Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (July 6, 2021).

Police Reports in State Court Trials Are Generally Prohibited

The Pennsylvania Motor Vehicle Code contains a specific provision that prohibits the use of police reports in state court trials arising out of motor vehicle accidents. According to 75 Pa.C.S.A. Section 3751(b)(4), “the copy of the police report shall not be admissible as evidence in any action for damages or criminal proceedings arising out of a motor vehicle accident.”

The rationale behind this prohibition was summed up best, as follows: “A police report prepared by an officer who is not a witness to the accident is inadmissible hearsay evidence and should not be admitted into evidence. Nor should a party be able to get such a report into evidence in an indirect manner.” See Rox Coal v. Workers’ Compensation Appeal Board, 807 A.2d 906, 914 (2002).

The Pennsylvania Commonwealth Court’s decision in Harris v. Philadelphia Facilities Management, 106 A.3d 183 (Pa. Cmwlth. 2014), provides additional guidance as to how police reports can be used, or be prohibited from being used, as evidence at trial in Pennsylvania state courts. The plaintiff in Harris was involved in a single-vehicle motorcycle accident in Philadelphia. The defendant in Harris was performing work on a gas main located at an intersection in the city and created irregularities in the roadway. The plaintiff in Harris alleged that the condition of the road caused the plaintiff to lose control of his vehicle and suffer a variety of injuries as a result of the accident.

Two Temple University police officers responded to the crash and one of the officers prepared the police report. The police report contained the officer’s opinions as to the alleged causes of the accident and included references to the plaintiff’s speeding, improper careless turning and driver inexperience.

Prior to trial, the plaintiff in Harris filed a motion in limine to preclude those portions of the police accident report referencing the plaintiff’s actions in the accident. The trial court granted the plaintiff’s motion in limine and precluded the use of the entire police report at trial.

The Temple police officer who did not author the report testified at trial. During his testimony, the officer acknowledged that he reviewed the police report to refresh his recollection for any details of the accident that he may have forgotten. Not satisfied with the jury’s verdict in the matter, the plaintiff in Harris appealed to the Pennsylvania Commonwealth Court and raised the issues surrounding the admissibility of the police report at trial.

The Pennsylvania Commonwealth Court in Harris found that the trial court in Harris did not abuse its discretion in precluding the police report as evidence pursuant to 75 Pa.C.S.A. Section 3751(b)(4). More specifically, the Commonwealth Court in Harris ruled that the trial court in Harris did not abuse its discretion in prohibiting the investigating police officer from being cross-examined at trial with the police accident report. Additionally, the Commonwealth Court ruled that the trial court did not commit an abuse of discretion in prohibiting the defense accident reconstruction expert from being cross-examined with the opinions in the police report, despite the accident reconstructions expert’s testimony that he had reviewed the report in coming to his ultimate opinion as to the cause of the accident.

The Commonwealth Court in Harris also ruled that the trial court in Harris did not abuse its discretion in also prohibiting the plaintiff’s accident reconstruction experts from testifying as to the contents of the police report, despite those experts’ review of the same. More specifically, the Commonwealth Court noted that, even though accident reconstruction experts are permitted to consider facts or data in the police accident reports in rendering their opinions according to Pa.R.E. 703, Section 3751(b)(4) does not allow an accident reconstruction expert to indirectly admit the investigating police officer opinions into evidence regarding the cause of the subject accident through the expert’s trial testimony.

The above cases show that police reports are typically precluded from being admitted into evidence at state court trials arising out of motor vehicle accidents. As noted below, that is not always the case in federal court trials.

Police Reports May be Admissible in Federal Court

The rules of admissibility of police reports in civil litigation matters in federal courts is more liberal than in Pennsylvania state courts. In contrast to the Pennsylvania Rules of Evidence and Pennsylvania law, which holds that police reports are not admissible in automobile negligence cases, the admission of police reports at trial in a federal case is governed by the Federal Rules of Evidence. More specifically, Federal Rule of Evidence 803, which provides for exceptions to the rule against the admissibility of hearsay evidence.

Federal Rule of Evidence 803(8) permits the admission of hearsay statements that consists of “a record or statement of a public office if it sets out … in a civil case …, factual findings from a legally authorized investigation and the opponent does not show that the source of the information or other circumstances indicate a lack of trustworthiness.”

This exception is commonly known as the Public Records Exception to the Hearsay Rule. In its decision in Clark v. Clabaugh, 20 F.3d 1290 (3d Cir. 1994), the U.S. Court of Appeals for the Third Circuit found that a police report generated from a state police investigation was admissible pursuant to Fed. R. Evid. 803(8). The court in Clark wrote that the state police investigation and report is admissible as a public report and contained an indicia of trustworthiness, including with respect to the police officer’s opinions, conclusions, and recommendations, except in those cases where the opposing party was able to demonstrate the untrustworthiness of the document or the person authoring the report.

In Prescott v. R&L Transfer, the U.S. District Court for the Western District of Pennsylvania was faced with the issue of the admissibility of a Pennsylvania state police crash report and the testimony of the investigating state troopers in a tractor-trailer accident matter. The plaintiff in Prescott was operating a tractor trailer that left the road and struck an embankment. The Pennsylvania State Police conducted an investigation and issued a police report.

As the case progressed towards trial, the plaintiff in Prescott filed a motion in limine to preclude the state police report as the investigating troopers’ opinions were not helpful to the plaintiff. The plaintiff in Prescott argued that the police report was inadmissible hearsay and lacked trustworthiness as the troopers who authored the report did not actually witness the accident and were not trained in accident reconstruction. The defendant in Prescott argued that the police report was admissible according to Federal Rule of Evidence 803(8), the Public Records Exception to the Hearsay rule.

The court in Prescott wrote that, “In evaluating the trustworthiness of a public record under Rule 803(8) courts have considered the timeliness of the investigation, the skill or experience of the investigating officers, whether a hearing was held, and the presence of any improper motive. See Vanderpoel v. A-P-A Transport, No. 90-5866, (E.D. Pa. 1992).”

In finding that the police report in Prescott was trustworthy, the trial court relied upon evidence that the investigating officer in Prescott arrived at the accident scene soon after the accident occurred, and based upon evidence that the officer had investigated similar accidents over the course of his career. As a result, the trial court denied the plaintiff’s motion in limine to preclude the police report as evidence in that matter.

While a police report may be admissible in federal court, it is noted that some federal courts have prohibited police officers from testifying at trial as to the cause of an accident if they were not a witness to the accident. In the case of Ernst v. Ace Motor Sales, 550 F. Supp. 1220 (E.D. Pa. 1982), the U.S. District Court for the Eastern District of Pennsylvania provided a different analysis of admissible testimony of investigating police officers in automobile accident matters.

The plaintiff in Ernst filed a lawsuit against the defendant as a result of an automobile accident. The jury in Ernst found that the defendant in Ernst was not at fault for the subject accident. During the trial, the investigating police officer in Ernst had testified as to the point of impact between the vehicles on the roadway, despite not being present at the time of the accident. The Ernst court allowed the officer to testify at trial as to the point of impact under Federal Rule of Evidence 701 and Federal Rule of Evidence 702.

The Ernst court noted that the police officer’s testimony was admissible only with regards to the point of impact between the vehicles. Significantly, the same court held that the police officer’s testimony was not admissible as to the cause of the accident. In footnote 3 of its decision, the court in Ernst emphasized that it had not allowed the police officer to testify at trial as to who was at fault for the accident.

A Dichotomy in the Law

Although Pennsylvania law generally prohibits the admission of police reports in most motor vehicle accident negligence cases, see 75 Pa.C.S.A. Section 3751(b)(4), the Third Circuit and some district courts within the Third Circuit have analyzed the admissibility of Pennsylvania police reports under the Federal Rules of Evidence and have generally held that police reports are admissible at civil litigation trial under the Public Records Exception to the Rule Against Hearsay.  See Clark v. Clabaugh, 20 F.3d 1290 (3d Cir. 1994).  A review of the applicable law reveals that federal courts have a much more liberal standard in admitting police reports as evidence in motor vehicle accident matters compared to those civil cases that are filed in Pennsylvania state courts, where police reports are generally not admissible in motor vehicle accident matters.

Also, whereas the opinions of investigating officers who are not eyewitness to an accident are generally not admissible in a state court action, such evidence may, in some cases, be presented to federal court juries through the admission of the police report.

In the case of Jones v. Ritchie, No. 4983-Civil-2019 (C.P. Monroe Co. June 28, 2021 Williamson, J.), the court granted a defendant-owner’s motion for summary judgment on a negligent entrustment claim arising out of a motor vehicle accident matter.

The record before the Court also revealed that the renter of the car was also aware that, around the time of the accident, the defendant driver was taking methadone to address addiction issues. In fact, the renter of the car had allowed the defendant driver to utilize the vehicle on the day of the accident because driver was going to her methadone clinic for treatment.

In addition to suing the defendant driver and the rental car company, the plaintiff filed a negligent entrustment claim against the party who had rented the vehicle and then let the defendant driver drive the vehicle. 

The party who had rented the car filed a motion for summary judgment on the negligent entrustment claim.

After reviewing the current status of the law of negligent entrustment, the court ruled in favor of the person who had rented the car and asserted that there was no evidence that the defendant driver had just taken methadone or was on any other drugs or alcohol at the time of the accident. Nor was there any evidence that the cause of the accident was due to any methadone medication used by the driver. 

Additionally, the court stated that there was no evidence stated or presented by the plaintiff that would show that the defendant driver was a bad driver, or that on the date of the accident the defendant driver was in a condition that would make her unable to operate a vehicle in a safe manner, or that such was known to the defendant lessor.

In the end, the court stated that there was no evidence to show that the defendant who had rented the car would have had any reason to know or have any actual knowledge of the fact that allowing the defendant driver to operate the vehicle would give rise to an unreasonable risk of harm to others.

Rather, based upon the facts of the case, under which the plaintiffs were caused to come to an abrupt stop on the roadway due to traffic ahead, after which the defendant driver could not stop in time and contacted the rear of the plaintiff’s vehicle, it appeared to the court that this accident occurred due to simple human error.

As such, the court granted the defendant who had rented the car summary judgment on the negligent entrustment claims asserted against him.

Anyone wishing to review a copy of this decision may click this LINK.

In the case of Sabajo v. Allstate Fire and Cas. Ins. Co., No. 7703-CV-2019 (C.P. Monroe Co. June 22, 2021 Williamson, J.), the court granted the carrier’s Motion for Summary Judgment and dismissed the Plaintiff’s bad faith claim.

In the case of Star Buick v. Sentry Ins., No. 5:20-CV-03023 (E.D. Pa. May 26, 2021 Leeson, J.), the court entered a declaratory judgment for the carrier after finding that the insurance policy providing coverage for direct physical loss, which phrase was not defined in the policy, did not provide coverage for loss of business income to an auto dealership due to the suspension of business operations during the COVID-19 pandemic.

In the case of Degliomini v. City of Philadelphia, No. 5 EAP 2020 (Pa. June 22, 2021) (Majority Op. by Doughterty, J.), Pennsylvania Supreme Court, in a 4-3 decision reversed a Commonwealth Court decision and ruled that an exculpatory release signed by a participant in a charity bike ride through the City of Philadelphia did not serve to immunize the city for allegedly breaching its duty to repair and maintain the public streets. 

According to the Opinion, this incident arose out of a twenty mile bike ride through the streets of Philadelphia. The injured party allegedly crashed into an unmarked and unbarricaded sink hole and was severely injured as a result.

Pennsylvania Supreme Court ruled that, because the release signed by the injured party would allow the city to give itself immunity for the claims presented, the release was found to prohibit what the Tort Claims Act expressly allowed and would impermissibly achieve for the city what Pennsylvania law plainly prohibited.

The Court ruled that the definitive policy to remove the shield of immunity for a municipality’s negligence in the maintenance or repair of dangerous street conditions for which a municipality has proper notice could not be set aside and rendered unenforceable by a contract between individuals. 

As such, the Majority of the Supreme Court found that the release at issue was invalid in this case because it contravened public policy.

Anyone wishing to review a copy of the Majority's decision may click this LINK.  The Dissenting Opinion by Chief Justice Baer can be viewed HERE.


Source: Article: “Pa. Justices: Release Can’t Shield Phila. From Suit Over Cyclist’s Crash,” Pennsylvania Law Weekly (June 29, 2021).

Rather, in its Non-Precedential decision issued on July 7, 2021 in the case of Erie Insurance Exchange v. Sutherland, No. 1113 WDA 2020 (Pa Super July 7, 2021 McLaughlin, J., King, J., and McCaffery, J.) (Op. by McCaffery, J.), the Pennsylvania Superior Court has again confirmed that the household exclusion can still be enforced under facts distinguishable from those facts at issue in the Gallagher case.

In this case, the trial court had denied the carrier’s motion for judgment on the pleadings filed in its declaratory judgment action in which the carrier sought a judicial declaration that it was within its rights to deny the Plaintiff's claims for UIM benefits on the basis of a household exclusion under the policy.

According to the Opinion, the plaintiff was allegedly injured while operating his motorcycle when he was allegedly struck by an underinsured motorist.

The plaintiff’s motorcycle was insured through a policy issued by Progressive Insurance Company.

Notably, according to the opinion, the plaintiff had waived underinsured motorists coverage under that Progressive motorcycle policy.

At the time of the accident, the plaintiff also maintained an insurance policy issued by Erie Insurance which provided coverage to two other vehicles. The court emphasized that the plaintiff did not execute a waiver of stacking for that Erie insurance policy. It was also emphasized that the plaintiff paid premiums consistent with obtaining stacked coverage under those policies. However, the Erie Insurance policy contained a household exclusion.

After the plaintiff requested Erie Insurance to pay UIM benefits for the injuries sustained as a result of the motorcycle accident, Erie denied the request and relied upon the household exclusion. That denial was issued back in June of 2017.

Fast forward to March of 2019 at which point the plaintiff requested Erie Insurance to reconsider its previous denial of the UIM coverage in light of what was then the recent Pennsylvania Supreme Court decision issued in Gallagher. Erie refused and, instead initiated this declaratory judgment action seeking to enforce its household exclusion under the facts presented.

As noted, the trial court in this matter denied Erie’s motion for judgment on the pleadings. The trial court concluded that the case of Eichelman v. Nationwide Ins. Co., 711 A.2d 1006 (Pa. 1998), was effectively abrogated by the Pennsylvania Supreme Court's decision in Gallagher v Geico, 201 A.3d 131 (Pa. 2019). The trial court had also applied the Gallagher decision to conclude that the household exclusion clause was not enforceable at it conflicted with Section 1738 of the Motor Vehicle Financial Responsibility Law.

Erie Insurance appealed the trial court's decision to the Superior Court.   

On appeal, in this Non-Precedential opinion, the Pennsylvania Superior Court reversed the trial court and instead concluded that the issue presented in this case governed by the Pennsylvania Superior Court’s recent decision in the case of Erie Insurance Exchange v. Mione, __ A.3d __, 2021 WL1847751 (Pa. Super. May 10, 2021).

The facts in Mione were similar to the Sutherland case in that the plaintiff in Mione also did not pay for stacked UIM coverage on his separately insured motorcycle policy. The plaintiff in Mione was operating his motorcycle as well when he was involved in his accident. That motorcycle was also insured under a policy from Progressive, under which the plaintiff did not pay for stacked UIM coverage. The plaintiff in Mione also had separate automobile policies with Erie Insurance and sought to recover UIM benefits under those policies.

In its opinion in this Sutherland case, Pennsylvania Superior Court reiterated that this area of Pennsylvania law is not particularly clear or straightforward. The Pennsylvania Superior Court directly addressed the Pennsylvania Supreme Court and requested clarification on these issues presented.

The Pennsylvania Superior Court in this case, as well as in the Mione case ruled that, where there is no UIM policy upon which to stack, the Gallagher decision is factually irrelevant and distinguishable in that, instead, the Eichelman decision applied.

The court found that in this Sutherland case, like the plaintiff in Eichelman, the plaintiff was attempting to use a separate automobile insurance policy in order to "procure" UIM coverage in the first place and for which the plaintiff had not paid. 

The court in this Sutherland decision emphasized that the Eichelman decision had not been abrogated by the Gallagher decision. 

The Superior Court also emphasized that the decisions of Eichelman and Gallagher “are not inconsistent as they address different factual scenarios – saliently, whether an insured has waived or purchased UIM coverage on a vehicle that is involved in an accident or other incident.” See Op. at p. 20.

The Superior Court noted that where, as in this Sutherland case and as in the Eichelman case, a plaintiff did not purchase UIM coverage on his motorcycle policy, that plaintiff is not entitled to stack UIM coverage under his separate policies issued by another insurance company on other vehicles, as there was no UIM coverage covering the motorcycle upon which the other policies could stack onto.

The court noted that this result is consistent with the Motor Vehicle Financial Responsibility Law, as the plaintiff voluntary chose not to purchase UIM coverage on his motorcycle policy, and, in return, received reduced insurance premiums. See Op. at p. 20-21.

The court noted that, if the plaintiff had indeed purchase UIM coverage on his Progressive Insurance motorcycle policy, as well as under his separate Erie Insurance automobile insurance policies, then Gallagher would apply under those facts and the household exclusion would be unenforceable under Gallagher.

Here however, under the different facts presented, the Superior Court ruled in Sutherland (and just like it ruled in Mione) that the trial court had erred in concluding that the household exclusion was not enforceable. As such, the trial court’s opinion was reversed.

At the end of its decision in this Sutherland case, Pennsylvania Superior Court noted that the issues presented are poised to be reviewed again by the Pennsylvania Supreme Court in the case of Donovan v. State Farm. It was also noted by the Pennsylvania Superior Court that the plaintiffs in the Mione case have petitioned the Pennsylvania Supreme Court for allowance to appeal the issue in that matter as well.

In this Sutherland decision, Pennsylvania Superior Court noted that the issues may be clarified by the Pennsylvania Supreme Court upon further review of those cases.

Anyone wishing to review a copy of this decision may click this LINK.