Biela, D. v. Carney Plumbing

J-S38032-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
DOROTHY BIELA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CARNEY PLUMBING, HEATING AND :
COOLING, INC. AND MOYER AND :
SON, INC. D/B/A MOYER INDOOR : No. 727 EDA 2023
OUTDOOR :
:
:
APPEAL OF: CARNEY PLUMBING, :
HEATING AND COOLING, INC. :
Appeal from the Judgment Entered April 27, 2023
In the Court of Common Pleas of Bucks County Civil Division at No(s):
2019-08021
BEFORE: LAZARUS, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED NOVEMBER 1, 2023
Carney Plumbing, Heating and Cooling, Inc. (Carney) appeals from the
judgment entered in the Court of Common Pleas of Bucks County (trial court)
after the jury found in favor of Dorothy Biela (Biela) and awarded her
$255,000 in damages in her breach of contract/negligence action against
Carney. Carney argues that Biela’s action was precluded by the Statute of
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S38032-23
Repose,1 that the court erred in precluding Carney from cross-examining
Biela’s expert about the settled party, Moyer and Son, Inc. D/B/A Moyer
Indoor Outdoor (Moyer), the court erred in failing to include Moyer on the
verdict slip, and that the damage amount should be reduced to the actual
damages sustained. After our careful review, we affirm.
I.
On August 25, 2004, Biela hired Carney to install an outdoor above-
ground oil tank to replace an old one in her basement at the suggestion of
Carney’s employee, Robert Obermeier. Biela signed a maintenance
agreement with Carney to perform yearly maintenance services through 2019
____________________________________________
1 See 42 Pa.C.S. § 5536. Section 5536 “eliminates a plaintiff’s cause of action
12 years after completion of the construction of an improvement to real
property, regardless of when plaintiff’s injury occurs. …” Vargo v. Koppers,
715 A.2d 423, 425 (Pa. 1998) (internal citation, internal quotation marks and
brackets omitted).
(a) General rule.—Except as provided in subsection (b), a civil action or
proceeding brought against any person lawfully performing or furnishing the
design, planning, supervision or observation of construction, or construction
of any improvement to real property must be commenced within 12 years
after completion of construction of such improvement to recover damages for:
(1) Any deficiency in the design, planning, supervision or
observation of construction or construction of the improvement.
(2) Injury to property, real or personal, arising out of any such
deficiency.
42 Pa.C.S. § 5536(a)(1), (2).
-2-
J-S38032-23
on her heating system, which included inspection of the outdoor oil tank and
making recommendations of items that needed replacement.
On January 24, 2019, after Moyer had filled the 275-gallon oil tank with
approximately 190.4 gallons of oil, the outdoor oil tank burst, causing oil to
leak and damage Biela’s property. On November 19, 2019, Biela filed the
complaint against Carney and Moyer. The complaint alleged negligence
against Carney for failure to install the outdoor oil tank properly and breach
of contract for Carney’s failure to inspect, evaluate and remedy any issue with
Biela’s heating system. The complaint alleged negligence against Moyer for
failure or refusal to inspect the oil tank and/or alert Biela as to its condition.
After the pleadings were closed, Carney filed a motion for judgment on
the pleadings as well as a motion for summary judgment arguing that Biela’s
claims were barred by the Statute of Repose because the oil tank was installed
in 2004, 15 years before Biela filed her complaint. The trial court denied both
motions.
Before trial, Biela and Moyer reached a settlement in which Moyer
agreed to pay Biela $75,000 in exchange for Biela executing a joint tortfeasor
pro rata release.
At trial, Carney filed a motion in support of the Statute of Repose again
contending that the outdoor above-ground oil tank was a fixture. The court
denied the motion finding that based on the evidence presented, the above-
-3-
J-S38032-23
ground oil tank was not a "fixture" because it merely sat on top of cement
lintels.
Biela presented her expert forensic mechanical engineer, Colin J.
Seybold, P.E., via videotape of his trial deposition. Prior to the video’s
presentation, Biela discussed her objection to portions of Carney’s cross-
examination of Seybold regarding Moyer’s actions or inactions. Biela’s
attorney told the court that at a pre-trial conference, Carney’s counsel had
“agreed that they would not be pointing the finger at Defendant Moyer,” a
representation that Biela’s counsel relied on in preparation for trial and,
therefore, allowing the line of questions regarding Moyer’s alleged negligence
would cause unfair surprise. (N.T. Trial, 8/30/22, at 5). Biela’s counsel
argued that Carney elected not to retain their own expert to testify against
Moyer as a potential other cause of the damages and Carney could not force
Biela’s expert to testify on Carney’s behalf. (See id. at 5-6). Finally, counsel
explained that the cross-examination about Seybold’s opinion regarding Moyer
was outside the scope of direct since Seybold had not testified about Moyer.
(See id. at 5).
Carney’s counsel agreed that he stated he would not present evidence
against Moyer. (See id. at 8). However, he argued that Seybold’s reports
contained his opinion that Moyer’s negligence in failing to inspect the oil tank
-4-
J-S38032-23
at the time of filling it could have also caused the damages.2 Because he was
going to testify as to the cause of the incident, he was not going to question
Seybold about his opinion about Moyer’s possible negligence, but impeach
Seybold and prevent the false impression that he believed that Carney was
solely responsible, when his reports reflected that he had multiple theories,
“which could have exonerated his client.” (Id. at 9); (see id. at 11-14).
The court sustained Biela’s objection and struck the line of questioning
from Seybold’s video deposition. As it explains in its opinion:
… [I]n her cross examination, counsel for Carney was
attempting to force Biela’s expert to testify on Moyer’s alleged
negligence on Carney’s behalf because Carney did not procure
their own expert opinion regarding Moyer. There was no
testimony from Mr. Seybold on direct that Moyer did anything
wrong. If Carney wanted to present expert testimony on Moyer’s
negligence, they were free to retain their own expert witness.
Carney argued that “[c]ross examination is ... permissible
to prove the substantive liability of Moyer and does not violate the
rule that one party may not compel an expert for the opposing
party to offer an opinion against his will.” However, counsel for
Carney agreed not to attempt to prove the substantive liability of
Moyer so therefore, it is not permissible. The court sustained
____________________________________________
2 Specifically, in his October 27, 2021 report, Seybold concluded “within a
reasonable degree of engineering certainty that the services provided by
Carney and by Moyer … were a cause of the oil leak ….” (Seybold Expert
Report, 10/27/21, at 10). The report stated that Carney was negligent for
failing to inspect the new tank and that it improperly installed it in the first
place. (See id. at 10-11). Seybold opined that Moyer failed to inspect the
tank before filling it, and that it was unreasonable for Moyer “to believe that
it was safe to add almost 1,400 pounds of heating oil … given the amount of
corrosion observed on the exterior of the subject tank.” (Id. at 11); (see
also Seybold Expert Report, 1/03/[22], at 2-3) (disagreeing with Carney and
Moyer’s expert reports that they were not negligent).
-5-
J-S38032-23
Biela’s objection that any testimony regarding Moyer’s alleged
negligence was irrelevant based on the parties’ agreement that
Carney would not be presenting evidence against Moyer.
(Trial Court Opinion, 6/30/23, at 6-7) (some capitalization omitted).
After Biela completed her case, Carney made a motion for directed
verdict, again on the basis of the Statute of Repose, which the trial court
denied. The trial court also entered a directed verdict in Moyer’s favor because
no evidence had been entered on the record against it, and because Moyer
was no longer a party, it was not included on the verdict sheet.
The jury returned a verdict in favor of Biela and against Carney in the
amount of $255,000, finding that Carney was both negligent and had
breached the service agreement, resulting in Biela’s injuries. (See Verdict
Slip, 8/30/22, at 1-2). Carney moved to have the verdict molded, arguing
that it improperly awarded damages in excess of those actually sustained and
should be molded to reflect the $75,000 settlement received from Moyer. The
court denied the motion, observing that Moyer is a joint tortfeasor who was
not a part of the verdict, so the verdict amount could not be molded to include
it. (See N.T. Trial, 8/31/22, at 110-11).
Carney filed a post-trial motion that included a judgment
notwithstanding the verdict (j.n.o.v.) or alternatively, a motion for a new trial.
Carney argued it was entitled to j.n.o.v. on the bases that (1) Biela’s claims
were barred by the Statute of Repose because the oil tank was not moveable
and, therefore, was an improvement to realty, and (2) the verdict awarded
-6-
J-S38032-23
damages beyond those actually sustained due to the $75,000 received as part
of the settlement with Moyer. (See Carney’s Motion for J.N.O.V., 9/08/22, at
¶¶ 1-2). Alternatively, Carney argued, in pertinent part, that it was entitled
to a new trial because the court abused its discretion by (1) precluding its
cross-examination of Biela’s expert witness Seybold, and (2) by not including
Moyer on the verdict sheet. (See Carney’s Motion for a New Trial, 9/08/22,
at ¶¶ 1-2). The trial court denied the motions. Carney timely appealed and
filed a court-ordered statement of errors complained of on appeal. 3 See
Pa.R.A.P. 1925(b).
Carney raises four claims for our review: (1) Whether j.n.o.v. by
directed verdict should be entered where Biela’s claims are barred by the
Statute of Repose; (2) Whether j.n.o.v. or a new trial is warranted where
relevant evidence by Biela’s liability expert was precluded; (3) Whether
j.n.o.v. or a new trial is warranted where Moyer should have been included on
the verdict slip; and (4) Whether the verdict should be reduced by $75,000 to
reflect damages actually incurred. (See Carney’s Brief, at 10).
____________________________________________
3 On April 25, 2023, this Court issued an order on Carney for it to praecipe the
trial court prothonotary to enter judgment on the court’s decision. On May 2,
2023, Carney provided this Court with a copy of the trial court’s docket that
reflected judgment was entered by praecipe on April 27, 2023. Therefore, we
treat the notice of appeal as filed after the entry of judgment. See Pa.R.A.P.
905(a)(5).
-7-
J-S38032-23
II.
A.
Carney argues that the trial court erred in denying its motion for j.n.o.v.
or directed verdict because Biela’s claims were barred by the Statute of
Repose where the oil tank is a fixture that was installed in 2004, which was
more than 12 years before the 2019 damage.4 It claims that the trial court
erred in denying its motions based on its finding that the tank was not a fixture
where there was no evidence that it was movable or that moving it would not
cause substantial property damage.5
____________________________________________
4 Our standards of review of the grant or denial of motions for directed verdict
and j.n.o.v. are identical. See Kelly v. Carman Corporation, 229 A.3d 634,
647 (Pa. Super. 2020). See id. We will only reverse a court’s ruling on such
a motion where we find that it abused its discretion or committed an error of
law. See id. Our standard of review is the same as the trial court’s:
There are two bases upon which a [JNOV] can be entered; one,
the movant is entitled to judgment as a matter of law and/or two,
the evidence is such that no two reasonable minds could disagree
that the outcome should have been rendered in favor of the
movant. With the first, the court reviews the record and concludes
that, even with all factual inferences decided adverse to the
movant, the law nonetheless requires a verdict in his favor.
Whereas with the second, the court reviews the evidentiary record
and concludes that the evidence was such that a verdict for the
movant was beyond peradventure.
Id. (citation omitted).
5 Biela argues, without citation to authority, that this issue is moot because
the Statute of Repose does not apply to breach of contract actions. Therefore,
argues Biela that since the jury found Carney liable for negligence AND
breaching the service agreement, even if the Statute of Repose barred the
(Footnote Continued Next Page)
-8-
J-S38032-23
“Statutes of repose differ from statutes of limitation in that statutes of
repose potentially bar a plaintiff’s suit before the cause of action arises,
whereas statutes of limitation limit the time in which a plaintiff may bring suit
after the cause of action accrues.” Varo v. Koppers Co., Inc. Engineering
and Const. Div., 715 A.2d 423, 425 (Pa. 1998) (citation omitted). “Because
it eliminates a plaintiff’s cause of action ‘12 years after completion of
construction of [an improvement to real property],’ regardless of when the
plaintiff’s injury occurs, both Pennsylvania and federal courts have
consistently held that 42 Pa.C.S. § 5536 is a statute of repose.” Id. (citation
omitted).
The party moving for protection under the Statute of Repose has the
burden to prove that “(1) what is supplied is an improvement to real property;
(2) more than twelve years have elapsed between the completion of the
improvements to the real estate and the injury; and (3) the activity of the
moving party must be within the class which is protected by the statute.” Noll
by Noll v. Harrisburg Area YMCA, 643 A.2d 81, 84 (Pa. 1994); see also
____________________________________________
negligence action, the breach of contract action would survive and Carney still
would be liable for the $255,000 in damages. (See Biela’s Brief, at 7 n.1);
(Verdict Slip, 8/31/22, at 1-2). In effect, what she is arguing is that the
negligent inspection of the tank was not covered by the Statute of Repose
because it did not involve real estate. Because the argument is not fully
developed and because of the way we have resolved this issue, we need not
address this contention.
-9-
J-S38032-23
42 Pa.C.S. § 5532. “An improvement includes everything that permanently
enhances the value of real property[]” and has been defined as:
[A] valuable addition made to property (usually real estate) or an
amelioration in its condition, amounting to more than mere repairs
or replacement, costing labor or capital, and intended to enhance
its value, beauty or utility or to adapt it for new or further
purposes ...
Noll by Noll, 543 A.2d at 87 (citations omitted; emphasis added). What
becomes problematic for purposes of Section 5536 is where chattel or
personality is attached to real property. See id. “[A] court must make an
objective determination of whether an object is a fixture for the purposes of
§ 5536.” Id. at 88; see Smith v. Weaver, 665 A.2d 1215, 1218 (Pa. Super.
1995) (“A fixture is an article … of personal property which has been so
annexed to the realty that it is regarded as part and parcel of the land.”).
In making the objective determination of whether an object is a fixture,
the court may consider:
The degree to which and manner in which the object is attached
to real property, the ease of removing the object, whether the
object may be removed without damaging the real property, how
long the object has been attached to the real property, whether
the object is necessary or essential to the real property, and the
conduct of the party and whether it evidences an intent to
permanently attach the object to the [realty].
Noll by Noll, 543 A.2d at 88 (internal citations omitted). The court need not
consider the parties’ actual state of mind, rather it is their “objective intent …
to permanently incorporate a chattel into real property as evidenced by the
- 10 -
J-S38032-23
proven facts and surrounding circumstances entered into evidence.” Id.
(citations omitted).
In this case, the trial court found that the oil tank was not a fixture and,
therefore, not an improvement to real property since it is “not affixed,
attached, not even fastened by bolts to the real property” and instead merely
sat on top of cement slabs. It replaced an indoor tank, which “is evidence of
conduct by both parties that there was never an intent to permanently attach
anything to the realty” and that they understood that oil tanks are not
permanent because they require replacement. “In fact, the parties agreeing
to move the oil tank outside the home evidences an intent to ensure the oil
tank had a less permanent effect.” (Trial Ct. Op., at 12-13). Upon our
independent review of the record, we agree.6
Biela testified that she had her indoor basement oil tank replaced at
Carney’s suggestion because it was in poor condition. (See N.T. Trial,
8/29/22, at 69); (see also N.T. Trial, 8/30/22, at 125-26). Carney employee
Obermeier testified that the outdoor oil tank sat on leveled concrete slabs.
(See N.T. Trial, 8/30/22, at 90-91). It was not affixed to the slabs, let alone
____________________________________________
6 We note that Carney complains that Biela failed to prove that the oil tank
was not a fixture because she did not provide evidence that the oil tank was
capable of being removed without damaging the property. However, we
remind Carney that it had the burden to prove that the removal of the tank
would cause damage, which they failed to do. Moreover, as explained above,
the record reflects that Biela did provide evidence that the tank was not a
permanent fixture.
- 11 -
J-S38032-23
the home. Instead, the tank had a hole to which Carney employee Obermeier
attached a drain port and two pipes that would pull the oil out of the tank to
get the oil into the house. (See id. at 98-99). Removal of the tank, therefore,
would merely require it to be unattached to the pipes and there was no
evidence that this would cause any damage to the realty.
Thus, the record supports the finding that the manner of attachment
was such that the oil tank was not a permanent improvement. It was easily
removable by detaching the pipes. The conduct of the parties reveals that
they did not intend for the tank to be a permanent fixture to the property, as
the outdoor tank replaced an indoor tank that was in poor condition, resulting
in an inference that the new tank was not permanent, but would have to be
replaced in the future, which could be more easily accomplished with its
outdoor placement.
Based on the foregoing, the trial court did not abuse its discretion in
denying Carney’s request for j.n.o.v. or directed verdict on the basis of the
Statute of Repose.7 See Kelly, 229 A.3d at 647. Carney’s first issue does
not merit relief.
____________________________________________
7 Moreover, we are not persuaded by Carney’s reliance on Radvan v. General
Electric Co., 576 A.2d 396 (Pa. Super. 1990), because it is factually
distinguishable. In Radvan, this Court affirmed a trial court’s finding that the
Statute of Repose applied to an indoor weld and side trim machine because it
“had been in place for more than thirty years; had never been moved since
its installation; was bolted to the floor and was connected to conduit piping
for power; and because its weight was in dozens of tons and it would
(Footnote Continued Next Page)
- 12 -
J-S38032-23
B.
Carney argues that the trial court abused its discretion in sustaining
Biela’s objections to a line of cross-examination of her engineering expert,
Seybold, about Moyer’s alleged negligence as a possible cause of her
damages.8 (See Carney’s Brief, at 22). It claims that Seybold authored
expert reports in advance of trial in which he set forth his conclusions and
opinions, including that Moyer was “causal[ly] negligent” for the damages
caused by the oil tank. (Id.). As a result, Carney contends that its counsel
should have been permitted to impeach Seybold to show he had several
opinions he had not presented to the jury, which was not substantive evidence
against Moyer. (See id. at 26).9
The Pennsylvania Rules of Evidence provide that “[t]he credibility of a
witness may be impeached by any evidence relevant to that issue, except as
____________________________________________
have been very difficult to dismantle.” Radvan, 576 A.2d at 397
(emphases added). This is inapposite to the situation here because the
outdoor oil tank was not affixed to the cement slabs on which it sat and there
was no evidence that dismantling it would have been very difficult.
8 “The scope of cross-examination is within the sound discretion of the trial
court, and we reverse only for an abuse of discretion.” Kimball v. Laser
Spine Institute, LLC, 264 A.3d 782, 797 (Pa. Super. 2021), appeal denied,
274 A.3d 722 (Pa. 2022) (citation omitted). “In exercising this discretion, the
trial court may limit cross-examination due to concerns that the matter is
collateral, would likely confuse or mislead the jury, or would waste time.” Id.(citations omitted).
9 The certified record does not contain a transcript of Seybold’s video
deposition, and our effort to obtain one was unsuccessful.
- 13 -
J-S38032-23
otherwise provided by statute or these rules.” Pa.R.E. 607(b). “Generally,
[e]very circumstance relating to the direct testimony of an adverse witness or
relating to anything within his or her knowledge is a proper subject for cross-
examination, including any matter which might qualify or diminish the impact
of direct examination.” Jacobs v. Chatwani, 922 A.2d 950, 965 (Pa. Super.
2006), appeal denied, 938 A.2d 1053 (Pa. 2007) (citation omitted).
In this case, the trial court asked what questions Carney’s counsel asked
during Seybold’s deposition so it could decide Biela’s objections:
THE COURT: The question says?
MS. HORNEFF: “One of the things you have—you have given an
opinion that one of the other things that caused this loss was in
the oil delivery by Moyer.” And that’s where the objection is.
THE COURT: And, therefore, you are presenting evidence of
opinions about Moyer’s conduct; correct?
MS. HORNEFF: I am presenting evidence that this expert has
given contrary—
THE COURT: You are presenting evidence against Moyer; correct?
MS. HORNEFF: No, Your Honor, I don’t believe I am.
THE COURT: So if he answers, what do you expect the answer is
going to be?
MS. HORNEFF: What did he answer?
THE COURT: You have given me opinion.
MS. HORNEFF: He never answers the question.
THE COURT: Well, then .. that doesn’t answer the question. …
* * *
- 14 -
J-S38032-23
MS. HORNEFF: The next question, Your Honor, is … “So in addition
to giving an opinion as to Carney, you also said Moyer failed to
inspect the tank when it filled the tank the day before the leak?”
And he says, “Objection. Objection. Objection.” The witness
says, “Yes, I do.”
“How often was Moyer at the home?”
“I don’t recall.”
“And do you know for how long they had been supplying oil?”
“I believe it had been a long time.”
“So they had been to the tank multiple times before the day
this happened?”
“Multiple occasions, for many years, correct.” ….
* * *
THE COURT: … He’s still not answering the question of does he
have an opinion. He has an opinion, but he never said what the
opinion is.
MS. HORNEFF: Respectfully, Your Honor, he says—I asked him
has he expressed an opinion as to Moyer and Carney, and he says,
“Yes, I do.”
THE COURT: Yes. Do you know what it is?
MS. HORNEFF: I don’t care what it is.
THE COURT: Oh, yes, you do care what it is … because you have
an agreement with the parties that he’s not going to present
evidence. And he would be speculative, which is what you are
doing. The jury can decide: “Gee, I guess that answer is yes” or
“Gee, I guess that answer is no.”
MS. HORNEFF: Your Honor, this man has an opinion that is
contrary to the opinion he has given to the jury on the stand.
- 15 -
J-S38032-23
THE COURT: But he’s not going to testify about it because you’ve
made an agreement. And, also, what is the relevancy that he has
an opinion? None. You have removed that. You made your
agreement that he’s going to present no evidence. And in addition
to that, you don’t know what his opinion is. This jury is not going
to know what his opinion is. They’re going to be asked to
speculate as to what that opinion is.
MS. HORNEFF: His opinion is that Moyer failed to inspect—
THE COURT: Where does it say that in the colloquy you just
showed me, in the questions and answers you just showed me?
MS. HORNEFF: Well, it’s in the question. You gave an opinion—
THE COURT: No, do you have an opinion. “In addition to giving
an opinion as to Carney, you also said that Moyer failed to inspect
the tank when it filled the tank the day before the leak?” And his
answer to that is, yes, they failed. Okay?
MS. HORNEFF: Okay.
THE COURT: Okay.
MS. HORNEFF: I don’t need—
THE COURT: That is contrary to your agreement; is that correct?
That is against Moyer; right?
MS. HORNEFF: I disagree, Your Honor. I think it’s impeachment
of the expert. The expert—
THE COURT: Impeachment for what? He hasn’t said anything
inconsistent. … This will be stricken.
(N.T. Trial, 8/30/22, at 11-17).
Based on our independent review of the record, we discern no abuse of
discretion by the trial court. It is undisputed that Carney voluntarily agreed
at a pre-trial conference that it would not present any evidence at trial about
Moyer’s negligence, a stipulation on which Biela’s counsel relied. (See N.T.
- 16 -
J-S38032-23
Trial, 8/30/22, at 8). Although, generally, a court has the discretion to permit
a party to cross-examine an expert about opinions in his report that conflict
with his trial testimony, the trial court precluded Carney from pursuing this
line of questioning on the basis that it agreed not to do so. Carney’s claim
that it only wanted to impeach Seybold’s testimony, not enter substantive
evidence about Moyer’s negligence, is belied by its argument that, had it been
allowed to impeach Seybold, the jury could have concluded, in pertinent part,
“that Moyer had some share of liability.” (Carney’s Brief, at 26).10
Accordingly, in light of Carney’s pre-trial agreement not to introduce any
evidence of Moyer’s negligence, we discern no abuse of discretion in the trial
court’s preclusion of Carney’s cross-examination of Seybold about whether
Moyer failed to inspect the oil tank when delivering oil to Biela. See Kimball,
264 A.3d at 797. This issue merits no relief.
____________________________________________
10 Carney relies on two court of common pleas decisions to support his
argument that “a non-settling defendant may cross-examine the plaintiff’s
expert on his report that established the settling defendant’s liability … to
impeach the expert and prevent the false impression that the plaintiff’s expert
believes that the non-settling defendant alone was responsible for the
[damages] … [and] to prove the substantive liability of the settling defendant.”
(Carney’s Brief, at 22-23) (citing Stang v. Smith, 2014 WL 11300415 (C.C.P.
Carbon Cty. 2014) and Crew v. Penn Presbyterian Med. Ctr., 2017 WL
3077927 (C.C.P. Phila. Cty. 2017)). However, the cases are distinguishable
because the non-settling defendants did not voluntarily stipulate that they
would not present any evidence regarding the liability of the settling
defendants.
- 17 -
J-S38032-23
C.
Carney next argues that the trial court erred or abused its discretion in
not including Moyer on the verdict slip for the purpose of apportioning liability.
(See Carney’s Brief, at 26-27).11
There is no absolute right to inclusion of a settling defendant on a verdict
sheet. “[T]he relevant inquiry [is] whether the evidence adduced [is]
sufficient to warrant the jury apportioning any liability to the settling
defendants.” Hyrcza, 978 A.2d at 968 (emphasis omitted).
[A] trial court must determine whether any evidence of a settling
co-defendant’s liability exists before deciding whether to put that
co-defendant on a jury verdict slip. If the evidence is insufficient
to support a prima facie case against a settling codefendant, …
such co-defendant may be left off the jury verdict slip.
Id. at 969.
In this case, the record is devoid of any evidence against Moyer because
Carney agreed not to introduce any, and the trial court properly exercised its
discretion in precluding Carney from doing so through Biela’s expert and in
entering a directed verdict in favor of Moyer. Therefore, we discern no abuse
____________________________________________
11 “A trial court’s refusal to include a settling co-defendant on a verdict slip is
reviewed for an abuse of discretion or an error of law.” Hyrcza v. West Penn
Allegheny Health System, Inc., 978 A.2d 961, 968 (Pa. Super. 2009),
appeal denied, 987 A.2d 161 (Pa. 2009) (citation omitted). “An abuse of
discretion occurs when the course pursued by the trial court represents not
merely an error of judgment, but where the judgment is manifestly
unreasonable or where the law is not applied or where the record shows that
the action is a result of partiality, prejudice, bias, or ill will.” Id. (citation and
internal quotation marks omitted).
- 18 -
J-S38032-23
of discretion in the trial court’s refusal to include Moyer on the verdict slip.
Hyrcza, 978 A.2d at 968.
D.
Carney argues that the trial court erred in denying its request to mold
the verdict to reflect Moyer’s settlement amount of $75,000, resulting in a
damages award that exceeded the amount Biela actually incurred, which is
fixed because it was only related to property damage. To allow her to recover
the whole damage amount of $255,000 based on the jury verdict is barred by
the concept of a single injury.12
“[A] non-settling tort-feasor remains liable for his full proportionate [i.e.
pro-rata] share of the damage award regardless of the amount paid by [a]
settling defendant[.]” Walton v. Avco Corp., 610 A.2d 454, 460 (Pa. Super.
1992) (citation, brackets and internal quotation marks omitted).
The inducements for a defendant to settle are the certainty of the
agreed-upon obligation and the avoidance of the vagaries of trial.
The finality of the settlement agreement is crucial. …
The actual amount of the release, if it exceeds [the settling party’s
proportionate share], is of no consequence in the satisfaction of
the judgment of the remaining defendants. The fact that the
plaintiff may receive a larger dollar amount in damages than that
fixed by the jury does not militate against such an approach. …
Charles v. Giant Eagle Markets, 522 A.2d 1, 2-3 (Pa. 1987).
____________________________________________
12 We review the trial court’s denial of Carney’s motion to mold the verdict for
an abuse of discretion. See Herbert v. Parkview Hosp., 854 A.2d 1285,
1288 (Pa. Super. 2004), appeal denied, 872 A.2d 173 (Pa. 2005).
- 19 -
J-S38032-23
Not deducting the settlement amount from the judgment
against the [non-settling tortfeasor] promotes the [Uniform
Contribution Among Tortfeasors] Act’s goal of encouraging
settlements. If the plaintiff knew that any settlement reached
would be deducted from the proportionate share owed to the
plaintiff by another tortfeasor, the plaintiff would be less likely to
settle. Similarly, tortfeasors might refuse to settle, hoping that
their just share of damages would be reduced by the settlement
amount paid by another tortfeasor.
Id. at 3 (citation omitted).
In this case, Carney voluntarily agreed not to “point the finger” at Moyer
by introducing evidence of its liability and, in fact, did not do so. Therefore,
the jury found Carney 100 percent liable for the total damage amount. Had
Carney not agreed not to present any evidence against Moyer and, instead,
presented evidence against it so the jury could determine what, if any,
percentage of liability was attributed to Moyer, Carney’s proportionate share
of the damages might have been less than $255,000.13
Accordingly, because the jury found that Carney was 100 percent liable
for the damage suffered by Biela, the trial court did not err in declining to
mold the verdict in consideration of the settlement amount paid by Moyer.
See Herbert, 584 A.2d at 1288. Carney’s final issue lacks merit.
____________________________________________
13 However, even had the jury made a finding as to the relative liability of
each defendant, the amount for which Carney would have been liable would
have been its proportionate share of the $255,000, regardless of the $75,000
Moyer settlement. See Charles, 522 A.2d at 2 (concluding non-settling
tortfeasor is required to pay his full pro-rata share, even if settling tortfeasor’s
settlement payment results in plaintiff recovering more than total damage
amount).
- 20 -
J-S38032-23
Judgment affirmed.
Date: 11/01/2023
- 21 -