2021 WL 5815833

United States District Court, W.D. Oklahoma.
CTC, INC., Plaintiff,
v.
SCHNEIDER NATIONAL INC.1 and Schneider National Carriers, Inc., Defendants.
Case No. CIV-20-1235-F
|
Signed 12/07/2021

ORDER
STEPHEN P. FRIOT, UNITED STATES DISTRICT JUDGE
*1 Plaintiff CTC, Inc. has moved for partial summary judgment under Rule 56(a), Fed. R. Civ. P. Doc. no. 35. Defendant, Schneider National Carriers, Inc., has responded, opposing entry of partial summary judgment. Doc. no. 40. Defendant has also moved for summary judgment under Rule 56(a) with respect to plaintiff’s claims against it. Doc. no. 36. Plaintiff has responded, opposing entry of summary judgment in favor of defendant. Doc. no. 39.

I.
Introduction
Plaintiff brings this negligence action against defendant to recover damages arising from a vehicular collision. Plaintiff claims defendant’s employee lost control of the tractor-trailer he was driving and collided with plaintiff’s tractor-trailer which had become disabled and was legally parked on the shoulder of the interstate.

Plaintiff alleges negligence and negligence per se theories of liability against defendant.2 It seeks entry of partial summary judgment on the issue of liability for its claims, leaving the issue of damages for trial. Defendant seeks summary judgment as to plaintiff’s claims on two grounds – lack of standing to recover property damages and failure to identify statutes/ordinances allegedly violated by its driver for the negligence per se claim.

II.
Standard of Review
Rule 56(a) provides that “[a] party may move for summary judgment, identifying each claim or defense—or part of each claim or defense—on which summary judgment is sought.” Rule 56(a), Fed. R. Civ. P. Summary judgment is appropriate if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Id. In applying this standard, the court views the factual record and draws all reasonable inferences most favorably to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). An issue is “genuine” if there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of fact is “material” if under the substantive law it is essential to the proper disposition of the claim. Id. “ ‘If a party that would bear the burden of persuasion at trial does not come forward with sufficient evidence on an essential element of its prima facie case, all issues concerning all other elements of the claim and any defenses become immaterial.’ ” Miller ex rel. S.M. v. Board of Educ. of Albuquerque Public Schools, 565 F.3d 1232, 1246 (10th Cir. 2009) (quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998)).

III.
Plaintiff’s Motion
“A federal court sitting in diversity applies the substantive law, including choice of law rules, of the forum state.” Barrett v. Tallon, 30 F.3d 1296, 1300 (10th Cir. 1994) (citation omitted). Here, the forum state is Oklahoma, which in tort cases, such as this, requires application of the law of the state with the most significant relationship to the occurrence and to the parties. Id. It appears from the record, and the parties do not challenge, that Oklahoma is the state with the most significant relationship to the occurrence and the parties. The court therefore applies Oklahoma substantive law with respect to plaintiff’s negligence claims.

*2 Under Oklahoma law, “[t]he elements of negligence are (1) the existence of a duty on the part of a defendant to protect the plaintiff from injury; (2) a violation of that duty; and (3) injury proximately resulting from the violation.” Dirickson v. Mings, 910 P.2d 1015, 1018 (Okla. 1996) (citation omitted). “Concerning duty of care, a driver of a motor vehicle must, at all times, use that degree of care which is reasonable and prudent under the circumstances.” Id. (citation omitted). “Therefore, a failure to exercise that degree of care which results in injury to another is actionable negligence.” Id.

Upon review, the court concludes that plaintiff, who bears the burden of persuasion at trial, has failed to come forward with sufficient evidence that defendant’s employee violated the duty of care. In its briefing, plaintiff alleges the subject collision occurred because defendant’s employee fell asleep. Plaintiff, however, presents no evidence to support that allegation. With its motion, plaintiff has submitted the Oklahoma Highway Patrol’s “Official Oklahoma Traffic Collision Report.” Doc. no. 35-2. Assuming, without deciding, the report may be relied upon for purposes of summary judgment,3 the report only indicates that defendant’s tractor-trailer departed the roadway, but no reason is given for the departure. The “Unsafe/Unlawful Contributing Factors” are “Other/Unknown.” Id. Plaintiff also submits, in support of its motion, the declaration of its vice-president, but that declaration does not establish defendant’s employee violated the duty of care.4 Further, the “2018 Annual Average Daily Traffic Oklahoma Highway System Garvin County” does not establish that defendant’s employee violated the duty of care. Because plaintiff has not come forward with sufficient evidence to establish one of the essential elements of its negligence claim,5 the court concludes that partial summary judgment is not appropriate.

Plaintiff additionally asserts a negligence per se claim against defendant. “If a statute delineates the defendant’s obligations, a court may adopt the required conduct in place of the common-law duty as the appropriate basis for establishing civil liability.” Burgin v. Leach, 320 P.3d 33, 38-39 (Okla. Civ. App. 2014) (citing Mansfield v. Circle K Corporation, 877 P.2d 1130, 1132 (Okla. 1994)). “When courts accept a statutory requirement as the legal duty for actionable negligence, the violation of that statute is said to be negligence per se.” Id. “To establish negligence per se on the basis of a statutory violation [the plaintiff] must establish that: [(1)] the injury was caused by the violation; [(2)] the injury was of a type intended to be prevented by the statute; and [(3)] the injured party was of the class meant to be protected by the statute.” Mansfield, 877 P.2d at 1132-33. Plaintiff’s motion does not address any of the elements for establishing a negligence per se claim. Consequently, the court concludes that partial summary judgment is not appropriate on the negligence per se claim.

*3 For the reasons stated, the court concludes that plaintiff’s motion for partial summary judgment on the issue of liability for its negligence claims should be denied.

IV.
Defendant’s Motion
Initially, defendant seeks summary judgment with respect to plaintiff’s negligence claims on the ground that plaintiff lacks standing to pursue recovery of property damages. Defendant asserts that plaintiff did not own the tractor-trailer. In support of its assertion, defendant submits certificates of title for the tractor and the trailer, showing the owner as Southwestern Express, Inc. Because another entity is the titled owner of the subject tractor-trailer, defendant contends that plaintiff has no standing to recover property damages, including the cost of repairs or replacement of the tractor-trailer, and the loss of use related to the tractor-trailer.

Plaintiff, in response, submits a declaration of its accounting/leasing manager who states the tractor and trailer were operating under the authority of plaintiff and were insured by plaintiff’s carrier, Great West Casualty Company. The driver of the tractor-trailer was “leased on” to plaintiff, and he was also lease purchasing the tractor-trailer from Southwestern Express, Inc. Doc. no. 39-1, ¶ 5. The manager states that plaintiff was contractually obligated to maintain insurance coverage on the equipment and has authority to settle all claims associated with the loss. She also states that plaintiff and Southwestern Express, Inc. are sister companies.

Viewing the factual record in a light most favorable to plaintiff, the court finds that summary judgment is not appropriate on the issue of standing as to the recovery of property damages to the tractor and trailer. In addition, the court notes that plaintiff’s Second Amended Complaint is not limited to recovery of damages to the tractor and trailer themselves. It also seeks cleanup costs, cargo loss, towing costs, and loss of income and profits. Defendant’s motion does not specifically address the issue of standing as to any of these requested damages

Next, defendant contends that the court should enter summary judgment on the negligence per se claim because plaintiff has failed to identify any statutes/ordinances upon which the claim is based. Without identification of such statutes/ordinances, defendant maintains that plaintiff cannot establish that a statute/ordinance was violated by its driver.

In response, plaintiff asserts that it pled in its complaint that defendant’s driver failed to devote full time and attention, which is found at 47 O.S. 2021 § 11-901b.6 Plaintiff also asserts that it pled defendant’s driver failed to stay in his lane of travel and committed other violations, thereby giving defendant notice of the statutes violated.

Upon review, the court finds that defendant is not entitled to summary judgment on the negligence per se claim. Plaintiff has identified at least one statute, 47 O.S. 2011 § 11-901b, which it contends defendant’s driver violated.

For the reasons stated, the court concludes defendant’s motion for summary judgment, on the ground of lack of standing to recover property damages and on the ground of failure to identify statutes/ordinances allegedly violated by its driver for the negligence per se claim, should be denied.

V.
Conclusion
*4 Accordingly, Plaintiff CTC, Inc.’s Motion for Partial Summary Judgment Against Defendant Schneider National Carriers, Inc., filed November 1, 2021 (doc. no. 35), is DENIED. Defendant Schneider National Carriers, Inc.’s Motion for Summary Judgment, filed November 1, 2021 (doc. no. 36), is also DENIED.

IT IS SO ORDERED this 7th day of December, 2021.

All Citations
Slip Copy, 2021 WL 5815833

Footnotes

1
Defendant Schneider National Inc. was previously dismissed from this action by plaintiff. Doc. no. 15.

2
Defendant has admitted respondeat superior liability for any proven negligence of its employee in relation to the subject accident. Doc. no. 16, ECF p. 8, n. 1.

3
Defendant objects to plaintiff’s reliance upon the report for summary judgment purposes.

4
Defendant objects to the declaration because the information provided is not based upon personal knowledge of the vice-president but rather received from other sources. The court need not address defendant’s objection as the declaration, as stated, is insufficient to establish defendant’s employee violated the duty of care.

5
Although pled in its Second Amended Complaint, plaintiff, in its motion, has not invoked the application of res ipsa loquitor. In any event, plaintiff has not presented sufficient evidence of each of the foundation facts for its application. Harder v. F.C. Clinton, Inc., 948 P.2d 298, 303 n. 12 (Okla. 1997).

6
Section 11-901b provides in pertinent part:
The operator of every vehicle, while driving, shall devote their full time and attention to such driving.

2021 WL 5631750

United States District Court, M.D. Pennsylvania.
MICHAEL KARP, et al., Plaintiffs,
v.
DANA JENKINS, et al., Defendants.
No. 4:18-CV-02282
|
12/01/2021

Matthew W. Brann, Chief United States District Judge

MEMORANDUM OPINION DECEMBER 1, 2021 I. BACKGROUND
*1 Michael and Linda Karp (“Plaintiffs”) initially filed a complaint against CIS Express, LLC (“CIS”) and Dana Jenkins (Collectively “Defendants”) in November 2018.1 After being served with the initial complaint in 2019, Defendants failed to appear before this Court. Plaintiffs moved for entry of default against Defendants in 2020,2 and default was subsequently entered by the Clerk of Court.3

Plaintiffs thereafter moved for default judgment, which this Court granted in part.4 Although the Court granted default judgment against Jenkins as to Counts 1, 3, 6, 8, 10, and 13, the Court denied default judgment as to Counts 4, 5, 7, 11, 12, and 14 after concluding that Plaintiffs had failed to adequately allege that Jenkins was acting within the scope of his employment with CIS when the relevant events occurred and, therefore, failed to establish liability against CIS.5

Plaintiffs thereafter filed an amended complaint6 and again sought default judgment.7 This Court denied that motion because the amended complaint had not been served on Defendants.8 In June 2021 Plaintiffs served both Jenkins and CIS with the amended complaint and, in October 2021, Plaintiffs filed this motion for default judgment.9 Defendants have not responded, and the motion is now ripe for disposition. For the following reasons, the motion will be granted in part.

II. DISCUSSION

A. Default Judgment is Warranted
Federal Rule of Civil Procedure 55 allows the District Court to enter default judgment upon application by a party.10 “Generally, the entry of a default judgment is disfavored, and a court is required to exercise sound judicial discretion in deciding whether to enter default judgment.”11 “This element of discretion makes it clear that the party making the request is not entitled to a default judgment as of right, even when defendant is technically in default and that fact has been noted under Rule 55(a).”12

“Three factors control whether a default judgment should be granted: (1) prejudice to the plaintiff if default is denied, (2) whether the defendant appears to have a litigable defense, and (3) whether defendant’s delay is due to culpable conduct.”13 “But when a defendant has failed to appear or respond in any fashion to the complaint, this analysis is necessarily one-sided; entry of default judgment is typically appropriate in such circumstances at least until the defendant comes forward with a motion to set aside the default judgment under Rule 55(c).”14 In cases where the defendants fail to appear, courts may enter default judgment “based solely on the fact that the default has occurred.”15

*2 As with the first motion for default judgment, a consideration of those factors again favors a grant of default judgment. First, Plaintiffs would be prejudiced by their “current inability to proceed with their action due to Defendants’ failure to defend.”16 Defendants’ decision to not appear before this Court would otherwise prevent Plaintiffs from recovering any damages for their claims. Similarly, the second factor weigh in favor of default judgment. “Defendant[s] ha[ve] not responded to the allegations and, thereby, ha[ve] failed to assert a defense.”17 Finally, there does not appear to be any excuse for Defendants’ failure to appear or otherwise respond to Plaintiffs’ complaint. Plaintiffs submitted two executed summonses that were served on Dana Jenkins personally and Carmen Moran, a person designated by law to accept service of process on behalf of CIS.18 Having received service, Defendants have yet to respond or appear in this action. Because Defendants have offered no explanation for their failure to respond, the Court finds that Defendants are culpable.19 Therefore, the Court again finds that default judgment is appropriate given the circumstances.

As the Court explained in its earlier Memorandum Opinion, a finding that default judgment is warranted “is not the end of the inquiry.”20 The Court must further consider whether the “unchallenged facts constitute a legitimate cause of action.”21 Although the defaulting parties do not concede conclusions of law, “the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true.”22 Plaintiffs’ amended complaint alleges twenty separate claims asserting various violations of Pennsylvania state law. For the reasons discussed in the Court’s Memorandum Opinion addressing Plaintiffs’ first motion for default judgment, Plaintiffs have adequately stated claims against Jenkins.23 The Court will therefore consider whether the allegations in the complaint, taken as true, state a claim against CIS.

B. The Facts Alleged in the Amended Complaint
The facts alleged in the amended complaint, which the Court must accept as true for the purposes of determining whether Plaintiff has stated a claim, are as follows.

CIS is a commercial carrier that picks up and hauls goods throughout the United States, including Pennsylvania.24 CIS hires drivers to operate its vehicles and haul goods for it, and employed Jenkins as one of its commercial truck drivers.25 In that capacity, Jenkins was authorized by CIS to operate its vehicles to pick up and haul goods through the United States.26 CIS required Jenkins to operate on specific designated routes in furtherance of CIS’ business.27

On or about May 2, 2017, Plaintiffs were traveling westbound in the right lane of Interstate 80, through Centre County, Pennsylvania.28 At the same time, Jenkins, operating a tractor trailer owned by CIS, was also traveling westbound on Interstate 80, in the left lane.29 Jenkins proceeded to drive close to Plaintiffs’ vehicle, beeping his horn; Michael Karp—driving Plaintiffs’ vehicle—moved further right to allow Jenkins to pass.30 When Jenkins was approximately halfway past Plaintiffs’ vehicle in the left lane, he suddenly and without warning moved from the left lane into the right lane, striking Plaintiffs’ vehicle with his semi-trailer.31

Thereafter, Jenkins was charged with numerous traffic violations and criminal acts, and ultimately pled guilty to two counts of simple assault and two counts of recklessly endangering another person.32 As a result of the collision, Plaintiffs have suffered a variety of injuries and have incurred significant costs.33 At the time of the collision, Jenkins was “was hauling goods and/or in route to pick up and/or drop off goods” at CIS’ behest, was acting within the scope of his employment in so doing, and was working during his regular working hours.34 The tractor-trailer that Jenkins was operating, along with all equipment that he was using, was provided to him by CIS—consistent with CIS’ ordinary practices.35

C. Plaintiffs’ Claims

1. Claims of Negligence
*3 With respect to claims of negligence, under Pennsylvania law Plaintiffs must prove: “a duty to conform to a certain standard for the protection of others against unreasonable risks; the defendant’s failure to conform to that standard; a causal connection between the conduct and the resulting injury; and actual loss or damage to the plaintiff.”36 The United States Court of Appeals for the Third Circuit has “held that the duty of care owed in a negligence action arising from a car accident in Pennsylvania ‘is at least that established by the Pennsylvania Vehicle Code.’ ”37

As discussed previously, the allegations in the complaint—and now amended complaint—are sufficient to support liability against Jenkins for negligence.38 Thus, the only question is whether Plaintiffs have adequately pled claims of negligence as to CIS.

With regard to Plaintiffs’ claim of vicarious liability, “[a] plaintiff may pursue a negligence action against a defendant on the theory of direct liability or vicarious liability.”39
Under Pennsylvania law, in order to hold an employer vicariously liable for the negligent acts of its employee, these acts must be committed during the course of and within the scope of the employment. Generally, the conduct of an employee is considered within the scope of employment for purposes of vicarious liability if: (1) it is of a kind and nature that the employee is employed to perform; (2) it occurs substantially within the authorized time and space limits; (3) it is actuated, at least in part, by a purpose to serve the employer; and (4) if force is intentionally used by the employee against another, the use of force is not unexpected by the employer.40

Judged under this standard, the Court concludes that Plaintiffs have adequately alleged claims of vicarious liability. The allegations establish that the work Jenkins was performing at the time of the collision are of the kind and nature that Jenkins was employed to perform—hauling goods through interstate commerce.41 Moreover, that activity occurred substantially within the authorized time and space limits, as Jenkins was driving his assigned route during his regular working hours, and his actions were actuated at least in part by a purpose of serving CIS.42

The Court therefore turns to Plaintiffs’ remaining claims of negligence against CIS, which they term “corporate negligence,” but which are more properly understood as claims for negligent hiring.43 It is well established in Pennsylvania that employers have a “duty to exercise reasonable care in selecting, supervising and controlling employees.”44 Liability “exists only if all the requirements of an action of tort for negligence exist.”45 In situations similar to Plaintiffs’ “the victim must establish that the employer breached a duty to protect others against a risk of harm. Where the victim…is…a stranger, the duty owed may be inferred from the general duty imposed on all persons not to place others at risk of harm through their action.”46 “The scope of this duty is limited to those risks that are reasonably foreseeable by the actor in the circumstances of the case.”47

*4 The Court concludes that Plaintiffs have again stated valid claims of negligence. Plaintiffs allege that CIS knew or should have known that that Jenkins “lacked sufficient skill, judgment, and prudence in the operation of the vehicle” and nevertheless failed to adequately train him to operate the vehicle and failed to oversee or supervise him in his operation of the vehicle.48 CIS further set operation requirements that it knew would result in Jenkins operating his vehicle in an unsafe manner.49 These allegations establish that CIS had a duty not to place the public at harm by employing unqualified drivers who placed the public in jeopardy. They further establish that CIS failed to conform to that standard, and that their failure caused the accident that resulted in damages to Plaintiffs.

2. Claims for Negligent Infliction of Emotional Distress
For the reasons discussed in the Court’s November 4, 2020 Memorandum Opinion granting in part Plaintiffs’ first motion for default judgment, Plaintiffs have adequately stated claims for negligent infliction of emotional distress against Jenkins.50 Therefore, the Court again grants default judgment as to those claims.

3. Loss of Consortium
Finally, with respect to Plaintiffs’ loss of consortium claims, such “an injury refer[s] to the impact of one spouse’s physical injuries upon the other spouse’s marital privileges and amenities, and, while remaining a distinct cause of action for loss of services, society, and conjugal affection of one’s spouse, is a claim ‘derivative’ of a spouse’s separate claim of injury.”51 Because Plaintiffs have sufficiently stated a claim against Jenkins based on the injuries they have suffered, “they have also adequately pleaded the derivative claim of loss of consortium”52 against Jenkins. Similarly, as Plaintiffs have adequately alleged claims of negligence against CIS, they have also adequately pled claims of loss of consortium against CIS.

D. Damages
Because Plaintiffs have adequately stated claims against Defendants, the only remaining consideration is the amount of damages to which Plaintiffs are entitled. As the Court noted previously, it cannot accurately assess damages based on solely the amended complaint. The Court will schedule further proceedings on this issue. Plaintiffs also seek punitive damages. Generally, discovery is necessary to determine whether punitive damages are appropriate. As there will currently be no discovery in this matter, the Court will consider the evidence put forth by Plaintiffs in future proceedings to determine whether they are entitled to punitive damages.

III. CONCLUSION
For the foregoing reasons, the Court concludes that Plaintiffs are entitled to default judgment on all claims, with the exception of Counts 2, 6, 7, 12, 16, and 17 requesting punitive damages, which will be addressed in a future proceeding. Consequently, Plaintiffs’ motion for default judgment will be granted in part.

An appropriate Order follows.
BY THE COURT:
s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge
All Citations
Slip Copy, 2021 WL 5631750

Footnotes

1
Doc. 1.

2
Docs. 20, 22.

3
Docs. 21, 24.

4
Docs. 25, 27, 28.

5
Doc. 27.

6
Doc. 30.

7
Doc. 32.

8
Doc. 34.

9
Doc. 38.

10
Fed. R. Civ. P. 55(b)(2).

11
Kibbie v. BP/Citibank, 2010 WL 2573845 at *2 (M.D. Pa. June 23, 2010).

12
10A Charles Alan Wright and Arthur R. Miller, FEDERAL PRACTICE AND PROCEDURE, § 2685
(Apr. 2020 Update).

13
Chamberlain v. Giampapa, 210 F.3d 154, 164 (3d Cir. 2000).

14
Deutsche Bank Nat. Trust Co. v. Strunz, 2013 WL 122644 at *1 (M.D. Pa. Jan. 9, 2013).

15
Anchorage Assocs. v. V.I. Bd. of Tax Review, 922 F.2d 168, 177 n. 9 (3d Cir.1990).

16
Broadcast Music, Inc. v. Kujo Long, LLC, 2014 WL 4059711 at *2 (M.D. Pa. Aug. 14, 2014).

17
Pesotski, 2017 WL 3310951 at *3.

18
Docs. 36, 37.

19
See Laborers Local Union 158 v. Shaffer, 2011 WL 1397107 (M.D. Pa. Apr. 13, 2011).

20
Martin v. Nat’l Check Recovery Servs., LLC, 2016 WL 3670849 at *1 (M.D. Pa. July 11, 2016).

21
Broadcast Music, Inc. v. Spring Mount Area Bavarian Resort, Ltd., 555 F.Supp.2d 537, 541
(E.D. Pa. 2008).

22
Comdyne I, Inc. v. Corbin, 908 F.2d 1142, 1149 (3d Cir. 1990).

23
See Doc. 27.

24
Doc. 30 ¶ 8.

25
Id. ¶¶ 9, 10.

26
Id. ¶¶ 11-15.

27
Id. ¶¶ 16-17.

28
Id. ¶ 20.

29
Id. ¶ 21.

30
Id. ¶¶ 22-24.

31
Id. ¶¶ 25-26.

32
Id. ¶¶ 27-28.

33
Id. ¶¶ 38-49.

34
Id. ¶¶ 29-31.

35
Id. ¶¶ 32-34.

36
Brewington for Brewington v. City of Philadelphia, 199 A.3d 348 (Pa. 2018).

37
Ali v. Lyons, 2006 WL 724570 at *1 (E.D. Pa. Mar. 22, 2006) (citing Klein v. Hollings, 992
F.2d 1285, 1291 n.2 (3d Cir. 1993)).

38
Doc. 27 at 5-7.

39
Spencer v. Johnson, 249 A.3d 529, 549 (Pa. Super. Ct. 2021) (quoting Green v. Pa. Hosp., 123
A.3d 310, 316 (Pa. 2015)).

40
Id. (brackets omitted).

41
Doc. 30 ¶¶ 8-10, 29-34.

42
Id. ¶¶ 10-18, 30-31. Because there is no indication that intentional force was applied by
Jenkins, the fourth factors is not applicable here.

43
In Pennsylvania “the doctrine of corporate negligence [is recognized] as a basis for hospital
liability separate from the liability of the practitioners who actually have rendered medical care to a patient” and applies only to medical entities. Rauch v. Mike-Mayer, 783 A.2d 815, 826 (Pa. Super. Ct. 2001).

44
Brezenski v. World Truck Transfer, Inc., 755 A.2d 36, 42 (Pa. Super. Ct. 2000) (internal
quotation marks omitted).

45
Id. (internal quotation marks omitted).

46
Id.

47
Id. at 42-43.

48
Doc. 30 ¶ 73.

49
Id.

50
Doc. 27 at 7-9.

51
Shuker v. Smith & Nephew, PLC, 885 F.3d 760, 777-78 (3d Cir. 2018) (quoting Darr Constr.
Co. v. Workmen’s Comp. Appeal Bd., 552 Pa. 400 (1998)) (internal quotation marks omitted).

52
Id. at 778 (3d Cir. 2018).