Monarca, T. v. Annie's Express Laundry, LLC ( 2020 )

J-A08009-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
TANYA MONARCA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
ANNIE'S EXPRESS LAUNDRY, LLC, : No. 2068 EDA 2019
Appeal from the Judgment Entered July 15, 2019
In the Court of Common Pleas of Lehigh County Civil Division at No(s):
No. 2016-C-3360
TANYA MONARCA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
ANNIE'S EXPRESS LAUNDRY, LLC, : No. 2072 EDA 2019
Appeal from the Judgment Entered July 15, 2019
In the Court of Common Pleas of Lehigh County Civil Division at No(s):
No. 2016-C-3360
TANYA MONARCA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
ANNIE'S EXPRESS LAUNDRY, LLC, : No. 2073 EDA 2019
Appeal from the Judgment Entered July 15, 2019
In the Court of Common Pleas of Lehigh County Civil Division at No(s):
No. 2016-C-3360
BEFORE: LAZARUS, J., KUNSELMAN, J., and McCAFFERY, J.
J-A08009-20
MEMORANDUM BY LAZARUS, J.: FILED JUNE 10, 2020
Tanya Monarca appeals from the judgment1 entered in the Court of
Common Pleas of Lehigh County. After careful review, we find that Monarca
is not entitled to relief. Thus, we affirm.
[Appellee] Annie’s Express Laundry, LLC [(“Annie’s Express”)]
owns and operates a laundromat [in] Lehigh County[.] [Monarca]
was a regular patron of [Appellee]’s business. She testified that
she began going to Annie’s Express in June of 2014. She did her
laundry there approximately two to three times per month.
On December 8, 2014, [Monarca] and her fiancé parked their
vehicle at the front door of the laundromat at approximately 5:50
p.m. The door to the laundromat was propped open by a bucket
filled with sand for patrons to deposit cigarettes. [Monarca] exited
her vehicle from the front passenger side door and stepped in the
direction of the bucket. She testified that she noticed someone in
a truck or vehicle parked about ten feet behind her vehicle which
had caught her eye, and caused her to stop looking down as she
turned to enter the laundromat. As a result, she tripped on the
bucket and fell over, landing on her right knee. The bucket broke
when she fell on it[,] and it scratched [Monarca]’s calf and her
shin.[2] [Monarca]’s fiancé then pushed the bucket back into a
corner. [Monarca] picked up a piece of the bucket and began
____________________________________________
1Monarca purported to appeal from three separate trial court orders—orders
entered on February 26, 2019; June 10, 2019; and June 26, 2019—by filing a
separate notice of appeal for each order on July 27, 2019. The appeals were
consolidated upon Monarca’s request pursuant to Pa.R.A.P. 513.
The orders at issue were not final orders disposing of all claims of all parties
until the trial court denied Monarca’s motion for reconsideration—effectively,
her motion for post-trial relief—on June 26, 2019. These orders are subsumed
by the judgment entered on July 15, 2019. Thus, Monarca has timely filed
her notice of appeal, which actually lies from the entry of judgment. See
Pa.R.A.P. 902 (requiring appeals be filed within 30 days after entry of order
from which appeal is taken). We have altered the caption accordingly.
2Footage from Annie’s Express’ surveillance system capturing the entirety of
Monarca’s time on the premises was presented to the jury at trial.
-2-
J-A08009-20
taking pictures of the scene with her phone. [Monarca] testified
that shortly thereafter, she began experiencing pain in her legs
and back.
Trial Court Opinion, 2/26/19, at 2-3.
In November 2016, Monarca filed a complaint alleging negligence
against Annie’s Express in connection with the trip-and-fall accident. On
August 30, 2018, following a three-day trial, a jury returned a verdict in favor
of Annie’s Express based on its finding that Annie’s Express was not negligent.
Monarca timely filed a post-trial motion for a new trial, which the court denied
on February 26, 2019. On March 4, 2019, Monarca filed a motion for
reconsideration and a motion to compel Annie’s Express to produce additional
video footage discovery not presented at trial. Monarca explained that despite
Annie’s Express having filed its responsive brief to her post-trial motion on
February 13, 2019, she never received service of the brief because it was
allegedly sent to an incorrect address; consequently, Monarca was unable to
file a timely reply brief before the court denied her post-trial motion. The
court granted the reconsideration motion in order to enable Monarca to
respond to Appellees’ brief, which she did on April 4, 2019.
Following oral argument on June 4, 2019, the court issued an order on
June 10, 2019, denying Monarca’s request for additional discovery. In that
order, the court also stayed its reconsideration of Monarca’s post-trial motion
pending this Court’s en banc review of Marshall v. Brown’s IA, LLC, 2588
EDA 2017 (Pa. Super. filed Mar. 27, 2019) (unpublished memorandum), a
case involving a spoliation of evidence issue similar to one raised by Monarca
-3-
J-A08009-20
in her post-trial motion. See id. On June 19, 2019, this Court entered a
decision in Marshall. See Marshall v. Brown’s IA, LLC, 213 A.3d 263 (Pa.
Super. 2019) (en banc) (holding spoliation of evidence instruction appropriate
where plaintiff requested nine hours of video footage which included plaintiff’s
fall, warned defendant that failure to produce all requested footage would
result in adverse inference, and defendant turned over small portion of
requested footage). Thereafter, the trial court denied Monarca’s motion for
reconsideration on June 26, 2019, and entered judgment in favor of Annie’s
Express on July 15, 2019. Monarca timely filed a notice of appeal; both she
and the trial court complied with Pa.R.A.P. 1925. Monarca raises the following
issues for our review:
1. Did the trial court commit an error of law and/or abuse its
discretion in denying [Monarca]’s challenges for cause as to
Jurors [numbers] 7 & 20, due to their admitted biases such
that the order denying post-trial motions should be reversed
and a new trial awarded?
2. Did the trial court commit prejudicial error by failing to charge
[the jury] on spoliation of evidence [] when the facts of the
case supported [Monarca]’s request that the charge be given?
3. Did the trial court err in failing to grant [Monarca]’s motion for
at least additional discovery given the need to investigate
discovery abuses first revealed post-verdict?
Brief of Appellant, at 4-5 (unnecessary capitalization omitted).
Monarca first claims that the trial court erred or abused its discretion in
denying her motion for a new trial where the court erred or abused its
discretion (1) by denying her challenges for cause to two venirepersons during
-4-
J-A08009-20
voir dire and (2) denying her request to charge the jury on spoliation of
evidence.
Our standard of review with regard to the denial of a motion for a new
trial is to decide whether the trial court abused its discretion or committed an
error of law that controlled the outcome of the case. Randt v. Abex Corp.,
671 A.2d 228, 232 (Pa. Super. 1996).
With regard to Monarca’s first issue, we note that the sole purpose of
voir dire is to secure a “fair, competent, and impartial jury.” Bohner v. Stine,
463 A.2d 438, 442 (Pa. Super. 1983). The role of the trial judge is to
“determine whether [each] juror is able to put aside any biases or prejudices
upon proper instruction from the court.” Commonwealth v. Colson, 490
A.2d 811, 818 (Pa. 1985). Generally, the decision on whether to disqualify a
potential juror is “within the discretion of the trial court and will not be
reversed in the absence of a palpable abuse of discretion.” Commonwealth
v. Koehler, 737 A.2d 225, 238 (Pa. 1999).
We have consistently held that there are two scenarios in which the trial
court is required to grant a challenge for cause: first, when the prospective
juror has “a close relationship, be it familial, financial[,] or situational with the
parties, counsel, victims, or witnesses[;]” and second, where the juror
demonstrates a “likelihood of prejudice . . . by his conduct and answers” at
voir dire. Cordes v. Assoc’s. of Internal Medicine, 87 A.3d 829, 833-34
(Pa. Super. 2014).
-5-
J-A08009-20
Our standard of review of a denial of a challenge for cause differs,
depending upon which of these two situations is presented. In the
first situation, in which a juror has a close relationship with a
participant in the case, the determination is practically one of law
and as such is subject to ordinary review. In the second situation,
when a juror demonstrates a likelihood of prejudice by conduct or
answers to questions, much depends upon the answers and
demeanor of the potential juror as observed by the trial judge and
therefore[,] reversal is appropriate only in the case of palpable
error.
Id. at 834 (emphasis added). We afford “great weight” to the determination
of the trial judge, “who sees [the juror] and hears what is said[,] and is able
to form his opinion as much from the proposed juror’s conduct as from the
words which he utters, printed in the record.” Commonwealth v. Gelfi, 128
A. 77, 79 (Pa. 1925); see also Shinal v. Toms, 162 A.3d 429, 442 (Pa.
2017).
Here, Monarca submits that it was an abuse of discretion for the court
to deny her challenges for cause to prospective jurors3 numbers 7 and 20
because their answers and conduct demonstrated a likelihood of prejudice
against Monarca and the nature of her case. She maintains that it was
reversible error to affirm that ruling post-trial.
____________________________________________
3 Neither venireperson at issue here was empaneled on the jury. However,
Monarca submits that a new trial is warranted because she was “forced to use
[her] peremptory challenges to excuse [two] prospective juror[s] who should
have been excused for cause, and then exhaust[ed] [her] peremptor[y
challenges] before the jury [was] seated.” Brief of Appellant, at 21, quoting
Commonwealth v. Johnson, 445 A.2d 509, 514 (Pa. Super. 1982). “The
burden of proving that a venireman should be excused for cause is on the
challenger,” who must demonstrate that the venireman “possesses a fixed,
unalterable opinion that would prevent him or her from rendering a verdict
based solely on the evidence and law.” Commonwealth v. Smith, 540 A.2d
246, 256 (Pa. Super. 1988).
-6-
J-A08009-20
During voir dire, prospective juror number 7 engaged in the following
exchange with the court:
THE COURT: You could listen openly and fairly to both
sides?
PROSPECTIVE JUROR NO. 7: I would. A slip and fall case is
pretty frivolous, probably a waste of time. Aside from that,
probably not.
THE COURT: Well, people can have all sorts of opinions about
things in general. But, do you understand, if you are selected as
a juror in this matter, you would be limited in rendering your
verdict to the facts you hear in the courtroom, and the laws I give
you to apply to those facts? Do you believe you would follow
that instruction, put aside any other preconceived notions
you have?
PROSPECTIVE JUROR NO. 7: Yes.
N.T. Trial, 8/27/18, at 101 (emphasis added). When Monarca’s counsel was
given the opportunity to ask him follow-up questions, the following exchange
continued:
MR. SNOVER: Okay. I just want to ask you a few questions about
the issue of slip and fall or trip and fall cases. If the judge gives
you instructions about what the law is, and you were to find that
a defendant was negligent, would you still be able to render a
verdict for the plaintiff, given the fact that you feel slip and
fall or trip and fall cases are frivolous.
PROSPECTIVE JUROR NO. 7: Yeah, I suppose so.
MR. SNOVER: Do you have any doubt about that?
PROSPECTIVE JUROR NO. 7: I wouldn’t say I’m 100% on that,
no. I guess it depends on the facts of the case. I haven’t
heard it.
THE COURT: Okay. Do you understand that there may be
some cases you’ve heard, and you think, Oh gee, that was
-7-
J-A08009-20
frivolous, but you don’t know the facts, and this may very
well be a legitimate one on its merits?
MR. SNOVER: Yes, I hope so.
Id. at 102 (emphasis added).
Monarca raised a challenge for cause on the basis that prospective juror
number 7 “[came] in with a predisposition against [her] type of case.” Id. at
103. The court denied the challenge on the basis that the prospective juror
indicated he could be fair: although “[h]e said he has an opinion about those
cases in general, [] he also stated he had not heard the facts of this case and
would be able to make an independent evaluation.” Id.
Presently, Monarca attempts to characterize the venireman’s “hope” by
suggesting that “he was really saying that he hoped he could be fair . . . but
. . . had doubts . . . [he] could set aside [his] total lack of respect for this type
of case when judging the evidence,” and thus, Monarca’s challenge for cause
should have been granted. Brief of Appellant, at 23 n.19. We agree with the
trial court that, to the contrary, the venireman’s statement “indicated that he
hoped this case would be a legitimate one on the merits, which, considered in
conjunction with his other responses, indicated that he could be fair and would
listen to and consider all of the facts of the case before reaching a verdict.”
Trial Court Opinion, 8/2/19, at 7-8. Accordingly, we find that the trial court
did not palpably abuse its discretion in denying Monarca’s challenge to
venireperson number 7 for cause, or her motion for new trial on those
grounds. Cordes, supra; Randt, supra.-8-
J-A08009-20
The other venireperson Monarca contends should have been stricken is
prospective juror number 20, who indicated that he works as a psychiatric
nurse. At voir dire, the following exchange took place:
THE COURT: Sitting here today, do you have such an opinion
about your past experience in the mental health field that even if
the law and facts convince you [that] you should enter a verdict
in favor of the plaintiff, you would still vote for the defense just
because you say, Well, I’ve seen all sorts of claims and I’m not
going to—
PROSPECTIVE JUROR NO. 20: I think I do — Your Honor, I think
I do have a bias in the sense that I think people don’t really
listen to people.
THE COURT: Okay.
PROSPECTIVE JUROR NO. 20: Okay, and they take the first
judgment, and they see the first fact when they don’t actually go
beyond, and I think it’s the story that’s beyond that often tells
more of the truth than the initial fact.
***
So, that’s, I mean, that’s just, basically, where I would come. I
would probably want to hear more, see more, and I’d
probably want to get something more in depth (sic) before
I make a judgment. There’s always that part that people don’t
touch, don’t listen to.
***
MR. SNOVER: Okay. So, when you’re talking about judging
somebody’s testimony on the stand, are you bringing your
expertise into play in that as a nurse who’s involved in the
healthcare field, particularly psychiatric, for a long time?
PROSPECTIVE JUROR NO. 20: I would say yes.
***
-9-
J-A08009-20
MR. SNOVER: So, you may be making, basically,
professional judgments as opposed to a judgment as a
layperson?
PROSPECTIVE JUROR NO. 20: Yes, and I may be making it based
on the information that’s presented, which I know I would be
doing that on whatever is presented. That’s not a statement. Let
me strike that right there. No, I would always be basing it on
what’s presented, and I would always be reviewing using
my past history of what I’ve been doing.
MR. SNOVER: Your training?
***
PROSPECTIVE JUROR NO. 20: My training, correct.
N.T. Trial, 8/27/18, at 217-22 (emphasis added).
Monarca challenged the venireman for cause on the grounds that he
would “bring[] his professional training” into jury deliberations, “as opposed
to [how] a layperson would” assess evidence. Id. at 224. The court, declining
to categorically exclude workers in the field of psychiatry from serving on a
jury, denied the challenge, further explaining that this venireperson “never
had any interaction with this particular plaintiff, nor with [her] doctors. He
hasn’t treated her. He didn’t raise his card that he knows the defendant.” Id.
at 225.
Monarca avers that she does not advocate for an occupational exception
for psychiatric nurses. Brief of Appellant, at 28. Rather, she submits that the
trial court should have granted her challenge for cause for this juror because
he “admitted bias” and stated that he would always be “acting as his own
expert . . . to judge [Monarca]’s credibility.” Id. at 28-29.
- 10 -
J-A08009-20
Although the prospective juror used the word “bias” in one of his
responses, he immediately clarified his bias as a predisposition to expect that
people do not listen to each other; he suggested that he, in contrast, is more
inclined to watch and listen carefully and think critically when assessing
witness credibility in general. N.T. Trial, 8/27/18, at 217-22. Furthermore,
the venireman made clear that he would always assess witness credibility
using the evidence presented at trial and stated he would not be making
professional judgments as opposed to that of a layperson. Id. Monarca has
not identified any case law or statute prohibiting someone with a psychiatry
or healthcare background from serving on a jury such that it required this
venireman be stricken for cause. Therefore, we find that the court did not
palpably abuse its discretion in denying her challenge for cause or motion for
new trial.
Next, Monarca claims that the trial court erred in denying her post-trial
motion where the court previously “committed prejudicial error by failing to
charge [the jury on] spoliation of evidence[,] which the facts supported,” and
thus, a new trial is warranted. See Brief of Appellant, at 34 (unnecessary
capitalization omitted); see also Randt, supra. We disagree that the
circumstances of this case justified charging the jury on spoliation of evidence,
and we find that the trial court did not err or abuse its discretion in denying
Monarca’s post-trial motion on those grounds.
Our standard of review when considering the adequacy of jury
instructions in a civil case is to determine whether the trial court
committed a clear abuse of discretion or error of law controlling
- 11 -
J-A08009-20
the outcome of the case. It is only when the charge as a whole is
inadequate or not clear or has a tendency to mislead or confuse
rather than clarify a material issue that error in a charge will be
found to be a sufficient basis for the award of a new trial.
A trial court must instruct the jury on the correct legal principles
applicable to the facts presented at trial. A trial court has wide
latitude choosing the precise language of the charge, but in all
instances must fully and adequately convey the applicable law to
the jury.
Gillingham v. Consol Energy, Inc., 51 A.3d 841, 856-57 (Pa. Super. 2012)
(citations and quotation marks omitted).
“‘Spoliation of evidence’ is the failure to preserve[,] or the significant
alteration of[,] evidence for pending or future litigation.” Parr v. Ford Motor
Co., 109 A.3d 682, 701 (Pa. Super. 2014). When a party is charged with
spoliation of evidence, the trial court may, in its discretion, impose a range of
sanctions against the spoliator. “[O]ne potential remedy for the loss or
destruction of evidence by the controlling party is to allow the jury to apply
its common sense and draw an ‘adverse inference’ against that party.” Id. at
701-02. Charging the jury on spoliation4 is appropriate where a party
____________________________________________
4 The jury instruction at issue provides as follows:
5.60 SPOLIATION OF EVIDENCE
1. If a party [disposes of] [alters] a piece of evidence before the
other the other party had an opportunity to inspect it, and
2. The party who [disposed of] [altered] the evidence should
have recognized the evidence was relevant to an issue in this
lawsuit,
- 12 -
J-A08009-20
intentionally, recklessly, or negligently destroys or permits the destruction of
evidence when it is foreseeable that discarding such evidence would be
prejudicial to the adverse party. See Mount Olivet Tabernacle Church v.
Edwin L. Wiegand Div., 781 A.2d 1263, 1270-71 (Pa. Super. 2001);
Marshall, supra at 272.
Here, upon review of our en banc decision in Marshall, supra, the trial
court concluded that the facts of this case did not support Monarca’s assertion
that any spoliation occurred, and determined that charging the jury on
spoliation of evidence was not warranted under the circumstances.
In Marshall, another case involving a slip and fall accident captured on
video, plaintiff’s counsel sent a letter to the defendant, ShopRite, two weeks
after the fall, requesting nine hours of surveillance video footage. Id. at 266.
The letter notified ShopRite of the impending litigation and further advised
that failure to maintain or preserve the specified footage, if it existed, would
lead to the inference that ShopRite intentionally destroyed the evidence. Id.
Notwithstanding, ShopRite turned over approximately one hour of video
footage in accordance with its “rule of thumb,” maintaining that it “‘would be
a fool’s errand’ to go back [and review] several hours [of footage] as
____________________________________________
you may find that this evidence would have been unfavorable to
them unless they satisfactorily explain why they [disposed of]
[altered] this evidence.
Pa. S.S.J.I. (Civ), § 5.60 (2019) (brackets in original).
- 13 -
J-A08009-20
requested.” Id. Under these circumstances, this Court concluded that the
trial court abused its discretion in denying Marshall’s request for a spoliation
of evidence instruction. Monarca submits that Marshall is factually “almost
on all fours with the instant case,” and involved “even less compelling
circumstances than exist [here]” justifying the instruction. See Brief of
Appellant, at 36. We disagree.
The accident in this case occurred on December 8, 2014. William
Stamos, owner of Annie’s Express, testified that on that same day, he
preserved surveillance footage that included the entirety of Monarca’s time on
the premises and captured her fall from several angles. N.T. Trial, 8/27/18,
at 534. He further testified that Annie’s Express’ surveillance system, which
is motion-activated, automatically overwrites (i.e., destroys) old footage after
approximately two weeks if it is not saved. Id. at 507, 526-34. One week
after the accident, on December 15, 2014, Monarca’s counsel sent a letter to
Annie’s Express regarding her representation in this matter; the letter made
no mention of surveillance footage, and did not include a request for Annie’s
Express to preserve any footage. Motion for Reconsideration, Exhibit I.
Fifteen days after the accident, on December 23, 2014, Monarca’s counsel
sent a letter to a representative of Annie’s Express’ insurer requesting them
to instruct Annie’s Express to preserve all surveillance footage of the premises
from 2:00 to 7:00 p.m. on the date in question, noting that failure to do so
would result in an adverse inference. Defendant’s Response to Plaintiff’s
- 14 -
J-A08009-20
Motion for Post-Trial Relief, Exhibit B. By the time Annie’s Express was
requested to do so, the footage from over two-and-one-half weeks earlier that
was not already preserved had been overwritten.
We agree with the trial court that the facts herein are materially
distinguishable from the facts in Marshall. Trial Court Opinion, 8/2/19, at
24; Order, 6/26/19, n.1. Here, Monarca failed to establish that Annie’s
Express negligently or otherwise intentionally permitted the destruction of
evidence; indeed, Annie’s Express made efforts to preserve relevant footage
of the accident on the date it occurred, “[r]ather than permitting the footage
to get overwritten, and without any actual indication that a lawsuit was
pending.” See Trial Court Opinion, 8/2/19, at 22-29. The defendant in
Marshall, in contrast, consciously disregarded plaintiff’s request for “arguably
relevant evidence” during discovery, turning over approximately ten percent
of the video surveillance footage plaintiff sought after having been notified of
impending litigation and specifically warned that failing to turn over the
requested footage would result in an adverse inference. See id.
Furthermore, the trial court found that here, Monarca was not
prejudiced as additional footage would not have changed the outcome of the
trial given that the jury repeatedly saw footage establishing the location of the
bucket prior to Monarca’s arrival and both parties testified that they knew how
and where the bucket was situated at the time of the incident. Id. at 28-29.
Accordingly, we conclude the trial court did not err or abuse its discretion in
- 15 -
J-A08009-20
denying Monarca’s request for a spoliation of evidence instruction or her post-
trial motion on those grounds. Randt, supra; Gillingham, supra.Finally, Monarca claims that the trial court erred in denying her motion
for additional discovery “given the need to investigate discovery abuses first
revealed post-verdict.” Brief of Appellant, at 50. Monarca alleges that Annie’s
Express made a “judicial admission” post-trial that it turned over less video
footage during discovery than was actually preserved.
The basis for this assertion stems from defense counsel’s
argument in its Brief in Opposition to Plaintiff’s Post-Trial Motion
for a New Trial in addressing the question of whether a spoliation
instruction should have been read to the jury. That statement
[provides, in relevant part,] as follows:
[Annie’s Express] cannot be sanctioned for spoliation:
[Annie’s Express] was not at fault for destruction of
evidence, Plaintiff cannot assert that prejudice inured to her
due to the purported spoliation, and [Annie’s Express] was
not on notice of pending litigation. . . . Plaintiff’s motion []
discusses requests for 2 weeks of video footage yet [her]
own letter requiring preservation of video only requested a
mere 5 hours of footage. [Annie’s Express] preserved
what was asked of [it] in accordance with
[Monarca’]s counsel’s request.
***
[Monarca] argues that based on this response, footage exists
showing the location of the bucket for approximately four hours
prior to Plaintiff’s arrival on December 8, 2014. . . . [Monarca
moved for the admission of an exhibit in the form of a disc
containing all of the footage turned over in discovery . . . [and
sought] leave of court to conduct further discovery to determine
whether [Annie’s Express] preserved more video footage than it
produced during discovery.
Order, 6/10/19, n.1, quoting Defendant’s Brief in Response to Plaintiff’s Post-
Trial Motions for a New Trial (emphasis in original).
- 16 -
J-A08009-20
Counsel for Annie’s Express, Attorney Andrew Kessler, explained that
his representation regarding five hours of preserved footage was erroneous5
and that he “intended to make the argument that [Monarca’s post-trial
motion] sought more expansive production of video footage [than] previously
requested.” Defendant’s Response to Plaintiff’s Reply Brief in Support of Post-
Trial Motions for New Trial, 4/24/19, at 1. Attorney Kessler clarified that
Annie’s Express turned over all of the footage actually preserved in accordance
with its obligations under the discovery rules. Id. Monarca argues that this
“is simply not good enough” to justify denying her motion for additional
discovery. However, the record belies Monarca’s assertion that Annie’s
Express withheld video footage from her.
Throughout trial, there was no dispute that the footage repeatedly
shown to the jury constituted the entirety of the footage that Annie’s Express
preserved. The issue of additional footage arose only when a new attorney
entered an appearance, after the case was tried, and made an incorrect
representation which he subsequently acknowledged and corrected,
consistent with his obligations under the Rules of Professional Conduct. 6
____________________________________________
5 The trial court noted that Attorney Kessler explained at oral argument that
his error stemmed from the fact that he did not participate in discovery, but
assumed responsibility for the case after it had already been tried by a jury.
Trial Court Opinion, 2/26/19, at 20.
6 The Rules of Professional Conduct provide that a lawyer “shall not knowingly
. . . make a false statement of material fact or law to a tribunal or fail to
J-A08009-20
Moreover, Mr. Stamos testified at trial regarding the amount of footage he
preserved.7 Based on the foregoing, we find the court did not abuse its
discretion in determining that there was no need for additional discovery into
this matter.
After a review of the parties’ briefs, the relevant case law, and record
on appeal, including the well-authored opinion of Judge Reichley, we affirm
the trial court’s orders denying Monarca’s post-trial motion and denying
additional discovery.
Judgment affirmed.
____________________________________________
correct a false statement of material fact or law previously made to the
tribunal by the lawyer[.]” Pa.R.P.C. 3.3(a)(1).
7 Stamos testified as follows:
Q: And did you save the entire two weeks [of video footage]?
A: No, sir.
Q: You saved the, basically the incident itself of the several
cameras.
A: That’s correct.
***
A: I reviewed probably eight different camera angles across a
couple of hours the first time, and I jotted down the times on each
camera as to what would be applicable for recording. . . . that
was my guidelines for going in and doing the data dump of the
download, camera by camera, and put it on the thumb drive. So,
at the time I viewed the video the first time, I did not view the
video in full complete detail.
N.T. Trial, 8/30/18, at 526-34.
- 18 -
J-A08009-20
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/10/2020
- 19 -