The opinion of the court was delivered by: JEROME SIMANDLE, District Judge
I. INTRODUCTION AND PROCEDURAL HISTORY
This case arises out of a fatal motor vehicle accident which
took place on September 16, 2001 on Route 30, White Horse Pike,
in Mullica Township, New Jersey. At the time of the accident,
Daniel Carson, a Pennsylvania resident, was driving a 2001 Ford
Explorer when his vehicle was involved in a head-on collision
with another vehicle being driven by Defendant Stephen J. Cracker
("Cracker") of New Jersey. The vehicle operated by Cracker, a
1996 Ford F-350 Pickup Truck, bore the dealer plates of his
employer, Defendant Glenn Forman ("Forman"), although title to
the vehicle had not yet passed from the sellers (Defendants
Kenneth Albert t/a Good Time Cycles and Michael Weiss, alleged
agent of Mr. Albert and Good Time Cycles). Cracker drove his
vehicle across the center line of the highway and Daniel Carson
died as a result of the head-on collision, while his passenger
Janet Golonka was injured.*fn1
In this wrongful death and survival action by Jean L. Lebegern,
the Administratrix of Carson's estate, the principal issue to be
determined pertains to choice of law, namely whether the
survivor's claim on behalf of the Pennsylvania estate will be
governed by the law of New Jersey or Pennsylvania; a true
conflict exists in which Pennsylvania law is more favorable to
the interests of the Pennsylvania plaintiff while New Jersey law
is more favorable to the New Jersey defendants. The Court is also
called upon to determine whether Cracker was driving within the
scope of his employment or agency of Forman, and whether the
titled owners (the Good Time Cycles Defendants) can be held
vicariously liable for Cracker's negligence.
This matter comes before the Court upon Defendant Cracker's
motion to dismiss Count II of Plaintiff's Amended Complaint on
the ground that the Pennsylvania Survival Act does not apply;
Plaintiff Lebegern's cross-motion for partial summary judgment to
determine that Pennsylvania law governs the survival claim
(Counts II and IV); Plaintiff Lebegern's motion for partial
summary judgment on issues of agency, permissive use and
ownership as to Defendant Glenn Forman, and Defendants Kenneth
Albert and Michael Weiss; Defendant Forman's motion for summary
judgment; and Defendants Albert and Weiss' motion for summary
For the reasons stated herein, Defendant Cracker's motion to
dismiss Count II of Plaintiff's Amended Complaint will be
granted; Plaintiff Lebegern's motion for partial summary judgment
on choice of law (Counts II and IV) will be denied; Plaintiff
Lebegern's motion for partial summary judgment on issues of
agency and ownership will be denied as to Defendant Forman and
denied as to Defendants Albert and Weiss; Defendant Forman's
motion for summary judgment will be denied; and Defendants Albert
and Weiss' motion for summary judgment will be granted.
Extensive pretrial discovery reveals that Cracker was employed
by Forman for approximately six years prior to the accident and
had a significant personal relationship with Forman, as well as
with Forman's daughter. During this time, Cracker continuously
drove vehicles owned by Forman displaying Forman's dealer plates
issued by the State of New Jersey. In addition, Forman
continuously gave Cracker the registration and insurance cards
for the dealer plates to carry on his person.
Plaintiff contends that the 1996 Ford truck driven by Cracker
on the day of the accident was purchased in August 2000 by Forman
through Cracker from Good Time Cycles, a licensed dealer in New
Jersey for sale of new and used cars. Forman allegedly provided
Cracker with $4,000 in cash for the down payment and a trade-in
vehicle that was to be titled to Forman. Plaintiff further
alleges that, due to incomplete registration of the transfer of
ownership with the New Jersey Department of Motor Vehicles, Good
Time Cycles and/or Kenneth Albert and/or Michael Weiss were the
owners of the Ford pickup truck on the date of the accident.
After plenary briefing, extensive oral argument was held on these
motions on April 28, 2004.
A. Summary Judgment Standard
The legal principles governing these motions are
well-established. Summary judgment is appropriate only when the
materials of record "show that there is no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a matter of law." Fed.R. Civ. P. 56(c). A dispute is
"genuine" if "the evidence is such that a reasonable jury could
return a verdict for the non-moving party." See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is
"material" only if it might affect the outcome of the suit under
the applicable rule of law. Id.
In deciding whether there is a disputed issue of material fact,
the court must view the evidence in favor of the non-moving party
by extending any reasonable favorable inference to that party; in
other words, "[T]he nonmoving party's evidence `is to be
believed, and all justifiable inferences are to be drawn in [that
party's] favor.'" Hunt v. Cromartie, 526 U.S. 541
, 552 (1999)
(quoting Liberty Lobby, 477 U.S. at 255). The threshold inquiry
is whether there are "any genuine factual issues that properly
can be resolved only by a finder of fact because they may
reasonably be resolved in favor of either party." Liberty
Lobby, 477 U.S. at 250; Brewer v. Quaker State Oil Refining
Corp., 72 F.3d 326
, 329-30 (3d Cir. 1995) (internal citation
Moreover, Federal Rule of Civil Procedure
When a motion for summary judgment is made and
supported as provided in this rule, an adverse party
may not rest upon the mere allegations or denials of
the adverse party's pleading, but the adverse party's
response, by affidavits or as otherwise provided in
this rule, must set forth specific facts showing that
there is a genuine issue for trial. If the adverse
party does not so respond, summary judgment, if
appropriate, shall be entered against the adverse
Fed.R. Civ. P. 56(e). Thus, if the plaintiff's evidence is a
mere scintilla or is "not significantly probative," the court may
grant summary judgment. Liberty Lobby, 477 U.S. at 249-50;
Country Floors, 930 F.2d at 1061-62.
The standard by which the court decides a summary judgment
motion does not change when the parties file cross-motions.
Weissman v. United States Postal Serv., 19 F. Supp. 2d 254
(D.N.J. 1998). When ruling on cross-motions for summary judgment,
the court must consider the motions independently, Williams v.
Philadelphia House Auth., 834 F. Supp. 794, 797 (E.D. Pa. 1993),
aff'd, 27 F.3d 560 (3d Cir. 1994), and view the evidence on
each motion in the light most favorable to the party opposing the
motion. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986).
Defendant Cracker moves to dismiss Count II of the Amended
Complaint, which states a statutory cause of action predicated
upon the application of the Pennsylvania Survival Act, 20 Pa.
Cons. Stat. Ann. § 3373, on the basis that New Jersey law, not
Pennsylvania, applies in this case.*fn3 At the same time,
Plaintiff Lebegern moves for partial summary judgment on the
issue of the application of the Pennsylvania Survival Act under
Counts II and IV of the Amended Complaint.
As a federal court sitting in diversity, this Court is
obligated to apply the choice of law rules of the forum state
in this case, New Jersey. See Klaxon Co. v. Stentor Elec.
Mfg., 313 U.S. 487 (1941). New Jersey's choice of law principles
dictate that a court use a flexible "governmental-interest"
analysis "which requires application of the law of the state with
the greatest interest in resolving the particular issue." Gantes
v. Kason Corp., 679 A.2d 106, 109 (N.J. 1996); Veazey v.
Doremus, 510 A.2d 1187 (N.J. 1986).
The first prong of the New Jersey governmental-interest
analysis requires a court to assess whether there is an actual
conflict between the relevant laws of the respective states. If
the court determines that such an actual conflict does exist, the
second prong of the analysis "seeks to determine the interest
that each state has in resolving the specific issue in dispute."
Gantes, 679 A.2d at 109. The "qualitative, not the
quantitative" nature ...