Fuhrman et al v. Mawyer et al

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
MICHAEL E. FUHRMAN, et al.,
Plaintiffs,
v.
BRIAN A. MAWYER, et al.
Defendants.
: 	NO. 1:21-CV-02024
:
: 	(KANE, D.J.)
:
: 	(CAMONI, M.J.)
:
:
REPORT AND RECOMMENDATION
I. 	INTRODUCTION
Defendants 	Tapscott 	Brothers 	Trucking, 	Inc. 	and 	Tapscott
Brothers Logging Inc. moved for summary judgment on claims brought
against 	them 	by 	co-executors 	of 	the 	estate 	of 	decedent, 	Eugene 	V.
Fuhrman. The cause of action arose from a fatal vehicle collision between
a tractor transporting a Tapscott trailer and a Toyota RAV4 driven by
Mr. Fuhrman. After careful consideration of the parties’ submissions, the
undersigned respectfully recommends that the Court grant the Tapscott
Defendants’ 	motion 	for 	summary 	judgment 	on 	all 	claims 	because
Plaintiffs have not provided sufficient evidence to enable a reasonable
jury to find in their favor on any of their claims against Tapscott.
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II. 	LEGAL STANDARD
A. 	Summary Judgment Standard of Review
Summary judgment is appropriate where “there is no genuine
dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a). A dispute is “genuine” when “a
reasonable 	jury 	could 	return 	a 	verdict 	for 	the 	nonmoving 	party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is
“material” only if it is able to “affect the outcome of the suit under
governing law.” Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir.
2006), citing Anderson, 477 U.S. at 248. Disputes over irrelevant or
unnecessary facts will not preclude a grant of summary judgment.
Anderson, 477 U.S. at 248.
The moving party bears the burden of showing that no genuine
dispute exists such that summary judgment is warranted. See Celotex
Corp. 	v. 	Catrett, 	477 	U.S. 	317, 	322–23 	(1986). 	Once 	the 	movant
adequately supports its motion, the burden shifts to the nonmoving party
to 	“go 	beyond 	the 	pleadings 	and 	by 	her 	own 	affidavits, 	or 	by 	the
depositions, answers to interrogatories, and admissions on file, designate
specific facts showing that there is a genuine issue for trial.” Id. at 324.
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“In considering a motion for summary judgment, a district court
may not make credibility determinations or engage in any weighing of
the evidence.” Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir.
2004), citing Anderson, 477 U.S. at 255. Rather, “[a]ll facts and inferences
are construed in the light most favorable to the non-moving party.” Boyle
v. County of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998). Credibility
determinations are “the province of the factfinder.” Big Apple BMW, Inc.
v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). The court's
role, at the summary judgment stage, is “to determine whether there is
a genuine issue for trial.” Anderson, 477 U.S. at 249. There can be “no
genuine issue as to any material fact,” however, if a party “fails to make
a showing sufficient to establish the existence of an element essential to
that party’s case, and on which that party will bear the burden of proof
at trial.” Celotex, 477 U.S. at 322.
B. 	Local Rule 56.1
The Middle District of Pennsylvania Local Rule of Court requires
that a motion for summary judgment:
be accompanied by a separate, short and concise statement of
the material facts, in numbered paragraphs, as to which the
moving party contends there is no genuine issue to be tried.
The papers opposing a motion for summary judgment shall
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include 	a 	separate, 	short 	and 	concise 	statement 	of 	the
material facts, responding to the numbered paragraphs set
forth in the statement required in the foregoing paragraph, as
to which it is contended that there exists a genuine issue to
be tried. 	Statements of material facts in support of, or in
opposition to, a motion [for summary judgment] shall include
references 	to 	the 	parts 	of 	the 	record 	that 	support 	the
statements.
L.R. 56.1. Defendants filed a properly supported statement of material
facts. See Defendants’ Statement of Undisputed Material Facts, Doc. 127-
1. Although Plaintiffs responded to some parts of Defendants’ statement,
many of their responses simply contained arguments, allegations, and
conclusions unsupported by citations, directly contravening Local Rule
56.1. See generally Doc. 130; see also Weitzner v. Sanofi Pasteur Inc., 909
F.3d 604, 613 (3d Cir. 2018) (citation modified) (explaining that Local
Rule 56.1 “is essential to the Court’s resolution of a summary judgment
motion due to its role in organizing the evidence, identifying undisputed
facts, and demonstrating precisely how each side proposed to prove a
disputed fact with admissible evidence.”). Consequently, the undersigned
has deemed Defendants’ statement of material facts admitted, except
where properly countered by Plaintiffs or otherwise contradicted by the
record. See L.R. 56.1.
III. 	BACKGROUND
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A. 	Procedural History
Plaintiffs Michael E. Fuhrman and Linda M. Angel, co-executors of
the estate of decedent, Euguene V. Fuhrman, commenced this action on
December 2, 2021, against Defendants Brian Mawyer, Tapscott Brothers
Trucking, Inc. and Tapscott Brothers Logging Inc. (collectively, the
“Tapscott Defendants” or “Tapscott”), Shenandoah Valley Farms, LLC
(“SVF”), 	Pixelle 	Specialty 	Solutions 	and 	Pixelle 	Specialty 	Solutions
Holding, 	LLC, 	(collectively, 	the 	“Pixelle 	Defendants”), 	and 	Charles
Richards, individually and doing business as B&C Enterprise (“B&C”).
Complaint, Doc. 1. The Court previously dismissed SVF and the Pixelle
Defendants. Orders, Docs. 84; 113. On January 29, 2025, the Tapscott
Defendants moved for summary judgment on all of the Plaintiffs’ claims,
including: vicarious liability, joint venture, negligent hiring, selecting,
training, instructing and overseeing, negligent entrustment, negligent
maintenance and loading, recklessness, and punitive damages. Motion
for Summary Judgment, Doc. 127 at 6–28. The parties presented oral
argument on September 23, 2025. Transcript, Doc. 147. The parties have
fully briefed the motion, which is now ripe for disposition. Docs. 128, 129,
131, 140.
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B. 	Undisputed Material Facts
On the morning of February 23, 2021, a motor vehicle accident
occurred at the intersection of York Street (Route 116) and E. Middle
Street in Hanover Borough, York County, Pennsylvania. Doc. 127-1 ¶ 1.
Plaintiffs’ 	decedent, 	Eugene 	Fuhrman, 	drove 	a 	2008 	Toyota 	RAV4
westbound on E. Middle Street. 	Id. 	¶ 4. Defendant, Brian Mawyer,
operated a 2001 Kenworth tractor with a 2021 semi-trailer eastbound on
York Street. Id. ¶ 5. Notwithstanding a red light and a speed limit of 25
miles 	per 	hour, 	the 	tractor-trailer 	approached 	the 	intersection 	at
approximately 26 miles per hour. Id. ¶¶ 3, 6. Fuhrman entered the
intersection on the green light and Mawyer, who admitted that he ran
the red light, struck Fuhrman’s vehicle, killing him. Id. ¶¶ 7, 8, 10, 11.
At the time of the accident, the tractor-trailer weighed 85,300
pounds. Id. ¶ 12. Neither the tractor nor the trailer had a Pennsylvania
permit to allow the tractor-trailer to exceed the combined weight of
80,000 pounds, rendering the vehicle overweight. Id. Tapscott Trucking
owned the trailer involved in the accident and was responsible for
maintaining it. Id. ¶¶ 19, 20. That entity was an interstate motor carrier
registered with the United States Department of Transportation. Doc.
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127-1 ¶ 26. It was owned by Charles Tapscott and his brother, Troy
Tapscott, and was in the business of transporting logs, pulpwood, and
equipment. 	Id. 	¶ 	27. 	All 	of 	Tapscott 	Trucking’s 	tractors, 	which 	its
employees drove, had Pennsylvania permits to haul up to 90,000 pounds.
Id. ¶ 33. The commercial drivers that Tapscott Trucking directly employs
are supervised by lead drivers, who then report to Smith–one of the lead
drivers–who then reports to Charles Tapscott. Id. ¶ 31.
Tapscott 	Trucking 	transported 	loads 	primarily 	for 	Tapscott
Logging but also hauled for other customers. Id. ¶ 28. Tapscott Logging
was also owned by Charles and Troy Tapscott and was engaged in the
business of harvesting and loading timber onto trailers for transportation
to customers. Id. ¶ 22. The load operators, who loaded the logs onto the
trailers and who were responsible for ensuring the trailers were not
overweight, also supervised the crews working in the woods. Id. ¶ 24.
Tapscott 	Trucking 	entered 	into 	agreements 	with 	independent
contractor motor carriers to help it haul loads. Id. ¶ 34. Its contracts
required the independent carriers to obey and comply with all applicable
laws, including federal laws. Id. ¶ 37. They also required independent
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carriers to obtain the necessary permits to haul up to 90,000 pounds. Id.
¶ 38; Tapscott General Hauling Agreement, Doc. 127-2 at 768.
Charles 	Tapscott 	had 	responsibility 	for 	hiring 	and 	overseeing
independent carriers. Doc. 127-1 ¶ 35, 41. Tapscott Trucking vetted
independent carriers through an insurance company, which performed a
background 	check 	to 	ensure 	that 	the 	independent 	carriers 	were
legitimate businesses and that they had valid insurance. Id. ¶ 36. When
an independent carrier was first hired by Tapscott Trucking, Charles
Tapscott advised that carrier which Tapscott Logging job crew it should
haul loads for and where the crew was located. Id. ¶ 39. If any of the
commercial drivers hauling Tapscott Trucking trailers noticed problems
either when picking up or while hauling trailers, they were supposed to
notify someone at Tapscott Logging or Trucking to make any necessary
repairs to the trailer at issue. Id. ¶ 21. Tapscott’s independent carriers
were paid for each load they hauled. Id. ¶ 45. This was done by the
independent carriers turning in load tickets to Tapscott Trucking at the
end of each week. Id.
If issues arose with an independent carrier, including with any of
its drivers, Charles Tapscott communicated with the carrier; he never
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communicated with its drivers. Id. ¶ 41. If Charles Tapscott learned that
an independent carrier was not complying with the terms of the contract,
which might include its driver not complying with the law, Tapscott
Trucking would terminate the contract with the independent carrier. Id.
¶ 42.
On October 11, 2019, Tapscott Trucking entered into a General
Hauling Agreement with SVF, in which SVF, as the independent hauler,
was required, among other things, to obtain its own overweight permits.
Id. ¶ 48. SVF was an authorized interstate motor carrier registered with
the United States Department of Transportation. 	Id. 	¶ 47. Charles
Tapscott does not recall ever having any issues with SVF drivers. Id. ¶
49. Additionally, before the instant collision, for approximately one year,
sometime between 2017 and 2018, Tapscott Trucking had a contract with
B&C Enterprise for it to haul loads. Id. ¶ 61.
B&C 	Enterprise 	was 	an 	authorized 	interstate 	motor 	carrier
registered with the United States Department of Transportation. Id. ¶
51. Charles Richards created B&C Enterprise. Id. ¶ 50. It had its own
DOT 	authority 	and 	permits. 	Id. 	¶ 	52. 	Richards 	owned 	and 	was
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responsible for maintaining the tractor used in the accident. Id. ¶¶ 17,
18.
On March 20, 2020, SVF and Richards, doing business as B&C
Enterprise, entered into an Owner Operator Lease Agreement wherein
Richards 	agreed 	to 	transport 	goods 	for 	SVF. 	Id. 	¶ 	55. 	The 	Owner
Operator Lease Agreement required B&C 	to comply with all applicable
local, state, and federal laws and regulations while transporting goods
for SVF. Id. ¶ 55. Tapscott’s employees, including Dexter Brent Tapscott
and Scotty Gibson, would communicate with B&C’s drivers through the
CB radio, telephone calls, or text messages, regarding the locations where
they were required to pick up and deliver each load. Plaintiffs’ Response
to 	Defendants’ 	Material 	Facts, 	Doc. 	130 	¶ 	41. 	In 	exchange 	for
transporting loads, SVF agreed to pay Richards/B&C a specific rate,
according to a rate schedule. Id. ¶ 58. B&C’s drivers did not report to
Tapscott when a load was delivered. Id. ¶ 74. After B&C Enterprise
delivered a load of Tapscott Logging timber, its driver would submit the
ticket to SVF and SVF would pay Richards. Id. ¶ 59.
Although 	SVF 	knew 	that 	Mawyer would 	be 	driving 	for 	B&C,
Richards testified that he never informed anyone at Tapscott. Id. ¶ 71.
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After the accident, Mawyer called Richards and SVF. Id. ¶ 78. When
Charles Tapscott learned after the accident that SVF had subcontracted
its transportation duties to B&C, Tapscott Trucking terminated its
contract with SVF. Id. ¶ 68.
The 	Owner 	Operator 	agreement 	between 	SVF 	and 	Richards
acknowledged that B&C’s drivers were Richards’s employees. Id. ¶ 57.
Both Richards and Mawyer admitted that Mawyer was employed by B&C
at the time of the accident and acting within the course and scope of his
employment. Id. ¶ 69. At all times relevant to the lawsuit, Mawyer
considered himself to be solely an employee of B&C Enterprise. Id. ¶ 70.
C. 	Disputed Material Facts
Plaintiffs and Defendants disagree regarding whether Tapscott
knew or should have known that Mawyer was hauling its trailers. Docs.
127-1 ¶ 66; 130 ¶ 64. Additionally, Plaintiffs’ and defendants’ accident
reconstruction experts offer contradictory opinions regarding whether
the trailer’s deficiencies caused or contributed to the accident. Docs. 127-
1 ¶¶ 14-16; 130 ¶ 15.
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IV. 	DISCUSSION
Plaintiffs 	have 	not 	provided 	sufficient 	evidence 	to 	enable 	a
reasonable jury to find in their favor on their claims against Tapscott.
Therefore, 	the 	undersigned 	respectfully 	recommends 	that 	summary
judgment be granted to Defendants on all claims.
A. 	Plaintiffs’ vicarious liability claim fails.
The Plaintiffs claim that Tapscott is vicariously liable for the
alleged negligence and recklessness of Mawyer. Defendants maintain
that this claim fails because no facts in the record support that Mawyer
was the agent or employee of Tapscott. Doc. 127 at 6. In response,
Plaintiffs raise three facts as evidence to demonstrate that Tapscott
shared an employer-employee relationship with Mawyer/B&C. Oral Arg.
Tr., Doc. 147 at 37-38. First, Tapscott employees, including Dexter
Tapscott—the son of the owner of the Tapscott companies and a crew
leader for Tapscott Brothers Logging—communicated with B&C drivers
about where they needed to pick up and deliver loads. 	Id. 	Second,
Tapscott permitted B&C to transport its trailers for deliveries. Id.; Doc.
129 at 12, 14. And third, Charles Tapscott stated that he would have fired
a driver who refused to comply with federal rules and regulations, which
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supposedly demonstrates a level of control over Mawyer. Doc. 129 at 16.
Plaintiffs claim that a reasonable jury could find vicarious liability based
on these facts. Oral Arg. Tr., Doc. 147 at 39-40.
The undersigned disagrees. Under Pennsylvania law, when an
independent contractor, such as B&C, causes a third party harm, the
business 	that 	hired 	the 	independent 	contractor 	is 	generally 	not
vicariously liable for the injury, unless the independent contractor has
an 	employment 	relationship 	with 	the 	business. 	Drexel 	v. 	Union
Prescription Ctrs., Inc., 582 F.2d 781, 785 (3d Cir. 1978), citing Hader v.
Coplay Cement Mfg. Co., 189 A.2d 271, 277 (Pa. 1963). An employer may
be held vicariously liable when its employee commits a negligent act
within the scope of the employee’s employment. Wilson v. IESI N.Y.
Corp., 444 F. Supp. 2d 298, 313 (M.D. Pa. 2006), citing Drexel, 582 F.2d
at 785.
Pennsylvania courts have set forth several factors to determine
whether 	an 	individual 	is 	an 	employee 	or 	independent 	contractor,
including: 1) whether the person has responsibility for results only, 2) the
terms of any agreement between the parties, 3) the nature of the work to
be done, 4) the skill required for performance, 5) whether one employed
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is engaged in a distinct occupation or business, 6) which party supplies
the tools, 7) whether payment is earned by the amount of time spent on
or by completion of the job, 8) whether the work is part of the regular
business of the employer, and 9) the right to terminate employment at
any time. Id. at 313-14, citing Hammermill Paper Co. v. Rust Eng'g Co.,
243 A.2d 389, 392 (Pa. 1968). No individual factor is dispositive, however,
“[t]he 	hallmark 	of 	an 	employee-employer 	relationship 	is 	that 	the
employer not only controls the result of the work but has the right to
direct the manner in which the work shall be accomplished,” whereas
“the hallmark of an independent contractee-contractor relationship is
that the person engaged in the work has the exclusive control of the
manner of performing it, being responsible only for the result.” Id. at 313-
314, quoting Green v. Indep. Oil Co., 201 A.2d 207, 210 (Pa. 1964). An
entity’s right to control the manner in which the work is performed
suffices to demonstrate that it is an employer, even if it never actually
exercises such control. See id. at 314.
Generally, truck drivers who haul cargo for entities are considered
independent contractors if it seems that the driver:
owned the truck which he himself drove and kept within his
own control, storing it where he desired, paying all expenses
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incident to its operation including the cost of oil and gasoline,
that he was paid at a fixed rate for each part or unit of the job
performed, and that he was not subject to orders of the
employer except as to the place of loading and unloading.
Adames v. May Furniture, Inc., No. 17-00652, 2019 WL 8937042, at *13
(M.D. Pa. Nov. 26, 2019), quoting Johnson v. Angretti, 73 A.2d 666, 669
(Pa. 1950). Additionally, a trucker’s status as an independent contractor
does not dissipate simply because an entity that “has engaged the
services of the trucker points out to him the work to be done, the material
to be hauled, the place from which and the place to which it is to be hauled
and where it is to be delivered.” Id. (citation modified). Pennsylvania
courts 	have 	posited 	that 	“the 	question 	of 	whether 	an 	employment
relationship exists is a ‘question of law to be decided on the specific facts
of each case’ where the facts are not in dispute.” Id., quoting 3D Trucking
Co. v. W.C.A.B., 921 A.2d 1281, 1288 (Pa. Commw. Ct. 2007)); Universal
Am-Can, Ltd. v. W.C.A.B., 762 A.2d 328, 330-31 (Pa. 2000); JFC Temps,
Inc. v. W.C.A.B., 680 A.2d 862, 864 (Pa. 1996).
Here, 	Tapscott 	cannot 	be 	held 	vicariously 	liable 	for 	Mawyer’s
negligence because Tapscott was not Mawyer’s employer. Several factors
which 	are 	typically 	present 	in 	employer-employee 	relationships 	are
absent between Tapscott and B&C. First, Mawyer and B&C Enterprise
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were only responsible for the results of the work. B&C’s contract with
SVF stated that B&C was responsible for simply “deliver[ing] for [SVF]
. . . one shipment of freight of all kinds (FAK) during a period of 1 yr [sic].”
Doc. 127-2 at 858. Second, Tapscott did not have an employment contract
with either Mawyer or B&C. 1 Third, Tapscott did not hire or select
Mawyer or B&C to haul its cargo; Tapscott hired SVF to do so. Id. at 767.
Fourth, Tapscott was not responsible for supplying the tools necessary
for B&C to complete its job. To complete the job, B&C utilized its own
tractor (id. at 347), fuel (id. at 131), insurance (id. at 858), and permits
(id). Fifth, the entity that hired B&C paid it based on the number of loads
Mawyer successfully delivered, not the amount of time it took him to
deliver them. Id. at 122 (Mawyer Tr. at 53: 8-11); Doc. 127-1 ¶ 59. Sixth,
contrary to Plaintiffs’ argument, Tapscott likely would not have been able
to fire Mawyer or B&C. Charles Tapscott testified that he would annul a
contract with an independent carrier if he learned that one of its drivers
1 Tapscott did have a hauling agreement with SVF. Doc. 127-2 at 767
(General Hauling Agreement). SVF had a separate hauling agreement
with B&C, in which it referred to B&C as an “independent contractor”
and emphasized that anyone who B&C employed “shall be and remain
the employees of [B&C]” throughout the duration of the contract period.
Id. at 858 (Owner Operator Lease Agreement).
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was not complying with the law, in violation of the terms of the contract.
Id. ¶ 42. However, Tapscott could not have terminated B&C’s contract
nor fired Mawyer because Tapscott never signed a contract with B&C or
Mawyer. Tapscott’s failure to meet six of the nine factors in the employee
test demonstrates that Tapscott neither possessed the right to direct the
manner in which Mawyer completed his work, nor acted as an employer
to him. 2
Moreover, the factors set forth in Adames in describing the general rule
in Pennsylvania that truck drivers who haul cargo for entities are not
considered employees of those entities describe the exact scenario here.
Adames, 2019 WL 8937042, at *13. B&C owned the truck that its
employee, Mawyer, drove, (doc. 127-1 ¶ 17), kept the truck within its
control, stored it where it desired, (doc. 127-2 at 195-96 (Mawyer Tr. at
126-127)), paid all of the expenses for maintenance and operation, (doc.
127-1 ¶ 18), and was paid at a fixed rate for each load it delivered, (doc.
2 Furthermore, both Mawyer and Richards, the owner of B&C
Enterprise, admitted that Mawyer was employed by B&C at the time of
the accident and acting within the course and scope of his employment
with B&C. Doc. 127-1 ¶ 69. At all relevant times to the lawsuit, Mawyer
considered himself to be solely an employee of B&C Enterprise. Doc.
127-1 ¶ 70.
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127-2 	at 402 (Richards Tr. at 118); id. at 122 (Mawyer Tr. at 53); id. at
860)). And Tapscott was not in a position to dictate orders that Mawyer
was required to obey, except for where to load and unload the cargo. See
generally Doc. 127-2 at 858-861.
Because Plaintiffs have not provided sufficient evidence for a jury
to find in their favor, the undersigned recommends that the Court grant
summary judgment on plaintiffs’ vicarious liability claim.
B. 	Plaintiffs’ joint venture liability claim fails.
The Tapscott Defendants assert that Plaintiffs cannot demonstrate
that Tapscott and B&C were in a joint venture because they failed to
provide evidence for several elements, specifically: contribution, joint
proprietary interest, the right to share profits and the obligation to share
losses, and the right of joint control. Doc. 127 at 10. The undersigned
finds 	Plaintiff’s 	arguments 	to 	the 	contrary 	unpersuasive, 	and 	thus
recommends the Court grant summary judgment on the joint venture
claim.
A joint venture is an association of persons or corporations who
either by express or implied contract, agree to engage in a common
enterprise for their mutual profit. Beavers v. W. Penn Power Co., 436 F.2d
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869, 872 (3d Cir. 1971); Richardson v. Walsh Const. Co., 334 F.2d 334,
336 (3d Cir. 1964); Streamline Bus. Servs., LLC v. Vidible, Inc., No.
14-1433, 2015 WL 3477675, at *3 (E.D. Pa. June 2, 2015); Snellbaker v.
Herrmann, 462 A.2d 713, 716 (Pa. Super. Ct. 1983). Pennsylvania courts
have recognized four factors that one must satisfy to make a showing of
a joint venture. Vidible, Inc., 2015 WL 3477675, at *3; In re Joey's
Steakhouse, LLC v. 6130 West, LLC, 474 B.R. 167, 190 (Bankr. E.D. Pa.
2012); McRoberts v. Phelps, 138 A.2d 439, 443–44 (Pa.1958).
One, there must be a contribution by each member to the joint
venture. Vidible, Inc., 2015 WL 3477675, at *3. Such contribution can be
in the form of services, skills, knowledge, materials, or money. Id. “A
contribution is given to the enterprise, with no guarantee of return.”
Wilkoski v. B&T Express, Inc., No. 18-1359, 2022 WL 847068, at *20
(W.D. 	Pa. 	Mar. 	22, 	2022), 	quoting 	Combustion 	Sys. 	Servs., 	Inc. 	v.
Schuylkill Energy Res., Inc., No. 92-4228, 1993 WL 514496, at *4 (E.D.
Pa. Dec. 1, 1993).
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Two, the parties must share profits.3 Parties must share profits
jointly and not severally. Id. Remuneration for work performed is not
tantamount to profit sharing. Wilkins v. Heebner, 480 A.2d 1141, 1143
(Pa. Super. Ct. 1984) (“the evidence does not support the chancellor's
finding of a joint venture. The evidence disclosed, rather, an agreement
to compensate Wilkins for services rendered in negotiating a lease of real
estate”). Wilkoski, 2022 WL 847068, at *20 (“While Affiliated Companies
were paid for the leasing arrangement, in the form of finance payments
and a fee, they did not share in any profit and there is no record evidence
they were liable for [the other party’s] losses.”). Further, one party’s
entitlement to payment, notwithstanding the failure of the enterprise,
weighs against a finding of a joint venture. See Waldman v. Shoemaker,
80 A.2d 776, 778 (Pa. 1951).
Three, both parties must have a joint proprietary interest and right
of mutual control over the subject matter of the enterprise. Vidible, Inc.,
2015 WL 3477675, at *3. But “[i]f proprietary control is vested in only one
3 In Pennsylvania, it is unclear whether sharing in losses is part of the
second factor. Compare Ciotola, 481 F. Supp. 3d at 387 (listing only
sharing of profits) with Waldman, 80 A.2d at 778 (noting the lack of an
agreement to share losses as a factor in declining to find a joint venture).
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of two parties . . . there is no joint venture.” Heebner, 480 A.2d at 1145.
Additionally, if one party maintains exclusive ownership, shared use of
the subject matter does not lead to joint proprietary interest in or right
of mutual control. Beavers, 436 F.2d at 873 (finding that joint venture did
not exist between electric and telephone companies that held right to use
the other's poles to string its wires, because ownership of jointly used
poles remained in the original owner). Neither does a party’s mere receipt
of compensation for a service performed “thrust him into a position of
control.” Heebner, 480 A.2d at 1145. Furthermore, the mere ability to
make decisions regarding the enterprise does not necessarily grant a
party a proprietary interest in or right of mutual control over the subject
matter. Beavers, 436 F.2d at 873 (refusing to find joint venture even
where one party made decisions regarding the use of a shared object
because ownership and obligation to maintain object remained with the
original owner). However, when multiple parties have the right to direct,
or authority to control, manage, or supervise important aspects of the
enterprise, it bolsters an inference that the parties have mutual control
over the subject matter. Wilkoski, 2022 WL 847068, at *22; Waldman, 80
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A.2d at 778 (finding no joint venture where “the plaintiffs had no control
or voice or management or supervision with respect to the [enterprise]”).
Four, a joint venture is usually a single business transaction rather
than 	a 	general 	and 	continuous 	transaction. 	Vidible, 	Inc., 	2015 	WL
3477675, at *3; In re Joey’s Steakhouse, LLC, 474 B.R. at 190; McRoberts,
138 A.2d at 443-44.
When ascertaining whether a joint venture exists “these factors
should not be read too strictly,” Vidible, Inc., 2015 WL 3477675, at *3,
since “[j]oint venture is an amorphous legal doctrine.” Beavers, 436 F.2d
at 872. “The existence or non-existence of a joint venture depends on the
facts and circumstances of each particular case and no fixed and fast rule
can be promulgated to apply generally to all situations.” Vidible, Inc.,
2015 WL 3477675, at *3, quoting McRoberts, 138 A.2d at 444. However,
“the law is clear that in order for a joint venture to come into existence,
there must be a showing of a joint proprietary interest and a right of
mutual control of the subject matter of the enterprise.” Heebner, 480 A.2d
at 1144; Beavers, 436 F.2d at 873. If one successfully satisfies the test for
a joint venture, “the torts committed by one joint adventurer may be
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imputed 	upon 	other 	joint 	adventurers.” 	Ciotola 	v. 	Star 	Transp. 	&
Trucking, LLC, 481 F. Supp. 3d 375, 387 (M.D. Pa. 2020).
Here, Plaintiffs claim that they have provided sufficient evidence
for a reasonable jury to find that Tapscott and B&C were engaged in a
joint venture. They allege that the subject matter or enterprise of the
joint venture was the “transportation and hauling of the logs.” Doc. 147
at 63:18-19. To satisfy the first factor of mutual contribution to the joint
venture, Plaintiffs raise the fact that Tapscott owned and maintained the
trailers and B&C owned the tractor used to transport the cargo. Pl.’s Br.,
Doc. 129 at 26. To satisfy the second factor of sharing profits by parties,
the Plaintiffs present the fact that “B&C’s employees would haul the
product and be paid by the load.” Id. at 27. And to satisfy the fourth
element regarding a single business transaction, the plaintiffs claim that
Tapscott and B&C engaged in a new joint venture every time Mawyer
hauled a Tapscott trailer. Doc. 147 at 63:23-64:1.
However, plaintiffs do not offer any evidence to satisfy the third
factor of joint proprietary interest and right of mutual control—a factor
essential to a finding of joint venture. Heebner, 480 A.2d at 1144; Beavers,
436 F.2d at 873. In Plaintiffs’ Brief in Opposition, they attempt to hide
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their lack of evidence for the third factor by combining it with the fourth
factor, asserting that “the profits were shared with a right to mutual
control.” Doc. 129 at 27. When the undersigned requested that Plaintiffs’
attorney 	supply 	additional 	facts 	during 	oral 	argument, 	Plaintiffs’
attorney responded that B&C had mutual control over the enterprise
merely because it had the “ability to choose the times to run” the cargo to
its destination. Doc. 147 at 64:1–15.
In the instant case, “there is not one iota of evidence” that B&C
contributed to a joint venture, shared profits with Tapscott, or possessed
joint proprietary interest in or the right of mutual control over the log
transportation enterprise. Heebner, 480 A.2d at 1145. There was no
contribution here. “A contribution is given to the enterprise, with no
guarantee 	of 	return.” 	Wilkoski, 	2022 	WL 	847068, 	at 	*20, 	quoting
Schuylkill Energy Res., Inc., 1993 WL 514496, at *4. B&C used its tractor
trailer to transport the lumber in exchange for compensation from SVF.
See 	Doc. 	127-2 	at 	861. 	But 	B&C 	could 	not 	be 	considered 	to 	have
“contributed” 	its 	tractor 	nor 	its 	drivers’ 	labor, 	because 	B&C 	was
guaranteed a return.
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Similarly, profits were not shared between the parties. Although it
is true that SVF compensated B&C for transporting cargo, such payment
does not qualify as profit because remuneration is different from profit
sharing. Heebner, 480 A.2d at 1143; Wilkoski, 2022 WL 847068, at *20.
Also, Tapscott did not pay B&C for its services; SVF did. Doc. 127-1 ¶ 58.
Thus, Plaintiffs’ position on this factor is particularly unpersuasive.
Furthermore, 	during 	oral 	argument, 	plaintiffs’ 	attorney 	essentially
conceded 	that 	the 	parties 	did 	not 	mutually 	share 	profits. 	The
undersigned proposed a hypothetical, asking:
If Tapscott hitches that trailer to Mawyer's truck, Mawyer
drives it and drops it off at Pixelle . . . [a]nd all of a sudden,
the price of lumber tanks, and now Tapscott has actually lost
money on this trip, they still have to pay Mawyer and B&C
the exact same amount, right?
Doc. 147 at 65:6-12. The plaintiffs’ attorney confirmed that this was
correct. 	Id. 	at 	65:13-14. 	One 	party’s 	entitlement 	to 	payment,
notwithstanding the failure of the enterprise, precludes a finding of
mutual profit and joint venture, because profits must be shared jointly.
Wilkoski, 2022 WL 847068, at *20; see Waldman, 80 A.2d at 778.
Although a jury could find that Plaintiffs can satisfy the fourth
element of the existence of a single business transaction, Plaintiffs
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26
cannot satisfy the third and most important factor—mutual control over
the subject matter of the enterprise. Plaintiffs’ assertion that B&C had
mutual control over the enterprise because it had the “ability to choose
the times to run” the cargo to its destination cannot adequately satisfy
the third element. Doc. 147 at 64:13-14. This is because a party’s ability
to 	make 	some 	decisions 	regarding 	an 	enterprise 	is 	insufficient 	to
demonstrate that it possesses mutual ownership or control over the
enterprise. Beavers, 436 F.2d at 873; Waldman, 80 A.2d at 778.
B&C’s ability to select the times to transport the cargo did not affect
Tapscott’s exclusive management, ownership, or control of its business.
Thus, B&C could not have had mutual control over the subject matter of
the business. Its capacity to make a single decision about the alleged
enterprise is entirely distinct from the power to direct or authority to
control 	the 	enterprise, 	the 	hallmarks of 	a 	legitimate 	joint 	venture.
Wilkoski, 2022 WL 847068, at *22.
Tapscott and B&C were not engaged in a joint venture. The record
demonstrates that B&C was an independent subcontractor hired by a
contractor who had been hired by Tapscott. Because Plaintiffs have not
provided evidence to demonstrate the existence of a joint venture, the
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undersigned respectfully recommends that the Court grant summary
judgment.
C. 	Plaintiffs’ negligence claims fail.
To prevail on a negligence claim in Pennsylvania, Plaintiffs must
proffer evidence that 1) Defendants had a duty or obligation recognized
by the law requiring them to conform to a certain standard of conduct for
the protection of others against unreasonable risks; 2) Defendants did not
conform to the standard required; 3) a causal connection between the
conduct and the resulting injury existed; and 4) Plaintiffs suffered actual
loss or damage as a result. Straw v. Fair, 187 A.3d 966, 983 (Pa. Super.
Ct. 2018).
To satisfy the causation element of a negligence claim, Plaintiffs
must show that Defendants’ negligence was a factual and proximate
cause of Plaintiffs’ injuries. Straw, 187 A.3d at 993. An act is a factual
cause if the harm would not have occurred but for the negligent conduct.
Id. An act is a proximate cause if it “was a substantial factor in bringing
about the harm inflicted upon a plaintiff.” Id., quoting Jones v. Montefiore
Hosp., 431 A.2d 920, 923 (Pa. 1981).
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Although a shipper-carrier relationship may not impose a special
duty of care on shippers in Pennsylvania, shippers, like Tapscott, still
have a duty to perform their shipping responsibilities in relation to the
cargo with ordinary due care. Spence v. ESAB Grp., Inc., 623 F.3d 212,
218–19 (3d Cir. 2010); See R.W. v. Manzek, 888 A.2d 740, 747 (Pa. 2005)
(“[A] duty arises only when one engages in conduct which foreseeably
creates 	an 	unreasonable 	risk 	of 	harm 	to 	others.”); 	See 	Kimble 	v.
Mackintosh 	Hemphill 	Co., 	59 	A.2d 	68, 	71 	(Pa. 	1948) 	(“Although
individuals are not required to guard against every risk they conceive to
be possible, they are under a legal duty to prevent hazards which they
can forecast as possible.”). “[S]hippers are not exempt from the general
duty the law imposes upon all persons who undertake to perform a
particular service not to expose others to risks of injury which are
reasonably foreseeable.” Spence, 623 F.3d at 218-19 discussing Kunkle v.
Cont'l Transp. Lines, 92 A.2d 690 (Pa. 1952).
1. 	Tapscott did not hire, retain, or select Mawyer or
B&C Enterprise, and therefore, as a matter of law,
neither owed nor breached a duty of care to train
or oversee them.
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Plaintiffs 	have 	made 	several 	poorly 	supported, 	conclusory
allegations regarding Tapscott’s hiring, instructing, and overseeing of
Mawyer, Richards, and B&C, some of which have been addressed above.
Plaintiffs’ negligent selection, retention, and supervision claims are not
viable theories of liability here, because, as discussed, Tapscott had no
employer-employee relationship with either Mawyer or B&C.
Pennsylvania Courts have granted summary judgment on claims of
negligent retention, selection, and supervision in instances where they
found that the tortfeasor and related entity were not in an employment
relationship. 	See, 	e.g., 	Adames, 	2019 	WL 	8937042, 	at 	*8. 	In
Pennsylvania, claims regarding negligence in selection, retention, and
supervision 	are 	typically 	“predicated 	upon 	an 	employer-employee
relationship.” Adames, 2019 WL 8937042, at *8, first citing Belmont v.
MB Inv. Partners, Inc., 708 F.3d 470, 490 (3d Cir. 2013) (“Virtually all of
the cases in which liability for negligent supervision has been found
under Pennsylvania law concern corporations and their employees.”);
then citing McMahon v. Arsenberger Trucking Co., No. 17-1242, 2018 WL
4855458, *9 (E.D. Pa. Oct. 5, 2018) (“[T]o state a claim for negligent
hiring 	or 	retention 	under 	Pennsylvania 	law, 	‘a 	plaintiff 	must
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30
demonstrate that (i) an employer knew or should have known of an
employee’s [likelihood to cause harm], and (ii) the employment created a
situation where the [employee] could harm a third party.’”); then citing
Court v. Loews Phila. Hotel, Inc., No. 16-4848, 2017 WL 569522, *4 (E.D.
Pa. Feb. 13, 2017) (“To recover for a claim of negligent supervision, a
plaintiff must demonstrate that an employer failed to exercise ordinary
care to prevent intentional harm to a third party when that harm was (i)
committed on the employer's premises, (ii) committed by an employee
acting 	outside 	the 	scope 	of 	his 	or 	her 	employment, 	and 	(iii) 	was
reasonably foreseeable.”); and then citing 	Brezenski v. World Truck
Transfer, Inc., 755 A.2d 36, 39-40 (Pa. Super. Ct. 2000) (“It has long been
the law in this Commonwealth that an employer may be liable in
negligence if it knew or should have known that an employee was
dangerous, careless or incompetent and such employment might create a
situation where the employee’s conduct would harm a third person.”); see
also Dempsey v. Walso Bureau, Inc., 246 A.2d 418 (Pa. 1968).
Here, “because we have concluded that there is no employment
relationship between [Tapscott and B&C], these claims [of negligent
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selection, retention, and supervision] are entitled to summary judgment.”
Adames, 2019 WL 8937042, at *8.
2. 	Plaintiffs failed to adduce facts to demonstrate
that Tapscott owed and breached a duty of care in
entrusting its trailer to Mawyer and B&C, and
that this caused or contributed to the accident.
Plaintiffs aver that Tapscott acted negligently by entrusting its
trailer to Mawyer because Tapscott knew or should have known that
Mawyer “had a dangerous history of driving,” Doc. 129 at 19, and “was
recklessly driving over the hours of service” id. at 15. Mawyer received
two traffic citations prior to the collision with Plaintiffs’ decedent. Doc.
129-2 at 13-14. Plaintiffs allege that Tapscott knew or should have known
about Mawyer’s dangerous driving history because Tapscott investigated
drivers 	by 	“performing 	a 	background 	check 	and 	checking 	their
insurance.” Doc. 129 at 19. Charles Tapscott, the co-owner of the Tapscott
businesses apparently corroborated this during his deposition, affirming
that when “hiring a new contractor” the company would “vet them
through my insurance agents”. Doc. 127-2 at 607 (Charles Tapscott Tr.).
Furthermore, Plaintiffs believe that Tapscott knew that Mawyer
drove beyond the authorized eleven hour a day maximum because one of
Tapscott’s lead drivers named “Mr. Gibson testified that Defendant
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Mawyer would take one or two loads of Tapscott’s trailers a day.” Id. at
14. After hearing that Mawyer testified that he often drove sixteen hours
in a day, “Mr. Gibson, based on his interactions with Mr. Mawyer
testified that he was not surprised.” Id. Additionally, Plaintiffs posit that
Tapscott’s entrusting Mawyer with its trailer was not only negligent, but
also reckless because Tapscott allegedly “knew that Mawyer would drive
their vehicle in violation of the hours of service and would therefore be
driving fatigued and distracted.” Id. at 16. They assert that “the Tapscott
Defendants allowed Defendant Mawyer to continue to drive in excess of
the hours of service which ultimately led to the fatal collision.” Id.
To 	prevail 	on 	a 	negligent 	entrustment 	claim, 	Plaintiffs 	must
provide evidence that 1) Tapscott permitted Mawyer to 2) operate its
trailer, and 3) that Tapscott knew or should have known that Mawyer
intended or was likely to use the trailer in such a way that would harm
another 	person. 4 	Adames, 	2019 	WL 	8937042, 	at 	*4. 	Negligent
4 To analyze negligent entrustment claims, Pennsylvania has adopted
Section 	308 	of 	the 	Restatement 	(Second) 	of 	Torts. 	Schneider 	Nat’l
Carriers, Inc. v. Syed, No. 17-2383, 2019 WL 183905, at *3 (M.D. Pa. Jan.
14, 2019), first citing Fakes v. Terry, No. 15-1574, 2018 WL 1382513, at
*5 (W.D. Pa. Mar. 19, 2018); then citing Knecht v. Balanescu, No. 16-549,
2017 2017 WL 4573796, at *7 (M.D. Pa. Oct. 13, 2017); and then citing
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entrustment cannot merely be proven by an entrustee’s negligence,
because the entrustor must be negligent as well. Adames, 2019 WL
8937042, at *4. Moreover, negligent entrustment is primarily concerned
with “foreseeability of risk from a third party's actions.” Id. at *5.
Plaintiffs 	maintain 	that 	Tapscott 	should 	have 	known 	about
Mawyer’s poor driving history because a Tapscott employee testified that
Tapscott 	ran 	background 	and 	insurance 	checks 	on 	independent
contractor drivers. Doc. 129 at 19. However, even according to Tapscott’s
apparent company practice, Tapscott would not have had a duty to
investigate 	Mawyer’s 	driving 	history 	because 	Tapscott 	vetted
independent contractors with whom it held contracts. Id. Tapscott did not
contract with or hire B&C, thus, under its company policy, vetting B&C
or its drivers would not have been one of Tapscott’s responsibilities.
Ferry v. Fisher, 709 A.2d 399, 403 (Pa. Super. Ct. 1998). Section 308
provides that it is negligence to permit a third person to use a thing or to
engage in an activity which is under the control of the actor, if the actor
knows or should know that such person intends or is likely to use the
thing or to conduct himself in the activity in such a manner as to create
an unreasonable risk of harm to others. Restatement (Second) of Torts
§ 308.
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Moreover, 	Tapscott 	did 	not 	have 	a 	legal 	duty 	to 	investigate
Mawyer’s driving background. In Pennsylvania, there is “a paucity of
legal authority . . . regarding whether a shipper has a duty to investigate
the independent contractors of an entity it retains to deliver its product.”
Adames, 2019 WL 8937042, at *6. And courts in this district have noted
that if a Plaintiff does not have facts to show that a shipper was negligent
in selecting a sub-contractor driver, then the plaintiff’s claim should be
dismissed. Hoffee v. AAC Transp. LLC, No. 18-1908, 2019 WL 2642840,
at *3 (M.D. Pa. June 27, 2019).
In 	Hoffee 	v 	AAC 	Transportation 	LLC, 	a 	defendant 	shipper
contracted with a broker company, which then subcontracted with a
motor carrier to deliver a package. Id. at *1. On its way to delivering the
package, the driver’s truck collided with plaintiff, causing him severe
injuries. Id. The Hoffee plaintiffs claimed that the shipper “owed the
public at large a duty of care to periodically review delivery companies
that carry [the shipper’s] packages to ensure that they are compliant with
various state and federal regulations and best practices.” 	Id. 	at *3.
“Plaintiffs 	essentially 	submit[ted] 	that 	[the 	shipper] 	had 	a 	duty 	to
investigate not only the contractor that it hired, . . . but also the
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35
contractors that [the broker] hired as well.” Id. They alleged that the
shipper was liable for the negligence of the motor carrier and its employee
truck driver because the shipper “should have been aware of [the motor
carrier’s and driver’s] alleged lack of skill and experience that caused the
accident.” Id.
The Court in Hoffee found that “no facts [were] pleaded to show that
[the shipper] was negligent in any way” because “the primary negligent
act [was] three steps away from [the shipper].” Id. It noted that while
“there is little doubt that a broker has a duty to verify the qualifications
of carriers[] . . . the court has found no case law demonstrating that such
a requirement is imparted to the party contracting for the shipment of
goods with the broker.” Id. at *2. Consequently, the negligence claim was
dismissed because it was found to be “little more than a legal conclusion
that [could not], by itself, satisfy the pleading standard set forth in
Federal Rule of Evidence 8.” Id. at *3.5
5 To underscore the deficiency of the argument, the court proffered a
hypothetical:
If each individual sender held a duty to the public at large to ensure
that the carrier’s individual contractors abided by all pertinent
regulations, then any individual harmed by a negligent UPS or
FedEx driver would have a claim against any person whose package
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36
Like the shipper in Hoffee, Tapscott, the shipper here, was three
steps removed from the negligent act and thus cannot be held liable for
the consequences of Mawyer’s negligence. Tapscott contracted with SVF,
the broker, to transport its lumber to a buyer. Doc. 127-2 at 768. SVF
then contracted with B&C, the motor carrier, to perform the actual
transportation of the cargo, standing in the place of the broker in Hoffee.
Id. 	at 858-861. Next, B&C instructed Mawyer, the truck driver, to
transport the cargo to the buyer’s preferred destination. See generally
Doc. 127-1 ¶¶ 5, 50, 59, 69. In the course of transporting the load, Mawyer
negligently failed to stop his vehicle, and ultimately killed the decedent.
Id. ¶¶ 10-11.
Here, as in 	Hoffee, “no facts have been pleaded to show that
[Tapscott] was negligent in any way” because “the primary negligent act
[was] three steps away from [Tapscott].” 2019 WL 2642840, at *3. Thus,
the negligent entrustment claim “amounts to little more than a legal
was 	carried 	by 	any 	particular 	truck. 	Essentially, 	every 	crash
involving a private carrier could have hundreds of defendants.
Hoffee, 2019 WL 2642840, at *3.
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37
conclusion that cannot, by itself, satisfy the pleading standard set forth
in Federal Rule of Evidence 8.” Id.
Even if Tapscott had a legal duty to investigate Mawyer, and thus
should have known about his driving history, Tapscott still cannot be
held liable for negligent entrustment because that information would not
have apprised Tapscott that Mawyer was likely to use the trailer to harm
another person. Had Tapscott investigated Mawyer, it would have found
that he had previously received two traffic citations. Doc. 129-2 at 13-14.
He received one citation for failing to obey a highway sign while driving
a commercial vehicle 6 and another for speeding while driving his personal
vehicle. Id. Two citations, neither of which included any allegation of
recklessness, would have been insufficient to put Tapscott on notice that
Mawyer was a dangerous driver. See Villagran v. Freightbull, Inc., 698
F. Supp. 3d 807, 812 (E.D. Pa. 2023) (finding that a trucking company
did not engage in egregious behavior when it hired a professional truck
driver who previously received seven citations and was involved in two
6 Mawyer obtained this traffic citation for disobeying a stop sign while
he was driving for Tapscott, in 2017. Doc. 129-2 at 13. Mawyer testified
that Tapscott was never apprised that he received this citation. Id. at
14.
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collisions that resulted in property damage. Emphasizing that among the
citations, “[n]one was for reckless driving, and his license was never
suspended or revoked”). Thus, Tapscott could not have been negligent in
entrusting 	its 	trailer 	to 	Mawyer, 	despite 	his 	moderately 	blemished
driving record.
Further, Tapscott’s knowledge of Mawyer’s habit of driving beyond
permissible hours is irrelevant here, where driving beyond permissible
hours did not cause or contribute to Mr. Fuhrman’s death. To prevail on
a negligence claim, Plaintiffs must show that Defendants negligence was
a factual, or but-for cause of Plaintiffs’ injury – here, the decedent’s death.
Straw, 187 A.3d at 993. However, Plaintiffs cannot tender such proof
because on the day of the accident, Mawyer was not tired from driving in
excess of the permissible hours, as the accident occurred early in the
workday 	and 	Mawyer 	testified 	that 	he 	had 	driven 	fewer 	than 	the
permissible hours the day before the collision. Docs. 127-2 at 33; 129-2 at
129. Thus, contrary to Plaintiffs’ assertion, Mawyer’s fatigue could not
have factually caused the accident.
Finally, even if Tapscott had known that Mawyer was driving their
loads, Tapscott would have had no reason to believe that Mawyer posed
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39
an unreasonable risk of harm to others because Mawyer had directly
driven for Tapscott prior to the accident, and did not experience any fatal
accidents or collisions that harmed others. Docs. 127-1 ¶ 61; 127-2 at 88-
90, 594-595. Thus, Tapscott would not have had reason to believe that
Mawyer would likely cause harm to others if it entrusted him with its
trailer again. For these reasons, the undersigned recommends the Court
grant Defendants summary judgment on the negligent entrustment
claim.
3. 	Plaintiffs have not provided sufficient evidence to
show that Tapscott was negligent in maintaining
and loading its trailer.
Plaintiffs also allege that Tapscott was negligent in loading and
maintaining the subject trailer. Doc. 129 at 20. Plaintiffs posit that
Tapscott’s overloading of and failure to maintain its trailer “jeopardized
the motoring public” and contributed to the accident. Doc. 129 at 20; Doc.
147 at 53-57.
a. 	Trailer Maintenance
Plaintiffs raise several maintenance issues with Tapscott’s trailer,
such 	as 	faulty 	brakes, 	lights, 	and 	tires. 	Doc. 	129 	at 	21. 	However,
Plaintiffs do not proffer any evidence linking the trailer’s maintenance
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issues to the accident. Doc. 147 at 53-54. Because a claim of negligence
requires proof of causation, and Plaintiffs cannot provide any evidence to
link 	the 	maintenance 	issues 	with 	the 	accident, 	Plaintiffs 	have 	not
provided enough evidence for a reasonable jury to find in their favor on
this claim. Therefore, summary judgment should be granted.
b. 	Overloaded Trailer
Plaintiffs have also failed to provide sufficient evidence for any
reasonable jury to find that Tapscott overloaded its trailer in a way that
created an unreasonable and foreseeable risk of harm to others. Tapscott
did have an ordinary duty of care to mindfully load its trailer in a way
that it knew would not cause foreseeable harm to others. Spence, 623
F.3d at 218-19. Plaintiffs allege that Tapscott breached that duty by
overloading the trailer, and that, coupled with “negligent maintenance of
the trailers . . . jeopardized the motoring public by stressing the vehicle
components,” which contributed to the accident. Doc. 129 at 24.
In their description of the trailer, Plaintiffs apparently attempt to
evoke a correlation between the trailer’s weight and the tractor-trailer’s
potential to cause harm to third parties. The tractor-trailer’s weight
status, as Plaintiff’s refer to it, was determined by the presence or
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41
absence of a hauling permit and not the tractor-trailer’s propensity to
cause harm to third persons. See Doc. 127-1 ¶ 12. Both parties stipulate
that in Pennsylvania, tractor-trailers are allowed to haul up to 80,000
pounds without a permit. Id.; Doc. 130 at 7. However, to haul up to 90,000
pounds, a tractor trailer needs a special hauling permit. See Doc. 127-1 ¶
33. Here, the tractor-trailer weighed 85,300 pounds. Doc. 127-1 ¶ 12. It
was 	“overweight” 	in 	the 	sense 	that 	the 	tractor 	did 	not 	have 	the
appropriate permit, indicated by a sticker, granting it the authority to
haul up to 90,000 pounds. See Doc. 147 at 29, 33, 50-51. But the lack of a
special permit, without more, did not make the tractor trailer more
dangerous—it 	simply 	took 	it 	out 	of 	compliance 	with 	the 	permit
requirement. See id. at 59, 62. Plaintiffs’ attorney admitted as much:
THE COURT: Focusing on the permit, if that sticker was on
that truck that day, the day of the accident, would that
accident have been less likely to have happened?
[PLAINTIFF’S ATTORNEY]: I don’t believe that the accident
would have been less likely to happen because of the sticker,
no, Your Honor.
THE COURT: So the permit is irrelevant, right? The lack of
permit did not cause this accident.
[PLAINTIFF’S ATTORNEY]: The lack of permit did not.
Doc. 147 at 51:14-22.
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Had B&C obtained the proper permit, the tractor-trailer would not
have been considered overweight. Doc. 127-1 ¶ 12. Despite the weight
status of the tractor-trailer, the tractor-trailer weighed 4,700 pounds
below Pennsylvania’s maximum legal hauling limit and thus could not
have created an unreasonable and foreseeable risk of harm to others. Id.
The tractor-trailer’s weight on the day of the accident could not have been
per se unreasonably dangerous, because tractor-trailers are allowed to be
as heavy and even heavier, so long as they possess the appropriate
permit. See id.; Doc. 130 ¶ 9. Therefore, the amount of lumber Tapscott
loaded into the trailer could not have been negligent. 7
Moreover, even if the Plaintiffs were able to provide evidence to
show that Tapscott’s overloading the trailer made the tractor-trailer
unreasonably and foreseeably dangerous when driven, Plaintiffs have not
provided sufficient evidence to show that the weight of the trailer caused
any injury. For a negligence claim to succeed, an action must be a factual
7 Further, Tapscott required, and Plaintiffs’ expert acknowledged, that
Tapscott required every independent hauler it contracted with to obtain
a permit to haul up to 90,000 pounds. Doc. 127-2 at 767; id. at 639-641;
Pl.’s Expert Report, Doc. 129-2 at 146-47. Thus, it was the duty of the
independent 	haulers 	to 	precure 	the 	appropriate 	permits. 	The
consequences of any failure to do so would be the fault of the independent
haulers, and not Tapscott.
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or a but-for cause of the harm. Straw, 187 A.3d at 993. This means that
“the [accident] would not have occurred but for the [weight of the trailer].”
Id.
Plaintiffs present expert opinions in an attempt to demonstrate
cause. They submit an opinion from an accident reconstruction expert,
Kevin Johnson, who opined that “[t]he additional weight carried by the
Kenworth increased the momentum transferred to the Toyota as a result
of the collision.” Affidavit of Kevin Johnson, Doc. 140-1 at 24. Despite the
jargon, this is basic physics. The heavier an object, the more force it will
carry at the same speed. To state the expert’s opinion more simply: the
weight of the tractor-trailer caused it to hit the Plaintiff’s vehicle more
forcefully during the collision than it would have had the tractor-trailer
been lighter. However, the expert does not say that the trailer’s weight is
a but-for cause of the harm–the decedent’s death. Nowhere in his opinion
does he say or suggest that Mr. Fuhrman would not have died but for the
heaviness of the trailer. 8
8 In fact, the expert does not make any causal connections between the
trailer’s weight and the accident, but only discusses the combined weight
of the tractor and trailer. Doc. 140-1 at 22.
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Plaintiffs also present the opinion of another proffered expert,
Walter Guntharp 9, as evidence to show that the trailer’s weight caused
harm to Plaintiff’s decedent. Plaintiffs remark that “[t]he Plaintiff’s
Expert Walter A. Guntharp Jr. opined that the negligent maintenance of
the trailers including overloading the trailers jeopardized the motoring
public 	by 	stressing 	the 	vehicle 	components 	such 	as 	brakes 	and
suspension.” Doc. 129 at 24. Again, this opinion fails to express that the
specific weight of the trailer was a but-for cause of the death of the
decedent. Because Plaintiffs have not raised sufficient evidence for a
reasonable jury to find that the weight of the trailer was a factual cause
of the decedent’s death, this negligence claim also fails and summary
judgment should be granted.10
D. 	Plaintiffs’ 	claims 	of 	recklessness 	and 	for 	punitive
damages against Tapscott must be dismissed because
there are no facts to support negligence on any of their
claims.
Plaintiffs 	further 	maintain 	that 	there 	are 	genuine 	issues 	of
material fact surrounding not only whether Tapscott was negligent, but
9 Guntharp is not an accident reconstructionist. See generally Doc. 127-2
at 53-67.
10 The lack of any evidence of factual causation is dispositive, but the
Plaintiff also fails to establish proximate causation.
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also reckless in maintaining and loading its trailer, and selecting, hiring,
retaining, and entrusting its trailer to Mawyer. Doc. 129 at 9. However,
Plaintiffs cannot prove recklessness or obtain punitive damages because
they cannot prove that Tapscott was even negligent.
For 	an 	action 	to 	be 	deemed 	reckless, 	it 	must 	be 	“more 	than
negligent. It must not only be unreasonable, but it must involve a risk of
harm to others substantially in excess of that necessary to make the
conduct negligent.” Moran for & on Behalf of Est. of Moran v. G. & W.H.
Corson, Inc., 586 A.2d 416, 423 (Pa. Super. Ct. 1991). Here, Plaintiffs
have not provided sufficient evidence to show that Tapscott was negligent
in any of their claims, therefore they are unable to produce adequate
evidence to show that Tapscott was reckless.
Plaintiffs have also not supplied adequate evidence to be awarded
punitive damages for another, similar reason. Pennsylvania adopted
Section 908 of the Restatement (Second) of Torts to assess whether
punitive damages are appropriate. Feld v. Merriam, 485 A.2d 742, 747
(Pa. 1984). Comment (b) to Section 908 provides that:
[s]ince the purpose of punitive damages is not compensation
of 	the 	plaintiff 	but 	punishment 	of 	the 	defendant 	and
deterrence, these damages can be awarded only for conduct
for which this remedy is appropriate—which is to say, conduct
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involving some element of outrage similar to that usually
found 	in 	crime. 	The 	conduct 	must 	be 	outrageous, 	either
because the defendant’s acts are done with an evil motive or
because they are done with reckless indifference to the rights
of others. . . . In all these cases, however, a cause of action for
the particular tort must exist, at least for nominal damages.
Restatement (Second) of Torts § 908 Comment (b) (1979). To obtain
punitive 	damages 	in 	Pennsylvania, 	the 	wrongful 	conduct 	must 	be
malicious, wanton, reckless, willful, or oppressive. Feld, 485 A.2d at 747-
48. Because punitive damages require proof that Defendants behaved
recklessly 	and 	Plaintiffs 	have 	not 	provided 	evidence 	to 	show 	their
recklessness or to satisfy any similar standard, such as maliciousness,
Plaintiffs cannot succeed on their claim for punitive damages.
V. 	RECOMENDATION
Based on the foregoing, the undersigned respectfully recommends
that:
1. 	The Tapscott Defendants’ motion for summary judgment be
GRANTED as to all claims;
2. 	The Clerk of Court be DIRECTED to enter judgment in favor
the Tapscott defendants.
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The parties are further placed on notice that pursuant to Local Rule
72.3:
Any 	party 	may 	object 	to 	a 	magistrate 	judge’s 	proposed
findings, recommendations or report addressing a motion or
matter described in 28 U.S.C. § 636 (b)(1)(B) or making a
recommendation for the disposition of a prisoner case or a
habeas corpus petition within fourteen (14) days after being
served with a copy thereof. Such party shall file with the clerk
of court, and serve on the magistrate judge and all parties,
written 	objections 	which 	shall 	specifically 	identify 	the
portions of the proposed findings, recommendations or report
to which objection is made and the basis for such objections.
The briefing requirements set forth in Local Rule 72.2 shall
apply. A judge shall make a de novo determination of those
portions 	of 	the 	report 	or 	specified 	proposed 	findings 	or
recommendations to which objection is made and may accept,
reject, 	or 	modify, 	in 	whole 	or 	in 	part, 	the 	findings 	or
recommendations made by the magistrate judge. The judge,
however, need conduct a new hearing only in his or her
discretion or where required by law, and may consider the
record developed before the magistrate judge, making his or
her own determination on the basis of that record. The judge
may 	also 	receive 	further 	evidence, 	recall 	witnesses, 	or
recommit 	the 	matter 	to 	the 	magistrate 	judge 	with
instructions.
Date: December 31, 2025 	s/ Sean A. Camoni
Sean A. Camoni
United States Magistrate Judge
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