# LEVY v. UNITED PARCEL SERVICE

> District Court, E.D. Pennsylvania · February 18, 2020

URL: https://www.frixlaw.com/law-library/cases/10398469

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** February 18, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ALEX LEVY, : CIVIL ACTION

Plaintiff, :

v. : NO. 19-23

UNITED PARCEL SERVICE, :

Defendant. :

MEMORANDUM OPINION
This personal injury action arises out of a motor vehicle accident in which Plaintiff Alex
Levy (“Levy”) contends that, while operating a van on the Pennsylvania Turnpike (“Turnpike”),
he was struck from behind by Defendant United Parcel Service’s (“UPS”) tractor-trailer and that
the tractor-trailer operator did not stop at the scene of the accident.1 Pl.’s Br. (Doc. No. 33) at 5-
6. UPS has filed a Motion for Summary Judgment (Doc. No. 30) seeking dismissal of this case
on the ground that Levy cannot establish that any of its vehicles were involved in the accident at
issue. Def.’s Br. (Doc. No. 30-2) at 3. Because the Court finds that a genuine issue of material
fact exists as to whether a UPS vehicle was involved in the accident, UPS’ Motion will be
denied.

1 In accordance with 28 U.S.C. § 636(c), the parties voluntarily consented to have the
undersigned United States Magistrate Judge conduct proceedings in this case, including the entry
of final judgment. See Doc. Nos. 14, 15.

(Footnote continued on next page)
I. FACTUAL BACKGROUND2
On December 17, 2016, Levy was operating a van on the Turnpike when he was struck
from behind by a tractor-trailer. Pl.’s Br. at 5-6; Def.’s Br. at 3.3 The collision caused Levy’s
van to strike the center concrete barrier and then to ricochet across three lanes of traffic to finally

come to rest on a grass embankment. Pl.’s Br. at 6. The driver of the tractor-trailer did not stop
at the scene of the accident. Id.; Def.’s Br. at 4. Levy testified at deposition that he first noticed
the tractor-trailer, which he identified as a UPS vehicle, when it was about one-half mile behind
him. Pl.’s Br. Ex. B, at 16. He testified further that he was traveling in the center lane while the
UPS vehicle, which was in the left lane, began to overtake him. See id. at 16-17. He stated that
the road conditions were icy and that freezing rain was still falling at the time of the accident.
Def.’s Br. Ex. J, at 95. Levy also testified that, when he spoke to the police two weeks after the
accident, they informed him that there had been 12 other accidents in the same area on the same
day. Id. Levy estimated that the UPS vehicle was traveling at least 60 miles per hour, Pl.’s Br.
Ex. B, at 16, but that “none of the other cars, other than this UPS vehicle, was doing over 45

miles per hour,” Def.’s Br. Ex. J, at 96. He testified that, when the UPS vehicle was
approximately five to 10 feet behind him, it abruptly swerved into the middle lane and struck his
van from behind. Pl.’s Br. Ex. B, at 16-17; Def.’s Br. Ex. J, at 97. The collision caused Levy to
lose control of his van, and caused the van to spin two to three times until it collided with the
center barrier. Def.’s Br. Ex J, at 98. The van then bounced off that barrier and started spinning

2 Each party has included their statement of facts in the body of their briefs, rather than as a
separate document. Citations to the parties’ briefs will be to the page numbers generated by the
Court’s Electronic Case Filing System.

3 For purposes of the present Motion, UPS does not contest Levy’s version of how the
accident occurred. UPS asserts, however, that the tractor-trailer involved in the accident was not
a UPS vehicle.
again until it wound up on the grass at the side of the road. Id. Levy testified that he lost
consciousness during these events and only awakened after his van had come to rest on the grass.
Id. A neurologist who examined Levy four days after the accident concluded that Levy had
suffered a concussion. Id. Ex. N, at 122-23. Levy testified that the driver of the tractor-trailer

did not stop at the scene of the accident. Id. Ex. J, at 99. Levy stated that he knew that the
tractor-trailer that struck him was a UPS vehicle because “it was brown. It said UPS on the side
and front.” Pl.’s Br. Ex. B, at 16. He also testified that the driver was wearing “one of those
brown UPS caps.” Id. He explained that he had identified the tractor-trailer as a UPS vehicle
because he had frequently seen UPS trucks before. Id. at 17.
The accident occurred at mile marker 327 on the Turnpike in the eastbound lanes, which
is approximately 15 miles before the Willow Grove exit. Pl.’s Br. at 5-6; Def.’s Br. at 4. UPS
has a distribution center that is accessed via the Willow Grove exit and is approximately two
miles from that exit. Def.’s Br. at 4. Both parties have attached to their briefs a copy of the
Willow Grove distribution center’s dispatch logs for the date in question. Pl.’s Br. Ex. C; Def.’s

Br. Ex. E. Although the dispatch logs contain a significant amount of coded information, and
neither party has provided any means of interpreting the coding, they both agree that the relevant
entry is for a truck that arrived at the Willow Grove distribution center at 9:55 a.m. driven by
UPS driver David Mayfield (“Mayfield”).4 Pl.’s Br. at 7-8 & Ex. C, at 20; Def.’s Br. at 5 & Ex.
E, at 43. Levy asserts that the timing of Mayfield’s arrival at the Willow Grove distribution
center is consistent with the time and location of the accident. Pl.’s Br. at 7-8. UPS does not
challenge that assertion, and it admits that Mayfield was travelling eastward from Harrisburg,

4 Levy identifies the UPS driver as Henry Mayfield, Pl.’s Br. at 7, while UPS identifies the
driver as David Mayfield, Def.’s Br. at 5. That difference is not material to the decision on UPS’
summary judgment motion.
Pennsylvania and that he arrived at the Willow Grove distribution center at 9:55 a.m. on the date
in question. See Def.’s Br. at 5.
UPS, however, argues that none of its drivers had reported to its dispatcher at its Willow
Grove facility that they had been involved in an accident on the Turnpike on the date of the

accident. Id.; see also id. Ex. L, at 112 (Deposition of Rosemary Myers—UPS’ Willow Grove
dispatcher). UPS also asserts that the maintenance records for Mayfield’s truck do not reflect
any repairs to its front bumper. Id. at 5 & Ex. F (maintenance record from December 1, 2016
through January 31, 2017). UPS contends that, in addition to the maintenance records for
Mayfield’s truck, its maintenance records for its fleet of vehicles in the Philadelphia/Chesapeake
region for the two weeks after the accident reveal only one repair to the front bumper for any of
those trucks and that the vehicle involved was not in the vicinity of the accident. Id. at 5 & Ex.
G. UPS also points to the fact that its list of incident reports involving its vehicles did not
include one for Levy’s accident. Id. at 6 & Ex. H. Levy has not contested any of these
assertions.

II. SUMMARY JUDGMENT STANDARD
Under the well-established summary judgment standard, “[t]he court shall grant summary
judgment 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.” Fed. R. Civ. P. 56(a). “Summary judgment
is appropriate when ‘the pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of law.’” Williams v. Wells Fargo
Bank, No. 14-2345, 2015 WL 1573745, at *3 (E.D. Pa. Apr. 9, 2015) (quoting Wright v.
Corning, 679 F.3d 101, 105 (3d Cir. 2012)).
[T]he plain language of Rule 56[a] mandates the entry of summary judgment,
after adequate time for discovery and upon motion, against a party who 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. In such
a situation, there can be “no genuine issue as to any material fact,” since a
complete failure of proof concerning an essential element of the nonmoving
party’s case necessarily renders all other facts immaterial. The moving party is
“entitled to judgment as a matter of law” because the nonmoving party has failed
to make a sufficient showing on an essential element of [his or] her case with
respect to which [he or] she has the burden of proof.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
“By its very terms, this standard [that there be no genuine issue as to any material fact]
provides that the mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment; the requirement is that
there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-
48 (1986) (emphasis in original). A material fact is one that “might affect the outcome of the
suit under the governing law.” Id. at 248.
When ruling on a motion for summary judgment, the court shall consider facts in the light
most favorable to the non-moving party and draw all reasonable inferences in that party’s favor.
Scheidemantle v. Slippery Rock Univ. State Sys. of Higher Educ., 470 F.3d 535, 538 (3d Cir.
2006). To prevail on summary judgment, however, “the non-moving party must present more
than a mere scintilla of evidence; ‘there must be evidence on which the jury could reasonably
find for the [non-moving party].’” Burton v. Teleflex Inc., 707 F.3d 417, 425 (3d Cir. 2013)
(quoting Jakimas v. Hoffman-La Roche, Inc., 485 F.3d 770, 777 (3d Cir. 2007)); see also
Anderson, 477 U.S. at 252.
III. DISCUSSION
In the present case, UPS contends that Levy has provided insufficient evidence to raise a
genuine issue regarding whether his van was struck by a UPS vehicle. Def.’s Br. at 9-12. UPS
argues that the only evidence that Levy has presented are his own “bald allegations” and that
“the Court cannot credit” such “allegations” at the summary judgment stage.5 Id. at 10-11. That
argument, however, overstates the controlling precedent. As one judge in this District has
explained:

[a]s a general proposition, ‘conclusory, self-serving affidavits are insufficient to
withstand a motion for summary judgment. Gonzalez v. Sec'y of the Dep't of
Homeland Sec., 678 F.3d 254, 263 (3d Cir. 2012) (quoting Kirleis v. Dickie,
McCamey & Chilcote, P.C., 560 F.3d 156, 161 (3d Cir. 2009)). This rule has been
extended to self-serving deposition testimony. Irving v. Chester Water Auth., 439
Fed. Appx. 125, 127 (3d Cir.2011). However, the issue is not whether Plaintiff
has relied solely on his own testimony to challenge the Motions, but whether
Plaintiff's testimony, when juxtaposed with the other evidence, is sufficient for a
rational factfinder to credit Plaintiff's testimony, despite its self-serving
nature. See Gonzalez, 678 F.3d at 263.
Johnson v. MetLife Bank, N.A., 883 F. Supp. 2d 542, 549 (E.D. Pa. 2012); accord Jordan v.
Cicchi, No. 10-4398, 2014 WL 2009089, at *2 (D.N.J. May 16, 2014); Butler v. BTC Foods,
Inc., No. 12-0492, 2014 WL 336649, at *4 (E.D. Pa. Jan. 30, 2014).
In addition to urging this Court to adopt a categorical position that a party’s self-serving
testimony cannot defeat summary judgment, UPS raises arguments regarding why it believes that
no rational factfinder could credit Levy’s deposition testimony. See Def.’s Br. at 9-12. None of
those arguments however, present a valid basis for granting summary judgment.

5 UPS cites to Federal Rule of Civil Procedure 56 for the proposition that “[a] party who
opposes a properly supported summary judgment motion may not merely rely on his pleadings,
but must set forth specific facts, through affidavits, depositions, answers to interrogatories, or
admissions, that show there is a genuine issue for the trier of fact to resolve.” Def.’s Br. at 9.
Thus, by that rule’s own terms, deposition testimony is not a “bald allegation[]” but is the type of
evidence on which a plaintiff may rely to establish a genuine issue of material fact. See Fed. R.
Civ. P. 56(c)(1)(A); see also Page v. Doyle, No. 18-609, 2019 WL 1790467, at *5 (E.D. Pa.
Apr. 24, 2019). Indeed, Rule 56 even permits a party to raise a genuine factual dispute based on
affidavits, “including those made for purposes of the motion only,” despite the fact they are not
subject to cross-examination.
UPS first argues that Levy’s deposition testimony cannot be credited because the
documents that it provided in discovery and the deposition testimony of its employees do not
support Levy’s assertion that the truck that struck his van belonged to UPS. Id. It notes that
none of its drivers reported to its Willow Grove dispatcher that they had been involved in an

accident on the Turnpike. Id. at 5. UPS also points to its maintenance records, which do not
show that Mayfield’s truck, or any of UPS’ other trucks, had repairs performed to their front
bumpers at or around the time in question. Id. Moreover, UPS’ incident reports do not include
any report regarding Levy’s accident, id. at 6, and the depositions of Mayfield and UPS’ “on the
road supervisor,” Maurice Harris (“Harris”), provide no evidence to support Levy’s claim, id. at
9-10.
While these documents may well prove persuasive to a jury, they would not prevent a
rational juror from finding Levy’s testimony credible. UPS does not dispute for the purposes of
the present Motion that Levy was the victim of a “hit and run” accident. Harris testified at
deposition that a UPS driver who failed to report an accident would be terminated from UPS’

employ. Pl.’s Br. Ex. D, at 27-28. Even if a UPS driver reported an accident, when the accident
resulted in the driver being issued a citation, and one of the parties involved is taken to a
hospital, as was the case here, the driver would be suspended and could be fired. See id. at 39-
42. In that event, the driver also would be drug-tested. Id. at 42. In light of these facts, it is
within the purview of the jury to determine whether a significant motive might exist for a UPS
driver to deny any involvement in the accident at issue.
Furthermore, if Mayfield was the driver who rear ended Levy’s van, it is not entirely
clear that UPS personnel would know of it or that its records would reflect it. Harris testified
that the only way UPS would know that one of its drivers was involved in the accident would be
if the driver reported the accident to it or if the truck showed “fresh damage.” Id. at 38. UPS
maintains that Levy’s version of the accident is contradicted by the fact that Mayfield’s truck
was not found to have damage to its front bumper. Def.’s Br. at 5, 10. While this evidence may
be probative regarding whether Mayfield was involved in Levy’s accident, it is not necessarily

inconsistent with Levy’s testimony. The record reflects that Levy’s van was struck from behind
by a tractor-trailer and that road conditions were icy and dangerous at the time of the accident.
Id. Ex. J, at 95. Levy testified that he was travelling at the speed of traffic, which was
approximately 45 miles per hour, id. at 96, while the tractor-trailer was overtaking him travelling
at least 60 miles per hour, Pl.’s Br. Ex. B, at 16. He testified that the tractor-trailer was merging
into his lane from the left lane when it struck his van from behind. Def.’s Br. Ex. J, at 96-98.
The summary judgment record is devoid of any evidence to show with how much force the
tractor-trailer struck Levy’s van, what degree of force would be required to cause a van driving
in icy conditions to go into a spin, and what the relative heights of the two vehicles’ bumpers
were. Thus, it is for a jury to decide whether a van driving on icy roads could be forced into a

spin by contact from behind by a tractor-trailer and whether that impact could cause visible or
significant damage to the much larger vehicle.
UPS further argues that the evidence contradicts Levy’s testimony because pictures of
Levy’s van taken after the accident did not show any brown paint from Mayfield’s truck directly
on the van’s rear bumper. Def.’s Br. at 6 (citing id. Ex. I). However, given the discrepancy in
height and size of the two vehicles and the icy conditions that existed at the time of the accident,
in the absence of expert testimony, the evidence does not establish that the collision would have
necessarily left brown paint on Levy’s van.
UPS next maintains that a rational juror could not credit Levy’s testimony because, when
asked whether its truck’s trailer was painted brown, he replied “I believe it was brown with the
UPS emblem on there.” Id. Ex. J, at 97. The trailer on Mayfield’s vehicle was silver colored.
Id. Ex. K. The record in this case reflects that the tractor-trailer approached Levy from behind

while he was driving in icy conditions and then abruptly swerved into his lane and struck him
from behind. Under these circumstances, Levy may have had little opportunity to see the trailer
part of the vehicle and little reason to focus on its color. The collision caused him to spin a few
times, strike the median barrier and then ricochet in a spinning fashion across three lanes of
traffic. Id. Ex. J, at 97-98. Levy testified that he struck his head repeatedly on the steering wheel
and the side of his vehicle and lost consciousness in the process. Id. at 98. Because the tractor-
trailer driver did not stop at the accident scene and Levy claims to have lost consciousness, Levy
may not have had any further opportunities to observe the trailer of that vehicle. A neurologist
who examined Levy four days after the accident confirmed that he had suffered a concussion.
Id. Ex. N, at 123. The neurologist also found that Levy had suffered “significant strain and

sprain of his paracervical and trapezius muscles.” Id. Levy testified that he also suffered
damage to his C3 through C7 vertebrae, as well as a torn ligament and tendon in his right foot.
Id. Ex. J, at 100. Thus, even if Levy had seen that the trailer was painted silver rather than
brown, a reasonable juror could find that he might have forgotten that fact in light of the
traumatic nature of the incident and his alleged concussion and other serious injuries.
UPS also emphasizes that neither the report from the ambulance that took Levy to the
hospital, nor the examination report of the neurologist, recorded that the truck that struck Levy’s
van was a UPS truck. Def.’s Br. at 7. Given Levy’s alleged condition at the time, it is not clear
that he would have bothered to identify the tractor-trailer that struck him, or that even if he did,
that the emergency services personnel in the ambulance would have felt it necessary to record
that information. Similarly, when Levy visited a neurologist four days after the accident, he
alleges that he was still suffering the effects of a concussion as well as significant pain in his
neck, back and ankle. See id. Ex. J, at 99-100 & Ex. N. Levy testified that, during the week

after the accident, he was traumatized and light-sensitive and that all he was concerned with was
rest. Id. Ex. J, at 99. He stated that he “wasn’t even thinking about any type of lawsuits,
anything of that nature.” Id. Both the emergency services personnel and the neurologist
examined Levy to identify and treat his injuries and not for the purpose of making a record for
litigation. It is not at all clear that, even if Levy had told them that the tractor-trailer that struck
him was a UPS vehicle, they would feel it necessary, or even relevant, to record that fact. While
UPS may argue to a jury that it is probative that neither the ambulance crew nor the neurologist
specified that the tractor-trailer that struck Levy was a UPS truck, a rational juror could find that
this fact is not necessarily inconsistent with Levy’s testimony.
Finally, UPS contends that the fact that Levy did not contact the police to give a report of

the accident until two weeks after it occurred is yet another indication that a UPS vehicle was not
involved in the accident.6 Def.’s Br. at 7, 10. Here, Levy testified that prior to contacting the
police, he had been focused on resting and recovering from his alleged concussion and other
significant physical injuries and that he “wasn’t even thinking about any type of lawsuits,

6 UPS asserts that Levy only spoke to the police when they contacted him, citing the police
report regarding the accident. Def.’s Br. at 7 (citing id. Ex. D). That assertion is inaccurate.
Levy testified that he initially contacted the police to inquire about “what [he] could do about the
situation because [he] ha[d not] heard anything back to that point.” Id. Ex. J, at 99. The police
report that UPS cites does not state that the police officer contacted Levy first but only that Levy
“was interviewed by telephone.” Id. Ex. D, at 38. Levy testified that when he called the police,
he was informed that the officer involved would call him back. Id. Ex. J, at 99. Thus, the police
report does not contradict Levy’s testimony.
anything of that nature. [He] just wanted to get [his] head together.” Id. Ex. J at 99. The record
in this case is devoid of any evidence regarding Levy’s legal sophistication or experience with
prior accidents. While UPS may question the veracity or wisdom of Levy’s conduct, its
argument would not prevent a rational juror from crediting his testimony.

IV. CONCLUSION
For the foregoing reasons, this Court finds that a genuine issue of material fact exists
regarding whether a UPS vehicle was involved in the accident at issue. Accordingly, UPS’
Motion for Summary Judgment will be denied. An appropriate Order follows.
Dated: February 18, 2020
BY THE COURT:

/s/ Marilyn Heffley
MARILYN HEFFLEY
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10398469. Public record. Not legal advice.