State Regulation of Vehicle Operation

Dale G. Larrimore

Larrimore & Farnish, LLP

Since the earliest days of the automobile, the Supreme Court of the United States has broadly sustained the power of a state to regulate the use of motor vehicles on its highways.[i]

Motor vehicles are dangerous machines, and, even when skillfully and carefully operated, their use is attended by serious dangers to persons and property. In the public interest the state may make and enforce regulations reasonably calculated to promote care on the part of all, residents and nonresidents alike, who use its highways.[ii]

State regulation of the use of Commonwealth roadways has long been accepted as a valid exercise of a state's police powers and general regulations as contained in the Vehicle Code are necessary to promote the safety of persons and property within Pennsylvania.[iii] The legislature has determined that the safety of persons on the streets and highways within Pennsylvania is materially affected by the degree of compliance with state laws and local ordinances relating to the operation of vehicles, and that a motorist's violation of such laws and ordinances is evidence that the motorist engaged in conduct that is “likely to endanger the safety of persons and property.”[iv]

The Vehicle Code must be applied uniformly throughout the Commonwealth in all political subdivisions and no local authority has the power to enact or enforce any ordinance on a matter covered by the Vehicle Code unless expressly authorized.[v] The plenary power of the Legislature over the highways of the Commonwealth is of ancient standing, and seldom, if ever, has been questioned.[vi] Highways are recognized as the property of the people, not of a particular district, but of the whole state; and they are subject to the absolute direction and control of the Commonwealth.[vii] The public roads of Pennsylvania are laid out and open for the use of all persons on equal terms; that is, to all who comply with the reasonable regulations of the duly constituted authorities.

The right to use a public highway for travel on, or in the transportation of merchandise over, is not unrestricted.[viii] It is for the Commonwealth, acting through the Legislature, to direct the conditions under which this limited right shall be exercised.[ix] It alone has the power to regulate the manner and circumstances under which automobiles may be operated upon Pennsylvania highways. This power is vested in the Legislature, and is based, upon its right to control and regulate the use of the highways, buttressed by the inherent police power of the state.

The Pennsylvania Department of Transportation (PennDOT) is charged with the duty of administering the Vehicle Code.[x] In its proper exercise of the police power of the Commonwealth, the Legislature has the obligation to prescribe how and by whom motor vehicles shall be operated on the highways, in order to promote public safety.[xi] The most recent codification of these laws was adopted in 1976 as the “Vehicle Code,”[xii] containing the laws controlling the licensing and operation of vehicles in this Commonwealth.

            The Vehicle Code includes the “Rules of the Road”[xiii] as well as various other provisions, some of which specifically regulate vehicle operation.[xiv] Unquestionably, all motorists have a duty to obey these rules of the road.[xv] It is well-settled that a violation of the Vehicle Code that causes harm to another person constitutes negligence per se.[xvi] Negligence per se applies when an individual violates an applicable statute, regulation or ordinance designed to prevent a public harm,[xvii] and proof that the defendant violated an applicable statute satisfies the duty and breach elements of the elements of a negligence cause of action.[xviii]  

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[i] Kane v. New Jersey, 242 U.S. 160, 167, 37 S. Ct. 30, 31, 61 L. Ed. 222 (1916); Hendrick v. State of Maryland, 235 U.S. 610, 35 S. Ct. 140, 59 L. Ed. 385 (1915).

[ii] Hess v. Pawloski, 274 U.S. 352, 356, 47 S. Ct. 632, 633, 71 L. Ed. 1091 (1927), quoted with approval in Com. v. Funk, 323 Pa. 390, 186 A. 65 (1936).

[iii] Com. v. Arnold, 215 Pa. Super. 444, 258 A.2d 885 (1969).

[iv] 75 Pa.C.S. §1581, Art. I (a)(1) and (2).

[v] 75 Pa.C.S. §6101. See also Com. v. Pugh and Muha, 22 Pa. D. & C.3d 703, 1982 WL 736 (C.P. 1982).

[vi] Com. v. Funk, 323 Pa. 390, 394, 186 A. 65, 67 (1936), citing O'Connor v. Pittsburgh, 18 Pa. 187, 1851 WL 5955 (1851); Commonwealth v. Erie & N.E.R. Co., 27 Pa. 339, 1856 WL 7224 (1856); Southwark R. Co. v. City of Philadelphia, 47 Pa. 314, 1864 WL 4683 (1864); City of Duquesne v. Fincke, 269 Pa. 112, 112 A. 130 (1920); Foley v. Beach Creek Extension R. Co., 283 Pa. 588, 129 A. 845 (1925).

[vii] Com. v. Funk, 323 Pa. 390, 186 A. 65 (1936), citing Case of Philadelphia & T.R. Co., 6 Whart. 25, 43, 1840 WL 3923 (Pa. 1840).

[viii] Com. v. Dennison, 48 Pa. Super. 293, 1911 WL 4686 (1911).

[ix] City of Allegheny v. Zimmerman, 95 Pa. 287, 1880 WL 13947 (1880).

[x] 75 Pa.C.S. §6102(a). The rules and regulations promulgated by PennDOT, pursuant to the authority granted by the Vehicle Code, are contained in Title 67 of the Pennsylvania Code. 

[xi] Com. v. Funk, 323 Pa. 390, 396, 186 A. 65, 68 (1936).

[xii] 75 Pa.C.S. §§101 et seq.; known and cited as the “Vehicle Code” (frequently referred to, inaccurately, as the “Motor Vehicle Code”).

[xiii] 75 Pa.C.S. §§3301 et seq.

[xiv] See 75 Pa.C.S. §§3101 et seq., §§3501 et seq., and §§3701 et seq.

[xv] Ammerman v. Lush, 236 Pa. Super. 231, 345 A.2d 271 (1975).

[xvi] Drew v. Work, 2014 PA Super 137, 95 A.3d 324, 338 (2014); Schemberg v. Smicherko, 2014 PA Super 23, 85 A.3d 1071, 1075 (2014); Lahr v. City of York, 972 A.2d 41 (Pa. Commw. Ct. 2009), Sodders v. Fry, 32 A.3d 882 (Pa. Commw. Ct. 2011). For a more detailed discussion of negligence per se, see Shamnoski v. PG Energy, Div. of Southern Union Co., 579 Pa. 652, 858 A.2d 589 (2004), and Jenkins v. Wolf, 2006 PA Super 321, 911 A.2d 568 (2006).

[xvii] Ford ex rel. Pringle v. Philadelphia Housing Authority, 848 A.2d 1038, 1050 n.11 (Pa. Commw. Ct. 2004).

[xviii] Sodders v. Fry, 32 A.3d 882, 887 (Pa. Commw. Ct. 2011).

Lawyers Researching Jurors on the Internet

Lawyers Researching Jurors on the Internet[1]

 Thomas S. Farnish, Esquire

Larrimore & Farnish, LLP, Philadelphia

            In 2014, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 466, concerning Lawyer Reviewing Jurors’ Internet Presence. Electronic Social Media (“ESM”) is pervasive in our society. Depending on privacy settings chosen, some internet information is available to the general public, while other ESM material is viewable only by those to whom the subscriber has granted access. This opinion provides that unless limited by law or court order, a lawyer may review a potential juror’s internet presence, which may include postings by the juror in advance of and during a trial, but an attorney may not communicate directly or through another with a juror or potential juror.

As long as there is no direct communication made to the prospective juror, conducting such an internet investigation should not violate Pa.R.P.C. 3.5. The professional guidance committees of bar associations throughout the United States have issued opinions indicating that it is proper for attorneys to search a juror’s publicly available webpages and ESM.[2] A formal opinion of the Pennsylvania Bar Association provides that “a lawyer may view the public portion of a juror’s social networking website, even if the website generates a notification to the juror that the lawyer has viewed it, but may not ask the juror for access to the private portion of the website.”[3]

            The ABA ethics committee recognized that there is strong public interest in identifying jurors who might be tainted by improper bias or prejudice. Comment 8 to Rule 1.1 of the PA Rules of Professional Conduct suggests that lawyers should keep abreast of relevant technology. The Committee on Professional Ethics of the Bar of the City of New York issued Formal Opinion 2012-2 indicating that “the standards of competence and diligence may require doing everything reasonably possible to learn about jurors who will sit in judgment on a case.” New Hampshire Bar Association opinion 2012-13/05, provides that lawyers “have a general duty to be aware of social media as a source of potentially useful information in litigation, to be competent to obtain that information directly or through an agent, and to know how to make effective use of that information in litigation.”

            A standard question asked during voir dire concerns a prospective juror’s involvement in prior litigation. In Johnson v. McCullough,[4] the Supreme Court of Missouri affirmed the granting of a new trial to a plaintiff in a medical malpractice suit where one of the jurors had failed to disclose that she had been a defendant in multiple debt collection suits and in a personal injury lawsuit. The court noted that plaintiff’s voir dire question was clear and unambiguous: “Now, not including family law, has anyone ever been a plaintiff or a defendant in a lawsuit before?” Although numerous members of the panel responded affirmatively, juror Mims did not respond to the question and eventually was chosen to sit on the jury. When the jury returned a defense verdict after a six-day trial, plaintiff’s counsel did an internet search and discovered juror Mims’ litigation history.

            The Supreme Court of Missouri found that the failure to disclose these prior lawsuits violated the juror’s duty to give full, fair and truthful answers to all questions asked during voir dire. The trial court determined that Mims’ nondisclosure of her involvement in recent prior litigation was intentional and, therefore, it inferred prejudice from her concealment. Bias and prejudice is presumed if a juror intentionally withholds information and there is almost a per se rule mandating a new trial.

            Interestingly, however, the opinion in Johnson v. McCullough suggests that “with the relative present day ease of procuring the venire member’s prior litigation experiences … we encourage counsel to make such challenges before submission of a case whenever practicable.” The Court noted that it is not necessarily practicable for the attorneys in a case to investigate the litigation history of all of the selected jurors prior to the jury being impaneled. However, in very important dicta, the Supreme Court of Missouri noted that:

[I]n light of advances in technology allowing greater access to information ... it is appropriate to place a greater burden on the parties to bring such matters to the court's attention at an earlier stage. Litigants should not be allowed to wait until a verdict has been rendered to … search for jurors' prior litigation history when, in many instances, the search also could have been done … prior to the jury being impaneled. Litigants should endeavor to prevent retrials by completing an early investigation….[A]party must use reasonable efforts to examine the litigation history … of those jurors selected but not impaneled and present to the trial court any relevant information prior to trial. To facilitate this search, the trial courts are directed to ensure the parties have an opportunity to make a timely search prior to the jury being impaneled and shall provide the means to do so, if counsel indicates that such means are not reasonably otherwise available.

            The author is not aware of any similar decisions issued by the Supreme Court of Pennsylvania but, as we orient ourselves to the resources and new technology now available, we must certainly be cognizant of the possibility that a court may find that a post-verdict challenge to a jury panel, based on juror nondisclosure, may be held to be untimely.[5]

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[1] Originally published in The Verdict, published by the Philadelphia Trial Lawyers Association, 2015-2016, Issue 3.

[2] See, e.g., KY Bar Ass’n Op. E-434 (2012); NY County Bar Opinion 743 (2012); OR State Bar Ass’n Formal Op. 2013-189; NY State Bar Ass’n, Advisory Op. 843 (2010)

[3] PBA Formal Opinion 2014-300 (9/14)

[4] Johnson v. McCullough, 306 S.W. 3d 551 (Mo. 2010).

[5] It is also interesting to note that the failure of a juror to follow jury instructions by emailing other jurors about the case can result in criminal contempt sanctions against the juror. U.S. v. Juror Number One, 866 F.Supp.2d 442 (E.D. Pa. 2011); U.S. v. Rowe, 906 F.2d 654 (11^th Cir. 1990).

Jury Orientation in the United States District Court For the Eastern District of Pennsylvania

Jury Orientation in the United States District Court
For the Eastern District of Pennsylvania

Dale G. Larrimore, Esquire

Larrimore & Farnish, LLP, Philadelphia

            In 2014, Chief Judge Petrese Tucker challenged the Jury Committee of the US District Court for the Eastern District of Pennsylvania, under the leadership of Honorable Juan Sanchez, to create a new jury orientation video that would be more interesting and informative for prospective jurors. I had the honor of writing the script for the new orientation video and now, in 2016, this new jury orientation video is being utilized in the jury assembly room in the federal court in Philadelphia. Narrated by Jim Gardner of 6abc Action News WPVI-TV and, demonstrating the geographic, gender and racial diversity of the court, the video features Judges Padova, Schmehl and Beetlestone, with an introduction by Chief Judge Tucker.

            As would be expected, prospective jurors are told that they should use their common sense to weigh the credibility of witnesses and to decide the factual disputes that are presented in the trial. Jurors are instructed that it is important that each of them contribute to the discussion of the facts in the case before reaching a verdict.

            In the initial questioning of a jury panel, attorneys often spend time explaining the voir dire process. Perhaps it is helpful to know that the jury panel is told in the video to expect that counsel will be asking them questions to determine their “ability to sit as fair and impartial jurors” in the particular case in the courtroom to which they are assigned. The prospective jurors are told that “voir dire” is a term in Old Legal French that means “to speak the truth” and that they have a duty to provide honest answers to the attorneys’ questions “with the utmost candor and fairness to all parties.”

            Perhaps the most interesting addition to the new jury video is the emphasis placed on social media and the internet. Jurors are instructed that they must not try to act as amateur detectives, performing their own independent investigation.

You may not use the internet or Google Earth to learn anything about any locations mentioned during any trial in which you are a juror… Jurors must not research the case online in any way or supplement their knowledge about the case from any sources.

We are all aware that in daily life many of you regularly use the internet to enhance your knowledge, but you must not “Google” any of the parties, witnesses, or attorneys to learn more about them. Relying on information you obtain outside of the courtroom would be unfair and prejudicial because the parties would not have opportunity to refute, correct or explain.

            This point is then re-emphasized near the end of the orientation video, when the jurors hear that, “using information gathered in secret and discussed only by the jurors behind closed doors undermines the public process and violates the rights of the parties.” The parties in the case and everyone in the community are entitled to know the evidence on which a jury verdict is based.    

            Contrasting with the instruction to jurors not to do any online investigation of the parties or attorneys, the new video informs jurors that during jury selection and the trial the attorneys have the right to review each juror’s internet presence. “Any public information that is available about you on the internet may be view by the attorneys in any case in which you are a juror.”

            In the new video, prospective jurors are also instructed that they may not communicate anything about the case to anyone, via email, test messages, blogs, Facebook, LinkedIn, Twitter, Instagram, or any other form of electronic social media. Any communication about the matter before them or their jury service before the case is over is absolutely prohibited, and violation of these rules could result in contempt of court.

            As would be expected, the jury orientation video expresses appreciation for their time and service as a juror, but also points out that their service is both a duty and a privilege.

A jury trial will likely affect someone you know at some point during your lifetime. That person will want a jury that is doing its duty and will expect a jury of fair-minded people who are willing to hear the evidence and treat the case with fairness and justice.

Today is your turn to serve others. Please serve just as you would want others to be impartial jurors in any future trial that might affect you, your family or your acquaintances.