Vetter, J. and Jones, A. v. Miller, A. , 157 A.3d 943 ( 2017 )

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2017 Pa. Super. 64
JOHN VETTER AND ASHLEY JONES IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellants
v.
ANTHONY MILLER
Appellee No. 1038 MDA 2016
Appeal from the Judgment Entered July 19, 2016
in the Court of Common Pleas of Berks County
Civil Division at No(s): 12-25023
BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS, P.J.E.*
OPINION BY RANSOM, J.: FILED MARCH 10, 2017
John Vetter and Ashley Jones appeal from the July 19, 20161 judgment
entered in favor of Appellee, Anthony Miller, following a grant of partial
summary judgment and jury trial. After careful review of the briefs of the
parties and the record below, we affirm in part, reverse in part, and remand
for a new trial.
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1
Appellants purported to appeal from the May 26, 2016 order denying their
motion for post-trial relief; however, entry of final judgment was required to
make the instant matter properly appealable. See Pa.R.A.P. 301.
Appellants complied with this Court’s Order to praecipe the trial court for
entry of judgment, and the trial court entered judgment on July 19, 2016,
thereby perfecting this Court’s jurisdiction. See Pa.R.A.P. 905(a)(5) (“A
notice of appeal filed after the announcement of a determination but before
the entry of an appealable order shall be treated as filed after such entry
and on the day thereof.”).
*Former Justice specially assigned to the Superior Court.
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In light of our disposition, we adopt the following statement of relevant
facts and procedure, garnered from the trial court’s opinion, which in turn is
supported by the record. See Trial Court Opinion, 8/5/2016 at 1-6. In
September 2011, Appellants attended a wedding reception at which they
consumed alcoholic beverages. Appellants left the reception at
approximately 7:30 p.m., and Appellant Vetter was chosen to drive.
Appellant Vetter has no recollection of the events of the evening after
leaving the wedding reception. However, on their way home, the couple
picked up their 14-month-old son.
At approximately 9:00 p.m., Appellants were driving on State Road
422. Appellant Jones testified that Appellee began tailgating Appellants,
purposely driving so close behind that his headlights could not be seen in
their car mirrors. Appellant Jones testified that Appellant Vetter was
uncharacteristically mad, yelling for Appellee to back off, and tapping his
brakes several times to “brake check” Appellee. In contrast, Appellee,
denied tailgating and suggested that Appellant Vetter repeatedly and
recklessly applied his brakes.
It was undisputed at trial that as the parties approached and stopped
at a red light at the intersection of State Road 422 and Krick Lane, Appellant
Vetter exited his car and approached Appellee, who remained in his vehicle
with his driver’s side window down. Appellee would later suggest in a
statement to police that Appellant Vetter “did not look right and something
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was wrong with him.” Miller Deposition, 10/20/2014, at 114-115. Appellee
attempted to flee the scene in his car. However, as he did so, Appellant
Vetter was knocked down by Appellee’s vehicle and was dragged
approximately 100 feet.
Five emergency medical technicians (EMTs) responded to the scene.
Each noted the smell of alcohol coming from Appellant Vetter. Four of these
responders further noted that Appellant Vetter was combative.
Upon review of information received at the scene, the responding
police officer cited Appellant Vetter with driving under the influence (DUI),
driving with a suspended license (“DWS”), and harassment. 2 The
harassment charge was subsequently dismissed in connection with Appellant
Vetter’s negotiated guilty pleas to DUI (driving with a Blood Alcohol Level
(“BAC”) of .08 to .10) and DWS. Appellant Vetter testified on direct
examination that his BAC was .09. Notes of Testimony (N.T.), 12/14-
16/2015, at 251.
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2
Appellant was convicted under 75 Pa.C.S. § 3802(a)(2) (graded as a
misdemeanor pursuant to 75 Pa.C.S. § 3803(a)(1) and 75 Pa.C.S. § 1543(a)
(graded as a summary offense). Appellant’s charge of harassment under 18
Pa.C.S. § 2709(a) (graded as a summary offense pursuant to 18 Pa.C.S. §
2709(c)(1)) was nolle prossed. Plaintiffs’ Motion in Limine to Preclude
Defendant from Introducing Testimony or Evidence of Arrests, 11/27/2015,
at 5, paragraphs 21-22.
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In November 2012, Appellants filed a complaint against Appellee for
damages arising out of the incident described above. Appellants alleged that
their injuries were a result of Appellee’s negligence, recklessness, and
negligent infliction of emotional distress.
At issue in this appeal are two pretrial motions. In October 2015,
Appellee filed a motion for partial summary judgment, seeking dismissal of
Appellant Jones’ claim of negligent infliction of emotional distress. 3 In
November 2015, Appellants filed a motion in limine, in which Appellants
sought to preclude evidence of Appellant Vetter’s intoxication, his guilty plea
to the criminal charges of DUI and DWS, as well as the dismissed charge of
harassment.
In December 2015, the trial court granted Appellee’s pretrial motion
for summary judgment, concluding that Appellant Jones could not establish
that she suffered serious bodily injuries. The lower court also denied
Appellants’ motion in limine, thus permitting Appellee to introduce evidence
of Appellant Vetter’s intoxication, as well as all criminal charges arising from
the incident. Evidence of Appellant’s criminal charges was thereafter
presented to the jury.
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3
Appellee did not file a motion for summary judgment for any claims raised
by Appellant Vetter.
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Following trial in December 2015, the jury returned a verdict assigning
74% of the causal negligence to Appellant Vetter and 26% to Appellee. The
jury was instructed and aware that if more than 50% of the causal
negligence was assigned to Appellant Vetter, that neither Appellant Vetter
nor Appellant Jones would recover damages. Accordingly, the jury awarded
no damages to Appellants.
Appellants timely filed a motion for post-trial relief. According to
Appellants, they were entitled to a new trial on three grounds, asserting the
court erred in (1) granting Appellee’s motion for partial summary judgment,
(2) permitting the introduction of evidence of criminal charges arising out of
the incident, and (3) permitting the introduction of evidence of Appellant
Vetter’s alleged intoxication. Appellee responded to the motion. Following a
hearing, the lower court denied Appellants’ motion. Appellants timely filed
the instant appeal and filed a court-ordered Pa.R.A.P. 1925(b) statement.
Appellants present the following issues for our review:
1. Whether the trial court erred and/or abused its discretion in
denying [Appellants’] Motion for Post[-]Trial Relief.
2. Whether the trial court erred and/or abused its discretion in
permitting [Appellee] Miller to introduce irrelevant and unfairly
prejudicial evidence of [Appellant] Vetter’s arrest, without
conviction, for harassment and [Appellant] Vetter’s prior driving
history.
3. Whether the trial court erred and/or abused its discretion in
permitting [Appellee] to introduce irrelevant and unfairly
prejudicial evidence of [Appellant] Vetter’s alleged intoxication as
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contributing to the cause of the incident without expert
testimony.
4. Whether the trial court erred and/or abused its discretion in
preventing [Appellant] Jones from pursuing damages for her non-
economic harms.
Appellant’s Brief at 4-5.
In their first claim on appeal, Appellants challenge the court’s denial of
their motion for post-trial relief and renew the same claims raised therein.
See Plaintiffs’ Motion for Post-Trial Relief, 12/28/2015; Plaintiffs’ Concise
Statement of Matters Complained of on Appeal, 7/15/2016. Therefore, we
will address Appellants’ claims through an examination of whether the lower
court’s denial of their request for post-trial relief was proper. For ease of
analysis, we will address Appellants’ challenge to the lower court’s summary
judgment ruling and then address Appellants’ evidentiary claims. Based on
the following analysis of the court’s evidentiary rulings, infra, we conclude
that Appellants are entitled to a new trial.
After trial and upon the written motion for post–trial relief filed by any
party, a trial court may order a new trial as to all or any of the issues.
Pa.R.C.P. 227.1(a). When considering a challenge to the trial court's ruling
denying a motion for a new trial, we are guided by the following standard of
review.
We will reverse a trial court's decision to deny a motion for a
new trial only if the trial court abused its discretion. We must
review the court's alleged mistake and determine whether the
court erred and, if so, whether the error resulted in prejudice
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necessitating a new trial. If the alleged mistake concerned an
error of law, we will scrutinize for legal error. Once we
determine whether an error occurred, we must then determine
whether the trial court abused its discretion in ruling on the
request for a new trial. An abuse of discretion exists when the
trial court has rendered a judgment that is manifestly
unreasonable, arbitrary, or capricious, has failed to apply the
law, or was motivated by partiality, prejudice, bias, or ill will.
Underwood ex rel. Underwood v. Wind, 954 A.2d 1199, 1206 (Pa.
Super. 2008) (citing Gbur v. Golio, 932 A.2d 203, 206–207 (Pa. Super.
2007)).
Appellants assert that the trial court abused its discretion by
precluding Appellant Jones from pursuing damages related to her claim of
negligent infliction of emotional distress when it granted Appellee’s motion
for summary judgment. Appellants’ Brief at 17, 33-36. Specifically,
Appellants claim that Appellant Jones’ inability to sleep impaired an
important body function, and as such, the jury should have been allowed to
determine if this impairment rose to the level of serious injury. Id.
A motion for post-trial relief may not be filed to orders disposing of
motions for summary judgment. Therefore, the trial court properly denied
Appellants’ post-trial motion on this ground. Pa.R.C.P. No. 227.1, Note; see
U.S. Nat’l Bank in Johnstown v. Johnson, 487 A.2d 809 (Pa. 1985).
Nevertheless, the lower court’s decision to grant partial summary
judgment is independently appealable upon entry of final judgment.
Pa.R.A.P. 341; Betz v. Pneumo Abex LLC, 44 A.3d 27, 54 (Pa. 2012). We
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review an order granting summary judgment for an abuse of discretion or
error of law. Indalex, Inc. v. Nat'l Union Fire Ins. Co. of Pittsburgh,
PA, 83 A.3d 418, 420 (Pa. Super. 2013). Our standard of review is plenary,
and we view the record in the light most favorable to the nonmoving party.
Id. A party bearing the burden of proof at trial is entitled to summary
judgment “whenever there is no genuine issue of any material fact as to a
necessary element of the cause of action or defense which could be
established by additional discovery or expert report[.]” Pa.R.C.P. 1035.2(1).
In response to a summary judgment motion, the nonmoving party cannot
rest upon the pleadings, but rather must set forth specific facts
demonstrating a genuine issue of material fact. Pa.R.C.P. 1035.3.
In Pennsylvania, when selecting automobile insurance, drivers have
the option of choosing limited-tort coverage or full-tort coverage. 75 Pa.C.S.
§ 1705. “A limited-tort plaintiff … can recover all medical and out-of-pocket
expenses; however, such a plaintiff cannot recover for pain and suffering or
other non-economic damages unless the plaintiff's injuries fall within the
definition of ‘serious injury.’” Varner–Mort v. Kapfhammer, 109 A.3d
244, 248 (Pa. Super. 2015) (citing 75 Pa.C.S. § 1705(a)(1)(A)). The term
“serious injury” is defined as “a personal injury resulting in death, serious
impairment of body function or permanent serious disfigurement.” 75
Pa.C.S. § 1702.
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Our Supreme Court has held that in determining whether a
motorist has suffered a serious injury, “the threshold
determination was not to be made routinely by a trial court
judge ... but rather was to be left to a jury unless reasonable
minds could not differ on the issue of whether a serious injury
had been sustained.” Washington v. Baxter, 719 A.2d 733,
740 (Pa. 1998). In conducting this inquiry, “several factors must
be considered to determine if the claimed injury is ‘serious': ‘[1.]
the extent of the impairment, [2.] the length of time the
impairment lasted, [3.] the treatment required to correct the
impairment, and [4.] any other relevant factors.” Graham v.
Campo, 990 A.2d 9, 16 (Pa. Super. 2010), appeal denied, 16
A.3d 504 (Pa. 2011). Our Supreme Court has cautioned that
“the focus of these inquiries is not on the injuries themselves,
but on how the injuries affected a particular body function.”
Washington, supra. We remain cognizant of the principle that
“[a]n impairment need not be permanent to be serious” under
section 1705(d). Robinson v. Upole, 750 A.2d 339, 342 (Pa.
Super. 2000) (citation omitted).
Cadena v. Latch, 78 A.3d 636, 640 (Pa. Super. 2013). Further, evidence
of how a particular injury affects a specific plaintiff, including how that injury
negatively impacted the person’s ability to perform his or her chosen
profession, is relevant in determining whether a plaintiff has suffered a
serious impairment of a body function. Long v. Mejia, 896 A.2d 596, 600
(Pa. Super. 2006).
It is undisputed that Appellant Jones selected limited-tort coverage
under 75 Pa.C.S. § 1705. Motion for Summary Judgment Defendant
Anthony Miller, Exhibit E. Thus, Appellant was required to establish serious
injury. Viewed in the light most favorable to Appellant Jones, reasonable
minds could not differ on the issue of whether she had sustained a serious
injury, as her injury was conclusively not serious.
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Appellant Jones testified at her deposition that she suffered from sleep
deprivation following the incident. Jones Deposition, 1/6/2015, at 17. She
received counselling and was prescribed antidepressants until the beginning
of 2013.4 Id. at 9-10. In preparation for litigation, two medical
professionals conducted a psychiatric evaluation of Appellant Jones and both
concluded that she exhibited symptoms of Post-Traumatic Stress Disorder
(PTSD). See Plaintiff’s Response in Opposition to the Motion for Summary
Judgment of Defendant Anthony Miller, 11/12/2015, Exhibits B and C.
However, Appellant Jones presented no evidence that her injury (here
sleep deprivation and symptoms of PTSD) caused her serious impairment of
a body function, as she was able to perform her chosen profession and
manage a myriad of other activities. See Long, 896 A.2d at 599-600
(recognizing evidence of how a particular injury affects a specific plaintiff is
relevant in determining whether a plaintiff has suffered a serious impairment
of a body function).
At the time of the deposition in 2015, Appellant Jones was employed
full-time at her job for five years. Jones Deposition, 1/6/2015, at 4-5.
Further, Appellant Jones was actively in pursuit of a nursing degree and
____________________________________________
4
Appellant Jones’ use of antidepressants preceded the incident. Id. at 12-
15.
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helping to care for her son, who was approximately four and one-half years
old. Id. at 4-6.
The trial court considered the factors outlined in Graham and
observed:
[Appellant Jones] testified that she cared for her baby,
[Appellant] Vetter, and their new house while maintaining full-
time employment and attending school ... There was no credible
evidence to support the contention that [Appellant] Jones’
alleged sleep deprivation negatively impacted or restricted her
daily activities.”
Trial Court Opinion, 8/5/2016, at 10. We agree. Accordingly, we discern no
error or abuse of discretion in the lower court’s conclusion to grant summary
judgment on this matter.
We next review the lower court’s evidentiary rulings.
Questions regarding the admissibility or exclusion of evidence
are [] subject to the abuse of discretion standard of review.
Pennsylvania trial judges enjoy broad discretion regarding the
admissibility of potentially misleading and confusing evidence.
Relevance is a threshold consideration in determining the
admissibility of evidence. A trial court may, however, properly
exclude evidence if its probative value is substantially
outweighed by the danger of unfair prejudice. Generally[,] for
the purposes of this evidentiary rule, “prejudice” means an
undue tendency to suggest a decision on an improper basis. The
erroneous admission of harmful or prejudicial evidence
constitutes reversible error.
Rohe v. Vinson, --- A.3d ---,*11-12 (Pa. Super. 2016) (citing Whyte v.
Robinson, 617 A.2d 380, 382–83 (Pa. Super. 1992) (internal citations
omitted)).
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Appellants assert the lower court erred in admitting evidence of
Appellant Vetter’s criminal charges. Here, Appellant Vetter pleaded guilty to
driving under the influence, a misdemeanor; pleaded guilty to driving with a
suspended license (DWS), a summary violation; and the charge of
harassment was nolle prossed. Appellants suggest this evidence was
irrelevant, unfairly prejudicial, and warrants a new trial. Appellants’ Brief at
20-26.
Evidence of criminal charges may be admissible in a subsequent civil
case. In Cromley v. Gardner, 385 A.2d 433 (Pa. Super. 1978), we
examined the decision of Hurtt v. Stirone, 206 A.2d 624 (Pa. 1965), where
the Supreme Court of Pennsylvania concluded:
“In so deciding [that judgments in criminal cases may be
admissible to establish the facts in a subsequent civil case
arising from the same incident], we recognize a valid existing
distinction in cases involving the record of conviction of relatively
minor matters such as traffic violations, lesser misdemeanors,
and matters of like import. Especially in traffic violations,
expediency and convenience, rather than guilt, often control the
defendant's ‘trial technique’” …
Cromley v. Gardner, 385 A.2d at 435 (citing Hurtt, 206 A.2d at 627.). We
observed in Cromley that the Hurtt decision “has been construed as
mandating that a motor vehicle code conviction not be admitted in a civil
case arising from the same incident;” however, we extended the reasoning
of Hurtt by concluding that all motor vehicle code violations are not of equal
gravity based on the penalty’s potential risk to liberty and property:
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The penalties clearly indicate that driving under the influence is
not a “minor matter.” The potential penalty for driving under the
influence contrasts sharply with the fine of ten dollars and costs
levied in Loughner v. Schmelzer, 218 A.2d 768 (Pa. 1966) in
which [our Supreme Court] disallowed evidence of the summary
conviction in a civil action. Certainly a $500 fine and three
year's imprisonment constitute a significant deprivation of
property and liberty. It is inconceivable that one would
acknowledge guilt of this offense if he believed he was innocent.
***
If appellee believed in his innocence and his ability to prove it,
he would not likely have made such a plea. Believing that his
guilty plea was clearly indicative of appellee's guilt of
driving under the influence, not a summary or minor
offense, we find the plea admissible as an admission
against interest.
Cromley, 385 A.2d at 435–36 (footnotes omitted) (emphasis supplied); 42
Pa.C.S. § 6142 (providing that evidence of the violation of Title 75 “shall not
be admissible” in a subsequent civil matter). Finally, evidence of arrest
without conviction is not admissible in a civil case. Smith v. Leflore, 437
A.2d 1250 (Pa. Super. 1981) (recognizing that the prejudicial impact of such
evidence is apparent).
With these principles in mind, we conclude the following. Based on
Cromley, the trial court clearly erred in admitting Appellant Vetter’s guilty
plea to DWS. See 75 Pa.C.S. § 1543 (defining DWS as a summary offense).
The trial court committed a second legal error in ruling that the harassment
arrest would be admissible. Smith, 437 A.2d at 1250. As a result of the
lower court’s ruling, both of these inadmissible pieces of evidence were
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presented to the jury. N.T. 12/14-16/2015 at 251-52, 285-88. However,
the lower court properly admitted evidence of Appellant’s DUI as a
statement against interest. Cromley, 385 A.2d at 435–36.
In the second part of our analysis of whether it was error for the lower
court to deny Appellants’ request for a new trial on the basis of the
introduction of this inadmissible evidence, we must next determine whether
the lower court abused its discretion in its ruling. Underwood ex rel.
Underwood, 954 A.2d at 1206.
In our view, admission of Appellant Vetter’s DWS conviction and his
harassment charge constituted reversible error. In E. Exp., Inc. v. Food
Haulers, Inc., 285 A.2d 152, 153 (Pa. 1971), a trial court permitted a
plaintiff to introduce evidence of defendant’s summary violation in a
negligence action. E. Exp., Inc., 285 A.2d at 153. On review, the Supreme
Court determined that this was in error and of such possible prejudicial
effect as to vitiate the trial proceedings. Id. According to the Court,
permitting a police officer to testify to the defendant’s acts in this manner
was tantamount to permitting him to offer a “conclusion that was for the
jury and within its exclusive prerogative.” Id. In the instant case, the
court’s evidentiary ruling was legal error, and as this case required
apportioning liability to the parties, we are not persuaded that prejudice did
not result from these facts being before the jury. Upon review of the
aforementioned, we conclude that the lower court abused its discretion in
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failing to apply the law and in not granting a new trial, as a new trial was
warranted. Pa.R.C.P. 227.1(a); E. Exp., Inc., 285 A.2d at 153; Smith, 437
A.2d at 1250.
Appellants’ also argue that the trial court erred in permitting Appellee
to introduce irrelevant and unfairly prejudicial evidence of Appellant Vetter’s
intoxication. Appellant’s Brief at 26-32. As part of Appellants’ contention,
they again take issue with the admission of Appellant Vetter’s DUI guilty
plea.
In consideration of our holding that a guilty plea to DUI is evidence of
guilt and therefore independently admissible in a civil action as an admission
against interest, we conclude that the trial court in the instant case properly
admitted Appellant Vetter’s DUI guilty plea, as it could have considerably
elucidated the issue of Appellant Vetter’s negligence. See Cromley, 385
A.2d at 435-36. However, evidence of Appellant’s DUI could also be used to
establish Appellant Vetter’s intoxication in conjunction with other
corroborative evidence.
The following principles guide the admissibility of intoxication in a civil
negligence case:
While proof of intoxication is relevant where reckless or careless
driving of an automobile is the matter at issue, the mere fact of
drinking intoxicating liquor is not admissible, being unfairly
prejudicial, unless it reasonably establishes a degree of
intoxication which proves unfitness to drive.
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Fisher v. Dye, 125 A.2d 472, 476 (Pa. 1956). Evidence of blood alcohol
level alone may not be admitted for the purpose of proving intoxication;
intoxication must be corroborated by independent evidence. Ackerman v.
Delcomico, 486 A.2d 410, 414 (Pa. Super. 1984). In cases that have
admitted blood alcohol tests, the BAC was above the statutorily presumptive
level of unfitness to operate a vehicle. Locke v. Claypool, 627 A.2d 801,
804-05 (Pa. Super. 1993) (noting criminal presumption of unfitness to drive
when driver’s BAC in excess of legal limit inapplicable in civil cases). There
is no precise type or amount of evidence necessary to establish the requisite
degree of intoxication; however, corroborative evidence to establish
intoxication can be in the form of lay testimony as to the injured party's
conduct just prior to or immediately after the incident, or expert testimony
interpreting the significance of the results of blood alcohol tests. See Braun
v. Target Corp., 983 A.2d 752, 760 (Pa. Super. 2009), appeal denied, 987
A.2d 158 (Pa. 2009); Gallagher v. Ing, 532 A.2d 1179, 1182–83 (1987),
appeal denied, 548 A.2d 255 (1988).5 We extended this rule of admissibility
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5
In Ackerman, for example, this Court found the trial court properly
admitted evidence of intoxication to the point of unfitness to walk where (1)
plaintiff's girlfriend and roommate stated plaintiff had been drinking beer
since late afternoon on day of accident; (2) defendant and medical personnel
testified plaintiff strongly smelled of beer; (3) plaintiff's BAC was 0.195
percent; (4) hospital records revealed plaintiff admitted drinking heavily;
and (5) plaintiff had slurred speech and low level of alertness following
accident). Ackerman, 486 A.2d at 414-15; but see Whyte, 617 A.2d at
(Footnote Continued Next Page)
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to evidence tending to establish intoxication on the part of a pedestrian.
Ackerman, 486 A.2d at 414; Kriner v. McDonald, 302 A.2d 392, 394 (Pa.
Super. 1973) (evidence of intoxication is inadmissible unless it proves
unfitness to be crossing the street).
The evidence presented to the trial court in the series of pretrial
motions showed: Appellant Vetter consumed approximately three to four
cups of beer prior to driving. Jones Deposition, 1/6/2015, at 26-27; Vetter
Deposition 1/6/2015, at 35-36. Appellant Jones described Appellant Vetter’s
behavior in getting angry and exiting the car as “very out of character.” Id.
at 31-32. Appellee stated that Appellant Vetter “did not look right and
something was wrong with him” as he approached Appellee’s car. Miller
Deposition, 10/20/2014, at 114-115. In police documentation of the
incident, five EMTs noted the smell of alcohol coming from Appellant Vetter.
See Memorandum of Law (filed in opposition to motion in limine),
12/7/2015, Exhibit F. Four of the EMTs also noted that Appellant was
combative. Id. Appellant Vetter subsequently pleaded guilty to DUI for a
BAC of 0.9. Vetter Deposition, 1/6/2015, at 57.
_______________________
(Footnote Continued)
382-3 (holding pedestrian with blood alcohol content of .144% determined
after treating physician smelled alcohol on his breath insufficient to establish
intoxication absent more).
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In the instant case, Appellant Vetter’s intoxication was relevant, as
recklessness and carelessness was at issue. Appellant’s guilty plea to DUI
was independently admissible and established that he had a BAC in excess
of the legal limit while operating a car. The evidence of Appellant Vetter’s
(1) drinking intoxicants, (2) behavior immediately prior to the incident, (3)
odor of alcohol noted by five EMTs and (4) combative behavior directly after
the accident, taken in totality with Appellant’s BAC, could reasonably support
a conclusion that Appellant Vetter was intoxicated to the point of unfitness to
walk. See Ackerman, 486 A.2d at 413; Reedy v. Brown, 150 A.2d 707,
708 (Pa. 1959) (“The requirement is met if it can be factually concluded,
from all the evidence as to drinking intoxicants and intoxication, that
unfitness to [walk] is established to the satisfaction of the jury.”). As such,
the value of the intoxication evidence, viewed together, was more probative
than prejudicial and could elucidate for the jury whether Appellant Vetter
was intoxicated to a degree that might relieve Appellee of liability due to
Appellant Vetter's contributory negligence. Fisher, 125 A.2d at 476. Thus,
we find the trial court’s admission of Appellant Vetter’s DUI and intoxication
proper, and similarly conclude that the trial court’s decision to deny
Appellants’ post-trial relief for admission of same proper.
In conclusion, the trial court’s order granting partial summary
judgment of Appellant Jones’ negligent infliction of emotional distress claim
is affirmed, as Appellant Jones failed to demonstrate that she suffered
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serious injury. Varner–Mort, 109 A.3d at 248. The trial court’s order
denying Appellant’s motion in limine is affirmed in part, as admission of
Appellant Vetter’s DUI and intoxication was admissible; however, the court’s
decision to admit evidence of Appellant Vetter’s DWS and harassment charge
was inadmissible and is reversed. E. Exp., Inc., 285 A.2d at 153; Smith,
437 A.2d 1250. Moreover, evidence of the DWS and harassment charge was
prejudicial and constituted reversible error that the court failed to remedy
when it ruled on Appellants’ Post-Trial Motion. Underwood ex rel.
Underwood, 954 A.2d at 1206; E. Exp., Inc., 285 A.2d at 153; Smith,
437 A.2d 1250. Accordingly, we are constrained to vacate the judgment and
remand for a new trial. Upon re-trial, while evidence of Appellant Vetter's
intoxication may be introduced, the evidence of his guilty plea to DWS and
the harassment charge may not be admitted.
Affirmed in part, reversed in part. Judgment vacated and remanded
for a new trial. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/10/2017
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