Avery, A. v. Cercone, B. ( 2019 )

J-A23012-19
2019 Pa. Super. 366
ANDREA AVERY : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
BRANDON CERCONE AND HARRY : No. 174 WDA 2019
SPADAFORA :
Appeal from the Judgment Entered, January 24, 2019,
in the Court of Common Pleas of Allegheny County,
Civil Division at No(s): GD 13-022334.
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MUSMANNO, J.
OPINION BY KUNSELMAN, J.: FILED DECEMBER 23, 2019
Plaintiff, Andrea Avery, appeals from the judgment entered in this car-
accident case, after a jury awarded her $18,500 for lost wages and pain and
suffering. We vacate that judgment, reinstate the original verdict of $8,500
for lost wages against Defendant Harry Spadafora, and remand for the filing
of new post-trial motions on a weight-of-the-evidence claim regarding the pain
and suffering award, because the trial court must resolve this question in the
first instance.1
____________________________________________
1 We affirm the judgment in favor of Defendant Brandon Cercone, because the
jury found that he was not negligent. Mr. Avery appeals that portion of the
verdict only with regard to the verification to Ms. Cercone’s answer to the
original complaint, which we discuss and dismiss in part B of this Opinion. Her
remaining issues challenge only the extent of her damages, not Mr. Cercone’s
liability.
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On February 1, 2012, Mr. Cercone let Mr. Spadafora borrow his pick-up
truck to run some errands. Mr. Spadafora unwittingly merged Mr. Cercone’s
truck into a funeral procession on an interstate highway.
Not recognizing that the procession was driving below the speed limit,
Mr. Spadafora rear-ended Ms. Avery and propelled her car into the vehicle in
front of her. Mr. Spadafora admitted his fault at the scene and has stood by
that admission ever since. Ms. Avery sued Mr. Spadafora for negligence; she
sued Mr. Cercone for negligent entrustment, on the grounds that the pick-up
truck’s brakes were faulty when he loaned it to Mr. Spadafora.
The jury found only Mr. Spadafora negligent. It initially returned a
verdict against him of $8,500 for lost wages and $0 for pain and suffering.
However, both parties had contended at trial that Ms. Avery deserved some
compensation for pain and suffering; they disputed the dollar figure on that
question.
Defense counsel asked the trial court to send the jury back to reconsider
its pain-and-suffering award. Ms. Avery’s attorney responded that returning
the jury to the deliberation room was improper. The trial court agreed with
defense counsel and directed the jury to resume deliberations and to award
something for pain and suffering. The jury returned a second verdict adding
$10,000 for pain and suffering. Thus, the new verdict totaled $18,500.
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Ms. Avery filed post-trial motions, which the trial court denied. This
timely appeal followed. She raises four issues on appeal, which we have
rephrased and reordered for simplicity of disposition:
1. Did the trial court err by returning the jury to
deliberations with instructions to award some amount
of compensation for pain and suffering?
2. Did the trial court err by refusing to strike the
unverified Answer filed by Mr. Spadafora and Mr.
Cercone and to enter a directed verdict against them?
3. Did the trial court err by failing to conduct a Frye
hearing before it concluded that Ms. Avery’s expert
neurologist’s use of DTI (Diffuse Tensor Imaging) to
confirm his diagnosis of a brain injury was
inadmissible?
4. Did the trial court err by excluding evidence of the
business relationship between the defense’s expert
and a referral service to show potential bias of the
defense expert with regard to his opinion on
damages?
See Ms. Avery’s Brief at 19, 33, 46, 64.
A. The Verdict on Pain and Suffering
In her first appellate issue, Ms. Avery challenges the rejection of the
original $0 verdict for pain and suffering and the trial court’s instruction that
the jurors resume deliberations. She argues the trial judge confused an
inconsistent or illogical verdict with a verdict that is against the weight of the
evidence. In her view, it was “reversible error for [the] trial judge to intervene
to correct a verdict which was against the weight of the evidence by instructing
the jury to reconsider its prior findings.” Id. at 14. Instead, Ms. Avery
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believes the “only remedy available to the court when a jury returns a verdict
which is against the weight of the evidence is to grant a new trial.” Id.
Mr. Spadafora argues that the trial judge correctly returned the jury to
deliberate further. He claims:
Based on undisputed medical evidence, [Ms. Avery] suffered
a mild, traumatic, brain injury (a concussion) in the subject
accident, which is normally associated with some degree of
pain and suffering (headaches and dizziness, etc.).
Therefore, it was arguably inconsistent, as a matter of law,
for the jury to have awarded past wage loss, but no amount
for pain and suffering.
Mr. Spadafora’s Brief at 10.2
When reviewing a trial court’s denial of post-trial motions, we follow a
two-step process.
[First, we] review the [trial] court’s alleged mistake and
determine whether the court erred, and, if so, [we then ask]
whether the error resulted in prejudice 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.
____________________________________________
2 Mr. Spadafora also asks us to find waiver. He claims Ms. Avery did not object
to the trial court’s decision to send the jury back to the deliberation room.
This assertion belies the fact that Mr. Spadafora objected to the jury’s original
verdict, asked the trial court to reject that verdict, and injected this procedural
issue into the case. We know of no rule or case that would require Ms. Avery
to object to a ruling that Mr. Spadafora prompted by his own objection, and
Mr. Spadafora cites none. We therefore decline to find waiver.
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ACE Am. Ins. Co. v. Underwriters at Lloyds and Co., 939 A.2d 935, 939
(Pa. Super. 2007) (citations omitted), affirmed, 971 A.2d 1121 (Pa. 2009).
Here, the trial court agreed with defense counsel’s identification of the
$0 award for pain and suffering as an inconsistent verdict and rejected the
plaintiff’s view that this was a weight of the evidence issue. Whether a court
has correctly identified the legal issue before it is itself a legal issue. The
“identification and application of the proper legal principles . . . are questions
of law . . . .” Commonwealth v. Reaves, 923 A.2d 1119, 1124 (Pa. 2007).
As with all questions of law, “our standard of review is de novo. This means
we need not defer to the determinations made by the lower tribunal.”
Casselbury v. American Food Serv., 30 A.3d 510, 512 (Pa. Super. 2011).
To put this issue in perspective, we must differentiate between an
inconsistent verdict and a verdict that is against the weight of the evidence.
An inconsistent, irrational, or problematic verdict is a verdict that does not
clearly report the jury’s factual findings on its face. The inconsistency or
problem of such a verdict appears within the four corners of the verdict slip.
When this occurs, a trial court should — if a party objects before the jury is
dismissed — return that jury to the deliberation room and instruct it to clarify
(not reconsider) the verdict. By contrast, a verdict that is against the weight
of the evidence is a verdict that shocks the conscience of the trial court in light
of the evidence presented. When this occurs, the trial court should — if a
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party timely raises the issue in post-trial motions — order a new trial. We
provide an example of each scenario.
An inconsistent verdict occurred in Picca v. Kriner, 645 A.2d 868 (Pa.
Super. 1994). There, a jury found a defendant-driver negligent, but it also
found that his conduct was not a substantial factor in causing all of the
plaintiff’s harm, as the verdict slip read. On appeal, we determined that,
because the plaintiff had preexisting injuries, the adjective “all” in the
interrogatory on proximate cause was overly broad. When the jurors
answered “No,” we could not determine whether they had found the defendant
(a) did not cause the plaintiff’s prior injuries but had caused the new ones;
(b) had not caused any of the injuries (new or old); or (c) had caused some
of the plaintiff’s new injuries.
This lack of clarity on the face of verdict slip, arising from a poorly
worded interrogatory, produced an “inconsistent, irrational, incredible, or . . .
problematic verdict . . . .” Picca at 302. In such scenarios, the trial court
may, upon timely objection, return the jury to deliberations for clarification of
its factual findings. “This rule does not require [a court] to invade the jury’s
sacred deliberation process or find out why the jury did what it did; the court
need only explain that the verdict returned makes no sense . . . .” Id. at 303.
By comparison, a verdict that was against the weight of the evidence
occurred in Burnhauser v. Bumberger, 745 A.2d 1256 (Pa. Super. 2000).
There, the plaintiff and defendant were in a motor vehicle accident, which the
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defendant clearly caused, so the case was tried on damages alone. The
parties’ experts agreed the plaintiff had suffered injuries, but they disputed
the nature and severity of those injuries. The jury found the defendant was
negligent and that he proximately caused the plaintiff’s harm. However, the
jury only compensated the plaintiff for her medical expenses and awarded
nothing for pain and suffering. In post-trial motions, the plaintiff requested a
new trial on the grounds that the $0 award for pain and suffering was against
the weight of the evidence. The trial court agreed and ordered a new trial.
Id. at 1258.
On appeal, the defendant argued that the $0 award was not a weight of
the evidence issue, but rather an inconsistent verdict issue requiring the
plaintiff to object before the judge dismissed the jury. We explicitly rejected
this characterization of the legal issue and explained:
The trial court recognized that the jury’s award equaled [the
exact amount of the plaintiff’s] unreimbursed medical
expenses and stated “the jury obviously awarded only
reimbursement for the medical bills.” Trial Court Opinion,
3/1/99, at 4. Therefore, because there was no ambiguity or
evidence of misunderstanding, the trial court concluded that
the waiver rule [in Picca, supra] was not applicable . . . we
agree. Objecting to the jury’s verdict would not have
eliminated the possibility of a new trial. A trial judge is not
at liberty to suggest to the jury that the weight of the
evidence did not support its damage award. Therefore, the
trial court could not have given the jury any corrective
instruction and returned them to deliberations.
Id. at 1260 (some citations omitted) (emphasis added).
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In citing Burnhauser with approval, the Supreme Court of Pennsylvania
said, “a trial judge cannot issue a corrective instruction to the jury suggesting
that the weight of the evidence does not support its verdict without invading
the province of the jury by essentially directing a verdict.” Criswell v. King,
834 A.2d 505, 512 (Pa. 2003).3
____________________________________________
3 We note Mr. Spadafora relies extensively upon Criswell v. King, 834 A.2d
505 (Pa. 2003) for the proposition that the trial court may send the jury back
to rectify an inconsistent verdict. See Mr. Spadafora’s Brief at 16-18.
However, he fails to mention that Criswell rests upon the rule in Burnhauser
v. Bamberger, 745 A.2d 1256 (Pa. Super. 2000). Mr. Spadafora fails to
acknowledge Burnhauser, much less explain why it does not apply. Our
research reveals that Burnhauser remains good law. See, e.g., Kopytin v.
Aschinger, 974 A.2d 738 (Pa. Super. 2008) (applying Burnhauser to order
a new trial where the jury’s failure to award damages for pain and suffering
was not an inconsistent verdict but, rather, a finding of fact that was against
the weight of the evidence); Mader v. Duquesne Light Co., 199 A.3d 1258
(Pa. Super. 2018) (accord).
The critical error in Mr. Spadafora’s argument is, as it was below, that
he misunderstands what constitutes an inconsistent verdict. As the Criswell
Court explained and we have held for 20 years, an inconsistent verdict is not
a verdict that is inconsistent with the evidence. If the evidence factors into
the trial court’s decision to disturb a verdict (as occurred here), the court is
deciding a weight of the evidence issue, no matter the form of objection, who
raises it, or when it occurs. The High Court said:
It is one thing to tell the jury to resume deliberations
because its verdict is inconsistent, but it is quite another to
direct it to resume deliberations because, in the courts view,
the verdict rendered so far departs from the evidence as to
shock the judicial conscience. Indeed, as the Superior Court
has noted [in Burnhauser and its progeny,] an order to
resume deliberations based on a weight of the evidence
instruction would intrude upon the province of the jury.
Criswell, 834 A.2d at 513 (2003).
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The case before us falls squarely under Burnhauser; it is factually and
procedurally identical. Here, the jury found Mr. Spadafora was negligent and
that he proximately caused Ms. Avery’s harm. However, the jury only
compensated Ms. Avery for her medical expenses and awarded nothing for
pain and suffering. Because the verdict was clear and unambiguous on its
face, the trial judge had no difficulty ascertaining the decision of the jurors or
the meaning of their verdict. Thus, the trial court erred when it concluded
that the verdict was “inconsistent.”
The trial court provided its reasoning and stated that the verdict was:
inconsistent with the defendant’s expert opinion that Ms. Avery’s
symptoms substantially flared up and Mr. Spadafora’s counsel’s
closing concession that she is entitled to damages for pain and
suffering for several months. Since this verdict also was
inconsistent with common knowledge that substantial flare up of
concussion symptoms involved pain and suffering, I granted the
request to have the jury reconsider the pain-and-suffering award.
Trial Court Opinion, 4/4/19, at 15.
In short, the trial court believed that a $0 award for pain and suffering
was inconsistent, not on its face, but rather, was inconsistent with the
evidence as he heard it presented. However, the law allows a jury to return
a verdict that the court views as factually wrong. A trial court has never been
at liberty to set aside a verdict merely because it disagrees with the jury’s
factual findings. Otherwise, the jurors would no longer “be the only judges of
the facts.” PENNSYLVANIA SUGGESTED STANDARD CIVIL JURY INSTRUCTIONS § 1.150
(Role of Judge and Jury). Our law provides that:
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a jury is always free to believe all, part, some, or none of the
evidence presented. Thus, while the jury may have concluded
that [the plaintiff] suffered some painful inconvenience for a few
days or weeks after the accident, it may also have concluded that
[the plaintiff’s] discomfort was the sort of transient rub of life for
which compensation is not warranted. . . . [t]he determination of
what is a compensable injury is uniquely within the purview of the
jury.
Majczyk v. Oesch, 789 A.2d 717, 725-726 (Pa. Super. 2001) (citation
omitted).
In light of the wide latitude afforded juries on the pain-and-suffering
question, a jury is always free to award $0 for pain and suffering. The question
then becomes whether such a verdict is against the weight of the evidence
such that it shocks the conscience of the trial court.
Here, the court should not have given the jury a corrective instruction
to award some pain-and-suffering damages and returned it to deliberate. The
trial court gave a de facto directed verdict of at least $1 for pain and suffering.
The jury was under no legal obligation to do so, because it was free to reject
both side’s evidence of pain and suffering as “the rub of life.” See Majczyk,
supra. The jurors could have concluded that Ms. Avery had not suffered any
compensable pain and suffering, because it could reject all of the evidence
supporting a pain-and-suffering award.
Instead, the trial court should have let the verdict stand, and waited to
see if the plaintiff would file post-trial motions challenging the weight of the
evidence. If no such motion were filed, the verdict of $8,500 would have
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stood as a consistent verdict. Assuming the plaintiff filed such a motion, the
trial court would then have had to determine whether the verdict in this case
was shockingly unjust in light of all the evidence presented.
For these reasons, we find that the trial court erred when it concluded
that the verdict was inconsistent and returned the jury to deliberate further.
This brings us to the question of how to remedy the procedural error of
the trial court. Did the court abuse its discretion when it denied Ms. Avery’s
motion for a new trial? At this juncture, we do not know. The trial court must
first rule upon the proper legal issue (i.e., the weight of the evidence) before
we can determine whether its grant or denial of new trial on that claim
amounts to an abuse of discretion.
The Supreme Court of Pennsylvania in Davis v. Mullen, 773 A.2d 764,
767 (Pa. 2001) distinguished between two lines of cases where a jury awarded
medical expenses or lost wages, but awarded nothing for pain and suffering.
A jury’s award of $0 for pain and suffering could be appropriate when the trial
judge rationally concludes that the jury reasonably found that (1) the plaintiff
experienced no pain and suffering or (2) a pre-existing condition caused all of
the plaintiff’s alleged pain and suffering. Id. at 767; see e.g., Boggavarapu
v. Ponist, 542 A.2d 516 (Pa. 1988), Catalano v. Bujak, 642 A.2d 448 (Pa.
1994). On the other hand, when a jury awarded damages for medical
expenses but nothing for pain and suffering, a trial judge may order a new
trial if the plaintiff’s injuries were so severe that such an award was utterly
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irrational. Davis, 773 A.2d at 766; see e.g., Todd v. Bercini, 92 A.2d 538
(Pa. 1952) and Yacabonis v. Gilvickas, 101 A.2d 690 (Pa. 1954); see also
Marsh v. Hanley, 856 A.2d 138 (Pa. Super. 2004).
Thus, although Ms. Avery suggests otherwise, this Court may not (and
cannot) decide whether a new trial is required in the first instance. Unlike the
trial judge who presided over this case, we did not hear the witnesses or see
their body language as they testified. Although the trial judge believed the
verdict was “inconsistent,” we have no way of knowing whether the award of
$0 for pain and suffering shocked his sense of justice. This Court can only
review the trial court’s ruling on this question once that court makes it. And,
when we do, we afford the trial court the highest deference that an appellate
court can and still conduct a review:
Appellate review of a weight claim is a review of the trial
court’s exercise of discretion, not of the underlying
question of whether the verdict is against the weight
of the evidence. Because the trial judge has had the
opportunity to hear and see the evidence presented, an
appellate court will give the gravest consideration to the
findings and reasons advanced by the trial judge when
reviewing a trial court’s determination that the verdict is
against the weight of the evidence. One of the least
assailable reasons for granting or denying a new trial is the
lower court’s conviction that the verdict was or was not
against the weight of the evidence and that a new trial
should be granted in the interest of justice.
Brown v. Trinidad, 111 A.3d 765, 770 (2015) (emphasis added).
At this juncture, our hands are tied. We may not substitute our
judgment for that of the original trial judge on this issue. We must therefore
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remand and give the trial court an opportunity to decide the weight of the
evidence question within its sound discretion.
In sum, on this issue, we vacate the judgment in favor of Ms. Avery and
the improper illegal verdict of $18,500 against Mr. Spadafora.4 We reinstate
the original, proper verdict of $8,500 against Mr. Spadafora and remand. Ms.
Avery may, if she wishes, renew her post-trial motions for a new trial on the
grounds that the jury’s original award of $0 for pain and suffering was against
the weight of the evidence, such that it should shock the conscience of the
trial judge who presided over the jury trial.5
B. The Verification of the Defendants’ Answer and New Matter
In her second appellate issue, we next consider Ms. Avery’s claim that
the trial court erred when it refused to strike the Defendants’ Answer and New
Matter and to award her a directed verdict. She contends that, without a
signed verification denying certain allegations in her original Complaint,
those allegations are deemed admitted by the Defendants and she is entitled
to judgment as a matter of law.
____________________________________________
4As previously noted, we affirm the judgment in favor of Mr. Cercone and
against Ms. Avery.
5 If the trial judge determines a new trial on damages is warranted for pain
and suffering, the issue remains whether the award of $8,500 for lost wages
may nevertheless stand. A panel of this Court recently decided that the
unchallenged portion of a damages award stands. See Mader, 199 A.3d at
1270 n.2 (Pa. Super, 2018). Mader currently binds the trial court on that
point; however, the Supreme Court of Pennsylvania has granted an allowance
of appeal and is reviewing this issue. Id., 217 A.3d 193 (Pa. 2019).
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This issue arose at trial during the testimony of Mr. Cercone. In his
testimony as an adverse witness for the plaintiff, Mr. Cercone admitted that
he loaned his pick-up truck to Mr. Spadafora and that Mr. Spadafora was
driving that truck at the time of the accident. N.T., 9/7/18, at 217, 223.
However, in the answer to the original Complaint, Mr. Cercone had denied this
fact in the Answer and New Matter. Id. at 238. Counsel for Ms. Avery showed
Mr. Cercone this Answer and Verification, at which point Mr. Cercone
questioned whether it was actually his signature on the verification form. Id.
at 233. When his own lawyer questioned him, Mr. Cercone essentially
conceded that the signature on the verification was not his and further
acknowledged that his previous attorney did all the paperwork for him. Id.
Based on this testimony, counsel for Ms. Avery moved to strike the
Answer and enter a directed verdict. R.R. 1294a – 96a. The trial court denied
the request. Id. 1303a – 05a.
On appeal, Ms. Avery contends the trial court erred by failing to strike
that Answer and enter a directed verdict against the Defendants, or, in the
alternative, by failing to grant a mistrial. As she states it, the trial court
missed the crux of her argument, which is “what is the appropriate course of
action where a Defendant specifically testifies that the signature on the
verification is not the Defendant’s signature.” Avery’s Brief at 63.
The procedural history of the case is important to resolve this issue,
because the verification surrounding this controversy was the verification to
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the original complaint, not the amended complaint. Thus, we initially must
decide whether the issue is moot and/or waived.
Pennsylvania “courts generally will not decide a moot case, because the
law requires the existence of an actual controversy . . . .” Association of
Pennsylvania State College & University Faculties v. PLRB, 8 A.3d 300,
305 (Pa. 2010). “An issue before a court is moot when a determination is
sought on a matter which, when rendered, cannot have any practical effect
on the existing controversy.” Printed Image of York, Inc. v. Mifflin Press,
Ltd., 133 A.3d 55, 59 (Pa. Super. 2016) (some punctuation omitted). An
issue is waived on appeal if it is not raised before the trial court. Pa.R.A.P.
302.
During the pleadings, Ms. Avery filed her original Complaint on March
28, 2014. The Defendants filed a joint Answer and New Matter three months
later. Their then-attorney, Michael T. Della Vecchia, Esq., signed the
verification he attached to that pleading on behalf of Mr. Spadafora and Mr.
Cercone. On February 26, 2015, Attorney Della Vecchia filed a praecipe to
substitute Mr. Cercone’s verification to the Answer and New Matter. That
document purportedly bore Mr. Cercone’s signature. See Praecipe to
Substitute Verification, February 26, 2015. Shortly thereafter, Attorney Della
Vecchia withdrew his representation. New lawyers entered their appearance
on behalf of the Defendants.
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Several months later, on October 10, 2016, Ms. Avery filed an Amended
Complaint. The next month, Mr. Spadafora and Mr. Cercone’s new attorney,
Ashley M. Kral, Esq., filed an Answer and New Matter to Plaintiff’s Amended
Complaint. To attempt to comply with Rule of Civil Procedure 1024, attorney
Kral signed the verification for her clients “due to time limitations in filing an
answer and [promised to] substitute the Defendants’ verification when [she]
received [it].” Mr. Spadafora and Mr. Cercone’s Answer to Plaintiff’s Amended
Complaint and New Matter, November 28, 2016, at 10. Attorney Kral never
filed a substituted verification signed by Mr. Cercone.
Notably, the verification Ms. Avery objected to at trial and challenges on
appeal is the substituted verification for the Answer and New Matter to her
original Answer and New Matter, which her original attorney, Attorney Della
Vecchia, filed on February 26, 2015. This is the verification form that bears
Mr. Cercone’s name, but admittedly does not bear his signature. Ms. Avery,
however, did not object at trial to the lack of an appropriate verification to the
Answer and New Matter that Attorney Kral signed and filed in response to the
Amended Complaint.
It is settled law in this Commonwealth that the filing of an “amended
complaint has the effect of eliminating the prior complaint.” Hionis v.
Concord Tp., 973 A.2d 1030, 1036 (Pa. Cmwlth. 2009) (citing Freeze v.
Donegal Mutual Insurance Co., 470 A.2d 958, 960 n.5 (Pa. 1983))
(emphasis added). Thus, while Ms. Avery is correct that “[a]n unverified
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pleading is a nullity,” (Ms. Avery’s Brief at 16, 46-47), so is an original
complaint after the plaintiff files her amended complaint. By filing an
Amended Complaint, Ms. Avery eliminated all the facts alleged in her original
Complaint – which she claims entitle her to judgment as a matter of law –
from the record. See Hionis and Freeze, supra.
Any procedural misstep Attorney Della Vecchia may have made by not
having Mr. Spadafora and/or Mr. Cercone sign the praecipe to substitute the
verification to the Answer to this original Complaint was likewise eliminated
when Ms. Avery filed her Amended Complaint. All of the pleadings preceding
her Amended Complaint became null and void for purposes of Rules of Civil
Procedure. Thus, we conclude that this issue, as Ms. Avery framed it before
the trial court, is moot. We may not grant her judgment as a matter of law
based upon allegations in her original, now-inoperable Complaint.
Moreover, we observe that Ms. Avery did not challenge the operable
defensive pleading (i.e., the unverified Answer to Plaintiffs’ Amended
Complaint and New Matter) before the trial court. As we noted above, “Issues
not raised in the lower court are waived and cannot be raised for the first time
on appeal.” Pennsylvania Rule of Appellate Procedure 302. Because Ms. Avery
did not attack the failure of the Defendants to verify their Answer to her
Amended Complaint during the trial below, whether the lack of a valid
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verification for that pleading entitles Ms. Avery to judgment as a matter of law
is waived on the instant appeal.6
In short, by filing an Amended Complaint, Ms. Avery rendered any
procedural defects in the previous pleadings moot, and she did not object and
therefore waived any defects in the pleadings that succeeded it. This issue
affords her no appellate relief.
C. The Remaining Two Appellate Issues
Ms. Avery also raises two evidentiary issues on appeal. We decline to
address their merits, because, on remand, if the trial court awards a new trial
to Ms. Avery, such issues may become moot as well. Of course, Ms. Avery
may reassert those other claims in a subsequent appeal or cross-appeal,
depending on the resolution of her weight-of-the-evidence claim below.
Finally, as neither of those issues would result in reversal of the jury’s
determination that Mr. Cercone was not negligent, we need not resolve them
to affirm the judgment in his favor. They are already moot as to him.
Judgment in favor of Mr. Cercone affirmed. Judgment against Mr.
Spadafora vacated. Verdict against Mr. Spadafora for $18,500 vacated;
original verdict against Mr. Spadafora for $8,500 for lost wages reinstated.
____________________________________________
6 We express no opinion as to the unverified pleading’s impact upon the right
of Mr. Spadafora to mount a defense on remand, if a new trial is awarded. We
further express no opinion on whether the trial court should, under the Rules
of Civil Procedure, grant him leave to file a substitute verification to his Answer
to the Amended Complaint.
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Case remanded for further proceedings consistent with this decision.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/23/2019
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