McClintock v. Works

716 A.2d 1262, 1998 Pa. Super. LEXIS 1582
CourtSuperior Court of Pennsylvania
DecidedJuly 29, 1998
StatusPublished
Cited by18 cases

This text of 716 A.2d 1262 (McClintock v. Works) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McClintock v. Works, 716 A.2d 1262, 1998 Pa. Super. LEXIS 1582 (Pa. Ct. App. 1998).

Opinions

TAMILIA, Judge:

Appellants, Gladys McClintock and the Estate of Robert D. McClintock, appeal from the judgment entered on October 1, 1997, following a trial in which the jury found no negligence on the part of appellees, Bernard Works, Jr., t/d/b/a “Works Towing Service” and Bernard Works, Raymond Works and David A Works, t/d/b/a “Works Auto Truck Service” (hereinafter Works). Appellants claim the trial court committed reversible error by refusing to instruct the jury as to the standard of care mandated by certain provisions of the Vehicle Code and regulations of the Pennsylvania Department of Transportation.

The trial court summarized the facts of this case as follows.

On August 19, 1988, Works became involved in the removal of a tractor-trailer rig which had gone over an embankment off the eastbound lane of U.S. Route 40 in Addison Township, Somerset County, Pennsylvania. In order to remove the rig, the Works crew had to obstruct normal traffic flow at times.
Works received authorization from the owner of the rig to begin its task at approximately 10:00 AM. and actually began to work at approximately 12:30 P.M. once the necessary equipment had been brought to the site.
At some point during the afternoon, the Pennsylvania State Police called out a crew from the Pennsylvania Department of Transportation (hereafter “PennDOT”) to direct traffic. One of the members of the PennDOT crew was [appellants’] decedent, Robert [D.] McClintock. The PennDOT crew set up warning signs and positioned themselves along Route 40 in order to control traffic around the work site.
During the evening hours, the PennDOT crew became concerned about darkness, and at least one member of the crew expressed this concern to a representative of Works. The Works representative responded by stating that they were going to continue to work until the job was completed. The work then continued into the nighttime hours.
At approximately 11:00 P. M., Mr. [McClintock] was performing his duties as a member of the PennDOT crew. [Appel-lee] Miller was operating his vehicle in a westerly direction along Route 40 and struck another vehicle as he approached the work site. Either Miller’s vehicle or the vehicle with which he collided struck Mr. McClintock, who later died of his injuries.

(Trial Court Opinion, Cascio, J., 7/1/97, at 2-3.)

On August 17, 1990, appellants filed suit against Works and Keystone Lime Company, Inc.1 Works thereafter filed a complaint to join James Robert Miller as an additional [1264]*1264defendant.2 In response to Works’ complaint, Miller filed an answer and new matter in which he asserted that appellants had released him from all claims related to the instant case. Record # 17, Answer and New Matter, Exhibit A, Partial Release.

On June 20,1994, Works filed a motion for summary judgment, which was denied by the court. The case then moved forward, however, appellants and Keystone subsequently entered into a “Pro Rata Joint Tortfeasor Release Agreement.” After trial had commenced, the court granted appellants’ motion to voluntarily discontinue its action against Keystone.

On November 19, 1996, the jury found appellee Works was not negligent. Consequently it did not address the alleged negligence of appellee Miller, as Miller remained in the case only on a claim of contribution pursued by Works. Appellants’ motion for post-trial relief was denied following which they filed notice of this appeal.3

Before addressing appellants’ argument on appeal, this Court must first address appellee Miller’s contention that appellants waived any issues pertaining to him by failing to raise them in a motion for post-trial relief.

In order to preserve an issue for appeal, a party must usually raise it both at trial and in a motion for post-trial relief. Pa.R.C.P. 227.1, Post-Trial Relief, (b). “The purpose of post-trial motions is to allow a trial court the opportunity to consider and rule upon allegations of error committed by it.” In the Matter of Smith, 393 Pa.Super. 39, 49, 573 A.2d 1077, 1081 (1990). An issue not raised in the lower court is generally waived and cannot be raised for the first time on appeal. Pa.R.A.P. 302, Requisites for Reviewable Issue, (a) General Rule.

We find this appeal does not fit within the above-mentioned general rule. Although Miller contends the jury ruled in his favor, the jury in fact never addressed his alleged negligence and/or liability. Miller remained in the case only on a claim of contribution pursued by Works. Since the jury found Works was not liable to appellants, it simply never reached the question of Works’ right to claim recovery from Miller. Parties cannot, be expected to raise issues related, to questions that the jury never addressed.

More importantly, by challenging an issue related to Works’ liability, appellants necessarily implicate Works’ right to recover from Miller on a claim of contribution. The soundness of this principle is illustrated by the parties’ various interests in this case. Appellants have no incentive to raise an issue directly related to Miller because, of course, they have already settled with him. Works also has no reason to make claims related to Miller. In order to recover from Miller, Works would have to be liable to appellants. Essentially, Works would have to argue that it was liable to appellants so as to preserve an issue for appeal. The Rules of Civil and Appellate Procedure were obviously not intended to create such a situation. Consequently, appellee-Miller’s claim is without merit.

On appeal, appellants argue the trial court improperly refused to charge the jury as to the particular standard of care required of Works. When reviewing a trial court’s charge to the jury, this Court will grant a new trial only if the record reveals an abuse of discretion or an error of law that controlled the outcome of the case. D’Ardenne v. Strawbridge & Clothier, Inc., 712 A.2d 318 (Pa.Super.1998), citing Stewart v. Motts, 539 Pa. 596, 654 A.2d 535, 540 (1995). An inadequate jury instruction may amount to reversible error if it has a tendency to mislead the jury or if it omits material, which is basic or fundamental. Santarlas v. Leaseway Motorcar Transport Co., 456 Pa.Super. 34, 37-38, 689 A.2d 311, 312 (1997). Although a trial court need not use the specific language requested by a party, its words [1265]*1265must “sufficiently and fully convey the rules of law applicable to the case.” Bailey v. Pennsylvania Elec. Co., 409 Pa.Super. 374, 390, 598 A.2d 41, 49 (1991). When the facts are disputed, the trial court’s charge should address any theory or defense that has support in the evidence. Id.; D’Ardenne, supra.

In this case, appellants’ proposed points for charge concerned provisions of the Vehicle Code and the concept of negligence per se. Proposed Point for Charge No.

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Bluebook (online)
716 A.2d 1262, 1998 Pa. Super. LEXIS 1582, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcclintock-v-works-pasuperct-1998.