ROBERT C. ALLEN as Co-Administrator of the ESTATES OF T.G.A. and Z.D.A v. Foxway Transportation, Inc., Tempel Steel, Gateway Freight Systems Inc.

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 24-1340
_____________
ROBERT C. ALLEN as Co-Administrator of the ESTATES OF T.G.A. and Z.D.A.,
Appellant,
v.
FOXWAY TRANSPORTATION, INC., TEMPEL STEEL, GATEWAY FREIGHT
SYSTEMS INC., and STATE FARM MUTUAL AUTOMOBILE INSURANCE
COMPANY
GATEWAY FREIGHT SYSTEMS INC.
v.
DARELENE L. ALLEN
______________
On Appeal from United States District Court
for the Middle District of Pennsylvania
(D. C. No. 4:21-cv-00156)
District Judge: Honorable Matthew W. Brann
______________
Submitted Under Third Circuit L.A.R. 34.1(a)
September 19, 2025
Before: RESTREPO, McKEE, and SMITH, Circuit Judges
(Opinion filed: May 26, 2026)

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____________________
OPINION*
____________________
McKEE, Circuit Judge.
Robert C. Allen appeals the District Court’s grant of Gateway Freight Systems,
Inc.’s motion for summary judgment on Allen’s claims of vicarious liability, negligent
selection, and negligent entrustment.1 Allen also challenges the District Court’s exclusion
of substantial parts of his expert’s testimony.2
This appeal arises from the tragic loss of Allen’s two children, T.G.A. and Z.D.A.,
who were killed when a tractor-trailer collided with their mother’s disabled vehicle. We
are deeply sympathetic to the loss of two young lives, and we have no reason to doubt
that the District Judge shared our concern, despite several inappropriate attempted
witticisms, which we discuss in the margin.3 Nevertheless, for the reasons that follow, we
* This disposition is not an opinion of the full Court and under I.O.P. 5.7 does not
constitute binding precedent.
1 The District Court’s December 7, 2023 Order, inter alia, granted Gateway’s motion for
summary judgment as to vicarious liability, negligent selection, and joint venture. Allen v.
Foxway Transp., Inc. (Allen I), 705 F. Supp. 3d 297, 302, 310, 313, 315 (M.D. Pa. 2023).
2 The District Court’s February 1, 2024 Order, inter alia, granted in part Gateway’s
motion to exclude Allen’s expert and granted its motion for summary judgment on the
issue of negligent entrustment. Allen v. Foxway Transp., Inc. (Allen II), No. 4:21-CV-
00156, 2024 WL 388133, at *7 (M.D. Pa. Feb. 1, 2024).
3 For example, for reasons known only to the District Court, the court thought it
appropriate to quip: “Unfortunately, despite its name, Ms. Allen’s [Mitsubishi] Mirage
was no optical illusion and [the truck driver] was unable to stop, or adequately slow his
vehicle before it violently collided with the Allen’s vehicle, killing the two children[,]”
Allen I, 705 F. Supp. 3d at 307, and, “[h]owever, after consulting its crystal ball, the
Court foresees the parties filing motions in limine on the eve of trial consistent with the

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must affirm the District Court’s grant of summary judgment in favor of Gateway and the
exclusion of Allen’s expert testimony.4
I.
“We review de novo the District Court’s resolution of cross-motions for summary
judgment.”5 “Summary judgment is appropriate when, drawing all reasonable inferences
in favor of the nonmoving party, ‘the movant shows that there is no genuine dispute as to
any material fact,’ and thus the movant ‘is entitled to judgment as a matter of law.’”6
A. Vicarious Liability
Allen argues that the District Court erred in concluding that Gateway was a
broker, not a carrier, and thus not a statutory employer of Foxway Transportation, Inc.’s
tractor-trailer driver, Volodymyr Frolyak. Gateway could be vicariously liable for
Frolyak’s negligence if it was a carrier. Allen contends that the District Court “focus[ed]
almost exclusively on Gateway’s self-identification as a broker while disregarding
objections they have raised in their briefing, seeking to exclude their opponent’s
proffered expert testimony.” Id. at 314.
These attempts at wit are inappropriate given the circumstances of this dispute.
We do not doubt that the jurist who decided this case gave it the serious attention that it
deserved. But such misguided and ill-conceived attempts at levity could be misinterpreted
by others—especially by those in the general public—and lead them to conclude that the
opinion is something other than the thorough and well-reasoned opinion we consider it to
be.
4 The District Court had jurisdiction under 28 U.S.C. § 1332. We have jurisdiction under
28 U.S.C. § 1291.
5 Stradford v. Sec.y Pa. Dep’t of Corr., 53 F.4th 67, 73 (3d Cir. 2022) (citing Int'l Union,
United Mine Workers of Am. v. Racho Trucking Co., 897 F.2d 1248, 1252 (3d Cir.
1990)).
6 Id. (quoting Thomas v. Cumberland Cnty., 749 F.3d 217, 222 (3d Cir. 2014)).

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substantial evidence of Gateway’s carrier-like conduct and responsibilities.”7 We
disagree.
Motor carrier status is warranted where “an entity accepts responsibility for
ensuring the delivery of goods . . . regardless of whether it conducted the physical
transportation.”8 Here, Gateway “merely agree[d] to locate and hire [Foxway] to
transport the goods,” and was thus “acting as a broker.”9 As the District Court explained,
the record does not support a finding that Gateway promised to physically transport the
shipment nor that it was otherwise responsible for handling the shipping process,
determining the route, or packing the product. Therefore, Gateway was not vicariously
liable for Frolyak’s negligence.
B. Negligent Selection
Allen argues that the District Court erred by requiring an employment relationship
to sustain a claim for negligent selection. “[W]ith regard to vicarious liability, negligent
selection, and retention claims, typically Pennsylvania law limits those claims to a
master-servant setting where the defendant directly controls and oversees the activities of
the tortfeasor.”10 An employer-employee relationship is a “clear feature” of these three
theories of liability.11 Accordingly, a party’s “position as a non-employer renders these
7 Appellant’s Opening Br. 18.
8 Louis M. Marson Jr., Inc. v. All. Shippers, Inc., 438 F. Supp. 3d 326, 331 (E.D. Pa.
2020) (quoting Tryg Ins. v. C.H. Robinson, Worldwide, Inc., 767 F. App’x 284, 287 (3d
Cir. 2019)).
9 Id.
10 Adames v. May Furniture, Inc., No. 1:17-CV-00652, 2019 WL 8937042, at *3 (M.D.
Pa. Nov. 26, 2019).
11 Id. at *8.

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negligence claims inviable.”12 Because Gateway did not stand in an employment
relationship with Frolyak or Foxway, we must affirm the District Court’s grant of
summary judgment as to Allen’s negligent selection claim.
C. Negligent Entrustment
Prior to ruling on Allen’s negligent entrustment claim, the District Court assessed
the admissibility of the testimony of Allen’s expert, Kenneth Lacey.13 The District Court
did not abuse its discretion by excluding a substantial portion of Lacey’s expert testimony
after concluding that his report was based on an unreliable methodology.14 Daubert v.
Merrell Dow Pharmaceuticals, Inc.15 and its progeny instruct district court judges to act
as “gatekeepers” to ensure that expert testimony satisfies a “trilogy of restrictions”:
“qualification, reliability, and fit.”16 Here, the District Court properly concluded that
12 Id. (quoting Belmont v. MB Inv. Partners, Inc., 708 F.3d 470, 490 (3d Cir. 2013)); see
Restatement (Second) of Torts § 411 (A.L.I. 1965) (“An employer is subject to liability
for physical harm to third persons caused by his failure to exercise reasonable care to
employ a competent and careful contractor (a) to do work which will involve a risk of
physical harm unless it is skillfully and carefully done, or (b) to perform any duty which
the employer owes to third persons.”).
13 We review a district court’s decision to exclude expert testimony for an abuse of
discretion. Kremsky v. Kremsky, 758 Fed. App’x 236, 241 n.3 (3d Cir. 2018) (citing
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999)). We will not interfere with an
exercise of discretion “unless there is a definite and firm conviction that the court below
committed a clear error of judgment in the conclusion it reached upon a weighing of the
relevant factors.” Hanover Potato Prods., Inc. v. Shalala, 989 F.2d 123, 127 (3d Cir.
1993) (citation modified).
14 See Allen II, 2024 WL 388133, at *7 (granting Gateway’s motion to exclude Lacey’s
testimony “except as to his opinion that industry standards imposed upon Gateway a
continuing obligation to conduct ongoing safety and compliance data reviews” (citation
modified)).
15 509 U.S. 579, 592 (1993).
16 Schneider ex rel. Est. of Schneider v. Fried, 320 F.3d 396, 404 (3d Cir. 2003) (citing
Daubert, 509 U.S. at 592).

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certain of Lacey’s opinions were too speculative to be reliable under Federal Rule of
Evidence 702.17
The District Court then turned to the merits of Allen’s negligent entrustment
claim.18 We agree that nothing in the record suggests that Gateway would have known
that Foxway was “likely . . . to create an unreasonable risk of harm to others” as required
for negligent entrustment under Pennsylvania law, even if Gateway had conducted
ongoing safety and compliance data reviews.19 Thus, we must affirm the District Court’s
grant of Gateway’s summary judgment motion as to negligent entrustment.
II.
For the foregoing reasons, we will affirm the District Court’s December 7, 2023
and February 1, 2024 Orders.
17 See Slatowski v. Sig Sauer, Inc., 148 F.4th 132, 138 (3d Cir. 2025) (finding that the
district court did not abuse its discretion by excluding speculative expert testimony where
expert did not “bridge[] the gap between theory and reality”).
18 The District Court did not abuse its discretion by deferring its ruling on the negligent
entrustment claim until after resolving the parties’ Daubert motions. The court
determined that only a portion of Lacey’s opinion is admissible and thereafter properly
considered Lacey’s opinion together with the other admissible evidence to resolve
Allen’s negligent entrustment claim. See, e.g., Heller v. Shaw Indus., Inc., 167 F.3d 146,
165 (3d Cir. 1999) (affirming grant of summary judgment where the admissible expert
testimony post-Daubert motions, along with additional admissible evidence, was
“insufficient to create a material issue on causation”).
19 Christiansen v. Silfies, 667 A.2d 396, 472–73 (Pa. Super. Ct. 1995) (citing Restatement
(Second) of Torts § 308) (describing standard for negligent entrustment).

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