Thursday, July 28, 2011

ARTICLE: Call Me From the Road

Below is a reprint of an article of mine from the July 26, 2011 Pennsylvania Law Weekly in which I update the current status of Pennsylvania law and civil litigation on legislative bans against cell phone use while driving.

Call Me From the Road

Lehigh County decision halts trends on banning cell phone use behind the wheel


Daniel E. Cummins

2011-07-26 Pennsylvania Law Weekly

In a 2010 column headlined "Hang Up and Drive: Lawmakers and Courts Tackle the Dangers of Cellular Phone Use by Drivers," I analyzed the current legislative and common law trends related to cell phone use while driving.

At that time, the trend involved various municipalities across the Commonwealth of Pennsylvania passing local ordinances banning or limiting the use of mobile communications devices while driving along with Pennsylvania trial courts considering the allowance of punitive damages claims based upon allegations that a defendant driver was using a cell phone at the time of the accident.

Both the legislative and common law trends appear to have come to a screeching halt with the issuance of a May 4 Lehigh County trial court decision by Judge James T. Anthony in the case of Commonwealth v. Steiner in which the court found that Allentown's local ordinance against cell phone use while driving was invalid.

Legislative Trends

The Pennsylvania General Assembly continues to volley legislation on bans against texting and cell phone while driving back and forth between the House and the Senate.

The state Senate did recently approve legislation in the form of SB 314 that would ban texting and use of handheld cell phones while driving. A June 7 amendment changed that Senate bill calling for primary enforcement for texting and driving, but only secondary enforcement for handheld cell phone use. SB 314 has since moved back to the state House of Representatives for further consideration.

The House had previously signed off on a plan under HB 896 to add a $50 fine for drivers whose traffic violations could be tracked back to a distracted driving behavior, including cell phone use. Police would have to write a ticket for the traffic offense — such as speeding or weaving — before adding on the distracted driving fine. HB 896 has moved on to the Senate for consideration.

While the above bills, as well as other similar legislation, continue to be bandied about by the General Assembly, there is currently no statewide prohibition against texting or cell phone use while driving in Pennsylvania.

In the absence of statewide legislation in this regard, many municipalities across Pennsylvania have moved ahead to enact local ordinances on their own.

Of the larger Pennsylvania cities, driving while texting or talking on a cell phone in hand has been banned in Philadelphia and Harrisburg. In both Philadelphia and Harrisburg, talking on a cell phone in a hands-free fashion is still permissible.

Other places across Pennsylvania like Wilkes-Barre, Carbondale, Erie, Bensalem, Lower Chichester in Delaware County, Plymouth Township in Montgomery County, Conshohocken, Lebanon, Bethlehem and Allentown have likewise banned or limited texting and other cell phone use by drivers in one form or another. There may also be other jurisdictions out there that have also enacted bans or are contemplating passing such legislation.

Common Law Trends

The topic of punishing drivers for cell phone use has also come up in the context of recent trial court opinions in motor vehicle accident cases on the issue of whether or not an injured party plaintiff could pursue punitive damages against a defendant driver who was texting or using a cell phone at the time of an accident.

In his Jan. 14, 2010 decision in Linehan v. Jaludi , Pike County Common Pleas Court Judge Gregory H. Chelak of the Pike County Court of Common Pleas addressed the novel issue of whether a plaintiff may pursue a claim for punitive damages on the basis that the defendant was talking on cell phone allegedly to the point of distraction at the time of a car accident.

The plaintiff in Linehan was a police officer whose police vehicle was stopped on the side of the road with the flashing lights activated. Another vehicle was stopped in front of the plaintiff's police car.

The defendant, while driving and purportedly talking away on her cell phone, allegedly drifted off the roadway and crashed into the police car while the plaintiff police officer was inside of the car, resulting in personal injuries to the plaintiff, according to the opinion.

The plaintiff police officer later filed a negligence complaint in which a punitive damages claim was asserted, in part, on the basis of allegations that the defendant was using a cell phone at the time of the accident. The defendant driver filed preliminary objections to the punitive damages claim.

Chelak sustained the defendant's preliminary objections and granted the motion to strike the claim for punitive damages. It was held that the allegations of the complaint — that the defendant was so distracted by her cell phone conversation that she crashed into the plaintiff's police car with its flashing lights — were insufficient, in and of themselves, to support the punitive damages claim at this initial posture of the case.

However, citing the U.S. District Court for the Eastern District of Pennsylvania case of Pennington v. King , as offering support for a punitive damages claim based upon a driver being distracted by cell phone use, the Pike County court noted that, if discovery turned out to confirm the alleged cell phone use and distraction, by way of cell phone records or otherwise, the plaintiff would have the right to seek to amend the complaint in an effort to support the possibility of restating the punitive damages claim. As one of the defense counsel in that case, I can report that it still remains to be seen if this issue will develop any further in that case.

More recently, Judge Michael E. McCarthy of the Allegheny County Common Pleas Court did allow such a punitive damages claim to go forward beyond the preliminary objections stage in an order he issued without an opinion in the 2010 case Deringer v. Li .

In Deringer , the plaintiff alleged, on information and belief, that the defendant engaged in reckless conduct by using a mobile device at the time he rear-ended the plaintiff's motorcycle which was allegedly stopped to make a left turn.

The defendants filed preliminary objections to the plaintiffs' claim for punitive damages. The defense argued that such conduct only amounted to negligence and did not support any claim for punitive damages. The defendant also argued that, to date, the Pennsylvania legislature has not made cell phone use while operating a car illegal.

In overruling the preliminary objections filed by the defendant, McCarthy did note in his order that "[t]he arguments may be more appropriately raised and addressed by motion for summary judgment."

Such a claim for punitive damages has also been allowed to proceed beyond the preliminary objections stage in the Fayette County Court of Common Pleas case of Hall v. Chritchfield .

A Screeching Halt to the Trends

The validity of the various local law bans, as well as the court decisions allowing for punitive damages, may have all been called into question by a Lehigh County criminal court decision finding the ban enacted by Allentown to be invalid.

In the May 2011 Lehigh County Common Pleas Court case of Steiner , Judge James T. Anthony ruled that an Allentown City ordinance prohibiting the use of a cell phone while operating a motor vehicle was invalid because the state legislature intended that all motor vehicle regulations be uniform throughout the state. Anthony held that the Allentown local ordinance would subject motorists to unreasonable inconsistencies contrary to the purpose of the Vehicle Code.

In the criminal case of Steiner , the defendant was charged with violating the ordinance for using a mobile phone while operating his vehicle. The defendant was found guilty and filed a summary appeal. Following the summary appeal hearing, the defendant filed a motion to dismiss alleging that the ordinance was pre-empted by the Pennsylvania Motor Vehicle Code.

After reviewing the law of pre-emption, Anthony ruled that the Pennsylvania Legislature intended that motor vehicle regulations be uniform throughout the Commonwealth and that local municipalities needed express authorization to enact any ordinances on any matter covered by the Vehicle Code. Thus, for the ordinance at issue to be valid, there must be specific authorization in the Vehicle Code permitting the city of Allentown to enact such an ordinance. The court found that no such authorization existed.

The Lehigh County trial court noted that Section 6109 of the Vehicle Code does provide that its provisions shall not be deemed to prevent local authorities from the reasonable exercise of their police powers. That section provides 23 specific examples of regulations that are presumed to be reasonable in this regard. However, none of the 23 examples authorized the action taken by the city in enacting the ordinance pertaining to the prohibition of cell phone use while driving.

The court also noted that the local ordinance did not provide notice to motorists entering into Allentown that cell phone use was forbidden in that jurisdiction. Anthony stated that "[a] motorist could be utilizing a cell phone while driving in a municipality without a ban and, moments later, be unaware that he was violating the ordinance" while entering Allentown.

Anthony found that exposing drivers to such an inconsistency could not be considered reasonable and was contrary to the intended purpose of the Motor Vehicle Code. As such, the court found Allentown Ordinance 14782 invalid and the defendant's motion to dismiss was granted.

There have been reports of a similar decision by a district magistrate judge out of Harrisburg. A local district magistrate judge in Harrisburg likewise reportedly ruled the local ban against using electronic mobile devices while driving in that city unconstitutional based upon lack of notice to motorists entering that city.

Impact on Future Cases

Perhaps the Steiner decision out of Lehigh County will serve as an impetus to compel the Pennsylvania legislature to finalize and pass a statewide law regarding the use of cell phone or texting devices while driving.

In the meantime, in civil matters where there is an allegation of negligence or claims for punitive damages on the part of any driver involved based upon that driver's alleged use of a cell phone at the time of an accident in violation of a local ordinance, Steiner may serve to ultimately defeat such allegations.

Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley Cognetti Comerford Cimini & Cummins. His civil litigation blog, "Tort Talk," may be viewed at

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