Vattimo v. Eaborn Truck Service, Inc. , 2001 Pa. Super. 162 ( 2001 )

DEL SOLE, J.

¶ 1 This is an appeal from a judgment following a jury verdict in favor of Appel-lee-defendant. On appeal Appellant claims the verdict was against the weight of the evidence, that the verdict was rendered a nullity due to the absence of a juror, and that the court erred in two evidentiary rulings precluding the entry of certain evidence. We affirm.

¶ 2 Appellant brought this action seeking to recover for injuries he allegedly sustained as a result of an incident at his workplace. Appellant, as part of his job responsibilities, entered a loading area to inspect steel material. At the same time, Appellee’s employee, Robert Pisano, was in the process of securing a load of steel on a flat bed trailer. In an effort to secure the load, Pisano placed chains around the load and tightened them using a lever binder. In this instance Pisano used a pipe, referred to as a binder pipe, to aid in providing leverage. The pipe flew out of Pisano’s hand and hit Appellant on the side of his face and on his hard hat. Appellant claimed numerous injuries related to this event including cognitive injuries, headaches, olfactory-smelling experiences associated with temporal lobe epilepsy, vertigo, tinnitus, cervical and back injury, carpal tunnel syndrome, depression, fatigue and traumatic seizures.

¶3 Appellant first asserts that because there was uncontroverted evidence of injury and damages, the jury’s verdict “should shock the conscience of this court” and that a new trial should be awarded to avoid injustice. Appellant’s Brief at 28. The decision of whether or not to grant a new trial based upon a claim that the verdict is against the weight of the evidence rests with the trial court. Dierolf v. Slade, 399 Pa.Super. 9, 581 A.2d 649, 652 (1990). On appeal “the test is not whether the appellate court would have decided the case in the same way but, rather, whether the jury’s verdict was so contrary to the evidence as to shock one’s sense of justice and ‘to make the award of a new trial imperative, so that right may be given another opportunity to prevail.’ ” Id. (quoting Commonwealth v. Taylor, 324 Pa.Super. 420, 471 A.2d 1228, 1230 (1984)).

¶ 4 When considering this claim the trial court ruled:

The general verdict in favor of the Defendant does not shock the conscience of the court, nor should it. There was sufficient evidence in the trial record to support any number of views of the evidence by the jury which would support its verdict in favor of the Defendant and against the Plaintiff. The jury might reasonably have found that the Defendant was neither negligent nor that any negligence on the part of the Defendant caused the Plaintiffs injuries, if any. The jury also might reasonably have concluded that even if the Defendant was both negligent and that such negligence caused injuries to the Plaintiff, that the Plaintiff did not sustain com-pensable damages.

Trial Court Opinion, 6/30/2000, at 1.

¶ 5 In light of our review of the record in this matter, we agree with the trial court’s assessment of this claim and perceive no abuse of discretion in its ruling. The usage of binder pipes in the industry and the risks associated therewith were contested at trial, as was the type, nature and extent of Appellant’s injuries. It is not the role of an appellate court to pass on the credibility of witnesses or to act as the trier of fact, and an appellate court will not substitute its judgement for that of the fact-fínder. Ludmer v. Nernberg, 433 Pa.Super. 316, 640 A.2d 939 (1994). It is the function of the jury to evaluate evidence adduced at trial to reach a determination as to the facts, and where the verdict is based on substantial, if conflicting evidence, it is conclusive on appeal. Id Faced with conflicting evidence about the usage of binder pipes and the injuries suffered by Appellant, we refuse to find the trial court abused its discretion in failing to award Appellant a new trial.

¶ 6 Appellant also contends that the verdict was a nullity because a juror was absent at the time the verdict was orally read in open court. The trial court recalled the facts related to this incident in its opinion and stated that due to a death in the family, a missing juror left after members of the jury had agreed on a verdict and the court staff was notified. Any complaint Appellant has with the validity of the verdict in view of these circumstances has been waived by Appellant’s failure to object at trial. After the court made inquiry regarding the missing juror, the jury was polled. The court then stated:

THE COURT: Okay. Before we release the jury, is there anything else we need to put on the record at this point?

[APPELLANT’S COUNSEL]: Not at this time, Your Honor.

N.T., 1/21-20/98, at 235.

¶ 7 In order to preserve an issue for review, litigants must make timely and specific objections during trial and raise the issue in post-trial motions. Harman ex rel. Harman v. Borah, 562 Pa. 455, 756 A.2d 1116 (2000). Because Appellant failed to object at trial to the rendering of a verdict absent the missing juror, his claim on appeal is waived.

¶8 Appellant next asserts the trial court erred in refusing to allow him to offer testimony of Earl “Jay” Clayton, an overhead crane operator for Appellant’s employer. Appellant sought to establish that Clayton had extensive background and history as a truck driver and sought to have him testily regarding the hazards of using a lever extender to secure a load. The trial court refused to permit this testimony, noting that the witness was not designated as an opinion witness in Appellant’s pretrial statement, and that the witness was not qualified to express an opinion of the subject of Appellee’s negligence. The admission or exclusion of competent, relevant evidence is within the sound discretion of the trial court and will not be reversed absent a clear abuse of that discretion. Catina v. Maree, 272 Pa.Super. 247, 415 A.2d 413 (1979). On these facts, we find no abuse of the trial court’s discretion.

¶ 9 We reach the same conclusion with regard to Appellant’s final claim. Therein he alleges the trial court improperly refused to permit him to read into evidence parts of the deposition testimony of Appellee’s employee, Robert Pisano. In response to this claim, the trial court noted that Appellant failed to make any offer of proof which would justify the use of this testimony under Pa.R.C.P. 4020. Appellant makes no response to this ruling in his discussion of his claim before this court. Rather, he merely asserts that because Pisano was Appellee’s employee and responsible for causing the injury, his testimony should have been admitted.

¶ 10 Pisano was not a party, nor is it alleged that he was an officer, director or managing agent of Appellee which would justify the admission under Rule 4020(a)(2). Neither has Appellant alleged that this individual was dead, greater than a distance of 100 miles from the courthouse, unable to attend because of age, sickness, infirmity or imprisonment, as would be required for admission of his deposition testimony under Rule 4020(a)(3)(a), (b) and(c). Further, under Rule 4020(a)(3)(d) and (e), Appellant did not set forth any exceptional circumstances or any allegation that he was unable to procure Pisano’s attendance by subpoena. Thus, there is no error in the trial court’s ruling.

¶ 11 Judgment affirmed.

¶ 12 Judge Brosky files a dissenting opinion.