Ortiz v. Cruz

8 Pa. D. & C.5th 517
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedAugust 7, 2009
Docketno. 1818
StatusPublished

This text of 8 Pa. D. & C.5th 517 (Ortiz v. Cruz) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ortiz v. Cruz, 8 Pa. D. & C.5th 517 (Pa. Super. Ct. 2009).

Opinion

McINERNEY, J.,

Plaintiffs Bezaida Ortiz and Jose Rivera appeal from this court’s order entering summary judgment in favor of defendant A Plus Family Movers Inc. On or about July 14,2006, plaintiffs sustained injuries when a truck owned by A Plus but operated by defendant Efrain Cruz collided with the vehicle in which plaintiffs were traveling. Plaintiffs brought suit alleging that A Plus was negligent in, inter alia, permitting an incompetent driver to operate its truck. Having presented evidence that Mr. Cruz was not an A Plus employee and, in fact, had stolen the truck, A Plus moved for summary judgment. Plaintiffs responded arguing “a question of fact can be raised as to whether Mr. Cruz actually stole [A Plus’] vehicle.” (Pis.’ resp. ¶16.) Because plaintiffs failed to produce any evidence that Mr. Cruz had not stolen the truck and no genuine issue of material fact existed thereupon, this court properly entered summary judgment in favor of A Plus.

I. BACKGROUND

This action arises out of a motor vehicle accident that occurred on or about July 14, 2006 in Philadelphia, PA. Plaintiffs, Bezaida Ortiz and Jose Rivera, claim to have sustained injuries when a truck owned by A Plus but operated by Mr. Cruz collided with the motor vehicle in which they were traveling.1

[519]*519On August 17,2007, plaintiffs commenced this action by way of a complaint against Mr. Cruz and A Plus. In their complaint, plaintiffs averred that Mr. Cruz, at all material times, “was acting individually and/or as a lessee, agent, servant, workman and/or employee of defendant, A Plus Family Movers, with defendant, A Plus Family Movers[] Inc. ’s express, apparent and/or implied permission, authorization and/or consent.” (Compl. ¶3 (emphasis added).) Plaintiffs asserted that A Plus was negligent in, inter alia, “[permitting an incompetent driver to operate the vehicle” and “[ajllowing [Mr. Cruz] to operate [APlus’] motor vehicle while intoxicated[.]” (Compl. ¶18(a), (d).) APlus denied the above averments in its answer to plaintiffs ’ complaint. (Def. ’s answer ¶¶3, 18(a), (d).)

On November 20, 2008, after the pleadings were closed, APlus moved for summary judgment. In its motion, A Plus averred entry of summary judgment was warranted in this case because plaintiffs cannot prove that Mr. Cruz was an A Plus employee or acting within the course and scope of such employment. (See def.’s mot. ¶¶18-22.) Rather, according to APlus, Mr. Cruz (1) was the employee of a subcontractor to whom A Plus occasionally subcontracted moving jobs and (2) had in fact stolen the A Plus truck involved in the collision from A Plus’ property. (See def.’s mot. ¶¶13, 16.) In support of its position, APlus provided the deposition testimony of A Plus’ vice president, Pamela Locke, whose duties involved general oversight of the office, office staff and daily activities. (Def’s mot., exhibit C, deposition of Pamela Locke, p. 6.) According to Ms. Locke, Mr. Cruz was not an employee of APlus and did not have permis[520]*520sion to drive any A Plus truck. (Def’s exhibit C, pp. 6-9.) Rather, Mr. Cruz was the employee of a subcontractor, Christopher Amusco, to whom A Plus would occasionally subcontract a moving job, and was hired by Mr. Amusco as a laborer. (Def.’s exhibit C, pp. 11, 19-20.) Ms. Locke testified that she normally did not have contact with the laborers hired by the three subcontractors they had at the time, and that she does not remember that she ever actually saw Mr. Cruz. (See def.’s exhibit C, pp. 20-21.) According to Ms. Locke, on the day in question Mr. Cruz reportedly fell ill while out on a moving job subcontracted to Mr. Amusco. (See def.’s exhibit C, p. 9.) As such, the customer kindly brought Mr. Cruz back to A Plus’ warehouse. (Def.’s exhibit C, p. 9.) After having been brought back to the warehouse, Mr. Cruz proceeded to steal an A Plus truck out of the warehouse and then involve it in the accident in question. (Def.’s exhibit C, p. 9.) The truck that he stole was being worked on by an A Plus mechanic who left for lunch, leaving the truck unattended in the unlocked warehouse with the keys inside. (Def.’s exhibit C, pp. 9-10, 13.) It was this truck that was involved in the collision in question, not the one that was out on the moving job subcontracted to Mr. Amusco.2 (Def.’s exhibit C, p. 9.) According to Ms. Locke, no A Plus employee was even aware that Mr. Cruz had stolen the truck until the police called to say the truck had been [521]*521involved in a motor vehicle accident. (Def. ’s exhibit C, pp. 9, 24-25.)

On December 19,2008, plaintiffs responded to A Plus’ motion for summary judgment. In their response, plaintiffs admitted that Mr. Cruz was the employee of subcontractor Christopher Amusco. (Pis.’ resp. ¶13.) However, plaintiffs argued summary judgment was not appropriate because “a question of fact can be raised as to whether Mr. Cruz actually stole defendant’s vehicle.” (Id. ¶16.) First, plaintiffs argued “[sjince neither defendant ever responded to [plaintiffs’] request for admissions ... it is now admitted that [Mr. Cruz] had permission from [A Plus] to operate their vehicle when he had the accident. . . .” (Id. ¶¶6-10.) Next, plaintiffs provided a copy of the police report from the incident which they (erroneously) contended showed Mr. Cruz did not flee the scene, but rather provided the officer with the vehicle’s registration card, etc. (Id. ¶16; exhibit B.) Plaintiffs argued these actions of Mr. Cruz as established by the police report called “into question . . . whether the vehicle he was driving had been ‘stolen’. . . .” (Id. ¶16.) Citing deposition testimony of Ms. Locke, plaintiffs also suggested that the fact that a number of A Plus policies would have had to have been violated (e.g., leaving keys in an unattended truck) to allow the truck to have been stolen called into question whether it had in fact been stolen. (See id. ¶16.) Finally, and somewhat relatedly, plaintiffs also argued A Plus could be liable in this case in that its “actions were in contradiction of company policy so as to make it possible for Mr. Cruz to gain access to one of their trucks and cause this collision.” (Id. ¶20.)

[522]*522A Plus filed a reply brief on December 30,2008. In its reply brief, A Plus first highlighted that “[p]laintiffs have admitted that Mr. Cruz was the employee of an independent contractor[,]” which it argued alone warranted summary judgment. (Pis.’ reply p. 2.) A Plus next addressed plaintiffs’ claim that there was “an issue of fact as to whether or not Mr. Cruz stole the truck as opposed to having the permission of A Plus to operate it.” (Id.) Addressing the requests for admissions, A Plus first noted that it had “no record of ever receiving these requests for admissions.” (Id. at 3.) A Plus, however, also argued that assuming arguendo it had received these requests they did not establish what plaintiffs suggested, stating:

“A review of the requests for admission ... indicates that the only request in any way arguably relevant to this issue is request no. 4 that states... ‘answering defendant had the permission of the owner of vehicle he/she was operating at the time of the accident. .. .’ Since A Plus was the owner of the vehicle and not the operator of the vehicle, this request would obviously be inapplicable to it and would not establish anything.” (Id.)

As for the request plaintiffs claimed to have served upon Mr.

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Bluebook (online)
8 Pa. D. & C.5th 517, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ortiz-v-cruz-pactcomplphilad-2009.