since the skills and training required to operate a 

 

5

 The learned Dissent’s overreliance on the Fredericks case is misplaced 

for at least two reasons. First, the issue in Fredericks was whether the two 

defendant truck drivers should have been held to a higher standard of care 

because they had more than twenty years of experience driving large trucks. 

Fredericks, 360 A.2d at 698 (“[R]eference is made to the evidence that 

both defendants were professionals who drove trucks for a living and had 

done so for over 20 years.”). This Court concluded that that the truck 

drivers’ level of experience was not a relevant consideration, concluding that 

a “requirement that experienced truck drivers be subject to a higher 

standard of care does not impress us as being a useful concept to infuse into 

the law of vehicle negligence.” Id. In the present case, Hale’s level of 

experience (or lack thereof) is entirely irrelevant to the determination of the 

appropriate standard of care to be applied in this instance.

Second, to the extent that Fredericks can be read to stand for the 

proposition that the standard of care for truck drivers is identical in every 

respect to that of all other drivers of motor vehicles, it has been implicitly 

overruled by subsequent decisions of this Court. As set forth in the text, 

expert testimony regarding the standard of care is important when the 

profession at issue involves special skills and training, and this Court has 

identified the driving of large trucks as one such profession since the skills 

and training required to operate a large truck are beyond the common 

knowledge of lay persons. See Storm, 538 A.2d at 64; Christiansen, 667 

A.2d at 404.
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large truck6are beyond the common knowledge of lay persons. 

Christiansen v. Silfies, 667 A.2d 396, 404 (Pa. Super. 1995) (“[I]t would 

have been proper to have a qualified expert describe what the applicable 

standard of care was [for truck drivers].”); see generally Brandon v. 

Ryder Truck Rental, Inc., 34 A.3d 104, 108-09 (Pa. Super. 2011); Powell 

v. Risser, 99 A.2d 454, 456 (Pa. 1953) (“[E]xpert testimony is necessary to 

establish negligent practice in any profession.”). 

Recently, in Thompson v. Ginkel, 95 A.3d 900 (Pa. Super. 2014), 

this Court reiterated the following standard of review regarding consideration 

of expert testimony when deciding a motion for summary judgment:

It has long been Pennsylvania law that, while 

conclusions recorded by experts may be disputed, 

the credibility and weight attributed to those 

conclusions are not proper considerations at 

summary judgment; rather, such determinations 

reside in the sole province of the trier of fact, here, a 

jury. Miller v. Brass Rail Tavern, Inc., 664 A.2d 

525, 528 (Pa. 1995); In re Estate of Hunter, 205 

A.2d 97, 102 (Pa. 1964) (“The credibility of 

witnesses, professional or lay, and the weight to be 

given to their testimony is strictly within the proper 

province of the trier of fact.’”. Accordingly, trial 

judges are required “to pay deference to the 

conclusions of those who are in the best position to

evaluate the merits of scientific theory and technique 

when ruling on the admissibility of scientific proof.” 

Grady v. Frito–Lay, Inc., 839 A.2d 1038, 1045 

(Pa. 2003) (citing Frye v. United States, 293 F. 

1013 (D.C. Cir. 1923)).

 

6

 The truck being operated by Hale in this case was approximately 67 feet in 

length.
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At the summary judgment stage, a trial court is 

required to take all facts of record, and all 

reasonable inferences therefrom, in a light most 

favorable to the non-moving party. Toy v. Metro. 

Life Ins. Co., 928 A.2d 186, 195 (Pa. 2007). This 

clearly includes expert testimony and reports 

submitted by the nonmoving party or provided 

during discovery; and, so long as the conclusions 

contained within those reports are sufficiently 

supported, the trial judge cannot sua sponte assail 

them in an order and opinion granting summary 

judgment. Contrarily, the trial judge must defer to 

those conclusions, see Grady, Frye; and should 

those conclusions be disputed, resolution of that 

dispute must be left to the trier of fact. Miller, 664 

A.2d at 528.

Id. at 905-06 (quoting Summers v. Certainteed Corp., 997 A.2d 1152, 

1161 (Pa. 2010)). 

It has been said that bad facts make bad law, and given the extremely 

reckless nature of Hanright’s driving, this case may appear to be an example 

of that principle. Guntharp’s expert report, however, when viewed in the 

light most favorable to the Appellants as the non-moving parties, creates 

issues of material fact for the jury to decide, including Hale’s standard of 

care under the unique circumstances presented here and whether he 

breached this standard of care. Because genuine issues of material fact 

remain for a jury’s determination, we must reverse the trial court's grant of 

summary judgment and remand the case for trial. 

Order reversed. Case remanded for trial. Jurisdiction relinquished.

Allen, J. joins the Memorandum.

Strassburger, J. files a Dissenting Memorandum.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/20/2015