Bowman, L. v. Rand Spear & Assoc.

J-S06016-20
2020 PA Super 155LYNDA BOWMAN : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
RAND SPEAR & ASSOCIATES, P.C., : No. 1245 EDA 2019
SPEAR & GREENFIELD, P.C., SPEAR, :
GREENFIELD & RICHMAN, P.C., :
SPEAR, GREENFIELD, RICHMAN & :
WEITZ, P.C., RAND SPEAR, :
ESQUIRE, MARC F. GREENFIELD, :
ESQUIRE, AND STUART A. RICHMAN, :
ESQUIRE
Appeal from the Judgment Entered April 10, 2019
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): July Term, 2016, No. 00298
BEFORE: LAZARUS, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.
OPINION BY McLAUGHLIN, J.: FILED JULY 06, 2020
In this legal malpractice action, Lynda Bowman appeals from the
judgment entered in favor of Rand Spear & Associates, P.C., Spear &
Greenfield, P.C., Spear, Greenfield & Richman, P.C., Spear, Greenfield,
Richman & Weitz, P.C., Rand Spear, Esquire, Marc F. Greenfield, Esquire, and
Stuart A. Richman, Esquire (collectively “Spear”). Spear represented Bowman
in an underlying suit arising from a vehicle accident in a parking lot owned by
Glimcher Development Corporation (“Glimcher”). In the malpractice action,
Bowman claimed that Spear committed malpractice by failing to institute suit
against Glimcher before the statute of limitations expired.
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The malpractice case proceeded to a jury trial and ended in a nonsuit.
Bowman now claims the trial court committed four errors: concluding that
Glimcher could not be subject to liability under Restatement (Second) of Torts
§§ 323 and 324A, entering a nonsuit when doing so was against the weight of
the evidence, failing to grant a motion for recusal, and failing to grant
Bowman’s motion for a new trial. We affirm.
The underlying accident occurred in June 2000, when a truck driven by
Shirley Lake struck the car in which Bowman was a passenger. Bowman hired
Spear to represent her and they instituted a lawsuit on Bowman’s behalf
against Lake. Lake then joined several additional defendants, including the
company she alleged was owner of the parking lot, K-Mart Corporation (“K-
Mart”). Lake allegedly later learned that Glimcher was the “true” owner of the
parking lot and joined Glimcher as an additional defendant. However, she
effected the joinder after the statute of limitations on Bowman’s claims had
allegedly expired. See Complaint, filed 7/6/16, ¶¶ 36-39, R.R. 108a-109a. At
no time in the underlying suit did Spear assert a claim against Glimcher on
Bowman’s behalf.
K-Mart then entered bankruptcy and the bankruptcy court reduced
Bowman’s claim against K-Mart to zero. At that point, the bankruptcy stay
prevented further action in the case until the parties stipulated in 2014 to K-
Mart’s dismissal. Bowman ultimately settled the underlying case for $150,000,
far less than Spear had allegedly promised.
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Bowman instituted this suit in July 2016, asserting that Spear’s failure
to assert a direct claim against Glimcher before the statute of limitations
expired deprived her of her right to recover from all responsible parties. The
case proceeded to a jury trial in November 2018. Prior to trial, the court held
a hearing on pre-trial motions, including Spear’s motion to bifurcate the trial
of the underlying case from the trial of the malpractice allegations. Spear
maintained that before the jury could address the malpractice allegation,
Bowman first had to establish the “case within a case,” that is, that Glimcher
was liable to Bowman for damages related to the 2000 accident. Before
Bowman stated her position, the court stated:
No, you’ve convinced me. I am going to listen to the other
side.
I also think it makes for a much simpler verdict sheet and
jury instruction for me to instruct them first with regard to
the underlying motor vehicle accident, have them reach a
decision in that regard, and then come back on the
malpractice aspect of the case.
Giving it all to them at the same time with a convoluted
verdict sheet and instruction – it’s already “If you say yes,
then go to this question. If you say no, go to this question.”
It just gets more complicated if you try to combine the case-
within-the-case.
But I’ll listen to whatever your argument is.
N.T., 11/2/18, at 9-10.
Bowman then responded that bifurcation was not warranted because
issues in the underlying case overlapped with those in the malpractice suit.
Id. at 11. She argued that evidence to support the underlying case no longer
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existed because Spear failed to get such evidence during discovery in the
underlying case, and Spear’s negligence therefore limited her ability to prove
the case-within-a-case. Id. at 12. Bowman referred to a Pennsylvania
Supreme Court case but did not have a copy for the trial court. The court
instructed counsel to provide the court with copies of cases that they cited:
Here’s the way it works in here. And you haven’t been here
before, so no problem.
I often tell lawyers, “I’m not interested in Smith on
Evidence. I’m sure, Mr. Smith, you’ve done a nice job
describing the law, but I can’t cite you to the Superior Court.
I have to cite a case.”
I need to see a case, not just your thoughts on a case. And
when you give me the case, you should use a yellow
highlighter and give me the 30 or 40 words that you think
compel me to decide in your favor. That way I know exactly
what you’re relying on and whether or not I think I can rely
on it.
Id. at 10. Although Spear had previously mentioned one case without
providing a copy to the court, and without the court requesting a copy, id. at
7, Spear later cited cases and provided copies of those cases to the court. See
e.g. id. at 17.
During the ensuing discussion, the court directed Bowman’s counsel not
to interrupt opposing counsel and gave further directions on courtroom
behavior:
THE COURT: What’s the likelihood that there will be a no-
liability finding?
[Spear’s Counsel]: Very high.
[Bowman’s Counsel]: That’s for the jury.
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[Spear’s Counsel]: Because the –
THE COURT: You can have a seat.
[Bowman’s Counsel]: I apologize.
THE COURT: And let’s get the rules straight right at the
outset. Nobody interrupts anybody, especially me.
And you should sit too.
I don’t have rules in here about standing and sitting. If you
want to stand and speak, that’s fine. If you want to sit, that’s
fine, make use of the microphone. But there is no
interrupting.
So you were saying.
Id. at 25-26. The court granted the motion and bifurcated the trial.
The court and parties then discussed other motions in limine. When
denying motions filed by Spear to preclude testimony regarding an allegedly
missing stop sign, the court commented that Bowman’s case was weak: “It’s
weak, but it’s her defense to the underlying motor vehicle accident.” Id. at
65. It further stated that “[t]here’s nothing wrong with the plaintiff introducing
weak evidence, but evidence nevertheless, that there was a stop sign and for
some reason that day, it wasn’t there.” Id.
At one point during the hearing, the court made reference to Spear’s
television commercials:
[Bowman’s counsel]: Your Honor, the only issue – and I
explained this to [Spear’s counsel] – is that Ms. Bowman
may testify that the way she came to Mr. Spear was seeing
a TV commercial of him. That’s it.
THE COURT: I don’t want to venture to guess how many
people on this jury already know that Rand’s the man.
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I mean, he’s all over TV all the time, so I can’t imagine there
being an objection to her testifying that she saw the TV
commercial or she saw a website or –
...
THE COURT: She went to a lawyer. If it comes up, she went
to a lawyer. Everyone will look over and say she must have
gone to Rand the man.
Id. at 55-56.
The court also addressed Spear’s motion to preclude the testimony of
Bowman’s expert. The court initially granted the motion. Id. at 103. The court
revisited the motion the following day and heard additional argument from
counsel. The court concluded that “[t]he fact that we’re struggling over this
so much makes me think that it should be . . . up to the jury to decide whether
they believe this expert or not and what exactly he’s saying.” N.T., 11/5/18,
at 19. It then vacated its prior order and allowed the testimony, concluding
that Spear’s arguments went to the weight of the testimony. Id. at 25.
Before jury selection, Bowman made an oral motion for recusal of the
trial judge. In support, she noted that the court had called Spear “Rand the
man”; said Bowman’s evidence was weak; reprimanded counsel for not giving
it a copy of a case; admonished counsel by telling counsel to sit down when
counsel interrupted defense counsel; and indicated that it had decided the
bifurcation motion before hearing Bowman’s arguments. Id. at 149-56. The
court denied the motion. Id. at 156.
Bowman’s counsel stated on the record that he believed that the trial
court mentioned the “Rand the man” commercial to a potential juror during
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jury selection. N.T, 11/7/18, at 8. After Bowman received the transcript of
jury selection and reviewed it, she believed it to be incomplete because it did
not contain the alleged remark. She contacted the court reporting company
and claimed that the transcript failed to contain everything that occurred.
N.T., 3/11/19, at 13. The trial court conducted a hearing at which the court
reporter testified that after her employer informed her of the call, she listened
to the transcript again, and did not hear the “Rand the man” remark alleged
to be missing. Id. at 11. She further testified that she did not intentionally
leave anything out of the transcript and that the court had not instructed her
to do so. Id.
When the trial commenced, Bowman presented a video of Lake’s
deposition testimony.1 She testified that she had been shopping at Sam’s Club
and drove to K-Mart, which was the next store. N.T., 11/6/18, at 9;
Reproduced Record at 768a. She testified that she stopped at the stop sign
and, after she stopped and looked to her right and left, she “was going to start
out going straight.” Id. at 10. She stated that she saw the vehicle Bowman
was in “come in at that red light,” and it seemed to her “that [the driver] was
coming pretty fast for a parking lot, and [] came down and around and
disappeared behind” fertilizer bags that had been piled up. Id. at 10-11. Lake
____________________________________________
1 The certified record does not contain the transcript for the portion of the
November 6, 2018 proceedings containing Lake’s deposition and the voir dire
of expert Julius Pereira. The reproduced record does contain a copy, and
because the parties not dispute its accuracy, we may consider it. See
Commonwealth v. Brown, 52 A.3d 1139, 1145 n.4 (Pa. 2012).
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said she then proceeded forward, at which point the accident occurred. Id. at
11.
Lake testified that a stop sign had previously controlled Bowman’s lane
of travel: “You know what, I remember I’ve been there before and there had
been signs up and then they got knocked over and then they got replaced.”
Id. at 21. She stated, however, that, if a stop sign had been there on the day
of the accident, she would have been able to see it. Id. at 22. She presented
a picture of posthole on the corner, which she testified previously held a stop
sign. Id. at 26. She then testified that, “[I]t was just down all the time.” Id.
at 27. When asked whether she expected Bowman’s car to stop, Lake said, “I
was not cognitively at that time thinking that he was going to stop. I just knew
I had stopped and I proceeded. I wasn’t thinking about him. I was thinking -
- I was upset that he didn’t put his brakes on and that he sped up.” Id. at 34.
She further testified, “I lived in that area for 17 years, Levittown, and I've
seen stop signs at that corner, and I’ve seen stop signs missing at that corner.
There’s nothing left but a stick.” Id. at 35.
Bowman testified at trial that on the day of the accident, she and her
family were going to a barbecue at her mother’s house. N.T., 11/7/18
(morning session), at 12. Her then-husband2 was driving, she was in the
passenger seat, and her children were in the back seat. Id. at 12-13, 17. She
testified that they turned into a shopping center, “came down a road and
____________________________________________
2 At the time of the accident, her husband was Charles Costello. They had
divorced prior to the trial in the legal malpractice action.
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entered a four-way intersection, and off to the right was K-Mart.” Id. at 13.
She stated that they proceeded through the intersection, “[t]here was no stop
sign,” and “[t]hen that’s when we were hit” by Lake. Id. She testified that at
the time Lake’s lane of travel had a stop sign at the intersection. Id. at 27.
Bowman testified that the lane of travel that her husband was traveling did
not have a stop sign. Id. at 13, 36.
On cross-examination, Bowman testified that she visited her mother
often, and took the route through the shopping center on occasion. Id. at 69-
70. When asked if she knew whether there previously had been a stop sign at
the intersection, she said she “never took notice of [a stop sign].” Id. at 71.
When asked whether Lake stopped at Lake’s stop sign, Bowman responded,
“I can’t answer for her. At that time – it was 18 years ago – I thought she did
not because she hit us.” Id. Bowman stated that when she noticed Lake’s
truck would collide with their car, she said, “She’s not stopping. She’s going
to hit us.” Id. She stated that, “[a]t that time,” she believed that the accident
occurred because Lake did not stop at her stop sign. Id. at 72.
During the cross-examination of Bowman, the trial judge asked
questions of Bowman, and Bowman’s counsel objected:
THE COURT: I’m sorry. I just don’t understand. What
difference does it make whether there’s a stop sign for you
or not when you’re talking about Ms. Lake blowing her stop
sign, no longer controlling her car?
And you keep going back to you didn’t have a stop sign.
You didn’t have a stop sign, so your husband didn’t do
anything wrong. He was just driving through.
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But you sued Ms. Lake, alleging that she did all these things.
How has that changed? She didn’t blow the stop sign, didn’t
lose control [of] her car, and wasn’t driving in a negligent
way?
THE WITNESS: That’s what I thought back then. I don’t
know if that’s what she did or not.
BY [Spear’s counsel]: Q. You also verified as a true
statement that Ms. Lake failed to keep adequate distance
from other vehicles in the --
[Bowman’s counsel]: Objection.
Q. -- of her vehicle; is that right?
[Bowman’s counsel]: Your Honor, could we have a sidebar
for a moment?
THE COURT: What’s the basis for your objection?
[Bowman’s counsel]: We would appreciate making the
comments outside the presence of the jury.
THE COURT: We’ll just wait until he’s done. Have a seat.
[Spear’s counsel]: Your Honor, it was your reaction to Ms.
Bowman’s testimony.
THE COURT: I’m just trying to understand what she’s
testifying to. She keeps saying “At the time. At the time. At
the time. Now I know something different.”
What she knows different now is that -- or she thinks she
knows -- she didn’t have a stop sign. Her husband drove
through the intersection and didn’t stop because he didn’t
have a stop sign.
How does that change what she said with regard to Ms.
Lake? That’s what I’m trying to find out. I don’t understand
her answers.
[Bowman’s counsel]: She has answered that question, Your
Honor. I don’t want to speak for her, but she answered that
specific question during counsel’s questioning already.
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I’m happy to either have the court reporter read it back or
state my understanding of it, but she was asked this
question and answered it.
THE COURT: Did she respond to your question? I didn’t hear
a response to the question. She keeps talking around in
circles.
[Spear’s counsel]: No. Exactly. I just want to know about
Ms. Lake’s behavior. Ms. Lake is – doesn’t get away from
the requirement to observe a stop sign or obey a stop sign.
THE COURT: Do you understand counsel’s question?
THE WITNESS: Yes.
THE COURT: Okay.
[Spear’s counsel]: Q. I mean, you haven’t learned anything
to indicate that Ms. Lake didn’t have a stop sign, did you?
A. She had a stop sign.
Q. Okay. And there’s nothing that leads you now to believe
that your car had a stop sign at that time.
A. My car did not have a stop sign.
Q. At that time, without any stop sign in your direction, you
had the right of way, or your husband had the right of way.
Is that right?
A. Well, that’s what I thought, yes.
Q. Is there something you know now that is different about
whether your husband’s car had the right of way in that
intersection?
A. Well, we didn’t have a stop sign so we proceeded.
Q. And that’s because your car had the right of way.
A. Because we didn’t have a stop sign.
Id. at 81-84.
Following Bowman’s testimony, Bowman moved for a mistrial, citing the
court’s questioning of Bowman. The court granted the motion:
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[Bowman’s counsel]: Your Honor, we wanted to put on the
record our objection to your questioning of our witness, your
characterization of her testimony as talking around in
circles, nodding your head incredulously as she answered
some of the questions, and your editorializing about her
responses.
We feel this is unfair prejudice against our client and our
case. We’re just asking for a fair trial with the jury.
THE COURT: So what would you like me to do?
[Bowman’s counsel]: We move for a mistrial.
COURT: Granted.
Earlier you wanted one. Now he wants one, so it is granted.
[Spear’s counsel]: Well, I withdrew mine. I withdrew mine.
Id. at 90-91.
When the proceedings resumed, the court stated that, while the
proceedings were off the record, Spear had requested reconsideration and
Bowman requested recusal. N.T., 11/7/18 (Motion for Recusal), at 4. Bowman
explained she was seeking the judge’s recusal because of his allegedly
“leading questions” and “editorializing,” and his alleged reference to “Rand the
man” in front of a potential juror:
[Bowman’s counsel]: [Bowman was testifying] about the
accident and why she thought Ms. Lake was initially
responsible for it, and, of course, she repeated at that time
-- and I don’t remember exactly what the Court asked. I
didn’t write it down, but I do know that after you asked the
question, at one point you leaned back and, in my
estimation, you rolled your eyes, and the eight jurors were
sitting here looking at the Court and our witness, and then,
also, another question you asked: You said, well, she’s
talking in circles and we said you were editorializing.
And then aside from that, in front of a juror on Monday you,
again, said Rand The Man –
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THE COURT: In front of a juror? Are you going back to your
original motion of my recusal?
[Bowman’s counsel]: Well, no –
THE COURT: We were ten minutes into this trial, you were
asking me to recuse myself, and the explanation I gave at
that time I stand by and, based on that explanation, I deny
that motion.
[Bowman’s counsel]: Okay. Well, I wasn’t revisiting what we
said on Friday. I was talking about Monday. When we were
doing voir dire in the back and you were trying to remember
Mr. Spear’s last name and then you said I’m so used to
calling him Rand The Man, that would be –
THE COURT: Which juror is that?
[Bowman’s counsel]: I don’t remember.
THE COURT: Well, is she sitting on the jury or not?
[Bowman’s counsel]: I don’t know.
THE COURT: Well, what difference does it make if she’s not
on the jury?
[Bowman’s counsel]: Well, I don’t know what she went and
told other jurors.
THE COURT: Well, did you ask to voir dire her about that?
[Bowman’s counsel]: No, I did not, but I’m bringing it up
now.
THE COURT: Right, in a desperate attempt to remove me
from the case. There’s no basis in fact or in law.
[Bowman’s counsel]: Your Honor, Rule 2.1 of the Code of
Judicial Conduct states: A judge shall disqualify himself or
herself in any proceeding in which the judge’s impartiality
might be reasonably questioned. So going back to Friday
where you mentioned -- you said Rand The Man at least
three times on the record --
THE COURT: But I still don’t understand why referring to
him the way he’s referred to in his TV commercials, the way
that I think both sides wanted me to voir dire the jury about
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the TV commercials, how referring to him in that way is in
any way prejudicial to the plaintiff.
[Bowman’s counsel]: You’re not saying that Lynda’s the
woman. You’re saying Rand’s The Man.
...
THE COURT: I don’t remember ever saying everyone knows
Rand’s The Man. I would say everyone knows Rand The Man,
because Rand The Man is like Ron Levitt sells creampuffs.
Do you remember that one? But there are a lot of
commercial slogans that catch the air, okay, and Rand The
Man is one of them.
[Bowman’s counsel]: You also characterized our case as
weak.
THE COURT: You do have a weak case. And, as I explained
to you the first time you made this motion, I’m not deciding
your case. The jury decides your case. I only decide the legal
issues, and if I’m wrong on the legal issues, the Superior
Court can correct that.
It just grows weaker the more I hear. I said it was a weak
case based on the various conflicting testimony you had
about the presence of a stop sign and when the stop sign
disappeared, but since then I’ve learned more about your
expert, and since then I’ve heard more about the evidence
of the accident, and I know maybe super[s]eding
intervening cause is a doctrine that has disappeared when I
was over in criminal court, but to me it sounds like a
super[s]eding cause that Ms. Lake entered the intersection
based on faith that a car she could no longer see was going
to stop at a stop sign that she couldn’t see. So, yes, I think
you have a very weak case, but I’m not doing this as a
nonjury trial.
...
[Bowman’s counsel]: Your Honor, whether or not you decide
the case is a legal question that may be brought in front of
you, and that you characterized our case on Friday before
hearing any of our evidence we felt like showed a partiality
of bias and there’s no reasonable basis to say that.
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You also said this case is just a fender-bender, and I think
you said that twice on Friday. Again, I don’t have the
transcript, so I’m doing it from my own recollection. And
what I do recall is that you said that and then I felt like there
was a smirk, and that [Spear’s counsel] also had a smirk
when you said that. . . .
THE COURT: Said what?
[Bowman’s counsel]: That this is just a fender-bender.
THE COURT: I don’t remember saying this was a fender-
bender.
[Bowman’s counsel]: Well, the record will reflect if that was
said, Your Honor. We’re just looking for a fair trial, and we’re
not saying you can’t be fair in every case. We just feel like
in this case given these circumstances that recusal would be
warranted, especially because we feel that we have a
reasonable basis to question your ability to be impartial, and
there is case law to support the position that we’re taking.
Appearance of impropriety provides sufficient to warrant a
recusal –
...
THE COURT: Well, that’s what it’s all about. I mean, I
understand the Hornbook law that if there’s the appearance
of bias, the Court should recuse, but I don’t see where
there’s any appearance of bias. I explained to you
everything you objected to.
[Bowman’s counsel]: We understand you feel like you’re not
bias[ed], Your Honor, but we feel like you’re biased.
THE COURT: It’s not a question of your feelings.
[Bowman’s counsel]: And our client feels like you’re being
biased.
THE COURT: It’s not a question of her feelings. It’s an
objective standard: What did I do to indicate a bias? And I
can’t see anything from what you’ve told me that indicates
a bias. Saying that you have a weak case doesn’t mean I’m
ruling against you, in fact, when we did the motions in limine
– I don’t know if they’re evenly split, but you won some and
you lost some. At least in one case I reconsidered, I think
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you won that one. It doesn’t change the fact that you have
a weak case.
[Spear’s counsel]: And I lost one today.
THE COURT: And I’m not keeping score. I mean, but I also
have an obligation as managing this courtroom to
encourage the sides to talk from time to time to see if the
case can be settled and one way of doing that is reminding
people from time to time that they have problems with the
case.
I’m reminding the defense: You have a problem with this
case. I’m reminding you: You have a problem in your case.
Part of your problem is your expert but there are other
problems as well.
So I don’t think I’ve done anything that demonstrates any
kind of a bias and so I’m going to reconsider my motion with
regard to mistrial. If you think the jury needs to be told
something, write out a proposed jury instruction, and I’ll tell
them something to correct whatever you think needs to be
corrected, and I’m not going to recuse myself.
[Bowman’s counsel]: Your Honor, we’d like to look at the
transcript and then brief this, because we do feel like there’s
a basis for it, not just based on my memory but on the
record itself. And we feel like your comments to the jury
cannot be cured by a curative instruction.
THE COURT: What comment?
[Bowman’s counsel]: That she’s talking in circles and then
you also rolled your eyes, Your Honor.
THE COURT: I never roll my eyes, so I don’t know what
you're talking about.
[Bowman’s counsel]: No, I’m sorry. You shook your head
incredulously is actually how I described it earlier today and
you did, in fact, do that, Your Honor.
THE COURT: Did you see me do any of that?
[Spear’s counsel]: Your Honor, I did not. I honestly did not.
You turned towards the witness –
THE COURT: No, no, just state that I didn’t do it.
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[Bowman’s counsel]: Your Honor, we asked for a sidebar at
that exact moment which you denied. You said no and then
counsel tried to explain to you why we’re asking for a
sidebar. That’s not the basis for the recusal, but we’re
saying that you shook your head incredulously like you
didn't believe what she was saying and then you followed it
up with saying she’s talking in circles. That is a pejorative
summary from our client’s testimony. That is unfair to our
client.
THE COURT: Your motion is denied. You’ll have a chance to
raise it again.
N.T., 11/7/18, at 7-18.
The trial then resumed. Bowman presented the testimony of a real
estate property specialist with Sears Holdings Company, Catharine Masters.
Masters explained that Sears Holding Company is an umbrella corporation and
K-Mart is one of the companies under the umbrella. N.T., 11/8/18 (Morning
Session), at 98-99. She testified that at the time of the accident, K-Mart had
a lease with the owner of the property where the accident occurred. She said
that in 1973, when the lease originated, the owner of the property was
Developers Diversified Services. According to Masters, Glimcher later became
the owner, and was the owner at the time of the accident, shortly after the
accident, the lease was assigned to an unrelated company, Gator
Investments. Id. at 99-101, 104.
Bowman also presented the testimony of an expert, Julius Pereira, III.
The parties conducted an extensive voir dire of Pereira’s qualifications to
provide expert testimony in this case. 11/6/18, at 37-95; Reproduced Record
at 796a-853a. Pereira testified that generally, an owner is responsible for
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maintaining a property. N.T., 11/8/18, at 9. It was his understanding that at
the time of the accident, Glimcher was the owner of the property that
contained the intersection in question and was responsible for the
maintenance of the property. Id. at 13-14. Such maintenance would include
maintaining safe conditions and various “features” on the property, including
signage. Id. at 14. He testified that if a stop sign was missing, the owner
would need to replace it. Id. at 15. He said that owners are obligated to
inspect the property and the frequency of inspection “depends upon the
particular component, but in general at least once a year, as a general rule.”
Id. at 16. On cross-examination, he testified that there was nothing in the
lease between Glimcher and K-Mart that imposed on Glimcher the
responsibility of maintaining the signs. Id. at 68.
At the end of Bowman’s case, Spear moved for a nonsuit. They argued
that the evidence Bowman had presented, even taken as true, was insufficient
to prove every element of her underlying case against Glimcher. The court
granted the motion. Bowman filed a post-trial motion, seeking removal of the
nonsuit and a new trial. The court denied the motion and entered judgment in
Spear’s favor. Bowman timely appealed.
Bowman raises the following issues:
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A. Whether the trial court committed reversible error when
it ruled that the landowner could not be subjected to liability
under Restatement (Second) of Torts §§ 323 and 324[A].[3]
B. Whether the trial court erred in granting [Spear’s] motion
for non-suit because the weight of the evidence was in
[Bowman’s] favor.
C. Whether the trial court erred when Judge Cunningham
failed to recuse himself despite a record reflecting that the
court was unable to be impartial and was biased and when
it incorrectly reversed the its (sic) own grant of mistrial.
D. Whether the trial court erred in failing to grant
[Bowman’s] motion for a new trial.
Bowman’s Br. at 6 (unnecessary capitalization omitted).
I. Nonsuit – Liability of Glimcher
In her first two claims, Bowman contends that the trial court erred when
it granted Spear’s motion for nonsuit. She argues that Glimcher is subject to
liability under Restatement (Second) of Torts §§ 323 and 324A, and that she
presented evidence of every element of her claim: the parking lot was held
open to the public; Bowman was a member of the public; Glimcher assumed
responsibility for the maintenance of the traffic control devices; a fourth stop
sign was missing; the missing stop sign was a safety issue that Glimcher had
a contractual duty to remediate; Glimcher should have known the sign was
missing; Lake had traveled through the intersection many times and was
aware a fourth stop sign controlled the lane in which Bowman travelled; and
____________________________________________
3Although Bowman sometimes references Restatement (Second) of Torts §
324, her argument addresses Section 324A, not Section 324.
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Lake relied on her knowledge that a stop sign was there when she entered the
intersection.
Bowman also claims that Glimcher owed Bowman a duty of reasonable
care because she was using land that appeared to be a public highway. She
cites the Restatement (Second) of Torts § 367, relating to dangerous
conditions on land appearing to be a highway, and argues that Glimcher
breached the duty of care set forth in that section.
“A trial court may enter a compulsory nonsuit on any and all causes of
action if, at the close of the plaintiff’s case against all defendants on liability,
the court finds that the plaintiff has failed to establish a right to relief.”
Scampone v. Highland Park Care Ctr., 57 A.3d 582, 595 (Pa. 2012) (citing
Pa.R.C.P. No. 230.1(a), (c)). We will affirm the entry of a compulsory nonsuit
“only if no liability exists based on the relevant facts and circumstances, with
appellant receiving ‘the benefit of every reasonable inference and resolving all
evidentiary conflicts in [appellant’s] favor.’” Id. at 595-96 (quoting Agnew v.
Dupler, 717 A.2d 519, 523 (Pa. 1998)) (alteration in original).
To state a cause of action for negligence a “plaintiff must demonstrate:
(1) a duty of care; (2) the breach of the duty; (3) a causal connection between
the conduct and the resulting injury; and (4) actual loss or damage resulting
to the plaintiff.” Farabaugh v. Pa. Turnpike Comm’n, 911 A.2d 1264, 1272-
73 (Pa. 2006).
The trial court first concluded that, for purposes of the nonsuit, Bowman
was an invitee onto the land. It then noted that a landowner has an affirmative
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duty to protect a business visitor against known dangers and against dangers
that “might be discovered with reasonable care.” Trial Court Opinion, filed
Aug. 19, 2019, at 6 (“1925(a) Op.”) (quoting Emge v. Hagosky, 712 A.2d
315, 317 (Pa.Super. 1998)). It quoted the Restatement (Second) of Torts §
343, which provides:
A possessor of land is subject to liability for physical harm
caused to his invitees by a condition on the land if, but only
if, he
(a) knows or by the exercise of reasonable care would
discover the condition, and should realize that it involves an
unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the
danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against
the danger.
Restatement (Second) of Torts § 343.
The trial court reasoned that, to establish Glimcher was liable, Bowman
had to establish that a missing stop sign at the intersection created an
unreasonably dangerous condition on the property that Glimcher realized
people on the property would not discover because it was not obvious. 1925(a)
Op. at 6-7. The court concluded there was “no evidence that the lack of one
stop sign in a four-way intersection creates an unreasonably dangerous
condition.” Id. at 7. The court reasoned, “[o]ne missing sign in a four-way
intersection doesn’t create a hazard all by itself as long as everybody else is
stopping.” Id. (quoting N.T., 11/8/18 (afternoon session), at 19).
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The court further concluded that the accident “was not caused by the
absence of a stop sign.” Id. Rather, it was caused by Lake not obeying her
stop sign. Id. The court reasoned that there was no obligation to include a
four-way stop sign at every intersection, and no evidence supported the
contention that a four-way stop sign was needed at the intersection. Id. The
court further noted that Bowman presented no evidence that Glimcher “did
not inspect the property within one year of the accident, as [Bowman’s] expert
testified was their duty for reasonable care.” Id.
The court further addressed the argument that Lake “detrimentally
relied upon [Bowman’s] car stopping where [Bowman] believes a stop sign
should have been.” Id. It concluded that Lake’s testimony contradicted this
theory, noting Lake testified that “(i) she was aware that the alleged stop sign
was ‘down all the time,’ (ii) . . . her view was not obstructed as to where the
stop sign would have been, and (iii) . . . she ‘was not cognitively at that time
thinking that [Bowman’s car] was going to stop.’” Id. at 7-8 (quoting N.T.,
11/6/18 (afternoon session), at 22, 27, 34). The court further noted that
Bowman presented no expert testimony “on the human factors aspect – no
evidence that someone who has driven through the intersection would rely on
a former stop sign.” Id.
The trial court concluded:
Even when all reasonable inferences are viewed in the light
most favorable to the Plaintiff, no reasonable juror could
conclude, based on the evidence at trial, that Glimcher acted
unreasonably. The evidence is insufficient to establish that
it was unreasonable to not have a stop sign there, whether
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it was knocked down or intentionally removed. As the Court
counseled [Bowman], “What you need is an expert who says
that, for whatever reason, he can cite some construction
code like BOCA, some other statute or regulation, but for
some reason, on some theory, this intersection in the
shopping center is a dangerous intersection unless you have
a stop sign there.” [N.T. 11/9/18, at 9] [Bowman] was
unable to produce such evidence. Nonsuit was proper.
Id. at 8.
We conclude that the trial court’s entry of nonsuit was proper. As the
trial court noted, Bowman failed to establish that an unreasonable dangerous
condition existed and that Glimcher knew, or should have known, of the
condition.
Bowman also contends the court should have applied three different
sections of Restatement (Second) of Torts – Section 323, Section 324A, and
Section 367. However, even if the trial court had applied those sections,
Bowman still would not have been entitled to relief.
Section 323 provides that a person is liable if, among other things, that
person undertakes to render services that he or she should recognize as
necessary to protect others and fails to exercise reasonable care in performing
the undertaking:
One who undertakes, gratuitously or for consideration, to
render services to another which he should recognize as
necessary for the protection of the other’s person or
things, is subject to liability to the other for physical harm
resulting from his failure to exercise reasonable care to
perform his undertaking, if
(a) his failure to exercise such care increases the risk of such
harm, or
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(b) the harm is suffered because of the other’s reliance upon
the undertaking.
Restatement (Second) of Torts § 323 (emphasis added). Similarly, Section
324A provides:
One who undertakes, gratuitously or for consideration, to
render services to another which he should recognize as
necessary for the protection of a third person or his
things, is subject to liability to the third person for physical
harm resulting from his failure to exercise reasonable
care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk
of such harm, or
(b) he has undertaken to perform a duty owed by the other
to the third person, or
(c) the harm is suffered because of reliance of the other or
the third person upon the undertaking.
Restatement (Second) of Torts § 324A.
Here, as the trial court explained, Bowman did not present evidence that
a fourth stop sign was necessary for the protection of those using the
intersection. Rather, Bowman appears to have assumed that such was the
case. Nor was there evidence that Glimcher failed to act with due care.
Although Bowman’s expert testified that Glimcher had a duty to maintain the
stop signs, including a duty to inspect the property at least once a year, there
was no evidence of a breach of such duties. Bowman presented no testimony
as to when the sign was removed, or any evidence that Glimcher knew, or
should have known, that any stop sign was missing.
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Nor does Section 367 afford Bowman an avenue for obtaining relief.
That section requires findings that the individual failed to exercise reasonable
care and failed to maintain a road in a reasonably safe condition for travel:
A possessor of land who so maintains a part thereof that he
knows or should know that others will reasonably believe it
to be a public highway is subject to liability for physical harm
caused to them, while using such part as a highway, by his
failure to exercise reasonable care to maintain it in a
reasonably safe condition for travel.
Restatement (Second) of Torts § 367 (emphasis added).
As with Sections 323 and 324A, Bowman did not present evidence to
support liability under Section 367. Bowman did not present sufficient
evidence to support a finding that Glimcher failed to exercise reasonable care
to maintain the “road” through the parking lot in a reasonably safe condition
for travel. In sum, Bowman failed to establish Glimcher was liable for any
injury caused by the accident under any of the theories she offers.
II. Motion for Recusal
Bowman next claims the trial court erred in denying her motion for
recusal. She claims the trial court “went into and along with the matter with
a prepared conclusion regarding the case’s merits, and commented on defense
counsel’s notoriety and fame with implications of praise and admiration.”
Bowman’s Br. at 24. She claims the court’s comments regarding her case, and
its actions during trial, “were intemperate, and raise an appearance and
inference of bias.” Id. at 25. She stated that the “bias presents a substantial
doubt as to [the trial court’s] ability to preside impartially.” Id. Bowman
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references statements by the trial court that she claims establish bias. She
cites its referring to the “Rand the man” commercials, calling Bowman’s case
weak, reprimanding Bowman’s counsel for interrupting, telling her counsel to
provide cases to support his legal theories, and deciding motions against
Bowman before hearing Bowman’s argument.
This Court reviews the denial of a motion to recuse for an abuse of
discretion. Lomas v. Kravitz, 170 A.3d 380, 389 (Pa. 2017). “An abuse of
discretion is not merely an error of judgment, but occurs only where the law
is overridden or misapplied, or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias or ill will, as shown by
the evidence or the record.” Id. (quoting Zappala v. Brandolini Prop.
Mgmt., Inc., 909 A.2d 1272, 1284 (Pa. 2006)).
“A party seeking recusal must assert specific grounds in support of the
recusal motion before the trial judge has issued a ruling on the substantive
matter before him or her.” Rohm and Haas Co. v. Cont’l Cas. Co., 732 A.2d
1236, 1261 (Pa.Super. 1999) (citation omitted). “[R]ecusal is required
wherever there is substantial doubt as to the jurist’s ability to preside
impartially.” Id. (citations omitted). Further, “because the integrity of the
judiciary is compromised by the appearance of impropriety, a jurist’s recusal
is necessary where [the judge’s] behavior appears to be biased or prejudicial.”
Id. (citing Commonwealth v. Benchoff, 700 A.2d 1289 (Pa.Super. 1997)).
However, “opinions formed by the judge on the basis of facts introduced
or events occurring in the course of the current proceedings . . . do not
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constitute a basis for a bias or partiality motion unless they display a deep-
seated favoritism or antagonism that would make fair judgment impossible.”
Commonwealth v. Kearney, 92 A.3d 51, 61 (Pa.Super. 2014) (quoting
Liteky v. United States, 510 U.S. 540, 555 (1994)). Although a trial court
should normally leave the questioning of witnesses to counsel, it has “the right
if not the duty to interrogate witnesses in order to clarify a disputed issue or
vague evidence.” Jordan v. Jackson, 876 A.2d 443, 453 (Pa.Super. 2005)
(quoting Mansour v. Linganna, 787 A.2d 443, 446 (Pa.Super. 2001)). A new
trial based on a court questioning of a witness will not be granted “[u]nless
the complaining party can establish the judge’s questioning constituted an
abuse of discretion, resulting in discernible prejudice, capricious disbelief, or
prejudgment.” Id. at 454 (quoting Mansour, 787 A.2d at 446).
The trial court found that Bowman’s claims regarding the court’s
influence on the jury were moot, because the jury did not decide the case. It
further concluded that Bowman failed to produce evidence to establish bias,
prejudice, or unfairness, either against Bowman or in favor of Spear. 1925(a)
Op. at 9.
The trial court first addressed Bowman’s contention that the court
showed bias by referring to Spear as “Rand the man.” It noted the references
occurred out of the presence of the jury and referred to television commercials
for the law firm. See N.T., 11/2/18, at 55-56. The trial court concluded that
any reference to “Rand the man” clearly referred to the advertising campaign,
and was not an endorsement of Spear:
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Rand Spear has implemented a notorious legal advertising
campaign in the Philadelphia area over the past three
decades. One of Spear’s taglines in his ads is “Rand’s the
man.” [Bowman] took issue with the Court referring to
[Spear] as “Rand the man,” when the Court, under the
assumption that jurors would be familiar with Spear, stated,
“I don’t want to venture to guess how many people on this
jury already know that ‘Rand’s the man,’ I mean, he’s all
over TV all the time.” (N.T., 11/2/18, at 55). The Court
explained “I’ve seen the commercials . . . I think he says or
the voiceover keeps saying, ‘Rand the man.’” (N.T.,
11/2/18, at 149). Any reference to [Spear] as “Rand the
man” is clearly an allusion to his many advertisements and
not an endorsement of his character. Further, the Court did
not refer to [Spear] as “Rand the man” in front of the jury.
Even if it had, as discussed below, the jury did not decide
this case, so it is a moot point.
1925(a) Op. at 10 (citation formatting provided).
The trial court next addressed Bowman’s claim that the court showed
bias when ruling on the motion to bifurcate. It noted that it heard argument
from both parties before deciding to bifurcate the legal malpractice claim and
the underlying motor vehicle action. It stated that “[Bowman’s] contention
that the Court did not hear [Bowman’s] argument on this issue is patently
false, as the Court specifically stated, ‘I’ll listen to whatever your argument
is,’ and heard [Bowman’s] extensive ‘overlapping of issues’ argument.”
1925(a) Op. at 11 (citing N.T., 11/2/18, at 10-29). It explained that because
of the “case-within-a-case” aspect of the trial, it “found that bifurcation was
appropriate to avoid confusion to the jury and to promote an expeditious
resolution of the cases.” Id. The court explained that it made for a “much
simpler verdict sheet and jury instruction[s]” and that “[g]iving it all to them
at the same time with a convoluted verdict sheet and instruction . . . . It just
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gets more complicated if you try to combine the case within the case.” Id. at
11-12 (citing N.T., 11/2/18, at 9-10). The court reasoned that “ruling against
a party does not make the judge biased and [it] will not entertain such an
argument.” Id. at 12.
The court next addressed Bowman’s claim that it was biased because it
called her case “weak.” The court acknowledged that it did, out of the jury’s
hearing, call Bowman’s case weak. 1925(a) Op. at 12. The court noted that in
calling her case weak it “was simply highlighting to [Bowman] the issues with
her case.” Id. It was not “keeping score,” but did have an “obligation as
managing th[e] courtroom to encourage the sides to talk from time to time to
see if the case can be settled and one way of doing this is reminding people
from time to time that they have problems with the case.” Id. at 12 (quoting
N.T., 11/7/18, at 16). The court explained that Bowman “had issues with [her]
witnesses’ conflicting testimony and [her] expert’s failure to establish a safety
issue.” Id. It concluded that calling her case weak was “not a biased
statement, but an objective one based on the facts presented at trial.” Id.
The court also addressed Bowman’s claim that the court was biased
because of its demeanor during Bowman’s testimony. The court noted that
counsel accused the court of rolling its eyes, but later recanted this statement
and Spear’s counsel stated it never happened. 1925(a) Op. at 12-13. As to
the court’s statements during Bowman’s testimony asking whether Bowman
responded to a question and noting that “[s]he keeps talking around in
circles,” the court noted that Bowman “repeatedly appeared to dodge
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answering questions regarding Ms. Lake proceeding through her stop sign.”
Id. at 13. It noted that “there were at least fourteen times in which [Bowman]
responded to the effect of ‘that’s what I thought at the time but I don’t know
now.’” Id. (quoting N.T., 11/7/18 (morning session), at 77-81). It also noted
that Bowman “stated five times that she’s not sure if Ms. Lake ever proceeded
through her stop sign, which is antithetical to the basis of her lawsuit.” Id. at
13. The court stated that “[t]he entire exchange was confusing and illogical
and the Court accurately described [Bowman] as ‘talking around in circles.’”
Id. It then “questioned [Bowman] to make sure she understood the questions
being asked.” Id. It concluded that its comments “were accurate and
appropriate.” Id.
The court concluded that Bowman “was unable to produce any evidence
establishing bias, prejudice, or unfairness which raised a substantial doubt as
to the Court’s ability to preside impartially.” 1925(a) Op. at 14. It stated that
it “bent over backwards” for Bowman, pointing out that it had allowed her
expert to testify, despite reservations, but that “when all was said and done,
when you rested, we were left with a record where I just couldn’t find that
you had made out a case.” Id. at 14-15 (quoting N.T., 3/11/19, 28-29). The
court continued, “[a]nd that is not the result of bias. That’s the result of giving
you every opportunity.” 1925(a) Op. at 15 (quoting N.T., 3/11/19, 28-29).
The court concluded it appropriately did not recuse itself.
We conclude that the court did not abuse its discretion in concluding
Bowman failed to establish that recusal was necessary. As the trial court
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noted, its reference to “Rand the man” referred to a commercial, was not in
front of the jury, and was not any kind of endorsement. Further, that the court
may have seemed inclined to grant the motion to bifurcate prior to hearing
Bowman’s argument does not establish bias. Neither does its statement that
Bowman’s case was weak indicate bias. The court’s frank assessment of
Bowman’s case, away from the jury, is not evidence of bias. Indeed, as the
trial court pointed out, it gave her the opportunity to prove her case. Further,
the court’s questioning of Bowman in no way rose to the level of establishing
prejudice, bias, or ill will. The court’s questions were reasonable efforts to
bring clarity to confusing testimony. Even considering the trial in totality,
Bowman has failed to carry her burden to establish substantial doubt about
the trial court’s ability to preside impartially.
III. Motion for New Trial
In her final claim, Bowman maintains the trial court erred in denying her
request for a new trial. She claims the trial court applied an incorrect standard
to her theory of the case. She claims her theory was based on the common
law theory of a negligent/gratuitous undertaking, under the Restatement
(Second) of Torts §§ 323 and 324A. She argues that, under these sections,
once Glimcher erected a stop sign, it had a duty to “consider the possible
reliance by some member of the traveling public on that traffic control” and
“maintain its highway in a manner to protect travelers from dangers that could
be anticipated and avoided.” Bowman’s Br. at 27 (citation and internal
quotation marks omitted). She argues that Pennsylvania requires the “non-
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negligent maintenance of discretionary duties voluntarily assumed.” Id. at 29.
She argues that her expert did not need to opine that a four-way stop sign
was the only way to make the intersections safe. Rather, because Glimcher
gratuitously undertook to add a four-way stop sign, it had to exercise
reasonable care to protect this undertaking because drivers rely upon the
traffic control devices there.
We apply the following standard of review to a court’s decision to deny
a motion for a new trial:
We will reverse a trial court’s decision to deny a motion for
a new trial only if the trial court abused its discretion. We
must review the court’s alleged mistake and determine
whether the court erred and, if so, whether the error
resulted in prejudice necessitating a new trial. If the alleged
mistake concerned an error of law, we will scrutinize for
legal error. Once we determine whether an error occurred,
we must then determine whether the trial court abused its
discretion in ruling on the request for a new trial. An abuse
of discretion exists when the trial court has rendered a
judgment that is manifestly unreasonable, arbitrary, or
capricious, has failed to apply the law, or was motivated by
partiality, prejudice, bias, or ill will.
Gbur v. Golio, 932 A.2d 203, 206–07 (Pa.Super. 2007) (citations and
quotation marks omitted).
Bowman’s claim fails for the same reasons discussed above. Even
assuming Glimcher had a duty to maintain the stop sign, Bowman provided
no evidence that Glimcher failed to act with reasonable care. There is no
evidence that Glimcher knew the stop sign was not there, and no evidence
that it reasonably could have known through the exercise of due diligence.
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Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/6/20
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