Gavin, M. v. Loeffelbein, E.

J -A24013-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MONICA GAVIN AND LUCIA : IN THE SUPERIOR COURT OF
CAREZANI, EXECUTRIX OF THE PENNSYLVANIA
ESTATE OF JAMES GAVIN, DECEASED :
Appellant
v.
ELAINE LOEFFELBEIN : No. 341 EDA 2016
Appeal from the Judgment Entered March 11, 2016
In the Court of Common Pleas of Lehigh County
Civil Division at No(s): 2014-C-914
BEFORE: BOWES, J., OTT, J., and SOLANO, J.
MEMORANDUM BY BOWES, J.: FILED AUGUST 08, 2019
This matter comes before this Court on remand from the Pennsylvania
Supreme Court, following its order vacating our May 1, 2017 decision and
remanding the matter to us for proceedings consistent with its opinion. See
Gavin v. Loeffelbein, 205 A.3d 1209 (Pa. 2019) ("Gavin II"). Upon
applying its ruling to the issues raised in this appeal, we vacate the judgment
and remand for further proceedings consistent with this memorandum.
A succinct history of this case is as follows. Appellant Monica Gavin
("Monica") was married to James Gavin ("James"), who was the brother of
Appellee Elaine Loeffelbein ("Elaine").1 With a divorce action pending, Monica
1 On April 22, 2019, counsel for Elaine filed a suggestion of death in this Court
indicating that Elaine died on August 8, 2018, and no estate had been opened.
J -A24013-16
and James lived separate and apart within the marital residence where their
two children (ages seventeen and fourteen) also resided. At the end of May
2012, upon the petition of James's divorce attorney, emergency guardians of
James's person and estate were appointed.2 The guardian of the person
2 The emergency guardians were appointed pursuant to 20 Pa.C.S. § 5513,
which provides as follows:
Notwithstanding the provisions of section 5511 (relating to
petition and hearing; independent evaluation), the court, upon
petition and a hearing at which clear and convincing evidence is
shown, may appoint an emergency guardian or guardians of the
person or estate of a person alleged to be incapacitated, when it
appears that the person lacks capacity, is in need of a guardian
and a failure to make such appointment will result in irreparable
harm to the person or estate of the alleged incapacitated person.
The provisions of section 5511, including those relating to counsel,
shall be applicable to such proceedings, except when the court has
found that it is not feasible in the circumstances. An emergency
guardian so appointed for the person or estate of an alleged
incapacitated person shall only have and be subject to such
powers, duties and liabilities and serve for such time as the court
shall direct in its decree. An emergency order appointing an
emergency guardian of the person may be in effect for up to 72
hours. If the emergency continues, then the emergency order
may be extended for no more than 20 days from the expiration of
the initial emergency order. After expiration of the emergency
order or any extension, a full guardianship proceeding must be
initiated pursuant to section 5511. The court may also appoint an
emergency guardian of the person pursuant to this section for an
alleged incapacitated person who is present in this Commonwealth
but is domiciled outside of this Commonwealth, regardless of
whether the alleged incapacitated person has property in this
Commonwealth. An emergency order appointing an emergency
guardian of the estate shall not exceed 30 days. After 30 days, a
full guardianship proceeding must be initiated pursuant to section
5511.
-2
J -A24013-16
promptly moved James into an assisted living facility at the end of May 2012.
The emergency guardian for James's estate was given the power and duty to
ascertain and administer all of James's property, and to identify and ascertain
the whereabouts of all property he co -owned. Ultimately, on August 20, 2012,
a permanent guardian was appointed for James.
In the meantime, James had valuable memorabilia, rare books,
autographs, and antiques that he kept in boxes in the basement of the former
marital residence ("FMR"). Some of the boxes had been removed at James's
request by a neighbor to a rented storage facility in April 2012, but other
boxes remained in the FMR. Based upon James's fear that Monica would
destroy or dissipate the collection, Elaine contacted James's guardian and
asked that she be permitted to enter the FMR to retrieve the rest of the boxes.
The guardian refused Elaine's request, but indicated that she would see to it.
When days passed and the items remained in the FMR, Elaine contacted
James's attorney, who informed her that James had the right to remove his
personal things from the FMR. Thereafter, Elaine and James went to the FMR
and were admitted by the children. Elaine, James, and the two children took
the remaining eight to ten boxes to the storage facility.
Monica was later granted the right to inventory James's collection by the
family court. The boxes were taken to the office of James's attorney for
Monica to inspect. Left alone in a room with them, Monica determined that
items worth $236,000 were missing. As a result, Monica filed a pro se
-3
J -A24013-16
complaint against Elaine, and, eventually, a counseled amended complaint
containing counts of trespass, conversion, negligence,3 and punitive damages.
James died before the case proceeded to trial, and the executrix of his estate
was substituted as a party plaintiff ("the Estate").
At trial, the major issue was whether James had the capacity to consent
to Elaine's conduct. Monica and the Estate (collectively "Appellants")
maintained that the appointment of a guardian to administer James's estate,
even on an emergency basis before a full and final adjudication as to his
capacity, rendered him incapable of consenting. Elaine contended, and the
trial court agreed, that James retained some decision -making authority in the
absence of an adjudication of incapacity, and instructed the jury to determine
whether he in fact had capacity on July 9, 2012.
The jury found in favor of Elaine on the conversion and negligence
counts after the trial court entered a nonsuit as to trespass and punitive
damages. Appellants filed a post -trial motion alleging a number of bases
warranting a new trial. The trial court denied the motion, and Appellants
timely appealed, and subsequently perfected appellate jurisdiction by filing a
3 The alleged negligence was composed of Elaine's taking the missing
collectibles or allowing someone else to take them, as well as her failure to
(a) "obtain lawful consent before removing the collectibles" from the FMR; (b)
"properly store and safeguard the collectibles;" (c) "inventory and oversee the
collectibles;" (d) "properly insure the collectibles;" (e) "prevent the
collectibles from being lost or stolen;" (f) "return or replace the collectibles
. . upon demand." Second Amended Complaint, 5/29/14, at ¶ 26.
.
- 4 -
J -A24013-16
praecipe for the entry of judgment on the verdict. On appeal, Appellants
challenged the trial court's grants of nonsuits as to trespass and punitive
damages, as well as the trial court's instructions (or lack thereof) to the jury
as to (1) James's capacity to consent; (2) the availability of mistake of law
and mistake of fact as defenses to conversion; (3) Elaine's duty to exercise
reasonable care over the collectibles in her possession; and (4) spoliation.
This Court discerned no reversible error on any issue. As to the question
of James's continued ability to make decisions about his property after the
appointment of the emergency guardian, but before the adjudication of
incapacity pursuant to 20 Pa.C.S. § 5511, this Court held that the temporary
guardianship order had expired before July 9, 2012, and, even if it had not,
the order did not completely strip James of ability to consent to Elaine's
actions. Gavin v. Loeffelbein, 161 A.3d 340 (Pa.Super. 2017) ("Gavin I")
(vacated by Gavin II, supra).
Our Supreme Court granted allowance of appeal to address the meaning
and effect of the emergency guardian statute, 20 Pa.C.S. § 5513. That statute
provides, in relevant part:
the court, upon petition and a hearing at which clear and
convincing evidence is shown, may appoint an emergency
guardian or guardians of the person or estate of a person alleged
to be incapacitated, when it appears that the person lacks
capacity, is in need of a guardian and a failure to make such
appointment will result in irreparable harm to the person or estate
of the alleged incapacitated person. . An emergency guardian
. .
so appointed for the person or estate of an alleged incapacitated
person shall only have and be subject to such powers, duties and
-5
J -A24013-16
liabilities and serve for such time as the court shall direct in its
decree.
20 Pa.C.S. § 5513.
Our Supreme Court rejected this Court's holding that an individual may
continue to exercise some manner of control over his or her estate until he or
she is adjudicated incompetent following the procedures of § 5511. Rather,
it held that "by assigning specific duties to the guardian, the orphans' court
designates those areas of decision making to be within the exclusive purview
of the guardian." Gavin II, supra at 1223. Thus, "James'[s] ability to
consent to [Elaine's] conduct should be determined by inverse reference to
the duties assigned to" the emergency guardian. Id. at 1224. As such, "the
jury instructions regarding capacity were misleading." Id. The Court
therefore vacated our decision and remanded to us "for proceedings consistent
with this Opinion." Id. at 1225.
Accordingly, we revisit the issues Appellants have raised on appeal:
A. Did the trial court's instructions to the jury contain
substantial errors so that relief must be granted?
1. Did the court err by charging the jury to determine
whether James consented to the taking of marital
. . .
property where he had been appointed a temporary
guardian with authority over all his property?
2. Did the court err by failing to charge the jury that
mistake of law and mistake of fact are not defenses to
conversion?
3. Did the court err by failing to charge the jury that
[Elaine] had a duty of reasonable care over
collectibles she voluntarily took control over?
- 6 -
J -A24013-16
4. Did the court err by charging the jury
on spoliation
against Appellants where there was no bad faith and
the items allegedly disposed of had no evidentiary
value?
B. Did the court err by granting a nonsuit as to trespass where
James . could not lawfully consent to [Elaine] entering
. .
the [FMR] and taking the collectibles?
C. Did the court err by granting a nonsuit as to punitive
damages where Appellant[s] proved an intentional tort and
evidence was offered to support the conclusion that [Elaine]
acted in total disregard for the rights of others?
Appellants' brief at 6 (unnecessary capitalization omitted).
We conclude that application of our Supreme Court's holding to
Appellants' issue (A)(1) requires us to vacate the judgment and remand for a
new trial on Appellants' conversion claim as well as the claim that Elaine was
negligent in failing to obtain lawful consent before removing the collectibles
from the FMR. The impact of our Supreme Court's decision upon question (B)
is not readily ascertainable, and we therefore leave its resolution in the first
instance to the trial court with the benefit of advocacy from the parties.
However, issues (A)(2)-(4) and (C) are not affected by our Supreme Court's
opinion, and we affirm the trial court's rulings on those matters.4
4 Although a new trial is warranted based upon Appellant's first question, we
review the remaining issues both to define the scope of the new trial, and to
address issues likely to re -arise upon retrial. See, e.g., Mader v. Duquesne
Light Co., 199 A.3d 1258, 1270 n.2 (Pa.Super. 2018) ("[W]here the only
trial errors disclosed in the record deal with specific and discrete issues, the
grant of a new trial should be limited to those issues.") (internal quotation
-7
J -A24013-16
Appellants' initial questions concern allegations of error in the trial
court's instructions to the jury. Our review of these claims is governed by the
following standard.
Error in a charge is sufficient ground for a new trial if the
charge as a whole is inadequate or not clear or has a tendency to
mislead or confuse rather than clarify a material issue. Error will
be found where the jury was probably misled by what the trial
judge charged or where there was an omission in the charge. A
charge will be found adequate unless the issues are not made
clear to the jury or the jury was palpably misled by what the trial
judge said or unless there is an omission in the charge which
amounts to a fundamental error. In reviewing a trial court's
charge to the jury, we must look to the charge in its entirety.
Tincher v. Omega Flex, Inc., 180 A.3d 386, 397-98 (Pa.Super. 2018)
(cleaned up).
Appellants' first argument is premised upon the position that James,
being incapacitated on July 9, 2012, was incapable of giving consent to
Elaine's entry into the marital home and removal of his personal memorabilia
collection from that residence. Based upon this premise, they claim that the
trial court erroneously instructed the jury that it could determine whether
James had consented to Elaine's actions on July 9, 2012. Appellant's brief at
16.
The record indicates that the trial court outlined various sections of the
guardianship law to the jury, including the definition of an incapacitated
marks and citation omitted). We additionally note that, as the High Court
vacated our prior opinion, we include herein anew our full analysis from that
opinion of the issues unaffected by the Supreme Court's rulings.
-8
J -A24013-16
person and excerpts of the statute outlining the procedure for appointment of
an emergency guardian. See N.T. Trial, 6/12/15, at 964-67. The trial court
also read portions of the May 24, 2012 order appointing an emergency
guardian for James and then summarized what occurred during the
guardianship proceeding. The court thereafter advised the jury:
With respect to the emergency guardian, the emergency
guardian of the person was limited to placement, and to make
medical decisions. And the emergency guardian of the Estate was
for the powers that I mentioned, in terms of - including other
things - assembling [James's] personal property.
The power to the emergency guardian of the person is not
exclusive to the guardian; that is to say, that [James] was not
precluded from expressing his wishes, and making some decisions
regarding his personal property.
Id. at 969.
This charge fails to conform to the law as stated by our Supreme Court,
and thus, amounts to fundamental error. The May 24, 2012 order gave to
James's emergency guardian of the estate the power and duty "to ascertain,
assemble and administer all of the property owned by James" as well as to
identify and locate "any and all" property James co -owned. Order, 5/24/12,
at 2. Based upon the High Court's decision in this case, those powers were
exclusive to his emergency guardian pursuant to § 5513, and James no longer
had the authority to make decisions regarding the disposition of any of this
property. As this error goes to the heart of Appellants' claim that Elaine lacked
authority to remove James's property from the residence, Appellants are
-9
J -A24013-16
entitled to a new trial as to their counts for conversion and negligent failure
to obtain valid consent to remove and refuse to return the collectibles.5
We next consider the other issue affected by our Supreme Court's
construction of the emergency guardian statute: Appellants' contention that
the trial court improperly granted a nonsuit against them as to their trespass
cause of action. The following principles govern our consideration of this
claim.
A nonsuit is proper only if the jury, viewing the evidence
and all reasonable inferences arising from it in the light most
favorable to the plaintiffs, could not reasonably conclude that the
elements of the cause of action had been established.
Furthermore, all conflicts in the evidence must be resolved in the
plaintiff[s'] favor. In reviewing the evidence presented we must
keep in mind that a jury may not be permitted to reach a verdict
based on mere conjecture or speculation. We will reverse only if
the trial court abused its discretion or made an error of law.
Barnes v. Alcoa, Inc., 145 A.3d 730, 735 (Pa.Super. 2016).
In Pennsylvania, a person is subject to liability for trespass on land in
accordance with the dictates of Restatement (Second) of Torts § 158. Liberty
Place Retail Assocs., L.P. v. Israelite Sch. of Universal Practical
Knowledge, 102 A.3d 501, 506 (Pa.Super. 2014).
5 James's capacity, or lack thereof, to consent to removal of the property from
the FMR had no bearing on Appellants' claims that Elaine was negligent in her
handling of the property during the time that it was in her possession. As
such, Appellants are not entitled to a new trial as to those contentions. See,
e.g., Mader v. Duquesne Light Co., 199 A.3d 1258, 1270 n.2 (Pa.Super.
2018) ("[W]here the only trial errors disclosed in the record deal with specific
and discrete issues, the grant of a new trial should be limited to those issues.")
(internal quotation marks and citation omitted).
- 10 -
J -A24013-16
One is subject to liability to another for trespass,
irrespective of whether he thereby causes harm to any legally
protected interest of the other, if he intentionally
(a) enters land in the possession of the other, or causes a
thing or a third person to do so, or
(b) remains on the land, or
(c) fails to remove from the land a thing which he is under
a duty to remove.
Restatement (Second) of Torts § 158.
"Conduct which would otherwise constitute a trespass is not a trespass
if it is privileged." Restatement (Second) of Torts § 158, Comment e.
Furthermore, consent is a defense to all tort claims. Id. at § 892A(1). For
example, there is no liability for trespass by illegal entry "where such entry
was by permission of the owner." Gedekoh v. Peoples Nat. Gas Co., 133
A.2d 283, 284 (1957) (citing Restatement of Torts § 158). "To be effective,
consent must be (a) by one who has the capacity to consent or by a person
empowered to consent for him, and (b) to the particular conduct, or to
substantially the same conduct." Restatement (Second) of Torts § 892A(2).
However, even if the consenting person lacked capacity to consent, because
the person "is a child or one of deficient mental capacity, the consent may still
be effective if he is capable of appreciating the nature, extent and probable
consequences of the conduct consented to, although the consent of a parent,
guardian or other person responsible is not obtained or is expressly refused."
Id. at Comment b.
J -A24013-16
To establish the circumstances surrounding Elaine's July 9, 2012 entry
into the Jordan Road property, Monica presented as witnesses her children,
Edric and Aubrey, and Elaine. Elaine reported that James asked her to come
with him to his home. When Elaine arrived at the residence, she followed
James inside. Edric testified that, when Elaine and James came to the door,
he and his sister granted them entry. Aubrey confirmed that James and Elaine
arrived together to enter the residence.
Monica suggests that James could not authorize entry into his own home
because he had been adjudicated an incapacitated person on May 24, 2012.
Our Supreme Court held that the appointment of an emergency guardian
divested James of the authority to exercise powers that had been given to the
guardian. See Gavin II, supra at 1224. ("James'[s] ability to consent to
[Elaine's] conduct should be determined by inverse reference to the duties
assigned to" the emergency guardian). However, the High Court also noted
that James's ability to consent to Elaine's entry into the FMR "may not
implicate the duties assigned to his guardian of the estate." Id. at 1225 n.22.
Furthermore, the parties have not briefed whether the consent of the teenage
residents of the FMR validated Elaine's entry on the land. Therefore, rather
than determine in the first instance whether that power was encompassed
within the powers granted to James's guardians, without the benefit of
advocacy from the parties on the issue, we leave for the trial court to
- 12 -
J -A24013-16
determine upon remand whether the trespass claim should be reinstated for
presentation to the jury upon retrial of Plaintiffs' conversion claim.
We now resolve the issues not impacted by our Supreme Court's
decision in this case, starting with the remaining challenges to the jury
instructions, which we review pursuant to the standard of review noted supra.
Appellants' next such complaint is that the trial court's charge as to the
elements of conversion was incorrect. Conversion is "the deprivation of
another's right of property in, or use or possession of, chattel, or other
interference therewith, without the owner's consent and without lawful
justification." PTSI, Inc. v. Haley, 71 A.3d 304, 314 (Pa.Super. 2013)
(citations omitted). The trial court told the jury the following:
Now I'm going to define conversion. Conversion essentially
requires proof that the Defendant interfered without lawful
justification, with a Plaintiff's right of property in a particular asset.
Showing that the Defendant acted without lawful justification
is an element of the prima facie case of conversion on which the
Plaintiff bears the burden of proof. Lawful justification is not an
affirmative defense.
Where one lawfully comes into possession of a chattel, a
conversion occurs under the Pennsylvania Law, if a demand for
the chattel is made by the rightful owner and the other party
refuses to deliver.
N.T. Trial, 6/12/15, at 971.
Appellants' position as to the conversion charge is that the trial court
"erred by failing to charge the jury that mistake of law and mistake of fact are
not defenses to conversion." Appellants' brief at 26. In Hatwood v. Hosp.
- 13 -
J -A24013-16
of the Univ. of Pennsylvania, 55 A.3d 1229, 1235 (Pa.Super. 2012), we
articulated the settled principle that "only when the charge as a whole is
inadequate or not clear or has a tendency to mislead or confuse rather than
clarify a material issue that error in a charge will be found to be a sufficient
basis for the award of a new trial." We also repeated the ensconced precept
that "a trial judge has wide latitude in his or her choice of language when
charging a jury, provided always that the court fully and adequately conveys
the applicable law." Id. Simply put, the trial court was not required to instruct
the jury in accordance with Appellants' proposed point for charge and, as long
as the proper legal concepts were conveyed to the jury, a new trial will not be
awarded.
Herein, the trial court set forth the elements of a cause of action in
conversion, including the fact that conversion occurs when property is taken
without legal justification. The trial court's repeated admonition that Elaine's
taking of the property had to be legally justified adequately expressed the
concept that "mistake of law" and "mistake of fact" are not defenses to
conversion. The conversion charge, as a whole, was neither unclear nor
inadequate, and it did not have a tendency to mislead or confuse the jury
regarding the applicable law. Hence, the trial court may elect to charge the
jury the same way in the new trial.
Appellants next maintain that the court erred when it did not "charge
the jury that defendant had a duty of reasonable care over collectibles she
- 14 -
J -A24013-16
voluntarily took control over." Appellants' brief at 30 (emphasis omitted).
The trial court gave the following instruction as to negligence:
Now I'm going to define negligence for you. In this case,
you must decide whether Elaine Loeffelbein was negligent. A
person must act in a reasonably careful manner to avoid harming
others. The care required varies according to the circumstances,
and the degree of danger at a particular time.
You must decide how a reasonably careful person would act
under the circumstances established by the evidence in this ease.
A person who does something reasonably - I'm sorry. A person
who does something a reasonably careful person would not do
under the circumstances, is negligent. A person also can be
negligent by failing to act. A person who fails to do something a
reasonably careful person would do under the circumstances is
negligent.
N.T. Trial, 6/12/15, at 970-71.
Appellants argue that the court should have specifically mentioned that
Elaine had a duty to reasonably care for the collection. This entire case was
solely about items purportedly missing from the recovered boxes containing
the collection. In light of the facts and Appellants' position at trial, the jury
certainly was aware that the averments relating to Elaine's negligence
concerned her actions that allegedly resulted in lost artifacts of memorabilia.
We decline to award a new trial based upon the trial court's failure to include
the wording that Elaine's duty of care related to the "collectibles she
voluntarily took control over."
Appellants' final claim of error as to the jury instructions is that the court
improperly charged the jury as to spoliation. The following facts are pertinent.
Monica claimed that she inventoried about eighty percent of the boxed
- 15 -
J -A24013-16
collection from May 2012 through July 9, 2012. As noted, Monica performed
a second inventory alone in Attorney Barr's office in May 2013. Monica
averred that her second inventory revealed that 296 articles were gone, and
that they were worth $236,000. In support of her position, Monica presented
a spreadsheet inventory purportedly created prior to July 9, 2012, and
pictures of some of the memorabilia in question. Monica professed that the
computer that she used to create the inventory had crashed in the fall of 2013
and that the camera cards that she used to take pictures of the collectibles
were damaged during a flood in her home. Monica admitted that she
discarded the computer and camera cards.
During discovery, Elaine requested the computer and camera cards to
ascertain if the spreadsheet inventory was actually prepared and if the
pictures were taken before July 2012, instead of in May 2013, at the attorney's
office. Elaine presented an expert witness who reported that, if Monica had
not discarded the laptop and camera cards and had produced them for
examination, information could have been recovered from the computer and
camera cards regarding when the inventory spreadsheet was created and the
pictures were taken. Elaine noted that Monica knew that the computer and
camera cards could be pertinent in this matter by May 2013, when she
allegedly discovered that articles were missing from the collection, and
thereafter destroyed the laptop and camera cards in the fall of 2013.
- 16 -
J -A24013-16
As we observed in Rodriguez v. Kravco Simon Co., 111 A.3d 1191(Pa.Super. 2015), penalties for spoliation of evidence have been applied since
the early 17th century. The spoliation doctrine is applicable to any case
"where 'relevant evidence' has been lost or destroyed." Mount Olivet
Tabernacle Church v. Edwin L. Wiegand Div., 781 A.2d 1263, 1269
(Pa.Super. 2001), aff'd sub nom. Mount Olivet Tabernacle Church v.
Edwin Wiegand Div., 811 A.2d 565 (Pa. 2002). A party's destruction or loss
of proof that is pertinent to a lawsuit can result in a variety of sanctions. Parr
v. Ford Motor Co., 109 A.3d 682 (Pa.Super. 2014).
In reviewing the propriety of a sanction for spoliation, "we must
determine whether the court abused its discretion." Id. at 701 (citation
omitted). The trial court weighs three factors in deciding upon an appropriate
penalty for spoliation, "(1) the degree of fault of the party who altered or
destroyed the evidence; (2) the degree of prejudice suffered by the opposing
party; and (3) whether there is a lesser sanction that will avoid substantial
unfairness to the opposing party and, where the offending party is seriously
at fault, will serve to deter such conduct by others in the future." Id. at 702
(citation omitted). For purposes of
evaluation of the first prong, "the fault of the party who altered or
destroyed the evidence," requires consideration of two
components, the extent of the offending party's duty or
responsibility to preserve the relevant evidence, and the presence
or absence of bad faith. The duty prong, in turn, is established
where: (1) the plaintiff knows that litigation against the defendants
- 17 -
J -A24013-16
ispending or likely; and (2) it is foreseeable that discarding the
evidence would be prejudicial to the defendants.
Id. (cleaned up).
One sanction that a court may choose to impose when evidence is lost
or destroyed is to instruct the jury that it may infer "that the destroyed
evidence would have been unfavorable to the position of the offending party."
Rodriguez, supra at 1196. The rationale for this spoliation inference is
"nothing more than the common sense observation that a party who has
notice that evidence is relevant to litigation and who proceeds to destroy
evidence is more likely to have been threatened by" the proof in question. Id.
The crux of this lawsuit involved Monica's accusation that items of
memorabilia were missing after the collection was taken on July 9, 2012. She
represented that she inventoried eighty percent of the collection before July
9, 2012, and presented proof of her inventory that consisted of spreadsheets
created in a computer and pictures contained in camera cards. An
examination of the computer and camera card by Elaine's expert witness
would have led to verification as to when the pictures were taken and the
spreadsheets were created. After May 2013, when she purportedly discovered
the missing items, Monica intentionally destroyed the computer and camera
cards, which created evidence used in this lawsuit and which could have been
examined by Elaine's expert.
Based upon these facts, the trial court allowed the jury, in its discretion,
to decide whether Monica credibly explained why the computer and camera
- 18 -
J -A24013-16
card were unavailable for Elaine's inspection. To wit, the trial court
disseminated the Standard Jury Instruction for Spoliation of Evidence,
Instruction 5.60:
If party disposes of a piece of evidence before the other
a
party had an opportunity to inspect it, and the party who disposed
of the evidence should have recognized the evidence was relevant
to an issue in this lawsuit, then you may find that this evidence
would have been unfavorable to them, unless they
satisfactorily explain why they disposed of this evidence.
N.T. Trial, 6/12/15, at 963-64 (emphases added).
On appeal, Appellants posit that there was no bad faith by Monica since
the computer crashed and the camera cards were damaged by water.
However, whether or not Monica acted in bad faith was wholly dependent on
whether her testimony about how the objects came to be destroyed was
worthy of belief. Appellate courts do not decide whether someone has testified
truthfully, and we cannot find that Monica operated in "good faith" unless we
credit her explanation of why she disposed of the evidence. The jury was
given the task of deciding if Monica was being truthful about why she
destroyed the computer and camera card. There was no error in this respect.
Appellants also suggest that the spoliation charge was not warranted
because the computer and camera cards had "no evidentiary value."
Appellants' brief at 34. Once again, a finding that the computer and camera
cards had "no evidentiary value" requires that we credit that the computer
crashed and that the cards were water -damaged. Elaine's expert witness
reported that the computer would have revealed whether the spreadsheets
- 19 -
J -A24013-16
were created before July 2012 rather than after May 2013, when Monica had
unfettered access to the collection alone in a room. In light of the facts in
question, the important nature of the evidence in question, and Monica's
actions, we cannot find that the trial court abused its discretion in giving the
spoliation charge, and may properly to do so again upon retrial.
Finally, Appellants complain that the trial court improperly granted a
nonsuit as to their claim for punitive damages. As noted above, we review
the trial court's grant of a nonsuit for an error of law or abuse of discretion.
Barnes, supra at 735. A nonsuit is proper if the jury could not reasonably
conclude that the evidence, viewed in the light most favorable to the plaintiffs,
establishes the elements of a cause of action. Id.
Punitive damages may be awarded for conduct that is outrageous,
because of the defendant's evil motive or his reckless indifference
to the rights of others. As the name suggests, punitive damages
are penal in nature and are proper only in cases where the
defendant's actions are so outrageous as to demonstrate willful,
wanton or reckless conduct. The purpose of punitive damages is
to punish a tortfeasor for outrageous conduct and to deter him or
others like him from similar conduct. Additionally, this Court has
stressed that, when assessing the propriety of the imposition of
punitive damages, the state of mind of the actor is vital. The act,
or the failure to act, must be intentional, reckless or malicious.
Hutchison ex rel. Hutchison v. Luddy, 870 A.2d 766, 770-71 (Pa. 2005)
(cleaned up).
Appellants' position that Elaine's conduct warranted the imposition of
punitive damages is untenable. Appellants offered no evidence to suggest
that Elaine operated with evil motive or with reckless indifference to anyone's
- 20 -
J -A24013-16
rights. Elaine's actions were not so outrageous as to demonstrate willful,
wanton, or reckless conduct. Elaine acted upon legal advice that James could
enter his own home and retrieve his own personal property. That our Supreme
Court ultimately reversed this Court's agreement with that legal advice does
not elevate Elaine's conduct into the realm of the outrageous. Punitive
damages clearly were not warranted herein, and the trial court correctly
granted nonsuit as to that claim. See Phillips v. Cricket Lighters, 883 A.2d
439, 447 (Pa. 2005) (holding manufacturer that failed to place child safety
features on its lighters to avoid harm to children playing with them did not
engage in conduct that "was so outrageous as to support an award of punitive
damages"); Valentino v. Philadelphia Triathlon, LLC, 150 A.3d 483, 488-
89 (Pa.Super. 2016), affirmed by equally divided court, A.3d , 2019
WL 2587779 (Pa. June 18, 2019) (ruling triathlon organizer was not subject
to liability for punitive damages in connection with death of triathlon
participant where allegations sounded in negligence, even though averments
included that defendant was "inattentive to the needs of the contestants, failed
to inspect or maintain the event course, failed to warn of or remove dangerous
conditions, failed to properly plan or organize the event, failed to follow safety
standards, and failed to properly train and supervise its employees").
Furthermore, nothing in our Supreme Court's decision warrants the relitigation
of the issue of punitive damages upon remand for a new trial.
- 21 -
J -A24013-16
In sum, our Supreme Court's decision requires that verdicts in favor of
Elaine on the claims of conversion and negligent failure to obtain valid consent
to remove and refuse to return the collectibles be vacated and the case
remanded for a new trial on those claims. We also vacate the nonsuit on
Appellants' trespass claim and leave the question of the effect of our Supreme
Court's decision on that count for the trial court to determine in the first
instance. However, the nonsuit on the claim for punitive damages, as well as
the defense verdict as to negligence in the handling of the collection during
the time that it was in Elaine's possession, are affirmed and shall not be at
issue in the new trial. Further, the trial court may instruct the jury on
negligence, conversion, and spoliation as it did in the first trial.
Judgment vacated. Case remanded for proceedings consistent with this
memorandum. Jurisdiction relinquished.
Judge Solano did not participate in the consideration or decision of this
case.
Judgment Entered.
seph D. Seletyn,
Prothonotary
Date: 8/8/19
- 22 -