Milano, J. v. Commerce Square Partners

J-A06017-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JILL MILANO & KEITH MILANO, H/W, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellants
v.
COMMERCE SQUARE PARTNERS,
PHILADELPHIA PLAZA, L.P. AND THOMAS
PROPERTIES GROUP, P.C.
Appellees
----------------------------------------------
JILL MILANO & KEITH MILANO, H/W,
Appellants
v.
AMERICAN BUILDING MAINTENANCE,
INC.,
Appellee No. 897 EDA 2016
Appeal from the Judgment Entered February 22, 2016
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 131002576, 140200258
BEFORE: PANELLA, SHOGAN, and RANSOM, JJ.
MEMORANDUM BY SHOGAN, J.: FILED JULY 18, 2017
Jill Milano and Keith Milano, husband and wife (collectively
“Appellants”), appeal from the judgment entered on February 22, 2016,
following a jury verdict in favor of Commerce Square Partners, Philadelphia
Plaza, L.P., Thomas Properties Group, P.C., and American Building
Maintenance, Inc. (collectively “Appellees”). We affirm.
J-A06017-17
The relevant facts and procedural history in this matter were set forth
by the trial court in its opinion as follows:
[Appellants] brought the instant premises liability action
due to a slip and fall incident involving Jill Milano that occurred
on January 2, 2013, in the hallway on the 26th floor of One
Commerce Square (a property owned by [Appellee] Commerce
Square Partners) in the vicinity of the mailroom for the law firm
of Stradley Ronan. Stradley Ronon employed Jill Milano as a
secretary, at the time of the alleged incident. [Appellant], Jill
Milano, did not allege in her Complaint that she fell due to any
foreign object or substance on the floor. Rather, she alleged that
she fell because the vinyl floor was “highly polished,” which, she
argued, allegedly caused her to slip and sustain left hip injuries,
nerve damage and Complex Regional Pain Syndrome, aka Reflex
Sympathetic Dystrophy (“RSD”). Jill Milano’s husband, Keith
Milano, made a loss of consortium claim.
The hallway at issue was maintained and cleaned pursuant
to a lease between Ms. Milano’s employer, Stradley Ronan, and
[Appellee], Commerce Square Partners. Commerce hired
[Appellee], Thomas Properties Group, to manage the property.
The actual work of cleaning and maintaining the floor in the
hallway near the Stradley Ronan mailroom was performed by
[Appellee], American Building Maintenance, a subcontractor,
hired by Thomas Properties, which managed the property.
[Appellants] commenced the action against Commerce
Square Partners-Philadelphia Plaza, L.P. and Thomas Properties
Group, Inc. on October 25, 2013.
On December 11, 2013, [Appellees] Thomas Properties
and Commerce Square filed a Joinder Complaint against
American Building Maintenance, Inc. on the grounds of
contractual indemnification, contribution, and indemnification.
The two cases were consolidated by Order of the
Honorable Mark Bernstein on September 2, 2014.
The matter was tried before the Honorable Esther
Sylvester in October, 2015, and concluded on October 30, 2015,
with a jury verdict finding that [no Appellees] were negligent
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with respect to the alleged fall; thus in favor of all [Appellees]
against all [Appellants].
[Appellants] filed timely Post-Trial Motions for New Trial, or
Judgment Notwithstanding the Verdict, which were denied by the
Trial Court on February [22], 2016.[1]
Subsequently, [Appellants] filed an Appeal with the
Superior Court on March 16, 2016, and a Statement of Matters
Complained of on Appeal on April 7, 2016.
Trial Court Opinion, 7/19/16, at 1-3.2
On appeal, Appellants raise the following issues for this Court’s
consideration:
1. Whether the trial court erred in entering Orders in limine on
October 8 and 13, 2015 precluding [Appellants] from introducing
an email and testimony about actions described in the Email?
2. Whether the trial court excluded evidence as subsequent
remedial measures that was admissible for purposes allowed
under the rules of evidence?
3. Whether the trial court erred in precluding [Appellants’]
expert, Dr. William Marletta, from testifying about the condition
of the floor where the fall occurred that changed from the time
of the injury?
4. Whether the trial court erred in allowing [Appellees’] expert
from [sic] testifying about tests performed on the floor while
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1
The February 22, 2016 order also directed that judgment was entered in
favor of Appellees.
2
There were two trial court opinions filed in this matter. The pre-trial
rulings were decided by the Honorable Karen Shreeves-Johns, and Judge
Shreeves-Johns was the author of the Pa.R.A.P. 1925(a) opinion, dated
August 16, 2016. The Honorable Esther R. Sylvester presided at trial, and
Judge Sylvester drafted the July 19, 2016 trial court opinion.
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excluding evidence about material differences in the condition of
the floor when those tests were taken?
5. Whether the trial court erred in allowing [Appellees’] expert to
testify about “normal business practices”?
6. Whether the trial judge had the authority to reverse the
decision of another judge in the trial court under these
circumstances?
7. Whether the trial court erred in refusing to charge the jury to
the effect that [Appellants] did not need to prove notice of a
dangerous condition to hold the possessor liable from resulting
harm?
8. Whether the verdict was against the weight of the evidence?
Appellants’ Brief at 7-8.
Appellants’ first two issues concern the admissibility of evidence and
request for a new trial. We address these issues together and begin by
setting forth our standard of review:
Appellate review of the denial of a post-trial motion for a new
trial is guided by the following principles:
The Superior Court’s standard for reviewing the trial
court’s denial of a motion for a new trial is whether
the trial court clearly and palpably abused its
discretion or committed an error of law which
affected the outcome of the case. We will reverse the
trial court’s denial of a new trial only where there is
a clear abuse of discretion or an error of law which
controlled the outcome of the case. The trial court
abuses its discretion when it misapplies the law or
when it reaches a manifestly unreasonable, biased or
prejudiced result. Abuse of discretion may occur
through an honest, but erroneous use of discretion.
A new trial may not be granted merely because the
evidence conflicts and the jury could have decided
for either party. The grant of a new trial is
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appropriate, however, where the jury verdict may
have been based on improperly admitted evidence.
* * *
Questions regarding the admissibility or exclusion of
evidence are also subject to the abuse of discretion
standard of review. Pennsylvania trial judges enjoy
broad discretion regarding the admissibility of
potentially misleading and confusing evidence.
Relevance is a threshold consideration in determining
the admissibility of evidence. A trial court may,
however, properly exclude evidence if its probative
value is substantially outweighed by the danger of
unfair prejudice. Generally, for the purposes of this
evidentiary rule, prejudice means an undue tendency
to suggest a decision on an improper basis. The
erroneous admission of harmful or prejudicial
evidence constitutes reversible error.
Rohe v. Vinson, 158 A.3d 88, 95 (Pa. Super. 2016) (quoting Whyte v.
Robinson, 617 A.2d 380, 382-383 (Pa. Super. 1992) (internal quotation
marks and emphasis omitted)).
A motion in limine is used before trial to obtain a ruling on the
admissibility of evidence. Northeast Fence & Iron Works, Inc. v.
Murphy Quigley Co., Inc., 933 A.2d 664 (Pa. Super. 2007). “It gives the
trial judge the opportunity to weigh potentially prejudicial and harmful
evidence before the trial occurs, thus preventing the evidence from ever
reaching the jury.” Parr v. Ford Motor Co., 109 A.3d 682, 690 (Pa. Super.
2014), appeal denied, ___ A.3d ___, 2015 WL 3500130, 46 EAL 2015 (Pa.
filed May 27, 2015), cert. denied 136 S. Ct. 557 (filed November 30, 2015).
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A trial court’s decision to grant a motion in limine “is subject to an
evidentiary abuse of discretion standard of review.” Id.
Appellants allege that the trial court erred in entering orders on
October 8, 2015, and October 13, 2015,3 precluding Appellants from
introducing an email sent from Stradley Ronon Director of Operations, Janet
Roedell, to American Building Maintenance, Inc. Manager, Robert
DiSalvatore, on January 10, 2013 (“the email”), and testimony about items
described in the email. We disagree.
The text of the email is as follows:
Bob:
Wanted to make you aware that we had an
employee slip and fall last week in the corridor on
the 26th floor outside of the freight elevator area
(this area is enclosed on either end by two doors and
is where our Mail/Copy Centers are located).
Apparently, the employee slipped and fell, several
other employees commented on the fact that this
particular floor is always more slippery than other
tile floors. I am wondering if the floor wax/buffing is
more pronounced [on] this area because it’s where
most of our deliveries come in (because of the
adjacency to our Mail Room) and it takes a beating.
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3
The February 22, 2016 order disposed of all claims and all parties, and it
made final all previously filed interlocutory orders. See Betz v. Pneumo
Abex LLC, 44 A.3d 27, 54 (Pa. 2012) (holding that “an appeal of a final
order subsumes challenges to previous interlocutory decisions”); Pa.R.A.P.
341 note (“A party needs to file only a single notice of appeal to secure
review of prior non-final orders that are made final by the entry of a final
order[.]”).
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Can you check this out and if there is a coating of
wax or other slippery substance, have it stripped off
and we’ll live with the fact that this floor is not as
shiny as others. Besides, it’s behind the scenes so
our clients and visitors don’t see it.
Thanks very much,
Janet.
Pa.R.A.P. 1925(a) Opinion, 8/16/16, at 4 (quoting Appellee American
Building Maintenance, Inc.’s 9/24/15 motion in limine, Exhibit 1).
The trial court concluded that the email was improper evidence of
subsequent remedial measures and inadmissible hearsay. Trial Court
Opinion, 7/19/16, at 9-10. The Pennsylvania Rules of Evidence provide, in
relevant part, as follows:
Subsequent Remedial Measures
When measures are taken by a party that would have made an
earlier injury or harm less likely to occur, evidence of the
subsequent measures is not admissible against that party to
prove:
• negligence;
• culpable conduct;
• a defect in a product or its design; or
• a need for a warning or instruction.
But the court may admit this evidence for another purpose such
as impeachment or--if disputed--proving ownership, control, or
the feasibility of precautionary measures.
Pa.R.E. 407.
Our Supreme Court has stated:
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The admission of [evidence of subsequent remedial measures]
cannot be defended on principle. It is not more likely to show
that there was negligence before the accident than that the
occurrence of the accident first suggested the use of methods or
appliances not before thought of; it applies to conduct before an
accident a standard of duty determined by after-acquired
knowledge; it punishes a prudent and well-meaning defendant
who guards against the recurrence of an accident he had no
reason to anticipate, or who out of a considerate regard for the
safety of others exercises a higher degree of care than the law
requires.
Duchess v. Langston Corp., 769 A.2d 1131, 1137 n.7 (Pa. 2001) (citation
omitted); see also Columbia & Puget Sound RRCo. v. Hawthorne, 144
U.S. 202, 207-208 (1892) (describing evidence of remedial measures as
incompetent in that the taking of such precautions against the future is “not
to be construed as an admission of responsibility for the past, has no
legitimate tendency to prove that the defendant had been negligent before
the accident happened, and is calculated to distract the minds of the jury
from the real issue, and create a prejudice against the defendant.”).
Appellants cite Carney v. Otis Elevator Co., 536 A.2d 804 (Pa.
Super. 1988), as support for their contention that the email was admissible
despite it being illustrative of subsequent remedial measures. Appellants’
Brief at 20. In Carney, this Court found that evidence of subsequent
remedial measures was properly admitted for impeachment purposes after a
maintenance worker testified that the doors of an elevator at issue were in
good working order on June 4, 1982. Id. at 807-808. Evidence of
subsequent remedial measures was permitted in the form of a document
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that revealed that the elevator was inspected on May 13, 1982, and the
elevator’s door was replaced on June 4, 1982.
In the case at bar, Mr. DiSalvatore, the witness whose testimony
Appellants argue they sought to impeach with the email, did not testify that
the floor was slippery before stripping the wax from the floor, nor did he
testify that the floor was not slippery after the floor was stripped. In fact,
no witness testified that the floor was slippery. Thus, unlike in Carney,
there were no proven facts to impeach; Appellants were merely attempting
to admit inadmissible hearsay into evidence. We conclude that there was no
error in the trial court’s ruling.
Additionally, Appellants baldly claim that the trial court erred in its
ruling, usurped the purview of the jury, and distorted the record.
Appellants’ Brief at 17-18. This conclusory argument fails as it does not
illustrate how the trial court erred or in what way it abused its discretion. “It
is not this Court’s responsibility to comb through the record seeking the
factual underpinnings of [an appellant’s] claim.” Irwin Union Nat. Bank &
Trust Co. v. Famous, 4 A.3d 1099, 1103 (Pa. Super. 2010).
Appellants also argue that the email was a business record and
admissible as an exception to the prohibition on hearsay pursuant to Pa.R.E.
803 and 803.1. Appellants’ Brief at 19. We disagree.
Exceptions to the Rule Against Hearsay--Testimony of
Declarant Necessary
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The following statements are not excluded by the rule against
hearsay if the declarant testifies and is subject to cross-
examination about the prior statement:
* * *
(3) Recorded Recollection of Declarant-Witness. A
memorandum or record made or adopted by a declarant-witness
that:
(A) is on a matter the declarant-witness once knew about but
now cannot recall well enough to testify fully and accurately;
(B) was made or adopted by the declarant-witness when the
matter was fresh in his or her memory; and
(C) the declarant-witness testifies accurately reflects his or her
knowledge at the time when made.
If admitted, the memorandum or record may be read into
evidence and received as an exhibit, but may be shown to the
jury only in exceptional circumstances or when offered by an
adverse party.
Pa.R.E. 803.1(3).
Furthermore, the Pennsylvania Rules of Evidence provide:
Exceptions to the Rule Against Hearsay--Regardless of
Whether the Declarant Is Available as a Witness
The following are not excluded by the rule against hearsay,
regardless of whether the declarant is available as a witness:
* * *
(6) Records of a Regularly Conducted Activity. A record
(which includes a memorandum, report, or data compilation in
any form) of an act, event or condition if:
(A) the record was made at or near the time by--or from
information transmitted by--someone with knowledge;
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(B) the record was kept in the course of a regularly conducted
activity of a “business”, which term includes business,
institution, association, profession, occupation, and calling of
every kind, whether or not conducted for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the
custodian or another qualified witness, or by a certification that
complies with Rule 902(11) or (12) or with a statute permitting
certification; and
(E) the opponent does not show that the source of information
or other circumstances indicate a lack of trustworthiness.
Pa.R.E. 803(6).
Under the facts presented here, the trial court concluded that the
exceptions do not apply:
The email was not composed “in the regular course of
business.” … The Superior Court has defined “in the regular
course of business” as follows: “In the regular course of
business” includes entries made systematically and as part of a
regular routine which requires the recording of events or
occurrences, the reflection of transactions with others. These
essentially must be established by testimony of the custodian or
of another qualified witness.” Ganster v. Western Pennsylvania
Water Co., 349 Pa. Super. 561, 504 A.2d 186, 190 (1985). Here,
the email does not reflect a transaction with others, it was not
made at or near the time of the accident, it was not made due to
a requirement of recording events or occurrences and it was not
made systematically.
Pa.R.A.P. 1925(a) Opinion, 8/16/16, at 6.
We agree with the trial court. The email fails to satisfy the
requirements of Pa.R.E. 803.1(3) in that it was not the drafter, Janet
Roedell’s, recollection, and there was no indication that the email was
written when the events of January 2, 2013, were fresh in her mind because
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it was drafted more than one week after the accident. Moreover, under
Pa.R.E. 803(6)(E), the email lacks trustworthiness, as it was not written
based on the drafter’s recollection of events, but on additional hearsay
insofar as it was written citing to “several other employees[’] comment[s].”
As noted, the admissibility of evidence is left to the discretion of the trial
court. Rohe, 158 A.3d at 95. Based on the facts of this case, we discern no
abuse of that discretion. Thus, Appellants’ claim that the records of a
regularly conducted activity exception or recorded recollection exception to
the prohibition on hearsay fail.
We discern no error or abuse of discretion in the evidentiary rulings.4
Accordingly, Appellants are entitled to no relief on their first two issues.
In their third issue, Appellants aver that the trial court erred in
precluding their expert, Dr. William Marletta, from testifying about the
condition of the floor and how it had changed from the time of the accident.
We conclude that this claim is meritless.
____________________________________________
4
We are constrained to note that throughout Appellants’ brief, Appellants
repeatedly seek to admit evidence contained in this email. Specifically, they
seek the admission of evidence that the floor was stripped following the
accident. As discussed, the trial court precluded evidence that the floor was
stripped as impermissible evidence of subsequent remedial measures.
However, the notes of testimony reveal that Appellants’ trial counsel
repeatedly blurted out and mentioned the fact that the floor was stripped
during his questioning of witnesses. N.T., 10/23/15, at 123. Thus, while it
cannot be deemed evidence, the stripping of the floor was placed before the
jury, over objections, through counsel’s questioning despite the trial court’s
ruling.
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Appellants begin by asserting that Dr. Marletta’s testimony was
permissible pursuant to Pa.R.E. 703. Pa.R.E. 703 provides as follows:
Bases of an Expert’s Opinion Testimony
An expert may base an opinion on facts or data in the case
that the expert has been made aware of or personally observed.
If experts in the particular field would reasonably rely on those
kinds of facts or data in forming an opinion on the subject, they
need not be admissible for the opinion to be admitted.
Pa.R.E. 703.
However, Appellants then assert that Dr. Marletta should have been
permitted to testify as to the change in condition based on the assertion
contained in the aforementioned email that other people had claimed the
floor was “always more slippery” and that “others complained about this
particular floor” despite there being no testimony to support those
averments. Appellants’ Brief at 25-26. Thus, Appellants ignore that in order
for an expert to rely on a “fact,” evidence of that fact must be admissible.
Pa.R.E. 703 Comment (citing Pa.R.E. 104(a)). The facts upon which
Appellants allege that their expert would rely were the subsequent remedial
measures discussed supra and contained within the email discussed above.
Moreover, after review, Appellants’ argument reveals an attempt to
introduce those subsequent remedial measures. For the same reasons we
discussed above relative to the email and the testimony of Mr. DiSalvatore,
Appellants’ expert, Dr. Marletta, was properly precluded from testifying
about the change in the condition of the floor after the accident. While
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Appellants sought to have Dr. Marletta testify that the floor was stripped
after the accident, Appellants’ Brief at 25, Appellants provide no basis upon
which such testimony would be admissible under Pa.R.E. 407. Appellants’
claim is meritless, as it was merely an attempt to introduce properly
precluded evidence of subsequent remedial measures contained in the email.
No relief is due on this issue.
In the fourth issue on appeal, Appellants assert that the trial court
erred in allowing Appellees’ expert, Timothy Joganich, to testify about tests
performed on the coefficient of friction on the floor while excluding evidence
about material differences in the condition of the floor when those tests were
taken. We conclude that no relief is due.
At the outset, we note that
the general rule regarding corroboration by experiments is that
unless some other exclusionary rule is violated, the
demonstration may be admitted into evidence when the
circumstances under which the experiment was performed were
sufficiently similar to the event in question to throw light on a
material point in controversy and to assist the jury in arriving at
the truth rather than to confuse the jury or prejudice the other
party.
Leonard by Meyers v. Nichols Homeshield, Inc., 557 A.2d 743, 745,
(Pa. Super. 1989).
Mr. Joganich was offered by Appellee, American Building Maintenance,
Inc., as an expert in engineering. N.T., 10/27/15, at 61. Mr. Joganich
testified that he tested the floor on the same day as Appellants’ expert, Dr.
Marletta; Mr. Joganich concluded that the floor in question exceeded
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standards for walk-way safety and slip-resistance. Id. at 64, 72-77. Stated
differently, Mr. Joganich concluded that the floor was not slippery.
The thrust of Appellants’ argument is that the floor as tested was not
in the same condition as it was at the time of the accident. Appellants’ Brief
at 31. However, the standard described in Leonard does not require the
circumstances to be the “same;” it requires the circumstances to be
“sufficiently similar.” Leonard, 557 A.2d at 745. Utilizing this standard, the
trial court concluded that the conditions of the floor were sufficiently similar
for the experiment “to throw light on whether there was a defective
condition of the floor—here, whether the floor was overly-slippery.”
Pa.R.A.P. 1925(a) Opinion, 8/16/16, at 13. The trial court noted also that
Appellants had the opportunity to cross-examine Mr. Joganich on his
experiment and conclusions. Id.
After review, we discern no abuse of discretion in the trial court
permitting Appellees to present Mr. Joganich’s testimony regarding his
experiment. Accordingly, no relief is due.
In the fifth issue, Appellants assert that the trial court erred in allowing
Appellees’ expert, Todd Reidbord, to testify about normal business practices.
Specifically, Appellants argue that Mr. Reidbord had no basis for his
testimony regarding how tenants reported issues to landlords. Additionally,
Appellants claim that they were precluded from properly cross-examining
Mr. Reidbord because they were not permitted to question on the
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aforementioned January 10, 2013 email. Appellants’ Brief at 31-33. We
conclude that Appellants are entitled to no relief on this fifth claim of error.
Initially, we note that we have already addressed the email and its
designation as inadmissible evidence of subsequent remedial measures. We
need not address it further. Insofar as Appellants claim that Mr. Reidbord
had no basis for his expert opinions as to a tenant reporting issues with the
building, we disagree.
“The admission of expert testimony is a matter committed to the
discretion of the trial court and will not be disturbed absent an abuse of that
discretion.” Nobles v. Staples, Inc., 150 A.3d 110, 113 (Pa. Super. 2016).
Pennsylvania Rule of Evidence 702 permits expert
testimony on subjects concerning knowledge beyond that
possessed by a layperson. It is the job of the trial court to assess
the expert’s testimony to determine whether the expert’s
testimony reflects the application of expertise or strays into
matters of common knowledge. Snizavich v. Rohm & Haas
Co., 83 A.3d 191, 194 (Pa. Super. 2013) (citations to quoted
authorities omitted). We have explained:
Admissible expert testimony that reflects the
application of expertise requires more than simply
having an expert offer a lay opinion. Testimony does
not become scientific knowledge merely because it
was proffered by a scientist. Likewise, expert
testimony must be based on more than mere
personal belief, and must be supported by reference
to facts, testimony or empirical data.
Id. at 195 (citations to quoted authorities omitted). Accordingly,
we have stated the following test to distinguish between
admissible expert testimony and inadmissible lay testimony by
an expert:
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The exercise of scientific expertise requires
inclusion of scientific authority and application of the
authority to the specific facts at hand. Thus, the
minimal threshold that expert testimony must meet
to qualify as an expert opinion rather than merely an
opinion expressed by an expert, is this: the
proffered expert testimony must point to, rely
on or cite some scientific authority—whether
facts, empirical studies, or the expert’s own
research—that the expert has applied to the
facts at hand and which supports the expert’s
ultimate conclusion. When an expert opinion fails
to include such authority, the trial court has no
choice but to conclude that the expert opinion
reflects nothing more than mere personal belief.
Id. at 197.
Nobles, 150 A.3d at 114-115 (emphasis added) (internal quotation marks
omitted).
The record reflects that Mr. Reidbord based his opinions on facts and
testimony, which are specifically contemplated bases for formulating expert
opinions. Nobles, 150 A.3d at 114 (quoting Snizavich, 83 A.3d at 195).
Mr. Reidbord stated that he relied upon the deposition testimony of
mailroom employee Ron Widmayer, property manager William Criticos, night
manager Charles Chaney, Janet Roedell, Robert DiSalvatore, and Appellants.
N.T., 10/23/15, at 109, 110, 118, 152, 170, and 177. Mr. Reidbord also
listed these depositions on the list of documents that he reviewed in
preparation of his expert report. Appellees’ Exhibit 3. For Appellants to
claim that Mr. Reidbord had no basis for his opinions is specious. As the trial
court noted:
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[Appellants] challenge Reidbord’s statement in his report
that “if an unsafe or unacceptable condition exists in a leased
office space in a large commercial building, a representative of
the tenant will immediately contact the property manager and
advise them of such condition.” See [Appellants’] Reidbord
Motion, ¶4. [Appellants’] objection is that “there is no authority
cited as the basis for the opinion in the report.” [Appellants’]
Memo in Support of Reidbord Motion, p.2.
[Appellees] in response point to numerous portions of
depositions that serve as factual support for Reidbord’s
statement of the practice of the parties and tenants, such as the
deposition of Ms. Roedell in which she stated she “contacts
someone” when she learns of slippery conditions ([Appellees]
cite the deposition transcripts of two other relevant people about
the reporting practices). See [Appellees’] Memo in Opposition to
[Appellants’] Reidbord Motion, p. 4.
The issue is not whether defense expert Reidbord’s
statements are true; that is not an issue before the trial court in
deciding a Motion in Limine. The issue is whether the expert
may testify to his opinion formed on the basis of the content of
multiple depositions. [Appellants were] free to cross-examine
Reidbord on these points.
Pa.R.A.P. 1925(a) Opinion, 8/16/16, at 10-11. For the reasons set forth
above, we discern no error of law or abuse of discretion.
Next, Appellants claim that Judge Sylvester incorrectly concluded that
the coordinate jurisdiction rule precluded her from disturbing Judge
Shreeves-Johns’s pretrial rulings. Appellants are mistaken.
It is well settled that courts of the same jurisdiction cannot overrule
each other’s decisions in the same case. Riccio v. American Republic
Ins. Co., 705 A.2d 422, 425 (Pa. 1997) (citation omitted). The coordinate
jurisdiction rule falls within the “law of the case” doctrine and promotes
finality in pretrial proceedings and judicial efficiency. Id. Only in
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exceptional circumstances, such as an intervening change in the controlling
law, a substantial change in the facts or evidence giving rise to the dispute
in the matter, or where the prior holding was clearly erroneous and would
create a manifest injustice, may the doctrine be disregarded. Mariner
Chestnut Partners, L.P. v. Lenfest, 152 A.3d 265, 282 (Pa. Super. 2016).
Appellants have not alleged a change in controlling law, a substantial
change in the facts or evidence, or made any argument that the prior
holdings were so clearly erroneous it would create a manifest injustice. 5
Rather, they are seeking to re-litigate the motions in limine. Permitting a
trial judge to reverse another judge’s pretrial rulings would, in essence,
render the pretrial rulings superfluous. Here, there was no change in
circumstance that would have permitted Judge Sylvester to disturb Judge
Shreeves-Johns’s pretrial rulings, and Judge Sylvester correctly noted this
fact. Trial Court Opinion, 7/19/16, at 8. As such, there was no error in the
application of the coordinate jurisdiction rule.
In their seventh issue, Appellants assert that the trial court erred in
charging the jury. Specifically, Appellants argue that the trial court refused
to charge the jury that Appellants did not need to prove notice of a
dangerous condition in order to hold Appellees liable. We conclude this issue
is meritless.
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5
The only error of law Appellants assert with respect to a pretrial ruling is
their claim that the email was improperly excluded. Appellants’ Brief at 34.
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“Under Pennsylvania law, 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 the
outcome of the case.” Phillips v. Lock, 86 A.3d 906, 916 (Pa. Super.
2014). A new trial will be awarded only when the jury charge as a whole is
inadequate, unclear, or has a tendency to mislead or confuse rather than
clarify a material issue. Id. at 916-917. The trial judge has wide latitude in
her choice of language when charging a jury, provided that the judge fully
and adequately conveys the applicable law. Id. at 917.
Appellants argue that the email was evidence of constructive notice to
Appellees that the floor was slippery.6 Appellants’ Brief at 35. Thus,
Appellants claim that they were not required to prove Appellees had notice
of the floor’s slippery condition and were entitled to the following jury
instruction: “If the owner/occupier, or its employees or agents, create a
hazardous condition then the plaintiff need not prove any notice in order to
hold the possessor accountable for the resulting harm.” Id. at 36. Because
there was no evidence that Appellees created a dangerous condition,
Appellants were required to prove Appellees had notice as reflected in the
standard jury instruction.
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6
We note that the trial court stated that the email was written more than a
week after the accident and was irrelevant to notice. Pa.R.A.P. 1925(a)
Opinion, 8/16/16, at 5.
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The trial court instructed the jury as follows:
Now, the owners of the property are required to use reasonable
care in the maintenance and use of the property and to protect
invitees from foreseeable harm. An owner of property is also
required to inspect the premises and to discover the dangerous
conditions, and the owner of property is liable for harm caused
to invitees by a condition on the land if the owner knows or by
using reasonable care would discover the condition and should
realize that it involves an unreasonable risk of harm and the
owner should expect that the invitees will not discover or realize
the danger or will fail to protect them against it and the owner
fails to use reasonable care to protect the invitees against the
danger. Now, the owner of property is liable to invitees for any
harm that the owner should have anticipated regardless of
whether the danger is known or obvious.
N.T., 10/29/15, at 171-172.7 In its opinion, the trial court noted:
In addition, the Court’s instruction under Pa. S.S.J. 18.40
as the standard jury charge encompassed the issue of notice, a
jury question. The plaintiff, on the other hand, wanted to have
the court instruct the jury that there was, in fact, notice, which
would have improperly, under the circumstances of this trial,
made the court the finder of fact.
Trial Court Opinion, 7/19/16, at 11.
After review, we conclude that Appellants’ argument is flawed. There
was no evidence that Appellees or their agents caused the floor to be
slippery or a hazardous condition; thus, the trial court correctly concluded
that notice was a question for the jury. We discern no error of law or abuse
of discretion in the trial court’s jury charge or in its refusal to use Appellants’
____________________________________________
7
We note that this jury charge is nearly identical to Pennsylvania Suggested
Standard Jury Instruction (“Pa.SSJI”) (Civ.) 18.40.
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proposed jury instruction that assumed facts not in evidence and required
the trial court to become the fact finder.
In their final claim of error, Appellants aver that the verdict was
against the weight of the evidence. In the argument portion of their brief,
Appellants claim that “the trial court committed a series of errors that
controlled the outcome of the case.” Appellants’ Brief at 37. The focus of
Appellants’ argument is on the email and the application of the coordinate
jurisdiction rule. Id. Appellants assert that the email was admissible for
impeachment purposes despite it being evidence of a subsequent remedial
measure and that the trial court applied the coordinate jurisdiction rule too
rigidly. Again, we are constrained to disagree.
[A]ppellate review of a weight claim is a review of the [trial
court’s] exercise of discretion, not of the underlying question of
whether the verdict is against the weight of the evidence.
Because the trial judge has had the opportunity to hear and see
the evidence presented, an appellate court will give the gravest
consideration to the findings and reasons advanced by the trial
judge when reviewing a trial court’s determination that the
verdict is against the weight of the evidence. One of the least
assailable reasons for granting or denying a new trial is the
lower court’s conviction that the verdict was or was not against
the weight of the evidence and that a new trial should be
granted in the interest of justice.
Phillips, 86 A.3d at 919 (internal quotation marks and citation omitted).
We have already disposed of these underlying issues. We decline to
address them further, except to reiterate that we agree with the trial court’s
application of Pa.R.E. 407 with respect to the email and subsequent remedial
measures and its application of the coordinate jurisdiction rule concerning
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the pretrial rulings. Accordingly, we discern no abuse of discretion in the
trial court denying Appellants’ motion for a new trial based on the weight of
the evidence.
For the reasons set forth above, we conclude that Appellants are
entitled to no relief in this appeal. Accordingly, we affirm the judgment
entered on the jury verdict in favor or Appellees.
Judgment affirmed.
Judge Panella joins this Memorandum.
Judge Ransom concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/18/2017
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