H. Hasan v. v. Figaro & SEPTA

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Hanan Hasan, :
Appellant :
:
v. :
:
Vincent Figaro and Southeastern : No. 392 C.D. 2019
Pennsylvania Transportation Authority : Argued: November 12, 2019
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: December 17, 2019
Hanan Hasan (Appellant) appeals from the December 28, 2018
judgment entered in the Court of Common Pleas of Philadelphia County (trial court)
following a jury trial. Upon review, we affirm.
On March 15, 2017, Appellant filed a claim seeking damages allegedly
resulting from a March 23, 2015 automobile accident during which a Southeastern
Pennsylvania Transportation Authority (SEPTA) bus driven by Vincent Figaro
(Figaro) (collectively, Appellees) rear-ended Appellant’s car at an intersection in
Philadelphia. See Trial Court Opinion dated February 28, 2019 (Trial Court
Opinion) at 1.
The trial court conducted a jury trial on this matter in June 2018. On
June 12, 2018, the jury returned a verdict finding both Appellant and Appellees 50%
negligent for Appellant’s injuries and awarding $6,608.00 in damages. Appellant
filed a timely Motion for Post-Trial Relief seeking a new trial, and SEPTA filed a
contingent cross-motion for post-trial relief. See Brief In Support of Plaintiff’s
Motion for Post-Trial Relief In Accord With Pa.R.C.P. No. 227.1; Supplemental
Reproduced Record (S.R.R.) at 1.b-5.b. The trial court denied Appellant’s post-trial
motion on October 17, 2018, and further denied SEPTA’s contingent cross-motion
for post-trial relief as moot on October 29, 2018. On December 28, 2018, the trial
court entered judgment on the verdict, and Appellant timely appealed to this Court.
Appellant raises three claims on appeal. First, Appellant claims the trial
court abused its discretion in failing to grant a mistrial and then a new trial based on
the performance of the court-appointed interpreter. See Appellant’s Brief at 5 & 18-
25. Next, Appellant claims the trial court abused its discretion in failing to grant a
mistrial and then a new trial after defense counsel questioned Appellant about her
insurance, specifically whether she carried limited tort insurance. See id. at 5 & 26-
30. Lastly, Appellant claims the trial court abused its discretion by instructing the
jury that Appellant could only recover non-economic loss damages if she suffered
serious impairment of a body function. See id. at 6 & 31-37.
Motions for a New Trial
Initially, we will discuss our review of the trial court’s denial of
Appellant’s request for a new trial. As our Supreme Court has explained, “[t]rial
courts have broad discretion to grant or deny a new trial.” Harman ex rel. Harman
v. Borah, 756 A.2d 1116, 1121 (Pa. 2000). “[W]hen analyzing a decision by a trial
court to grant or deny a new trial, the proper standard of review, ultimately, is
whether the trial court abused its discretion.” Id. at 1122.
2
The Supreme Court has explained:
Each review of a challenge to a new trial order must begin
with an analysis of the underlying conduct or omission by
the trial court that formed the basis for the motion. There
is a two-step process that a trial court must follow when
responding to a request for new trial. First, the trial court
must decide whether one or more mistakes occurred at
trial. These mistakes might involve factual, legal, or
discretionary matters. Second, if the trial court concludes
that a mistake (or mistakes) occurred, it must determine
whether the mistake was a sufficient basis for granting a
new trial. The harmless error doctrine underlies every
decision to grant or deny a new trial. A new trial is not
warranted merely because some irregularity occurred
during the trial or another trial judge would have ruled
differently; the moving party must demonstrate to the trial
court that he or she has suffered prejudice from the
mistake.
Harman, 756 A.2d at 1122 (internal citations omitted). Further,
[t]o review the two-step process of the trial court for
granting or denying a new trial, the appellate court must
also undertake a dual-pronged analysis. A review of a
denial of a new trial requires the same analysis as a review
of a grant. First, the appellate court must examine the
decision of the trial court [to determine whether] a mistake
occurred.
....
If the mistake involved a discretionary act, the appellate
court will review for an abuse of discretion. If the mistake
concerned an error of law, the court will scrutinize for
legal error.
3
Harman, 756 A.2d at 1122–23 (internal citations, quotation marks, and brackets
omitted).
Interpreter Issue
Appellant first claims that the trial court should have granted a mistrial
based on the court-appointed interpreter’s performance at trial. See Appellant’s
Brief at 18-25. Specifically, Appellant claims that she was prejudiced by the
interpreter’s deficient translation. Id. Further, Appellant claims the trial court erred
by not permitting Appellant’s Arabic-speaking daughter to testify as to the
interpreter’s improper translations of questions. Id. We disagree.
“The decision to use an interpreter rests in the sound discretion of the
trial judge.” Commonwealth v. Pana, 364 A.2d 895, 898 (Pa. 1976). Trial courts
are “necessarily accorded a wide discretion in determining the fitness of the person
called [as an interpreter], and the exercise of that discretion will not be disturbed on
review in the absence of some evidence from which prejudice can be inferred.”
Commonwealth v. Riley, 512 A.2d 22, 23–24 (Pa. Super. 1986).
Where a presiding judge determines that a principal party in interest or
a witness has a limited ability to speak or understand English, the judge may appoint
a certified interpreter to aid in the proceedings. See 42 Pa.C.S. § 4412(a). Where a
certified interpreter is not reasonably available after a good faith effort has been
made to locate one, the presiding judge may appoint an otherwise qualified
interpreter who is readily able to interpret and has read, understands, and agrees to
abide by the code of professional conduct for court interpreters. See 42 Pa.C.S. §
4412(b). A presiding judge may appoint an immediate family member as an
otherwise qualified interpreter, if necessary. See 42 Pa.C.S. § 4412(d). Further,
where the interpreter proves “unable to effectively communicate with the presiding
4
judicial officer or the person with limited English proficiency, including where the
interpreter self-reports such inability[,]” a presiding judge must dismiss an
interpreter and obtain the services of another interpreter. 42 Pa.C.S. § 4413.
In the instant matter, Appellant, an Arabic speaker, testified with the
aid of a court-appointed English/Arabic interpreter. See Notes of Testimony (N.T.),
June 8, 2018 at 4 & 30; Reproduced Record (R.R.) at 61a & 68a. During Appellant’s
direct examination, the interpreter interrupted the questioning multiple times with
questions or for clarification.1 See N.T. 6/8/2018 at 5-26; R.R. at 62a-67a. Neither
party nor the trial court raised any objection regarding the interpreter’s translations
during Appellant’s direct examination. Id.
Shortly into defense counsel’s cross-examination of Appellant,
however, the following exchange occurred:
THE COURT: I don’t know if she answered your
question.
Ma’am, do you recall being questioned at a
deposition on October 31st with regard to this case?
Interpreter, you have to say what I just said.
COURT INTERPRETER: I need an explanation.
THE COURT: The explanation is that you repeat
what I just said to [Appellant].
COURT INTERPRETER: Can I say something as
an interpreter?
1
The interpreter interjected a total of six times during Appellant’s direct examination: once
to clarify procedure (N.T. 6/8/2018 at 5; R.R. at 62a); twice to have a question repeated (N.T.
6/8/2018 at 9 & 11; R.R. at 63a); once to have a question clarified by counsel (N.T. 6/8/2018 at
12; R.R. at 63a); once to repeat the question because the interpreter was confused (N.T. 6/8/2018
at 19; R.R. at 65a); and once because the interpreter was unsure about how to translate the name
of a medicine (N.T. 6/8/2018 at 21; R.R. at 66a).
5
THE COURT: Say something.
COURT INTERPRETER: English is my fifth
language. It’s hard for me. The language the other sir was
speaking was very clear. I am not legal interpreter.
THE COURT: The reason we have you is because
of the legal issues. “In a deposition” is the only word I can
say because that’s the only word that there is.
I will try to say it differently, but I want to make
sure she understands we are talking about a previous legal
proceeding in this case.
[Appellant], do you recall testifying at a prior
proceeding regarding this case on October 31st, 2017?
COURT INTERPRETER: Interpreter not
understand.
THE COURT: We’ll take a brief recess until the
call of the crier.
***
(Whereupon the jury panel, having been excused from the
jury box)
***
THE COURT: Interpreter, what do you not
understand; the English language that I’m speaking?
***
(Whereupon there was no response)
***
THE COURT: Interpreter, what is it that you do not
understand; the meaning of the language of what I am
saying or the procedure that it is? I’m speaking to you, the
interpreter. You need to answer me.
COURT INTERPRETER: She is - -
THE COURT: Worry about me. I’m the judge.
COURT INTERPRETER: I’m not legal interpreter.
The terminology, ma’am - -
6
THE COURT: You mean there is no word for it?
COURT INTERPRETER: I don’t understand it.
I’m not legal interpreter.
N.T. 6/8/2018 at 28-30; R.R. at 67a-68a. Counsel for Appellant moved for a mistrial
based on the fact that the court-appointed interpreter was not a legal interpreter, a
fact counsel did not discover until the direct examination of Appellant had
concluded. See N.T. 6/8/2018 at 30-31; R.R. at 68a. The trial court denied the
motion for a mistrial explaining that the interpreter said she understood counsel’s
formal questioning and what Appellant communicated in response. N.T. 6/8/2018
at 31; R.R. at 68a. Thereafter, the trial court dismissed the interpreter and ordered a
new interpreter. See N.T. 6/8/2018 at 31-32; R.R. at 68a.
The trial court explained its denial of Appellant’s motion for a mistrial
and a new trial based on the interpreter’s performance as follows:
Following proper procedure, this court appointed a
certified interpreter to assist [Appellant] during her
testimony. Appellant’s contention that the interpreter
struggled with her duties to such an extent that her
interpretations cannot be deemed accurate due to
improperly translated questions and answers on several
vital questions is not supported by the record. In fact, the
record suggests the exact opposite. During direct
examination, there was no indication that the interpreter
was unable to translate Appellant counsel’s questioning.
On the contrary, the translated responses to Appellant
counsel’s questions were appropriately responsive to the
questions being asked. The interpreter was vocal when
she needed a question repeated or needed clarification but
she did not indicate at any point during Appellant
counsel’s direct examination that she did not understand
the meaning of a word that needed to be translated.
7
Furthermore, [Appellant], who speaks some English, gave
no indication during questioning that anything was being
mistranslated.
It was only at the beginning of Appellees[’]
counsel’s cross[-]examination that the interpreter
indicated that she did not understand the terminology
being used, specifically the term “deposition”. As stated
above, the interpreter was vocal when she needed a
question repeated or clarified but this was the first time she
indicated that she did not understand the meaning of the
word being said. This court questioned the interpreter and
she was very forthcoming about what she did and did not
understand. She stated that “the other sir was speaking
very clear”, indicating that she understood all the
questions being asked by Appellant counsel. It was only
when Appellees[’] counsel used specific legal terminology
that the interpreter was unable to translate what was said
and was thus[] unable to perform her duties. The
interpreter properly informed the court and this court
promptly removed her.
Trial Court Opinion at 6-7 (internal record citations omitted).
We find no abuse of discretion in the trial court’s actions regarding the
first court interpreter in this matter. The interpreter was court-appointed after a
request by Appellant’s counsel. See N.T. 6/8/2018 at 30; R.R. 68a. She indicated
no issues understanding and/or translating during direct examination of Appellant.
See N.T. 6/8/2018 at 5-26; R.R. at 62a-67a. Neither the parties, the trial court, nor
the witness objected to the interpreter’s translation during the direct examination.
Id. Upon discovery of the interpreter’s issues with certain legal jargon, the trial court
immediately dismissed the interpreter from service, ordered a new interpreter, and
delayed the trial until the new interpreter arrived. The trial court acted promptly and
8
properly in response to discovering the interpreter’s deficiencies and did not abuse
its discretion in so doing.
To the extent Appellant argues that the trial court erred by not allowing
Appellant’s daughter to testify regarding the translations of the first interpreter, we
do not agree.
Of course, “questions concerning the admission and exclusion of
evidence are within the sound discretion of the trial court and will not be reversed
on appeal absent a finding of abuse of discretion.” Carpenter v. Pleasant, 759 A.2d
411, 414 (Pa. Cmwlth. 2000). A trial 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.
The trial court explained its denial of Appellant’s request to have her
daughter testify regarding the interpreter’s translations thusly:
[T]here was no objective indication that the interpreter
mistranslated any questions or answers during direct
examination. Furthermore, [Appellant’s] daughter is not
a certified interpreter and has a close relationship to
[Appellant]. Therefore, there is huge potential of bias in
her interpretation of whether the translation of the
testimony was accurate. It would have been highly
prejudicial to Appellees to allow her to offer such
testimony.
Trial Court Opinion at 7-8.
We agree that no objective indication existed that the interpreter
mistranslated during Appellant’s direct examination. Further, we agree that
allowing Appellant’s daughter, who was not a certified interpreter, presented a
9
possibility of bias that was within the discretion of the trial court to avoid. Therefore,
we find no error or abuse of discretion in the trial court’s refusal to allow Appellant’s
daughter to testify regarding the translations provided by the first court-appointed
interpreter.
Limited Tort Insurance Question Issue
Appellant next claims that the trial court erred by not granting a mistrial
and/or a new trial based on a question posed by Appellees’ counsel during cross-
examination of Appellant pertaining to whether Appellant carried limited tort
insurance. See Appellant’s Brief at 26-30. We do not agree.
During cross-examination, Appellees’ counsel asked Appellant about
the “insurance papers” from her vehicle that Appellant had mentioned on direct
examination. See N.T. 6/8/2018 at 46-47; R.R. at 72a. The following exchange
occurred:
Q Then you got back inside your car and you got
some papers, correct?
A Correct.
Q You mentioned earlier today on direct
examination that the papers you went to get were your
insurance papers.
A Yes, that’s what I meant by saying “papers.” I
meant the insurance papers.
Q The insurance papers that you went to get
indicated you had limited tort.
[Appellant’s Counsel]: Objection.
THE COURT: Sustained and stricken. Not to be
considered by the jury.
10
See N.T. 6/8/2018 at 46-47; R.R. at 72a. Appellees’ counsel then moved on and
questioned Appellant about photographs taken of the car the following day. See N.T.
6/8/2018 at 47; R.R. at 72a. Appellant’s counsel did not request further curative
instructions or request a mistrial at that time. See N.T. 6/8/2018 at 47; R.R. at 72a.
As has been explained:
The general rule in Pennsylvania is that evidence of
insurance is irrelevant and prejudicial and justifies the
grant of a mistrial. The reason is obvious: fact-finders
should not be tempted to render decisions based upon the
extraneous consideration that an insurance company will
actually pay the bill. However, the mere mention of the
word insurance by a witness does not necessitate a new
trial; rather, there must be some indication the [movant]
was prejudiced.
Dolan v. Carrier Corp., 623 A.2d 850, 853 (Pa. Super. 1993) (internal citations
omitted). Further, “the effect of striking out objectionable questions, answers, or
other evidence is ordinarily to cure any harm done and to avoid any necessity of a
continuance or new trial.” Commonwealth v. Gross, 189 A. 726, 728 (Pa. Super.
1937). Additionally, “[i]t is well settled that juries are presumed to follow the
instructions of a trial court to disregard inadmissible evidence.” Commonwealth v.
Simpson, 754 A.2d 1264, 1272 (Pa. 2000) (regarding curative instructions).
Here, the jury was exposed to a single reference to limited tort insurance
in a question posed by Appellees’ counsel. Appellant’s counsel immediately
objected, and before Appellant answered the question, the trial court sustained the
objection. The trial court then immediately offered a curative instruction that
instructed the jury not to consider the question. Appellant’s counsel did not request
further instruction or request a mistrial at that time. By sustaining Appellant’s
11
counsel’s objection and immediately cautioning the jury not to consider the limited
tort question, which instruction the jury is presumed to have followed, the trial court
cured any prejudice created by the single fleeting reference to limited tort insurance
in this matter. See Simpson; Gross. We discern no error of law or abuse of discretion
in the trial court’s denial of a mistrial and/or new trial based on Appellees’ counsel’s
single reference to limited tort insurance in a question that the trial court struck upon
objection.
Serious Impairment Jury Instruction
Lastly, Appellant claims that the trial court erred by charging the jury
that Appellant could not recover non-economic damages unless she suffered “serious
impairment of a body function.” See Appellant’s Brief at 31-37. Appellant claims
the instruction was improper because no evidence was presented that Appellant
carried limited tort automobile insurance.2 See id. at 33. We disagree.
2
As the Superior Court explained:
Pennsylvania’s Motor Vehicle Financial Responsibility Law[], 75
Pa.C.S.[] §§ 1701–1799.7, permits insureds to elect full tort or
limited tort insurance coverage for private passenger motor vehicles.
See 75 Pa.C.S.[] § 1705. With full tort coverage, the insured
maintains “an unrestricted right for you and the members of your
household to seek financial compensation for injuries caused by
other drivers.” 75 Pa.C.S.[] § 1705(a)(1). An election of limited
tort insurance coverage, on the other hand, means that “you and
other household members ... may seek recovery for all medical and
other out of pocket expenses, but not for pain and suffering or other
nonmonetary damages unless the injuries suffered fall within the
definition of ‘serious injury’ as set forth in the policy or unless one
of several other exceptions noted in the policy applies.” Id. Persons
who elect limited tort coverage pay lower premiums.
Bennett v. Mucci, 901 A.2d 1038, 1040–41 (Pa. Super. 2006).
12
The purpose of jury instructions is to clarify the legal principles at issue.
Chicchi v. Se. Pa. Transp. Auth., 727 A.2d 604, 609 (Pa. Cmwlth. 1999).
“Instructions must be confined to the issues raised in the pleadings and facts
developed by evidence in support of those issues.” Wallis v. Se. Pa. Transp. Auth.,
723 A.2d 267, 269 (Pa. Cmwlth. 1999) (citing Hronis v. Wissinger, 194 A.2d 885
(Pa. 1963)); see also Perigo v. Deegan, 431 A.2d 303, 306 (Pa. Super. 1981) (trial
court properly instructed jury on an issue that was properly raised in pleadings and
the proofs adduced at trial, despite neither counsel arguing the issue). Where an
insured carries limited tort automobile insurance, whether the insured’s injuries rise
to the threshold level of a serious impairment of a body function for recovery under
a limited tort policy is for the jury to determine. Washington v. Baxter, 719 A.2d
733, 740 (Pa. 1998); see also Robinson v. Upole, 750 A.2d 339, 342 (Pa. Super.
2000).
Here, the trial court instructed the jury, in relevant part, as follows:
Under Pennsylvania[] law the plaintiff may recover
noneconomic loss damages in this case if the plaintiff can
prove that, first, the defendant’s negligence was a factual
cause in bringing about injury to the plaintiff.
Second, the plaintiff’s injuries resulted in
noneconomic damages.
Third, the plaintiff suffered serious impairment of a
body function.
N.T. 6/12/2018 at 58-59; R.R. at 124a.
The trial court explained the decision to include the serious impairment
jury instruction as follows:
13
Although Appellant is correct that such evidence was not
presented at trial, this court made it’s [sic] determination
to give the serious impairment instruction to the jury based
on Appellant’s failure to properly deny Appellees’
allegation that Appellant was subject to limited tort in the
pleadings.
Trial Court Opinion at 9. The trial court went on to discuss the pertinent
Pennsylvania Rules of Civil Procedure concerning responsive pleadings in relation
to the allegation in Appellees’ new matter that Appellant was subject to the limited
tort automobile insurance option, ultimately concluding as follows:
Appellees filed an answer with new matter stating that
Appellant was subject to the limited tort option. Appellant
responded to the new matter with a single paragraph
stating that all allegations are “denied as conclusions of
law to which no response is necessary under the
Pennsylvania Rules of Civil Procedure. To the extent that
a response may be necessary, the allegations are denied
and strict proof is demanded at time of trial.” This court
deemed that Appellant’s response was inadequate.
Appellees made a factual assertion that Appellant was
subject to the limited tort option. This was not merely a
conclusion of law and this required a specific denial.
Since such denial was not provided, Appellees’ assertion
that Appellant was subject to the limited tort option was
deemed admitted. Therefore, the serious impairment
instruction was appropriate and the court did not abuse its
discretion in reading it to the jury.
Trial Court Opinion at 10-11 (internal citations omitted).
Our review of the record indicates that, contrary to the trial court’s
suggestion that no evidence of Appellant’s limited tort insurance coverage was
adduced at trial, Appellant conceded at her October 31, 2017 deposition that her
automobile insurance was limited tort. See Appellant’s October 31, 2017 Deposition
14
Transcript at 20; S.R.R. at 14.b. Prior to resting its case, Appellees moved the
deposition transcript into evidence without objection or limitation upon the purpose
of its admission. See N.T. 6/11/2018 at 56; R.R. at 106a. Thus, despite not doing
so in live testimony presented on the witness stand at trial, Appellees did, in fact,
present evidence that was available to the jury that Appellant carried limited tort
automobile insurance. Having been raised by the evidence adduced at trial, the
question of whether Appellant’s injury reached the threshold level of serious
impairment for recovery of non-economic damages under a limited tort automobile
insurance policy was for the jury to decide. See Washington. Accordingly, we find
no error in the trial court’s inclusion of the serious impairment jury instruction, albeit
on different grounds. See Stalworth v. Workers’ Comp. Appeal Bd. (Cty. of Del.),
815 A.2d 23, 30 (Pa. Cmwlth. 2002) (holding that this Court may affirm the result
reached below if it “is correct without regard to the grounds relied upon by that
court”).
For the reasons above, we find no error of law or abuse of discretion in
the trial court’s denial of Appellant’s post-trial motion seeking a new trial.
Accordingly, we affirm the order of the trial court.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Hanan Hasan, :
Appellant :
:
v. :
:
Vincent Figaro and Southeastern : No. 392 C.D. 2019
Pennsylvania Transportation Authority :
ORDER
AND NOW, this 17th day of December, 2019, the December 28, 2018
judgment entered in the Court of Common Pleas of Philadelphia County is
AFFIRMED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge