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LEBEGERN v. FORMAN

October 13, 2004.

JEAN L. LEBEGERN, Administratrix ad Prosequendum and Administratrix for the Estate of Daniel L. Carson, Deceased, Plaintiff,
v.
GLENN FORMAN, Individually and t/a FORMAN'S AUTO BODY a/k/a FOREMAN'S AUTO, a/k/a FORMAN'S COLLISION CENTER, a/k/a FORMAN'S SERVICE CENTER, STEPHEN J. CRACKER, an Adult Individual, MICHAEL J. WEISS, as agent, employee and/or representative of GOOD TIME CYCLES, INC. and/or KENNETH W. ALBERT, t/a GOOD TIME CYCLES, and KENNETH ALBERT t/a GOOD TIME CYCLES, Defendants. JANET GOLONKA, Plaintiff, v. GLENN FORMAN, Individually and t/a FORMAN'S AUTO BODY a/k/a FOREMAN'S AUTO, a/k/a FORMAN'S COLLISION CENTER, a/k/a FORMAN'S SERVICE CENTER, STEPHEN J. CRACKER, an Adult Individual, MICHAEL J. WEISS, as agent, employee and/or representative of GOOD TIME CYCLES, INC. and/or KENNETH W. ALBERT, t/a GOOD TIME CYCLES, and KENNETH ALBERT t/a GOOD TIME CYCLES, Defendants.



The opinion of the court was delivered by: JEROME SIMANDLE, District Judge

OPINION

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 judgment.

  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.

  II. DISCUSSION

  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 omitted).*fn2 Moreover, Federal Rule of Civil Procedure 56(e) provides:
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 party.
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).

  B. Choice of Law

  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 ...


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