Ciarlante, J. v. Clark, S. ( 2021 )

J-A26022-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JULIE CIARLANTE : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
SHAWN CLARK : No. 3056 EDA 2019
Appeal from the Judgment Entered November 25, 2019
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 3313 May Term 2018
BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*
MEMORANDUM BY LAZARUS, J.: Filed: January 21, 2021
Julie Ciarlante appeals from the judgment,1 entered in the Court of
Common Pleas of Philadelphia County, following a jury verdict in favor of
Appellee Shawn Clark.
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 Ciarlante purports to appeal from the order denying her post-trial motions.
“[T]he proper, procedural course to pursue in perfecting an appeal from [a]
jury verdict is to reduce the verdict to judgment and take an appeal therefrom
and not from an order denying post-trial motions.” Crosby v. Department
of Transportation, 548 A.2d 281, 283 (Pa. Super. 1988). Technically, an
“[a]ppeal lies from the judgment entered and not the denial of post-trial
motions,” id., and a “verdict [does] not become final for purposes of appeal
until properly reduced to and entered as a formal judgment under Pa.R.C.P.
227.4.” Crystal Lake Camps v. Alford, 923 A.2d 482, 488 (Pa. Super.
2007). By order dated November 18, 2019, this Court directed Ciarlante to
praecipe the trial court Prothonotary to enter judgment on the verdict of the
trial court. She did so on November 25, 2019. Accordingly, the notice of
appeal previously filed in this case will be treated as filed after the entry of
judgment, and we have amended the caption accordingly. See Pa.R.A.P.
905(a).
J-A26022-20
The trial court summarized the facts of the case as follows:
On May 31, 2018, Plaintiff [] Ciarlante filed a [c]omplaint against
Defendant [] Clark, asserting claims of [n]egligence and
[p]roperty [d]amage stemming from an automobile accident on
April 26, 2017[,] on Comly Road near the intersection with
Decatur Road in the City of Philadelphia. On October 15, 2018,
[Clark] filed an [a]nswer with [n]ew [m]atter, asserting[,] among
other defenses, [c]omparative [n]egligence and [l]imited [t]ort.
On October 19, 2018, [Ciarlante] filed a [r]eply to [n]ew [m]atter.
On May 2, 2019, the matter was assigned to the June 2019 trial
pool.
* * *
On June 12, 2019, prior to the start of trial, this [c]ourt addressed
the parties’ motions[ in limine. Clark] sought to preclude the
testimony of [Ciarlante], Erin Ciarlante, and Annette Jones
concerning the speed of [Clark’s] vehicle and further sought to
preclude any testimony of Annette Jones that [Clark] intentionally
caused the accident. These four motions were reserved for trial
for [Ciarlante] to set a factual predicate for the proffered
testimony. [Clark] additionally sought to preclude any testimony
or evidence regarding [his] prosthetic eye, which was granted in
part via this [c]ourt’s ruling that such testimony would not be
presented during openings and that [Ciarlante] must present an
offer of proof that the evidence is more probative than prejudicial.
[Ciarlante]’s motion sought to have the [c]ourt deem [Clark] as
[having] full tort [insurance coverage] based upon [Ciarlante’s]
injury, which this [c]ourt denied without prejudice to argue the
facts after the evidence was presented at trial.
Trial commenced on June 12, 2019[,] and both [Ciarlante] and
[Clark,] respectively[,] rested their cases on June 13, 2019.
Following the close of all evidence, this [c]ourt provided the jury
with a preliminary charge on assessing the evidence. Counsel
subsequently made their closing remarks, after which this [c]ourt
further instructed the jury on the law applicable to [Ciarlante]’s
claim of negligence. On June 13, 2019[,] the jury returned a
verdict in favor of [Clark].
On June 24, 2019, [Ciarlante] filed a timely [m]otion for [p]ost-
[t]rial [r]elief seeking the grant of a new trial. On July 8, 2019,
-2-
J-A26022-20
[Clark] filed his opposition to the [m]otion and, on October 18,
2019, this [c]ourt denied the motion.
On October 25, 2019, [Ciarlante timely] filed a [n]otice of [a]ppeal
to the Superior Court[,] and on October 28, 2019, [the court
served Ciarlante with] an [o]rder directing her to file a concise
statement of the [errors] complained of on appeal pursuant to
Pa.R.A.P 1925(b). On November 14, 2019, [Ciarlante] filed a
timely [Rule 1925(b)] statement [] asserting [nine instances of
reversible error.]
Trial Court Opinion, 2/10/20, at 1-3 (internal citations omitted).
On May 21, 2020, Ciarlante timely filed her appellate brief following our
grant of two extensions in March and April. On appeal, Ciarlante presents the
following issues, which we have reordered for ease of disposition:
1. The court abused its discretion in finding Annette Jones
available. Moreover, the court abused its discretion in denying
[Ciarlante] [a] reasonable opportunity to introduce [Jones’
testimony] by alternative means.
2. The court abused its discretion and committed an error of law
in denying [Ciarlante] [the] opportunity to introduce evidence
and/or impeach [Clark] over having a missing eye.
3. The court abused its discretion when refusing to order a mistrial
after [Clark] introduced information of insurance.
Appellant’s Brief, at i (unnecessary capitalization omitted).
Ciarlante first claims that the court abused its discretion when it
determined that witness Annette Jones was not unavailable under Pa.R.E. 804.
Specifically, Ciarlante claims the court should have admitted Jones’ discovery
deposition at trial. See Appellant’s Brief, at 18-20. Additionally, Ciarlante
claims the court abused its discretion when it failed to afford her a reasonable
opportunity to introduce Jones’ testimony by alternative means. Id. at 20-
21.
-3-
J-A26022-20
The trial court summarized the basis for its ruling as follows:
This [c]ourt and counsel spoke with [] Jones via telephone and []
Jones explained her ongoing health issues, but when faced with
the inquiry about more flexible options, [] Jones stated that it
“feels like I’m being pressured into doing something” and that “—
have nothing to do with it. [sic] I even asked Miss Ciarlante’s
attorney to please just cease and desist because they’re sending
people to my house nonstop.” Moreover, this [c]ourt noted that
the subpoena that [] Jones received was dated June 11, 2019,
which was only one day before trial commenced. This [c]ourt
simply cannot find that serving a subpoena the day before trial
complies with the mandates of [Pennsylvania Rule of Civil
Procedure 234.12] or the applicable case law requiring reasonable
notice. As such, this [c]ourt determined that [Ciarlante] did not
satisfy the requisite elements of Pa.R.E. 804(a) for a finding of
[Jones’] unavailability.
Trial Court Opinion, 2/10/20, at 6-7 (footnote omitted).
Our review of the record reveals that on June 12, 2019, Ciarlante’s
counsel informed the court during a pre-trial hearing of the possibility that
Jones may not attend trial to testify that day, despite her being served with a
subpoena, and that counsel intended to read Jones’ discovery deposition
transcript into the record if Jones failed to appear. See N.T. Jury Trial,
6/12/20, at 17-18. At trial, Ciarlante attempted to call Jones to the stand and
read her discovery deposition into the record as substantive evidence. See
N.T. Jury Trial, 6/13/19, at 5, 36-40. The court, before ruling on Jones’
availability, see Pa.R.E. 104 (Preliminary Questions), initiated a telephone call
to Jones using the cell phone number provided by counsel. The on-the-record
____________________________________________
2 Pennsylvania Rule of Civil Procedure 234.1 states “A subpoena shall be
served reasonably in advance of the date upon which attendance is required.”
Pa.R.C.P. 234.1(d).
-4-
J-A26022-20
phone conversation with Jones was held outside the presence of the jury and
proceeded as follows:
THE COURT: Hi, Miss Jones. This is Judge Carpenter. How are
you?
MISS JONES: Not well.
THE COURT: Well, my understanding is you’ve got a subpoena.
You’re supposed to be in court.
MISS JONES: I’m not feeling well.
THE COURT: Well—
MISS JONES: I tried to explain that to the guys who went—threw
the subpoena at me the other day.
THE COURT: Yeah. What’s wrong?
MISS JONES: I have—(inaudible.)
THE COURT: What’s that?
* * *
MISS JONES: It’s an autoimmune disorder.
THE COURT: Okay. The witness has said she has an autoimmune
issue and she’s not feeling well. Well, what if I told everybody
that they needed to take your videotaped trial testimony so you
didn’t have to come, would you be able to make
accommodations so that they could do that, so you didn’t
have to come to court?
MISS JONES: Where would I have to go?
THE COURT: Well, where do you live? I could tell them they have
to make an accommodation for you up near you. Are you up in
the northeast?
MISS JONES: No, I am not.
THE COURT: In Feasterville?
MISS JONES: Yes.
THE COURT: Is that Bucks County?
-5-
J-A26022-20
MISS JONES: Yes.
THE COURT: Well, I mean, I’m sure they must have an office of
a court reporter that’s in your area and they could do it, like,
within five miles of your house.
MISS JONES: I don’t know. I don’t know anything about
that. All I know is that right now I am in a lot of pain and
I’m not feeling well. And in order to concentrate I can’t
give you my best effort and my testimony if I’m not feeling
well and I can’t concentrate.
THE COURT: I know, but I think you gave testimony before and
I think it would just be to make sure—you know, I mean, if you
agreed with what you said in your testimony before or whatever.
But it’s so the jury could see who you are and see what you look
like, you know, and just know that you are a real person and that
you could tell them that yourself, to the jury. You know, you’d
be on video but you would be talking to the jury, and that
you could just say everything that we’re saying there [sic],
is that, you know, you’re not feeling well. I would limit how long
it would be. I mean, I wouldn’t make you stay for more than
one hour. []
MISS JONES: I can’t be in Center City.
THE COURT: I’m not asking you to commute to Center City. The
lawyers could provide for transportation for you and there would
be a court reporter within five miles of your house. They could
get transportation for you from your house to the court reporter’s
office. It would be one hour and then they would arrange
transportation to come from your house—back from the
court reporter back to your house, and it could be any time
today or tomorrow.
MISS JONES: Today’s not an option.
THE COURT: Okay. How about tomorrow morning?
MISS JONES: I can’t sit for that right now. I’m not feeling
well.
* * *
MISS JONES: And I’m not trying to argue with you, but it
feels like I’m being pressured into doing something.
-6-
J-A26022-20
THE COURT: Well, you are, because I’m a judge and you have a
subpoena to come to court because you’re a witness. And I’m
trying to—and you’re right that there is a subpoena, and I’m trying
to see—I’m trying to see if there’s accommodations that can
be made so that your testimony can be taken so you don’t
have to come to court.
MISS JONES: I’m sorry. (Inaudible.)—have nothing to do with
it. I even asked Miss Ciarlante’s attorney to please just
cease and desist because they’re sending people to my
house nonstop and—
* * *
MISS JONES: My left eye is killing me. There is—I’m on
treatment. There is nothing more the doctors can do for me right
now. I go to my specialist in New York, but it’s very hard to get
an appointment in August. I just saw my protologist [sic] a
couple weeks ago. The condition fluctuates and changes.
There is nothing I can do. My primary doctors cannot even treat
this condition.
MR. MUSITIEF: Understood.
MISS JONES: They frighten you with the medical professional sign
in their emergency room where they can’t do anything for me.
Urgent care on the street corner doesn’t know anything about this
disease, it’s so rare. I basically have to sit and suffer through.
This is my life. I’m not lying to you.
* * *
[Whereupon, the court terminated the call to Jones and the
following conversation was held on-the-record, and outside the
presence of the jury.]
THE COURT: Well, I’m just going to let you know that under the
law—stop. Under the law she’s not unavailable.
MR. WALL: I understand that but—
THE COURT: But I’m not dragging a woman who’s ill down to
court when you guys can just go up to her and, in an hour, take a
trial deposition and present her testimony in the alternative
means to dragging her down here. There are ways we can
accommodate her. But she’s not unavailable. We make
people, you know, do things when they’re, you know, near death,
-7-
J-A26022-20
show up. We just have to accommodate their illnesses, which I
would absolutely do with her. I’m not telling you that—I don’t
see any reason why you guys can’t just stop the trial right
now, make an accommodation to some telephone, video,
whatever it is, whatever the accommodation would be, you
can get on a phone and take her testimony over the phone
and have the court reporter record it and play it back.
Whatever the different issues are, there can be
accommodations that can be made so that whatever it is that
you wish to have her, you know, you can—but you can make a
decision about it. But she’s not unavailable under the law.
MR. MUSITIEF: Well, I disagree with you. The woman—
THE COURT: Well, you can disagree with it but—
MR. MUSITIEF: Let me finish.
THE COURT: Counsel, no. Stop. Unavailable under the law is—
there’s plenty of case law for it. Unavailable really is unavailable,
you can’t make an accommodation to get their trial testimony. I
am not saying that if you ask—listen, don’t—you know, don’t
make her come all the way down here to court, I would
grant that. I’m not making her come all the way down here to
court when there’s no reason to. But she’s not unavailable for
purposes of Rule 804 of the Rules of Hearsay. She’s just not under
the law. Does that mean we shouldn’t make
accommodations for her? Absolutely. And there are
accommodations that can be made. There’s agreements that
you guys can make. There are ways that you can figure out, the
two of you, what do you want to do so that you can—and you
can also just agree that you’re going to read what you’ve
got on her, knowing that if you go and take her deposition
this afternoon, that she may just say the same thing, or I
don’t remember. And if she tells you I don’t remember,
you’re just going to be reading the deposition transcript.
So—
* * *
THE COURT: I’ve made a ruling that under the law she is not
unavailable. Okay. The ruling has been made, but does that
mean that I am going to tell you that she’s got to be
physically present in this room? No. And accommodations
shall be made to get her testimony done. . . . [Y]ou can get
on the phone, find a court reporter, pay the money to get a
-8-
J-A26022-20
medical transport to get her from her house to the court reporter
or an Uber or pay her husband or whatever accommodations that
can be made, take her deposition by video, trial testimony by
video and get her testimony. And you can show her her
deposition. She can say, I don’t have anything else to add. Fine.
But she is on video so that the jury may evaluate her credibility.
So, will I allow you alternate means to get her testimony?
Yes. But that’s not unavailable such that her discovery deposition
gets to be read to the jury.
* * *
MR. WALL: [] We can’t do a telephone dep[osition] because the
jury has a right, my client has a right to have [Jones] appear and
present in front of the jury so they can assess her credibility; not
some voice on the phone. []
THE COURT: Well, the rules in Pennsylvania don’t allow
telephone. If all of you agree, then I would allow it.
MR. WALL: I will not agree.
* * *
THE COURT: The rules are very clear. When someone’s under
subpoena, they are under subpoena. The sanction for violating a
subpoena is, unfortunately, to go and grab them and drag them
down here. Nobody asked me to do that. I don’t like doing
that to witnesses, but that is court subpoenas. Violation of a court
subpoena is contempt of court. I can’t just say, oh, you just don’t
feel like coming in. It doesn’t work that way.
* * *
THE COURT: [] In a civil case we have these alternative
means, and I am just telling you that I am willing to take a
break from trial, over the objection of counsel. But it’s not
for me to get involved as that alternative means. And if you can’t
procure her testimony one of those alternative means, then you've
got to do what you do. []
* * *
THE COURT: That’s not—counsel, I don’t like to tell you this, but
what you’re meant to do is get an order from me that she
didn’t comply with the subpoena and you didn’t do it.
-9-
J-A26022-20
* * *
THE COURT: Fine. You know what, I’m not going to give you
any more opportunity. We’re just going to go forward now.
. . . You know, we’re just going to do closing argument.
* * *
MR. MUSITIEF: Your Honor, I'm moving for a mistrial.
THE COURT: Well, no.
N.T. Jury Trial, 6/13/19, at 40-59, 71-94 (emphasis added).
Ciarlante argues that Jones was unavailable due to her “sickness and
infirmity” and, therefore, the trial court should have admitted Jones’ discovery
deposition as substantive evidence, under Pennsylvania Rule of Civil Procedure
4020. Appellant’s Brief, at 18-20. Ciarlante claims that she is entitled to a
new trial as a result of this alleged error. Additionally, Ciarlante argues that
the court erred when it “denied [her] any reasonable opportunity for obtaining
[Jones’] testimony, by alternate means, and then entirely forwent the
testimony.” Id. at 20-21. Moreover, Ciarlante asserts that “the sequence of
events shows an abuse of discretion motivated by partiality, prejudice, bias,
or ill will and thus [is] grounds for a new trial.” Id. at 21. Finally, Ciarlante
claims the court erred when it found that she only served Jones with a
subpoena on the day before trial, and that even if this were the only subpoena
served on Jones, such notice was reasonable under the circumstances because
the case was assigned to the June trial pool with less than 24-hours’ notice to
the parties for jury selection. See Appellant’s Brief, at 5-6, 20; see also Trial
Court Opinion, 2/10/20, at 6-7. We disagree that Ciarlante is entitled to a
new trial.
- 10 -
J-A26022-20
Ciarlante’s first two issues on appeal challenge the court’s evidentiary
rulings. Our standard of review is well-settled:
The admissibility of evidence is a matter for the discretion of the
trial court and a ruling thereon will be reversed on appeal only
upon a showing that the trial court committed an abuse of
discretion. An abuse of discretion may not be found merely
because an appellate court might have reached a different
conclusion, but requires a result of manifest unreasonableness, or
partiality, prejudice, bias, or ill-will, or such lack of support so as
to be clearly erroneous.
Commonwealth v. McClure, 144 A.3d 970, 975 (Pa. Super. 2016) (quoting
Commonwealth v. Poplawski, 130 A.3d 697, 716 (Pa. 2015)) (internal
citations and quotation marks omitted).
With regard to Ciarlante’s first issue on appeal, we note that hearsay
evidence is generally inadmissible. See Commonwealth v. Smith, 681 A.2d
1288, 1290 (Pa. 1996) (“[A] proponent of hearsay evidence must point to a
reliable hearsay exception before such testimony will be admitted.”). Hearsay
is defined as “a statement that the declarant does not make while testifying
at the current trial or hearing; and [that] a party offers in evidence to prove
the truth of the matter asserted in the statement.” Pa.R.E. 801(c). One
exception to the general rule against the admission of hearsay evidence is the
use of an unavailable witness’s deposition. See Pa.R.C.P 4020(a)(3)(c); see
also Beaumont v. ETL Servs., 761 A.2d 166, 172 (Pa. Super. 2000) (“Once
a trial court is satisfied that a witness is unavailable, their deposition testimony
may be admitted as substantive evidence.”).
- 11 -
J-A26022-20
Pennsylvania Rule of Evidence 804 (Exceptions to the Rule Against
Hearsay—When the Declarant is Unavailable as a Witness) governs how trial
courts determine a witness’s availability. Rule 804 states in relevant part:
(a) Criteria for Being Unavailable. A declarant is considered to
be unavailable as a witness if the declarant:
* * *
(4) cannot be present or testify at the trial or hearing
because of death or a then-existing infirmity, physical
illness, or mental illness; or
(5) is absent from the trial or hearing and the statement’s
proponent has not been able, by process or other
reasonable means, to procure . . . the declarant’s
attendance . . . or testimony[.]
Pa.R.E. 804(a).
Regarding subsection (a)(5), we have previously said that “a declarant
will not be deemed to be unavailable upon mere assertion of such by the
proponent; rather, the proponent must exhibit the efforts taken to procure
the declarant’s attendance.” CONRAIL v. Del. River Port. Auth., 880 A.2d
628, 630 (Pa. Super. 2005).
Here, we find that the court did not abuse its discretion under Rule
804(a)(4) in finding that Jones was not unavailable due to infirmity or physical
illness. See McClure, supra; Pa.R.E. 804(a)(4). In response to questions
about why Jones was not able to attend trial, several of her answers had no
connection whatsoever to how her autoimmune disease prevented her from
attending trial on that day or as to why her trial testimony could not be
- 12 -
J-A26022-20
procured prior to trial. See N.T. Jury Trial, 6/13/19, at 40-49 (“I can’t be in
Center City.”; “Today’s not an option.”; “I can’t sit for that right now.”; “And
I’m not trying to argue with you, but it feels like I’m being pressured into
doing something.”; “[I]t’s very hard to get an appointment in August. I just
saw my protologist [sic] a couple weeks ago. The condition fluctuates and
changes.”). The trial court’s discretionary determination was adequately
supported by the record under these circumstances.3 See Rettger v. UPMC
Shadyside, 991 A.2d 915, 924 (Pa. Super. 2010) (“Where
the record adequately supports the trial court’s reasons and factual basis, the
court did not abuse its discretion.”).
Additionally, we note that Ciarlante cites no case for the proposition that
the court should have afforded her a reasonable opportunity to obtain Jones’
testimony after the trial had already begun because there is none. Rule
804(a)(5) requires the statement’s proponent—not the court—to use
reasonable means to procure the declarant’s attendance or testimony. See
Pa.R.E. 804(a)(5) (“A declarant is considered to be unavailable as a witness if
the declarant[] is absent from the trial or hearing and the statement’s
proponent has not been able, by process or other reasonable means, to
procure . . . the declarant’s attendance . . . or testimony[.]”) (emphasis
____________________________________________
3 We decline to accept Ciarlante’s invitation to reach the question of whether
the court should have found the evidence sufficient to support a finding of
Jones’ unavailability. See Rettger, supra (“A finding by an appellate court
that it would have reached a different result than the trial court does not
constitute a finding of an abuse of discretion.”) (citation omitted).
- 13 -
J-A26022-20
added). See also Commonwealth v. Brown, 52 A.3d 1139, 1176 (Pa.
2017) (“[I]n interpreting the meaning of the Pennsylvania Rules of Evidence,
[our Supreme Court] ascribes to the words of those rules their plain and
ordinary meaning[.]”).
Here, Ciarlante’s efforts taken to procure Jones’ attendance at trial or to
preserve her testimony prior to trial include: service of two subpoenas, one
on May 14, 2019, and the other on June 11, 2019, which was one day prior
to the start of trial. Although Ciarlante has provided evidence that she served
Jones with a subpoena on May 14, 2019, the trial court only acknowledged
service of the June 11, 2019 subpoena in its Rule 1925 opinion. Our review
of the record demonstrates that Ciarlante’s affidavit of service for the May 14,
2019 subpoena states that it required Jones to attend trial on June 3, 2019.4
See Affidavit of Service, 5/14/19. Nevertheless, the record reveals that the
parties were not called to trial until June 10, 2019. Although the court did not
acknowledge the affidavit of service concerning the May 14, 2019 subpoena,
we decline to find an abuse of discretion since that subpoena issued by Clark
ordered Jones to attend trial on the wrong day; such notice is not reasonable.
See McClure, supra; see also Commonwealth v. Walsh, 36 A.3d 613,
620 (Pa. Super. 2012) (“Pennsylvania Rule of Civil Procedure 234.1 does not
____________________________________________
4 The June trial pool, to which this case was assigned, listed June 3, 2019 as
the start date. See N.T. Jury Trial, 6/13/19, at 88. Nevertheless, as the court
noted, it was counsel’s responsibility to ensure Jones’ attendance at trial,
which was held June 11 and 12, or to secure her testimony by other means.
Id. at 90; see also Pa.R.E. 804(a)(5).
- 14 -
J-A26022-20
explicitly contain a notice requirement. However, we do note that in general
the recipient of a subpoena must be given reasonable notice in order to comply
with the request.”).
Additionally, we decline to find an abuse of discretion with regard to the
June 11, 2019 subpoena—one day’s notice to Jones was unreasonable under
the rule. McClure; Walsh; see also Trial Court Opinion, 2/10/20, at 6-7.
Ciarlante has failed to exhibit what efforts she took to procure Jones’
attendance by process or other reasonable means.5 See CONRAIL, supra.
Consequently, Jones cannot be considered unavailable pursuant to Pa.R.E.
804(a)(5).
Finally, we note that, contrary to Ciarlante’s claims, the court afforded
her numerous reasonable opportunities to procure Jones’ testimony. See N.T.
____________________________________________
5 Insofar as Ciarlante argues that the notice in the June 11, 2019 subpoena
was reasonable, we find that argument meritless. In the trial court docket,
an entry dated August 28, 2018, provided clear instructions on how the parties
should address scheduling conflicts and how to seek a continuance or date
certain if appropriate under the circumstances. The record reveals that
Ciarlante did not use these reasonable alternative means that were available
to her, or any others, to procure Jones’ testimony prior to trial. See
CONRAIL, supra at 630 (“[T]he proponent must exhibit the efforts taken to
procure the declarant’s attendance[.]”). Indeed, counsel indicated at trial that
he enjoyed mixed success in reaching out to Jones prior to trial. See N.T.
Jury Trial, 6/13/19, at 38 (“And we did subpoena [Jones] on May 19th. I am
going to tell you that my office and [I] made several efforts to call [Jones].
She hasn’t responded to any calls but I will try again.”); id. at 53 (“And
[Jones] has cooperated a number of times. She responded to a subpoena,
came and testified at [a] deposition at my office before.”). Here, we agree
with the trial court and find that Jones’ limited scheduling availability does not
make her unavailable for trial under Rule 804. See CONRAIL, supra at 630
(“[A] declarant will not be deemed to be unavailable upon mere assertion of
such[.]”).
- 15 -
J-A26022-20
Jury Trial, 6/13/19, at 40-59, 71, 73, 76, 79, 80-81, 82. Consequently,
Ciarlante’s first claim on appeal fails.
Ciarlante next claims that the court should have permitted her to
introduce evidence of Clark’s prosthetic left eye. Appellant’s Brief, at 23-25.
Ciarlante claims that evidence showing she was to Clark’s left when driving,
combined with evidence that Clark accelerated into the intersection prior to
the accident, makes the evidence of Clark having only a functioning right eye
“extremely probative of liability.” Id. at 23.
The trial court found this issue to be meritless because Ciarlante
“deliberately elicited testimony from [Clark] regarding his left eye as of re-
cross examination . . . in contravention of [c]ourt order, and suffered no
prejudice at trial.” Trial Court Opinion, 2/10/20, at 9-12. We agree.
Our review of the record reveals that the trial court ordered at the
motions in limine hearing that no reference to Clark’s prosthetic left eye would
be presented during opening statements and that Ciarlante must present an
offer of proof that the evidence was more probative than prejudicial. See N.T.
Jury Trial, 6/12/19, at 16-17. At the start of trial, Ciarlante called Clark to
testify on cross-examination and elicited testimony requiring the court to
pause the trial and conduct a hearing pursuant to Pa.R.E. 104 to determine
whether the evidence of Clark’s prosthetic left eye was relevant, and whether
it was more prejudicial than probative. Id. at 66-135. After conducting the
hearing, the court ruled on the admissibility of the evidence as follows:
- 16 -
J-A26022-20
THE COURT: Well, I have not heard that the accident
happened to his left. You have not established that he has an
issue with where it’s coming from. And even if it’s relevant, the
real argument is it’s more prejudicial than it is probative. So,
that is the real issue as to what extent can you bring in a person’s
disability in court without first [] establishing its probative value
outweighs its prejudicial value. Disabilities are all the same,
whether you would—and whether somebody has a blindness, he’s
got corrective lenses, he was wearing them. He has a driver’s
license issued by the Commonwealth of Pennsylvania, and there
has [] yet [to] be[] any testimony that the car was coming from
an area where [Clark] couldn’t see. So, I said as of yet, your
client has not yet testified and you chose to call [Clark] as
of cross. So, right now it is not being admitted. Can you
establish it? Maybe you can, but you’ve established that he wears
glasses, where it’s coming from and that he saw headlights.
That’s it.
N.T. Jury Trial, 6/12/19, at 91-92 (emphasis added).
After the court’s ruling, on re-cross examination, Ciarlante elicited the
following testimony from Clark:
[Mr. Musitief:] Okay. And, in fact, when you went through the
intersection eastbound, when you went through the intersection
you were the only car that went through the intersection, through
that intersection from the direction you were traveling, correct?
[Clark:] I do not know if that’s correct, no.
Q. You didn’t see any other vehicles go through that intersection
from the—
A. I saw other vehicles turning, and I don’t know if anybody was
next to me or—
Q. Yeah.
A. I was paying attention to where I was going.
Q. You saw other—
A. I do not know.
Q. You saw the vehicles in the right-hand lane?
- 17 -
J-A26022-20
A. As I was passing them, yes.
Q. They weren’t going through the intersection, were they[?]
A. They were turning into it.
Q. Okay. Did anybody in the left-hand lane go through the
intersection at the time that the light turned yellow in the direction
you were traveling other than yourself?
A. I do not know.
Q. Okay, and with respect to the intersection—I’m going to show
you Trial Exhibit 4. You understood that because there’s a median
on Decatur Road that traffic westbound on Comly would have to
come up halfway near that median and stop there and yield to
oncoming traffic, right?
A. That’s correct.
Q. And, in fact, you never saw Miss Ciarlante blocking any traffic,
correct, at any point?
A. Yes, I did.
Q. You saw her blocking traffic?
A. The moment she pulled right in front of me. Yes, sir.
Q. At the moment, the second that the collision happened?
A. Yes, sir.
Q. Okay. That she was blocking traffic?
A. She blocked me.
Q. She blocked you. Let me ask you this. If you saw her lights,
would you—the lights of her car, the headlights, 60, 70 feet on
the other side of Comly, why do you think you didn’t see her
vehicle?
A. Because there were bright lights. It was dark out. All I saw
was the headlights.
Q. Do you have any vision problems with your left eye?
A. I don’t have any vision problems with my left eye at all. I have
a prosthetic left eye. I have no vision.
- 18 -
J-A26022-20
MR. WALL: Objection.
MR. MUSITIEF: Okay. All right. Those are all the questions I
have. Thank you.
THE COURT: Counsel.—
Id. at 126-28 (emphasis added).
“All relevant evidence is admissible, except as otherwise provided by
law. Evidence that is not relevant is not admissible.” Pa.R.E. 402.
Evidence is relevant if it has “any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.” Pa.R.E. 401. One noted
exception is found in Rule 403, which states “[t]he court may exclude relevant
evidence if its probative value is outweighed by a danger of one or more of
the following: unfair prejudice, confusing the issues, misleading the jury,
undue delay, wasting time, or needlessly presenting cumulative evidence.”
Pa.R.E. 403.
Here, we discern no abuse of discretion in the trial court’s determination
that Ciarlante’s proposed evidence was more prejudicial than probative. See
McClure, supra; see also Pa.R.E. 403. Indeed, at the time of the court’s
Rule 104 hearing and Ciarlante’s questioning of Clark on re-cross examination,
Ciarlante had not yet established the factual predicate necessary to show that
the accident occurred to Clark’s left, or outside of his field of vision in that
direction. See N.T. Jury Trial, 6/12/19, at 91-128. Therefore, the evidence
was only minimally relevant at that point, see Pa.R.E. 401, and certainly
posed a high danger of unfair prejudice to Clark if misused by the jury. See
- 19 -
J-A26022-20
Pa.R.E. 403. Moreover, the court correctly noted that Ciarlante suffered no
prejudice—Clark answered questions regarding his prosthetic eye on re-direct
examination following Ciarlante’s initial questioning on that topic.6 See id. at
128-30. Therefore, Ciarlante’s second issue on appeal is meritless.
____________________________________________
6 Clark answered the relevant questions as follows:
BY MR. WALL:
Q. When did you lose your eye?
A. When I was 15.
Q. Do you have a driver’s license?
A. Yes, I got a driver’s license when I was 18, 19.
Q. And as a result of losing your eye, did the Commonwealth let
you get a driver’s license?
A. Certainly. I have a forklift operator’s license. I have heavy
machinery operator’s license. . . . I use those for work all the
time.
Q. How old are you now?
A. Fifty.
Q. Okay. So, you lost your eye 35 years ago, but you’ve had a
driver’s license in this state [for years?]
A. I drive a motorcycle. I have a forklift operator’s license at
work. I drive heavy cranes. I drive everything at work. I’ve
taught my four children how to drive. I mean that I have no
problems. I hunt, I fish, ski. So, it’s no problem to me at all.
Q. Your disability is no problem for you?
A. It’s not a disability.
Q. You don’t have any inability to see traffic at night?
- 20 -
J-A26022-20
Finally, Ciarlante argues that, pursuant to Dolan v. Carrier Corp., 623
A.2d 850, 853 (Pa. Super. 1993), which held that evidence of insurance was
irrelevant and prejudicial and justified the grant of a mistrial, she is entitled
to a new trial because Clark introduced evidence of insurance twice. Ciarlante
additionally asks this Court to extend the holding of our Supreme Court’s
decision in Price v. Guy, 735 A.2d 668, 672 (Pa. 1999). There, the Supreme
Court found reversible error where the trial court informed the jury that the
plaintiffs had elected the limited tort insurance option and that such election
resulted in their paying lower premiums, to include situations where the trial
attorneys—and not just the court—“impermissibly introduce[] the concept of
limited tort” to the jury. Appellant’s Brief, at 23. We disagree that Ciarlante
is entitled to a new trial.
Our Supreme Court has previously set forth the standard of review for
a trial court’s ruling on a motion for a new trial:
____________________________________________
A. Not in front of me, no.
Q. Okay. And you had your glasses on?
A. I always wear my glasses.
N.T. Jury Trial, 6/12/19, at 128-30 (emphasis added).
Moreover, we decline to find prejudice insofar as Ciarlante argues she
was prevented from admitting evidence of Clark’s prosthetic eye in her
case-in-chief; the court’s ruling in limine was adequately supported by
the record and Ciarlante had, at the time of her questioning of Clark,
failed to establish the necessary factual predicate to introduce the
evidence. See McClure, supra; see also Pa.R.E. 403.
- 21 -
J-A26022-20
It is a fundamental and longstanding precept that the decision to
order a new trial is one that lies within the discretion of the trial
court. This means that the trial court has considerable latitude
within which to act, but there are also very specific limits to what
it can do.
The term “discretion” imports the exercise of judgment,
wisdom and skill so as to reach a dispassionate conclusion,
and discretionary power can only exist within the framework
of the law, and is not exercised for the purpose of giving
effect to the will of the judge. Discretion must be exercised
on the foundation of reason, as opposed to prejudice,
personal motivations, caprice or arbitrary actions.
Discretion is abused when the course pursued represents
not merely an error of judgement, but where the judgment
is manifestly unreasonable or where the law is not applied
or where the record shows that the action is a result of
partiality, prejudice, bias or ill will.
One way of summing up all the qualities described in this definition
of a valid exercise of discretionary power is to say that the decision
had merit. Conversely, if the reason for performing a
discretionary act had no merit, then the trial court abused its
discretion. Thus, when viewed in terms of the degree of scrutiny
that should be applied, an inquiry into an abuse of discretion is
operationally equivalent as one into the merit of the trial court’s
decision.
Coker v. S. M. Flickinger Co., 625 A.2d 1181, 1184-85 (Pa. 1993) (internal
citations omitted).
“The general rule in Pennsylvania is that evidence of insurance is
irrelevant and prejudicial and justifies grant of a mistrial.” Paxton Nat’l Ins.
Co. v. Brickajlik, 552 A.2d 531, 533 (Pa. 1987). See also Pa.R.E.
411 (“Evidence that a person was or was not insured against liability is not
admissible upon the issue whether the person acted negligently or otherwise
wrongfully. But the court may admit this evidence for another purpose, such
as proving a witness’s bias or prejudice or proving agency, ownership, or
- 22 -
J-A26022-20
control.”). However, “the mere mention of the word insurance by a witness
during trial does not necessitate a new trial. There must be some indication
that the defendant was prejudiced.” Phillips v. Schoenberger, 534 A.2d
1075, 1078 (Pa. Super. 1987) (citing Pushnik v. Winky’s Drive In
Restaurants, 363 A.2d 1291, 1297 (Pa. Super. 1976) (en banc)) (brackets
omitted). When reviewing the trial court’s determination, we consider the
circumstances under which the statement regarding insurance was made and
the precautions taken by the court to prevent the statement’s prejudicial
effect. Clark v. Hoerner, 525 A.2d 377, 381 (Pa. Super. 1987). Moreover,
the “trial judge is in the best position to observe the atmosphere in which a
trial is being conducted and to determine whether a statement in the heat of
trial by counsel or a witness has had a prejudicial effect on the jury.” Id.Here, Ciarlante failed to timely object on the record with regard to her
first complained-of instance where insurance was mentioned. See N.T. Jury
Trial, 6/12/19, at 68. This issue, therefore, is waived. See Harman ex rel.
Harman v. Borah, 756 A.2d 1116, 1124 (Pa. 2000) (“In order to preserve
an issue for appellate review, an aggrieved party must make a timely and
specific objection.”); see also Allied Elec. Supply Co. v. Roberts, 797 A.2d
362, 365 (Pa. Super. 2002) (party must make specific and timely on-the-
record objection to witness’s mention of insurance to preserve issue for
appellate review).
- 23 -
J-A26022-20
In the second instance where insurance was mentioned, Ciarlante has
properly preserved the issue by virtue of a timely objection after Clark’s
attorney directly inquired about insurance on cross-examination of Ciarlante:
[Mr. Wall:] For purposes of the record, you have a limited tort
[insurance] policy; is that right?
MR. MUSITIEF: Objection, Your Honor.
THE COURT: Sustained.
MR. MUSITIEF: I’m going to ask for a sidebar.
THE COURT: No sidebar. I’m going to tell the jury. I’ll explain to
you what the law is and what needs to be proven in order for each
side to present their claims to you legally. Okay.
MR. WALL: All right. Very good.
THE COURT: All right. Very good.
N.T. Jury Trial, 6/12/19, at 226.
The trial court found that Ciarlante did not suffer the requisite prejudice
for a grant of new trial because the court: (1) sustained Ciarlante’s objection;
(2) immediately explained to the jurors that it would instruct them on the law;
and (3) properly instructed the jurors on the element of “serious impairment
of a bodily function.”7 See Trial Court Opinion, 2/10/20, at 16-17.
____________________________________________
7The court instructed the jury regarding comparative negligence, recovery of
non-economic loss damages, and the definition of “serious impairment of a
body[ily] function.” See N.T. Jury Trial, 6/13/19, at 173-75.
- 24 -
J-A26022-20
Here, we find the trial court’s determination that Ciarlante has failed to
demonstrate the requisite prejudice was not an abuse of discretion.8 See
____________________________________________
8In Price, supra, our Supreme Court discussed the prejudicial concerns that
arise when parties or witnesses mention insurance, which accordingly
warrants grant of a new trial:
[T]here is a risk that, in determining liability, the jury will depart
from the relevant standards and definitions on which they have
been charged and instead consider the fact of a party’s insurance
coverage, or lack thereof, as relevant on the issue of liability. Just
as a jury is more likely to attach liability to a defendant covered
by insurance who will not suffer financially from a plaintiff’s
verdict, so too is a jury less likely to award damages to a plaintiff
who it views as having bargained away its right to non-economic
damages in exchange for having obtained less expensive
insurance coverage.
The purpose of jury instructions is to keep jurors focused on
resolving factual disputes based on the governing law rather than
on their own ideas of how best to balance the equities. By allowing
jurors to consider the extent to which parties have elected to
insure themselves, trial courts afford jurors the opportunity to
determine the issue of liability in accordance with their own
notions of fairness, cost allocation, and risk management, rather
than in accordance with the law on which they have been
instructed.
Price, supra at 672.
Here, we find that the trial court mitigated any prejudice suffered by Ciarlante
through the various precautionary measures employed at trial—the court
properly sustained the question relating to Ciarlante’s limited tort insurance
policy, the court immediately thereafter informed the jury that it would give
more detailed instructions on the points of law relating to that question at a
later time, and the court properly instructed the jury on the law. See Clark,
supra at 381 (“Whether a court has abused its discretion in refusing a motion
for mistrial must be determined by the circumstances under which the
statement was made and the precautions taken to prevent its having a
prejudicial effect on the jury.”) (emphasis added). The trial court was in
- 25 -
J-A26022-20
Phillips, supra; see also Clark, supra. Indeed, our review of the record
reveals that the jury never reached questions 6, 7, and 8 on the verdict
sheet—the only questions relating to insurance—due to the allocation of
negligence between the parties on question five, which resulted in Ciarlante’s
inability to recover for her damages, thus terminating the jury’s inquiry.9 See
Jury Verdict Sheet, 6/14/19. Therefore, the trial court did not abuse its
discretion in refusing to grant a new trial. See Coker, supra. Consequently,
Ciarlante’s final issue on appeal fails.
Judgment affirmed.
____________________________________________
the best position to determine the prejudice suffered by Ciarlante, if any,
under these circumstances. See id.
9 The verdict sheet questions were submitted to the jury in the following order:
(1) “Was the defendant negligent?”; (2) “Was the negligence of the defendant
a factual cause of any harm to [p]laintiff, Julie Ciarlante?”; (3) “Was [p]laintiff
negligent?; (4) “Was [p]laintiff’s negligence a factual cause of any harm to
her?”; (5) “Taking the combined negligence that was a factual cause of any
harm to the plaintiff as 100 percent, what percentage of that negligence do
you attribute to each party?”; (6) “Do you find that [p]laintiff suffered a
serious impairment of a bodily function?”; (7) “Itemize the amount of
damages, if any, sustained by [p]laintiff as a result of this accident, without
regard to and without reduction by the percentage that you have attributed
to [p]laintiff.”; and (8) [a separate itemized question for] “Disfigurement
$__”. See Jury Verdict Sheet, 6/14/19. The jurors answered “yes” to
questions 1 through 4, and on question 5, attributed 49 percent of the total
factual cause negligence to Clark and 51 percent to Ciarlante. Id.
- 26 -
J-A26022-20
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/21/21
- 27 -