J-A27043-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
HEATHER BAUMGARDNER : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : SOFITEL AND ACCOR NORTH : No. 3191 EDA 2016 AMERICA, INC. AND ACCOR : BUSINESS AND LEISURE NORTH : AMERICA, INC. AND NOVOTEL : HOTELS USA, INC. AND ACCOR : NORTH AMERICA CORPORATION : AND ACCOR BUSINESS AND : LEISURE MANAGEMENT, LLC AND : ACCOR S.A. AND BRE EVERBRIGHT : M6 LLC AND CHRISTOPHER WERELY :
Appeal from the Judgment Entered August 29, 2016 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): December Term, 2013 No. 3809
BEFORE: BOWES, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED APRIL 16, 2019
Heather Baumgardner appeals from the judgment entered on August
29, 2016, awarding her $25,000 in punitive damages after a jury trial.
Baumgardner maintains that the trial court erred by dismissing her post-trial
motion wherein she sought a judgment notwithstanding the verdict (“JNOV”)
or a new trial. Specifically, she argues that the jury returned an impermissible
verdict contrary to the trial court’s directed verdict and contends that the trial
court improperly declined to admit evidence of certain prior “bad acts” by an
employee of Appellees, Accor Business and Leisure Management, LLC, the J-A27043-18
owner and operator of the hotel, and Accor S.A., the parent company
(hereinafter “Sofitel Defendants”). We affirm on the basis on the trial court’s
opinion.
The trial court set forth the facts established at trial as follows:
[O]n November 11, 2012, [Baumgardner], was alone and asleep in her rented Sofitel Hotel room following her birthday party which took place earlier that evening in the City of Philadelphia. [Baumgardner] had been drinking and fell asleep in her room after she and her fiancé had an argument. He left the hotel and went back to his home. After her fiancé had left, but before she had fallen asleep, she was in communication with her male friend, Christopher Werley, who then came to the hotel to visit her. Whether Werley was invited by [Baumgardner] as he claimed or he showed up at the hotel on his own as claimed by [Baumgardner] was a matter of dispute for the jury to decide.
Upon his arrival at the [Sofitel Defendant’s] hotel, Werley could not get in contact with [Baumgardner] by calling her cellphone, as a result, he informed the hotel staff of the situation. Sofitel employees, Michael Davis and Elgin Scott, knocked on the door to [Baumgardner’s] room, but she did not answer. Thereafter, they opened the room’s door using an all-access electronic keycard but the safety chain was in place, thereby preventing their entry. They called out for [Baumgardner] through the opened but chained door, but did not receive an answer. They could, however, see [Baumgardner’s] feet on the bed. At that point, out of concern for [Baumgardner’s] well-being, bolt cutters were used to cut the security chain and they gained access to the room.
The Sofitel employees then left the room, but permitted Werley to remain therein. When [Baumgardner] later awoke, she saw Werley in the room, but not realizing it was him at first, became startled and scared, believing that a stranger was in her room. Based upon these facts, [Baumgardner] claimed she suffered personal injuries as a result of the negligence and outrageous conduct of the [Sofitel Defendants] and Mr. Werley.
Tr. Ct. Op., 4/5/18, at 1-2 (footnote omitted).
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Prior to trial, the Sofitel Defendants filed a motion in limine to preclude
evidence of the prior conduct of employee Davis. The trial court granted the
motion without prejudice and specifically provided Baumgardner with the right
to introduce this evidence if deemed relevant at trial. At trial, the trial court
granted Baumgardner’s motion for a directed verdict, finding that the Sofitel
Defendants were negligent as a matter of law. Therefore, the issues left for
the jury to decide were: 1) whether the Sofitel Defendant’s negligence had
caused any compensable injury to Baumgardner and 2) whether punitive
damages were warranted.
The verdict slip, which had been agreed to by both Baumgardner and
the Sofitel Defendants, mistakenly provided an opportunity for the jury to
indicate if either Accor Business and Leisure Management, LLC or Accor S.A.
were negligent, despite the trial court’s directed verdict. While the jury
indicated that it believed Accor S.A. was negligent, the jury found Accor
Business and Leisure Management, LLC was not negligent. However, the jury
also found that any such negligence did not cause Baumgardner any
compensable injury and therefore did not make any monetary award
therefrom. Moreover, the jury found that Accor S.A. had acted with reckless
indifference toward Baumgardner’s safety and thus awarded her $25,000.00
in punitive damages. Baumgardner did not object to either the verdict slip or
the verdict itself at trial.
Baumgardner filed a timely post-trial motion on May 19, 2016,
challenging, inter alia, the verdict. After the trial court inadvertently issued an
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order denying the motion on May 20, 2016, the court issued an order vacating
the previous order and directing the parties to each file a memorandum of law
within a 30-day period. A delay ensued and the trial court noted that the court
reporter did not make the trial transcript available until July 19, 2016.
Therefore, in light of its prior order, the court considered August 19, 2016 to
be Baumgardner’s due date for her memorandum of law. When
Baumgardner’s counsel did not file a brief by August 22, 2016, the court
entered an order denying Baumgardner’s post-trial motion.1 After judgment
was entered, Baumgardner filed a motion for reconsideration that the trial
court denied. The instant timely appeal followed.
Baumgardner raises the following issues for our review:
1. Whether the Philadelphia Court of Common Pleas erred or abused its discretion when it failed to grant a JNOV and order a new trial after the Court granted a directed verdict as to negligence, but returned a verdict inconsistent therewith, thereby not reaching the question of proximate cause, as it should have?
2. Whether the Philadelphia Court of Common Pleas erred or abused its discretion when it precluded evidence of [Sofitel Defendants’] past conduct, including serious and outrageous safety violations as discovered in the employment file of Michael Davis, the security supervisor who gained access into [Baumgardner’s] hotel room for intruder Christopher Werley?
3. Whether the Philadelphia Court of Common Pleas erred or abused its discretion when it prematurely denied [Baumgardner’s] post-trial motion on August 22, 2016, based ____________________________________________
1Baumgardner’s counsel contends that she did not receive the trial transcript until August 9, 2016, and thus considered her deadline to be September 8, 2016. Counsel also indicates that she had a death in the family over this time period.
-4- J-A27043-18
upon the erroneous proposition that the trial transcripts were made available to [Baumgardner’s] counsel on July 19, 2016 when [Baumgardner] did not receive the transcripts until August 9, 2016.
4. Whether the Philadelphia Court of Common Pleas erred or abused its discretion when it prematurely denied [Baumgardner’s] Motion for Reconsideration of the Court’s August 22, 2016 Order, based upon the extraordinary circumstances cited therein, including the death of trial counsel’s father during the thirty (30) day briefing schedule and the detailed timeline of events and correspondence relating to the transcription of the trial testimony?
Baumgardner’s Br. at 4-5.
We begin by noting that we will reverse an order denying a motion for
JNOV only if the “trial court abused its discretion or committed an error of law
that controlled the outcome of the case.” Sears, Roebuck & Co. v. 69th
Street Retail Mall, L.P., 126 A.3d 959, 967 (Pa.Super. 2015) (quoting
Thomas Jefferson Univ. v. Wapner, 903 A.2d 565, 569 (Pa.Super. 2006)).
“Abuse of discretion occurs if the trial court renders a judgment that is
manifestly unreasonable, arbitrary or capricious; that fails to apply the law;
or that is motivated by partiality, prejudice, bias or [ill will].” Id. (quoting
Thomas Jefferson Univ., 903 A.3d at 569) (brackets in original). Moreover,
it is axiomatic that “trial courts have broad discretion to grant or deny a new
trial.” Harman v. Borah, 756 A.2d 1116, 1121 (Pa. 2000).
Also germane to this case is the well-settled legal precept that failure to
object to a flawed jury verdict prior to a jury’s dismissal precludes a challenge
to the verdict in post-trial motions. See Stapas v. Giant Eagle, Inc., 198
A.3d 1033, 1041 (Pa. 2018) (holding that where both parties to litigation
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approved verdict sheet and did not object to verdict before jury dismissed,
post-trial objections to verdict were waived); Pa.R.C.P. 227.1(b)(1) (“post-
trial relief may not be granted unless the grounds therefore, (1) if then
available, were raised in pre-trial proceedings or by motion, objection . . . or
other appropriate method at trial.”
Baumgardner also challenges the trial court’s granting of Sofitel’s
motion in limine, albeit without prejudice. We review a trial court’s evidentiary
rulings under an abuse of discretion standard. Brady v. Urbas, 111 A.3d
1155, 1161 (Pa. 2015). As aptly noted by the trial court, under Pennsylvania’s
Rules of Evidence, prior “bad acts” are not admissible to prove a person’s
character but may be admissible to prove “motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of
accident.” Pa.R.E. 404(b).
In this case, the trial court concluded: (1) Baumgardner waived her
challenge to the jury’s verdict by failing to object at the time of trial prior to
the jury’s dismissal; (2) The trial court properly granted the Sofitel
Defendant’s motion in limine where evidence of employee’s prior conduct was
not relevant because the acts at issue were not substantially similar to the
past acts; and (3) The trial court did not err by dismissing Baumgardner’s
post-trial motion as untimely and, in any event, the court determined the
motion did not warrant relief on the merits.
After a thorough review of the record, the briefs of the parties, and the
applicable law, we affirm on the basis of the well-reasoned opinion of the
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Honorable Angelo J. Foglietta, which we adopt and incorporate herein. See Tr.
Ct. Op., at 8-11, 13-14.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 4/16/19
-7- Circulated 03/26/2019 10:56 AM
COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
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NO.: 3809 -,:J - :�:. (' r-o ACCOR LEISURE; SOFITEL, et al 3191 EDA 2016 c· ('.) 1'0
OPINION OF THE TRIAL COURT
This is the appeal of Heather Baumgardner from a verdict entered in her favor in the amount
of $25,000.00 following an eleven day jury trial. The jury awarded the Appellant no damages other
than punitive damages against the Appellees.
After the verdict was recorded, Appellant, through counsel, filed timely post-trial motions,
which were eventually denied due to Appellant's counsel's failure to comply with this Court's
briefing schedule. Thereafter, an appeal was taken on September 27, 2016 from this Court's Order
of August 22, 2016 in which Appellant's Post-trial Motion was denied.
Although Appellant filed her Notice of Appeal in excess of the 30 day requirement of
Pa.R.A.P. 903, this appeal is to be deemed timely, as "an appeal properly lies from the entry of
judgment, not from the denial of post-trial motions." Hall v. Jackson, 788 A.2d 390
(Pa.Super.2001 ). Since this Court did not enter judgment in Appellees' favor in its Order of August
22, 2016, the appeal period began to run from the date a judgment was entered on the docket, i.e.,
August 29, 2016, when Appellees filed a Praecipe to Enter Judgment on the Verdict in the amount
of $25,000.00. Rule 236 notice was sent on that same date to all parties.
Baumgardner Vs Sofitel Etal-OPFLD
I 1
111111111111111 13120380900272 I II Factually, on November 11, 2012, Heather Baumgardner, was alone and asleep in her
rented Sofitel Hotel room following her birthday party which took place earlier that evening in the
City of Philadelphia. Ms. Baumgardner had been drinking and fell asleep in her room after she
and her fiance had an argument. He left the hotel and went back to his home. After her fiance had
left, but before she had fallen asleep, she was in communication with her male friend, Christopher
Werleyi, who then came to the hotel to visit her. Whether Werley was invited by the Appellant as
he claimed or he showed up at the hotel on his own as claimed by Appellant was a matter of dispute
for the jury to decide.
Upon his arrival at the Appellees' hotel, Werley could not get in contact with Appellant by
calling her cellphone, as a result, he informed the hotel staff of the situation. Sofitel employees,
Michael Davis and Elgin Scott, knocked on the door to Appellant's room, but she did not answer.
Thereafter, they opened the room's door using an all-access electronic keycard but the safety chair
was in place, thereby preventing their entry. They called out for the Appellant through the opened
but chained door, but did not receive an answer. They could, however, see the Appellant's feet on
the bed. At that point, out of concern for Appellant's well-being, bolt cutters were used to cut the
security chain and they gained access to the room.
The Sofitel employees then left the room, but permitted Werley to remain therein. When
the Appellant later awoke, she saw Werley in the room, but not realizing it was him at first, became
startled and scared, believing that a stranger was in her room. Based upon these facts, Appellant
claimed she suffered personal injuries as a result of the negligence and outrageous conduct of the
Appellees and Mr. Werley.
On appeal, Appellant raises the following claims of error:
1 Werley was also a named defendant in this case. 2 1. Whether the Philadelphia Court of Common Pleas erred or abused its discretion when it failed to mark the verdict sheet in accordance with the granting of a directed verdict as to the Question "Was Accor Business and Leisure Management, LLC negligent?", which permitted the jury to make a finding to the contrary of the directed verdict, thereby not reaching the question of proximate cause as it should have?
2. Whether the Philadelphia Court of Common Pleas erred or abused its discretion when it failed to order a new trial after granting a directed verdict on the Question "Was Accor Business and Leisure Management, LLC negligent?" and the jury failed reach a verdict in accordance, thereby not reaching the question of proximate cause as it should have?
3. Whether the Philadelphia Court of Common Pleas erred or abused its discretion when it failed to order a judgement notwithstanding the verdict when the Verdict Sheet question "Was Accor Business and Leisure Management, LLC negligent?" was answered by the jury to the contrary of the directed verdict?
4. Whether the Philadelphia Court of Common Pleas erred or abused its discretion when it entered judgment on the verdict based upon a verdict sheet contrary to the directed verdict?
5. Whether the Philadelphia Court of Common Pleas erred or abused its discretion when it precluded evidence of Defendants past conduct, including serious and outrageous safety violations as discovered in the employment file of Michael Davis, the security supervisor who gained access into Heather Baumgardner's hotel room for intruder Christopher Werley?
6. Whether the Philadelphia Court of Common Pleas erred or abused its discretion when it overruled Plaintiff's objections to Defense Counsel's use of leading questions during direct examination for almost every area of inquiry to each and every one of Defendant's witnesses, including Vincent Vienne, Michael Davis, Christian Flaesch, and Elgin Scott?
7. Whether the Philadelphia Court of Common Pleas erred or abused its discretion when it prematurely denied Plaintiff's Post-Trial Motion on August 22, 2016, based upon the erroneous proposition that the trial transcripts were made available to Plaintiff's counsel on July 19, 2016 when Plaintiff did not receive the transcripts until August 9, 2016?
8. Whether the Philadelphia Court of Common Pleas erred or abused its discretion when it prematurely denied Plaintiff's Motion for Reconsideration of The Court's August 22, 2016, based upon the extraordinary circumstances cited therein, including the death of trial counsel's father and the detailed time
3 line of events and correspondence relating to the transcription of the trial testimony?
In this case, the verdict was recorded on May 2, 2016. Rule 236 Notice was given on May
3, 2016. Appellant filed her Post-trial Motion on May 9, 2016, to which appellees filed a response
on May 19, 2016. Inadvertently, this Court issued an Order, dated May 20, 2016 denying
Appellant's Post-trial Motion, which was vacated by this Court on June 7, 20162. Said Order
stated:
09-JUN-2016 ORDER - ORDER FOGLIETTA, 09-JUN-2016 04:48 PM . ENTERE0/236 NOTICE ANGELO 12:00 AM ,GIVEN
Documents: QRO!::R .i5LpcJf 95-16051395 IT IS ORDERED THAT THIS COURT'S ORDER OF MAY 20. 2016, DENYING PLAINTJFF'S MOTION FOR POST TRIAL RELIEF IS VACATED. PURSUANT TO PARCIV.P 227.1. PLAINTIFF SHALL FILE A POST-TRIAL MEMORANDUM OF LAW ADDRESSING THE ISSUES RAISED IN HER POST-TRIAL MOTION WITHIN THIRTY (30) DAYS OF Docket THE DATE OF THIS ORDER. DEFENDANTS SHALL FILE A RESPONSE Entry: MEMORANDUM \NITHIN THIRTY (30) DAYS FROM THE DATE OF PLAINTIFF'S FILING. THEREAFTER. THIS COURT WILL SCHEDULE ORAL ARGUMENT WITHIN THIRTY (30) DAYS ON A DATE AND TIME CONVENIENT FOR ALL PARTIES .... BY THE COURT; FOGLIETTA, J. 6-7-16
This Court was thereafter advised by Adrian Baule, the court reporter, that the trial
transcripts were available to all counsel ofrecord for all of the parties on July 19, 2016.3 Therefore,
in light of this Court's prior Order, Appellant's counsel had until August 19, 2016 to file her Brief
in Support of her Motion.
As indicated by Mr. Baule, the transcripts were emailed to Appellant's counsel on August
9, 2016, ten ( 10) days before the brief deadline due date. On August 22, 2016, this Court performed
2 Docketed June 9, 2016 with Rule 236 Notice the same date. 3 See email chain of August 15, 2016 between this Court's staff and the Court Reporter attached hereto. 4 a check of the Court Docket, which revealed that Appellant had failed to comply with this Court's
Order and, as a consequence, this Court entered the following Order" on that date:
22-AUG-2016 'ORDER - ORDER FOGLIETTA, 22-AUG-2016 12:01 PM , ENTERED/236 NOTICE ANGELO 12:00 AM !GIVEN Documents: OR.DEB_2S9pcif i 95-16051395 UPON CONSIDERATION OF THE PLAINTIFF'S POST 'TRIAL MOTION AND THE DEFENANT RESPONSE THERETO, IS IS i HEREBY ORDERED AND DECREED THAT THE PALINTIFF'S MOTION IS DENIED. ON JUNE 7, 2016, THIS COURT ISSUED AN ORDER REQUIRING PLAINTIFF TO FILE HER MOTION FOR POST TRIAL RELIEF WITHIN 30 DAYS FROM THE RECEIPT OF NOTICE OF THE i AVAILABILITY OF THE TRIAL TRANSCRIPTS THIS COURT WAS I ADVISED THAT THE COURT REPORTER. ADRIAN BAULE. HAD DEocket I ADVISED THE ATTORNEYS OF RECORD FOR THE PARTIES THAT ntry: THE TRIAL TRANSCRIPTS WERE MADE AVAILABLE ON JULY 19. 2016. BASED ON THIS COURT'S ORDER OF JULY 7, 2016, PLAINTIFF HAD UNTIL AUGUST 19. 2016 TO WHICH TO FILE HER MOTION FOR RELIEF A REVIEW OF THE DOCKET ON THIS DATE SHOWS NO EVIDENCE OF SUCH FILING AND, THEREFORE, PLAINTIFF'S MOTION FOR POST-TRIAL RELIEF. IS HEHEBY DENIED FOR FAILURE TO COMPLY VVITH THIS COURTS ORDER .. BY THE COURT: FOGLIETTA, J.
22-AUG-2016 ZR236 - NOTICE GIVEN 22-AUG-2016 12:01 PM UNDER RULE 236 12:19 PM Docket NOTICE GIVEN ON 22-AUG-2016 OF ORDER ENTERED/236 NOTICE Entry: GIVEN ENTERED ON 22-AUG-2016
Prior to the entry of the above Order, there were no requests for an extension of time to file
her supporting brief from Appellant or her counsel. Further, counsel failed to advise this Court of
the difficulty allegedly involved in obtaining the trial transcripts (although they possessed them
before the due date) and further failed to advise this Court of the personal matters which may have
warranted an extension of time if so requested.
Further, Appellant's counsel sets forth circumstances of a personal matter involving the
passing of his father, however, failed to set forth any reason why his law partner and counsel of
4 Rule 236 Notice was also dated August 22, 2016. 5 record, Michael 0. Pansini, Esquire, or other counsel within Appellant's attorney's office failed to
take any action and/or seek this Court's involvement. The August 19, 2019 deadline passed
without any action on or before that date, and this Court reasonably concluded that Appellant's
counsel had failed to comply with the time constraints of the June 9, 2016 Order.
A court has inherent power to enforce its own orders, and an appellate court should not
interfere with the enforcement absent an abuse of discretion. Commonwealth v. Shaffer, 551 Pa.
622, 712 A.2d 749 (1998). A court need not overlook a party's failure to comply with its order or
accept payment of costs tendered beyond the court-ordered deadline. See Konya v. District
Attorney, 543 Pa. 32, 669 A.2d 890 (1995).
This Court did not abuse its discretion when dismissing Appellant's post-trial motion for
her failure to comply with the scheduling order. Courts possess the inherent power to enforce their
orders by imposing penalties and sanctions on parties that fail to comply. Brocker v. Brocker, 241
A.2d 336, 338 (Pa. 1968).
On August 29, 2016, Appellees filed their Praecipe to Enter Judgment on the Verdict in
the amount of $25,000.00. Four days later, on September 2, 2016, Appellant filed a Motion for
Reconsideration of this Court's August 22, 2016 Order. Appellees filed their Reply on September
14, 2016. Thereafter, Appellant's Motion was denied by this Court on September 21, 2016, with a
Rule 236 Notice of the same date.
On September 27, 2016, Appellant filed her Notice of Appeal to the Superior Court, stating:
6 NOTICE OF APPEAL
Notice is hereby given that Plaintiff, Heather Baumgardner,. hereby appeals to the
Superior Court of Pennsylvania from a Judgment entered on August 29, 2016 and an
Order entered on September 21. 2016, and reflected 1r1 the docket entries attached hereto
as Exhibit "A"
Respectfully submitted,
PANSINI & MEZROW
BY: f�/JVIIC:HAE:LO. PANSINI. --··-·····- MICHAEL 0 .. PANSINI, ESQUIRE STEVEN M. MEZROW, ESQUIRE GREGORY J. KOWALSKI, ESQUIRE ADAM C. DAVIS, ESQUIRE Attorneys for Plaintiff
The first four (4) issues raised by the Appellant in her Statement of Matters Complained of
on Appeal are to be deemed waived, as Appellant's counsel failed to timely object to the jury's
verdict at the time it was recorded. Further, the issues raised are a misrepresentation of the actual
taking of the verdict and the jury's findings.
This Court did, in fact, direct a verdict in Appellant's favor5 and against Appellees. The
issues left for the jury to decide would be if Appellees' negligence was a factual cause in bringing
about Appellant's harm, the amount of compensatory damages, if any, and, if warranted, punitive
damages, as the jurors were instructed during the jury charge that the Appellees were negligent as
a matter of law.6
When the jury reached its verdict, it found that neither Appellee's negligence was a factual
cause in bringing about the harm Appellant had claimed, and, therefore, there was no need for the
jury to address the issue of Appellant's compensatory damages. The jury did find, however, that
5 N.T., 04-28-16, P. 38, L.22 - P. 40, L. 25. 6 N.T., 04-28-16, P. 83, L. 16-25. 7 appellee, Accor, S.A., alone had acted with reckless indifference towards Appellant's safety and
awarded her $25,000.00 in punitive damages.
After the verdict was taken from the Foreperson, the jury was polled at the request of
Appellant's counsel, which revealed a unanimous verdict by the jury. Upon completion of the
verdict, it was recorded accordingly and the jury was dismissed. At no point prior to the jury's
dismissal did any counsel object to the verdict as taken or recorded and, therefore, court was
adjourned and the trial of the matter concluded. N.T., 04-29-2016, P. 59, L. 14. to P. 65, L. 17.
Since there was no objection made at trial prior to the dismissal of the jury, Appellant has
waived these issues on appeal. The law on this exact issue is very well established: "in order for a
claim of error to be preserved for appellate review, a party must make a timely and specific
objection before the trial court at the appropriate stage of proceedings; the failure to do so will
result in a waiver of the issue." Kaufman v. Campos, 2003 PA Super 229, 827 A.2d 1209, 1212.
Only those issues which have been properly preserved at trial by way of a specific objection may
be considered on appeal. Tagnani v. Lew, 426 A.2d 595, 596 (Pa. 1981 ); Dilliplaine v. Lehigh
Valley Trust Co., 322 A.2d 114, 117 (Pa. 1974).
Pa.R.C.P. 227.1 controls in this situation and states "post-trial relief may not be granted
unless the grounds therefore, (1) if then available, were raised in pre -trial proceedings or by
motion, objection ... or other appropriate method at trial." Pa.R.C.P. 227.l(b)(l). [Emphasis
added.] Further, the Note to this Rule clearly affords Appellant no relief here, as it specifically
states that if no objection is made, then an "error which could have been corrected ... during trial
by timely objection may not constitute a ground for post-trial relief." Id., Subcommittee Note.
[Emphasis added.]
8 Without a timely objection to the verdict, this Court was unable to address any concerns
by Appellant's counsel as to his perceived defect in the verdict which could have been easily
corrected. Had an objection been made prior to the dismissal of the jurors, the issue could have
been preserved on the record, the jury advised of a mistake (if this Court did determined a mistake
was made) and then sent out to re-deliberate the issue after further instruction.
Given the failure to timely raise an objection allowed this verdict to be recorded and the
jury dismissed. As such, this Court was not given an opportunity to possibly address and correct
the issue. In light of the foregoing, these claims of error are to be deemed waived and no relief can
be afforded the Appellant.
As for Appellant's fifth claim that this Court erred when it failed to permit into evidence
the Defendants' past conduct, including serious and outrageous safety violations, is also without
merit, as this issue was initially addressed in a motion in limine filed by the Appellees in seeking
to prohibit such evidence for the jury's consideration.
Based upon the Appellees' motion and Appellant's reply, this Court ruled that the
Appellant was precluded from introducing evidence and/or testimony concerning these other
incidents based, in part, on the fact that the Appellant had failed to meet her burden to establish
that the other incidents were substantially similar to the incident in question and were therefore
relevant to the matters at issue.
This Court determined that the disciplinary action taken against Appellee's employee,
Elgin Davis on these prior occasions had nothing to do with issues of guest safety but instead
addressed his failure to properly carry out his duties in the aftermath of two incidents that had
occurred at the hotel in 2008. In this instance, Mr. Davis' post-incident conduct was not at issue
before the jury since the claims presented by Appellant involved his actions in regard to entering
9 the Appellant's room and permitting Mr. Werley to remain after he left. This Court emphasized
this fact as further evidence that the specifics of the other incidents were irrelevant. Nevertheless,
this Court granted the Defendants' Motion without prejudice and provided the Appellant with the
right to introduce the records if it was determined to be relevant at trial.
During trial, Appellant was afforded great latitude with regard to eliciting testimony
concerning Mr. Davis' disciplinary record. Plaintiff was permitted to introduce testimony
regarding the fact that Mr. Davis had in the past been disciplined for multiple infractions of hotel
policies and had not been terminated. The jury was free to consider this testimony and, apparently
having done so, found that Appellees had acted with reckless indifference towards Appellant's
safety and awarded punitive damages as a result.
Further, Appellant's own security expert witness, Russell Kolins, testified that the
Appellees gave only "lip service" on the issue of guest safety. The jury had every right to credit
this testimony and apparently did so, as demonstrated by its decision to award punitive damages
in favor of Plaintiff and against Appellees.
Evidentiary decisions made by the trial court are reviewed for abuse of discretion. See
Brady v. Urbas, 111 A.3d 1155, 1161 (Pa. 2015). "An abuse of discretion occurs where the court
reaches a conclusion that overrides or misapplies the law, or where the judgment exercised is
manifestly unreasonable, or is the result of partiality, prejudice, bias, or ill will. Merely that an
appellate court might have reached a different conclusion is insufficient to demonstrate an abuse
of discretion." Com. v. Wright, 621 Pa. 446, 462, 78 A.3d 1070, 1080 (2013) (citation omitted).
Pa.R.E. 404 governs this particular instance, in particular:
(b) Crimes, Wrongs or Other Acts.
(I) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show 10 that on a particular occasion the person acted in accordance with the character.
(2) Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. In a criminal case this evidence is admissible only if the probative value of the evidence outweighs its potential for unfair prejudice.
This Court determined that the other incidents of post-event conduct were irrelevant for the
purpose intended by the Appellant since they showed acts on a particular occasion prohibited under
404(b )(I) and did not reveal a permitted use under 404(b )(2).
In light of the foregoing, it was determined that this evidence was irrelevant, and that its
prejudicial effect outweighed its probative value in light of the facts. Evidence is relevant if it has
"any tendency to make a fact [ of consequence] more or less probable than it would be without the
evidence." Pa.R.E. 401. Irrelevant evidence is inadmissible, and relevant evidence "is admissible
except as otherwise provided by law." Pa.RE. 402. The "except as otherwise provided by law"
qualifier includes the principle that relevant evidence may be excluded "if its probative value is
outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence."
Pa.R.E. 403.
Had the prior issues involving Mr. Davis' actions involved his pre-incident or incident
activities, then this evidence would have been relevant and admissible, however, given that there
were no similar pre-incident occurrences involving Mr. Davis, the preclusion of this evidence was
not an abuse of discretion or an error of law. Therefore, Appellant is not entitled to relief on this
issue.
11 Appellant's sixth claim of error is also without merit. Appellant claims that there was an
abuse of discretion by this Court permitting Appellees' counsel to use leading questions during
direct examination of their witnesses.
The mode and manner of witness examination in governed by Pa.R.E. 611, which states:
(a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: (1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment.
(c) Leading Questions. Leading questions should not be used on direct or redirect examination except as necessary to develop the witness's testimony. Ordinarily, the court should allow leading questions: (1) on cross-examination; and (2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party. A witness so examined should usually be interrogated by all other parties as to whom the witness is not hostile or adverse as if under redirect examination.
The allowance ofleading questions is a matter within the trial court's discretion. Katz v. St.
Mary Hosp., 816 A.2d 1125, 1128 (Pa. Super. Ct. 2003). Any error in this Court's allowance of
leading questions during direct examination was harmless error, as none of the elicited responses
were of such a character that the information would not have come into evidence but for the leading
format. Cf Katz, supra.
A court's tolerance or intolerance of leading questions will not be reversed absent an abuse
of discretion. Katz, supra. Aside from a blanket claim of improperly elicited testimony, Appellant
has failed to cite any portion of the record which she believes such allegedly elicited testimony
resulted in any prejudice to her or that the testimony would not have otherwise been elicited
12 through longer and drawn out questioning, which could be deemed an abuse of discretion. Any
error made in this claim on appeal was harmless in nature and did not result in any prejudice.
The harmless error doctrine underlies every decision to grant or deny a new trial. A new
trial is not warranted merely because some irregularity occurred during the trial or another trial
judge would have ruled differently; the moving party must demonstrate to the trial court that he or
she has suffered prejudice from the mistake. See Stewart v. Motts, 539 Pa. 596, 654 A.2d 535, 540
(1995); Commonwealth v. Faulkner, 528 Pa. 57, 595 A.2d 28, 39 (1991), cert. denied, 503 U.S.
989, 112 S.Ct. 1680, 118 L.Ed.2d 397 (1992); Commonwealth v. Ryder, 467 Pa. 484, 359 A.2d
379, 382 (1976). Once again, Appellant has failed to meet her burden and is therefore not entitled
to relief.
Appellant's seventh and eighth issues on appeal can be addressed together. It is this Court's
determination that no error was committed in denying her Post-Trial Motion or her Motion for
Reconsideration based upon the time line of events set forth above. The Orders issued in regard to
filings related to briefing the port-trial motions were clear and unambiguous.
Further, the Court was not advised of issues involving the alleged delay in the production
of the transcripts or in meeting filing deadlines due to personal circumstances. Appellant's counsel
failed to comply with a Court Order by failing to timely file a post-trial brief within the prescribed
deadlines, however, given that the trial transcripts were made available for counsel as of July 19,
2016, there was not a breakdown of court operations in producing the transcripts for purchase. It
was Appellant's counsel's own acts in delaying their receipt of the transcripts from their
availability date to the date that they were electronically mailed on August 9, 2016 given their
uncertainty as to which portions of the transcript they deemed necessary. It was Appellant's
counsel's procrastination which resulted in a loss of twenty (20) days of review and drafting, not
13 this Court's. Therefore, there was not an abuse of discretion in denying the Appellant's post-trial
motion for failure to timely file her brief. Cf Freeman v. Bonner, 2000 PA Super 317, 761 A.2d
1193 (2000). (Counsel's absence from jurisdiction attending to terminally ill parent did not amount
to non-negligent happenstance to justify nunc pro tune relief from judgment upon praecipe, where
counsel did not file memorandum in support of post trial motion to strike non-suit of medical
malpractice claim, and then did not arrange for substitute counsel or advise client to seek new
counsel to pursue motion.)
Further, Appellant's post-trial motion failed to contain a request designating that portion
of the record to be transcribed in order to enable the court to dispose of the motion. Since no
portion was specifically indicated, the transcription of the record was deemed unnecessary to the
disposition of the motion from the Court's standpoint. See Pa.R.C.P. 227.3.
Even if this Court did err in denying the motion on a premature basis, said error was
harmless in nature, as this Court had still considered the merits of each of the arguments set forth
in Appellant's motion, the Appellee's reply, its own notes from the trial and its Orders. Based upon
this review, this Court determined that the issues raised by her did not warrant the award of a new
trial or JNOV for the reasons set forth above. The issues presented did not contain complex issues
of law, require in depth review of the record or the evidence, or any other factors that would have
prevented this Court from denying Appellant's post-trial motion in its original Order of May 20,
2016. Despite vacating that Order and issuing a Revised Order on June 7, 2016, the fact remains
that this Court did review the Appellant's motion on its merits and whether the matter was timely
briefed, re-reviewed and argument conducted, absent a change in the law, the outcome would have
been the same, i.e., a denial of the claims for JNOV or a new trial, as these remedies were not to
be awarded to the Appellant for the reasons set forth herein.
14 In light of the foregoing, this Court's denial of the Appellant's Motion for Post-Trial Relief
and her Motion for Reconsideration were proper and it is requested that this Court's rulings be
affirmed on appeal.
BY THE COURT:
·fl Date: April � , 2018
15 Certificate of Service
On this date, the 5th day of April, 2018, a true and correct copy of the attached
Supplemental 1925(b) Opinion was filed by this Court with the Civil Appeals Unit for service
upon the counsel listed below via the Court's electronic filing system:
Steven Mezrow, Esq. 1525 Locust St - 15th Fl Philadelphia, PA 19102
Thomas P. Wagner, Esq. Marshall, Dennehey 2000 Market Street - Suite 2300 Philadelphia, PA 19103 Tom Muldoon
From: Baule, Adrian Sent: Monday, August 15, 2016 11:52 AM To: Muldoon, Thomas Subject: RE: Baumgardner v sofitel Attachments: Breakdown of Baumgardner vs. Sofitel trial.docx; Index with Highlights of what we would like (1).pdf
( ;ood morning, Torn.
;\Ir. .vdam Davis did contact me at the end of June to talk about transcripts. There was some discussion over the phone about what might be needed. I did advise counsel to give me clearer designations as to what they wanted and a transcript order form. I also advised them that I was unavailable to do transcript work the last week of July as follows from an email I sent on 6/28/16:
"( ;ood morning, Mr. Davis.
I lnforrunatclv, lam not able to get to the transcript that you talked to me about over the phone on l"t·iday, 6/24/16. Twas out of town this weekend and am currently on a daily copy trial this week which is keeping me occupied. I will be leaving this weekend out of town on vacation and will be out for the following week. I should be returning to work on 7 / 11 / 16. I won't be able to even get s 1 ;1 rt cd on doing work on the transcript until then.
I guess I'm still not very clear as to what portion of the transcript you need. This trial spanned over I wo weeks, and there was as much interspersed discussion, motions, colloquy, etc. between the ( .ourt and counsel as there was testimony. Should you still require a transcript, please completely rill out a transcript order form and send it to my office. You can email it also to I r:111scripts(ZtJcourts.phila.gov. Please send clear designations of what you arc looking for. The more i 11 fo you can provide on a section you're looking for, the better (i.c. dates, what particular matter or issue was discussed, etc.) If it's too vague or expansive, it will be very time consuming, and you might have to order the entire transcript.
Si11ccrely,
.vdrian Dale Baulc" . ill*****t************
There was some email correspondence on 7 /8, 7 /9, 7 /10, and 7 /11 with a little more discussion about what they needed, but it wasn't clear as to what days everything happened on. Suhsec1uently, I did compile and email counsel on 7 /19 /16 a detailed breakdown of the two-week rria l (which most reporters don't do) in order to assist counsel in how to properly designate and I irclcr trial transcript portions, which I have attached to this email. I then received an email from .vd.un Davis on 7 /28/16 with the portions highlighted that they needed from the trial which I have also attached to this email. I then instructed him how to designate it on the transcript order form, and 1 did receive a faxed transcript order form on that day also. I completed the requested transcripts and invoiced their firm on 8/1/16. I received payment in the mail on 8/8/16 and cm;1ilcd them the transcripts on 8/9 / 16.
i I< >pc this helps.
vdrian Dale Haulc
I :rnm: :\Juldoon, Thomas >�L·11t: i\londay, 1\ugust 15, 2016 11:12 AM · ! 'r >: lht1lc, . \drian :. .:.uhjcct: Baumgardner v sofitel
\clrian, good morning. Sorry to re-kindle this nightmare again for you, but I need a little, but spcci fie info.
The plainti ff filed post-trial motions. We ordered that the motion be filed within 30 days after 1Tc('ipt of the trial transcripts. Tom Wagner had advised that the transcripts were available on July 18 or 19. Today, we rec'd a more detailed letter from him advising that Mr. Mczrow had not , rn le red the trial transcripts but had been in contact with you requesting certain parts of the trial lcsrimony, hut no formal request has been made.
Is this accurate? Can you please let me know if a proper and formal transcript request has been submitted by plaintiff and if so, the dates. If not, then please advise as to the dates (if possible) and manner of contact by plaintiffs counsel. Laslty, did you provide him with the notes he was seeking :111cl if so, when?
Thank you for your help. Hope all is well.
']'()111
Thomas P. i\'luldoon,Jr., Esq. I .;1w ( .lcrk to the Honorable Angelo J. Foglietta Court of Common Pleas - First Judicial District City 11 all - 692 Philadelphia, PA 19107 2 I S-686- 7946
2 Heather Baumgardner vs. So[ite/, etc. Jury Trial
Thursday 4/14/16
Motions in limine
Friday 4/15/16
Jury selection held off the record without court reporter
Plaintiff's motion in limine to preclude evidence of pre-incident and post-incident contact between the H. Baumgardner and C. Werley denied
Monday 4/18/16
Judge's preliminary instructions
Opening statements
Glen Conway examination
P/0 Johnson examination
Lunch
Vincent Vienne Examination
Tuesday 4/19/16
Christian Flaesch examination
Wednesday 4/20/16
Michael Davis examination
Recess
Russell Kollins voir dire examination
Thursday 4/21/16
Russel Kollins examination
Lunch (jury dismissed) Colloquy H. Baumgardner on offer
Objections regarding testimony of Russell Kollins
Monday 4/25/16
Heather Baumgardner examination
(Discussion on Ms. Baumgardner rejecting offer without jury's presence)
Heather B. examination continued
Ira Solomon examination
Tuesday 4/26/16
Chambers discussion about Plaintiff's treating counsel and four-corners of report/Discussions on financial disclosures of Defendant hotels
Elgin Scott examination
Reading/Moving in wealth of Defendant hotels
Plaintiff moves in exhibits and rests
Defense motions for non-suit (continued to next day)
Wednesday 4/27 /16
Chambers discussion on Defense motions for directed verdict/ non-suit/Mr. Greenberg let out of case
Dr. Barbara Ziv examination
Pamela King examination
Video clips of C. Werley's depositions played for the jury
Plaintiff's counter designations/readings of C. Werley's depositions
Defense moves in exhibits/rest?
Thursday 4/28/16
Chambers discussions on Plaintiff's motion for directed verdicts Other motions held in chambers
(Jury charge conference held off the record without reporter)
Discussion on cross-claim (Chris Werley) and verdict sheet objection
Defense rests
Closing Arguments
Jury Charge
Friday 4/29/16
Question from jury. LENGTHY discussion on question "What is the legal definition of reckless indifference," and answer to the jury
Verdict Heather Baumgardner vs. Sofjte/, etc. Jury Trial
Plaintiff's motion in limine to preclude evidence of pre-incident and post-incident contact between the H. Baumgardner and C. Werley denied
(Discussion on Ms. Baumgardner rejecting offer without jury's presence)
Chambers discussion about Plaintiff's treating counsel and four-corners of report/Discussions on financial disclosures of Defendant hotels
Chambers discussion on Defense motions for directed verdict I non-suit/Mr. Greenberg let out of case
Video clips of C. Werley's depositions played for the jury
Plaintiff's counter designations/readings of C. Werley's depositions
Chambers discussions on Plaintiff's motion for directed verdicts Other motions held in chambers
(Jury charge conference held off the record without reporter)
Discussion on cross-claim (Chris Werley) and verdict sheet objection
Question from jury. LENGTHY discussion on question "What is the legal definition of reckless indifference," and answer to the jury
Verdict Colloquy H. Baumgardner on offer
(Discussion on Ms. Baumgardner rejecting offer without jury's presence)
Chambers discussion about Plaintiff's treating counsel and four-corners of report/Discussions on financial disclosures of Defendant hotels
Heading/Moving in wealth of Defendant hotels
W (' d n c s
Chambers discussion on Defense motions for directed verdict I non-suit/Mr. Greenberg let out of case Dr. Barbara Ziv examination
Video clips of C. Werley's depositions played for the jury
Plaintiff's counter designations/readings of C. Werley's depositions
Chambers discussions on Plaintiff's motion for directed verdicts Other motions held in chambers
(Jury charge conference held off the record without reporter)
Discussion on cross claim (Chris Werley) and verdict sheet objection
merits
I rid ;i y/l[2
Verdict