1:21-cv-02024•Fuhrman et al v. Mawyer et al
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1 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. Case 1:21-cv-02024-YK Document 148 Filed 12/31/25 Page 1 of 47
2 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. Case 1:21-cv-02024-YK Document 148 Filed 12/31/25 Page 2 of 47
3 “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 Case 1:21-cv-02024-YK Document 148 Filed 12/31/25 Page 3 of 47
4 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 Case 1:21-cv-02024-YK Document 148 Filed 12/31/25 Page 4 of 47
5 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. Case 1:21-cv-02024-YK Document 148 Filed 12/31/25 Page 5 of 47
6 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. Case 1:21-cv-02024-YK Document 148 Filed 12/31/25 Page 6 of 47
7 127-1 ¶ 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 Case 1:21-cv-02024-YK Document 148 Filed 12/31/25 Page 7 of 47
8 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 Case 1:21-cv-02024-YK Document 148 Filed 12/31/25 Page 8 of 47
9 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 Case 1:21-cv-02024-YK Document 148 Filed 12/31/25 Page 9 of 47
10 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. Case 1:21-cv-02024-YK Document 148 Filed 12/31/25 Page 10 of 47
11 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. Case 1:21-cv-02024-YK Document 148 Filed 12/31/25 Page 11 of 47
12 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 Case 1:21-cv-02024-YK Document 148 Filed 12/31/25 Page 12 of 47
13 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 Case 1:21-cv-02024-YK Document 148 Filed 12/31/25 Page 13 of 47
14 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 Case 1:21-cv-02024-YK Document 148 Filed 12/31/25 Page 14 of 47
15 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 Case 1:21-cv-02024-YK Document 148 Filed 12/31/25 Page 15 of 47
16 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). Case 1:21-cv-02024-YK Document 148 Filed 12/31/25 Page 16 of 47
17 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. Case 1:21-cv-02024-YK Document 148 Filed 12/31/25 Page 17 of 47
18 127-2 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 Case 1:21-cv-02024-YK Document 148 Filed 12/31/25 Page 18 of 47
19 869, 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). Case 1:21-cv-02024-YK Document 148 Filed 12/31/25 Page 19 of 47
20 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). Case 1:21-cv-02024-YK Document 148 Filed 12/31/25 Page 20 of 47
21 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 Case 1:21-cv-02024-YK Document 148 Filed 12/31/25 Page 21 of 47
22 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 Case 1:21-cv-02024-YK Document 148 Filed 12/31/25 Page 22 of 47
23 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 Case 1:21-cv-02024-YK Document 148 Filed 12/31/25 Page 23 of 47
24 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. Case 1:21-cv-02024-YK Document 148 Filed 12/31/25 Page 24 of 47
25 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 Case 1:21-cv-02024-YK Document 148 Filed 12/31/25 Page 25 of 47
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 Case 1:21-cv-02024-YK Document 148 Filed 12/31/25 Page 26 of 47
27 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). Case 1:21-cv-02024-YK Document 148 Filed 12/31/25 Page 27 of 47
28 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. Case 1:21-cv-02024-YK Document 148 Filed 12/31/25 Page 28 of 47
29 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 Case 1:21-cv-02024-YK Document 148 Filed 12/31/25 Page 29 of 47
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 Case 1:21-cv-02024-YK Document 148 Filed 12/31/25 Page 30 of 47
31 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 Case 1:21-cv-02024-YK Document 148 Filed 12/31/25 Page 31 of 47
32 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 Case 1:21-cv-02024-YK Document 148 Filed 12/31/25 Page 32 of 47
33 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. Case 1:21-cv-02024-YK Document 148 Filed 12/31/25 Page 33 of 47
34 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 Case 1:21-cv-02024-YK Document 148 Filed 12/31/25 Page 34 of 47
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 Case 1:21-cv-02024-YK Document 148 Filed 12/31/25 Page 35 of 47
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. Case 1:21-cv-02024-YK Document 148 Filed 12/31/25 Page 36 of 47
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. Case 1:21-cv-02024-YK Document 148 Filed 12/31/25 Page 37 of 47
38 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 Case 1:21-cv-02024-YK Document 148 Filed 12/31/25 Page 38 of 47
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 Case 1:21-cv-02024-YK Document 148 Filed 12/31/25 Page 39 of 47
40 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 Case 1:21-cv-02024-YK Document 148 Filed 12/31/25 Page 40 of 47
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. Case 1:21-cv-02024-YK Document 148 Filed 12/31/25 Page 41 of 47
42 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. Case 1:21-cv-02024-YK Document 148 Filed 12/31/25 Page 42 of 47
43 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. Case 1:21-cv-02024-YK Document 148 Filed 12/31/25 Page 43 of 47
44 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. Case 1:21-cv-02024-YK Document 148 Filed 12/31/25 Page 44 of 47
45 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 Case 1:21-cv-02024-YK Document 148 Filed 12/31/25 Page 45 of 47
46 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. Case 1:21-cv-02024-YK Document 148 Filed 12/31/25 Page 46 of 47
47 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 Case 1:21-cv-02024-YK Document 148 Filed 12/31/25 Page 47 of 47
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