J-A10019-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
GEORGE MANUEL, AS : IN THE SUPERIOR COURT OF ADMINISTRATOR OF THE ESTATE OF : PENNSYLVANIA ROSEMARY K. MANUEL : : Appellant : : v. : : RICHARD LEIGHTON; MONROETON : ROD & GUN CLUB; MONICA : LANDMESSER; THE NEW BUCKET, : INC.; STAR MCKEAN; AND KATIE : BRIDE : No. 589 MDA 2021
Appeal from the Judgment Entered April 23, 2021, in the Court of Common Pleas of Bradford County, Civil Division at No(s): 2016-CV-0123.
BEFORE: PANELLA, P.J., KUNSELMAN, J., and KING, J.
MEMORANDUM BY KUNSELMAN, J.: FILED: JULY 11, 2022
The Plaintiff in this wrongful-death action, George Manuel, Administrator
of his mother Rosemary Manuel’s estate, appeals from the judgment entered
in his favor and against Richard Leighton for $594,945.21. The parties agree
Mr. Leighton drove while drunk, collided with Ms. Manuel’s car, and caused
her death. The Administrator believes two bars — the Monroeton Rod & Gun
Club (“the Gun Club”) and The New Bucket, Inc.1 — are also liable for his ____________________________________________
1 Mr. Manuel sued six individuals due to their roles as employees or directors of the bars. Lynn Ann Westbrook, Monica Landmesser, Paul Dodge, and Linda Staton are (or were) agents of the Gun Club, and Star McKean and Katie Bride are agents of The New Bucket. Ms. Westbrook, Mr. Dodge, and Ms. Staton are no longer parties to this case, so we removed their names from the (Footnote Continued Next Page) J-A10019-22
mother’s death, because they served Mr. Leighton several beers prior to the
incident. A Bradford County jury rejected the Administrator’s claims against
the bars. As explained below, we affirm.
The trial court summarized the facts as follows:
This civil case arose out of the [March 13, 2014] death of Rosemary Manuel from a motor-vehicle accident that occurred as a direct result of the negligence of Richard Leighton who pled guilty in a separate, criminal proceeding to homicide by vehicle while driving under the influence of alcohol. Liability on the part of Mr. Leighton was admitted. See [N.T.], 8/21/20, at 171-72. The contested issues resulted from the Dram Shop action that [the Administrator] filed against . . . the two bars at which Mr. Leighton was served and consumed beer, The New Bucket and the [Gun Club] . . .
The principal issue at trial was whether either or both bars served Mr. Leighton at a time when he was visibly intoxicated. Because video surveillance from each bar captured the day’s events, there was no dispute that he was served at least eight beers at The New Bucket over 3 ½ hours (from a little before 12:00 noon to nearly 3:30 p.m.) and was served two beers at [the Gun Club] over less than 50 minutes (from about 3:40 p.m. to almost 4:30 p.m.). According to the testimony of the bartender at [the Gun Club], she told Mr. Leighton he’d “had enough” after observing him fumble with his cigarette and try to light it backwards. [N.T.], 8/20/20, at 230-235. After that, Mr. Leighton did not drink any more beer, leaving the rest of his unfinished beer on the counter. The crash occurred at or about 4:34 p.m., approximately 5 minutes after Mr. Leighton left [the Gun Club. See N.T.], 8/21/20, at 59-61.
____________________________________________
caption. The remaining three individuals presented joint defenses and appellate arguments with their respective bars. Thus, unless specifically stated otherwise below, any reference to their respective bars includes them as well, in their corporate capacities.
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Trial Court Opinion, 4/23/21, at 1. A few hours later, Ms. Manuel died.
As mentioned, the Administrator sued Mr. Leighton. He also sued the
two bars under theories of negligence per se (for allegedly violating the Dram
Shop Act) and common-law negligence (for allegedly failing to serve alcohol
and to operate their establishments in a reasonably prudent manner).
Ms. Westbrook, the manager of the Gun Club, served as its corporate
designee in this lawsuit. Throughout her testimony, the Administrator’s
attorney asked Ms. Westbrook a string of hypothetical questions. Based upon
her answers, the Administrator moved for a directed verdict against the Gun
Club. The trial court denied his motion.
Also, during trial, the Administrator expressed concerns with the video
from the Gun Club’s security cameras. Notably, that video (which a third-
party company burned to a CD and provided to the Pennsylvania State Police
shortly after Ms. Manuel’s death) plays back at superfast speed.2 The video
also has several recording gaps. The Administrator believed those gaps were
the result of the Gun Club either deleting scenes or directing the third-party
2 When we reviewed the Gun Club video, this Court’s software allowed us to slow it by lowering the playback rate. When we reduced the playback rate to 1/10 the “normal” speed, the seconds on the camera’s metadata-timestamp ran in close syncopation to the actual passing of seconds, and the people on screen moved around the bar at a natural pace. Thus, there is indisputable video evidence in the record that the State Police received a surveillance video that plays back at 10x the actual speed of events. The transcript reveals that no one knew how to slow the video at trial. Hence, the jury watched it at superfast speed, rather than at the actual pace of events from the date in question.
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company to burn only certain sections to the CD. Thus, he sought a jury
instruction on spoilation of evidence, which the trial court denied.
The Administrator’s insinuation of an altered video prompted the Gun
Club to ask one of its experts (Joseph Kolins) about the recording’s gaps. The
Administrator objected, because Mr. Kolins neither discussed nor opined on
the gaps in his expert report. The trial court overruled the objection. Mr.
Kolins testified that the gaps, which were each about 1 minute and 40 seconds
in length, resulted from normal resets of the motion-detector camera. Thus,
in the expert’s opinion, no one altered the surveillance video.
At the conclusion of trial, based upon the parties’ stipulations, the trial
court directed a verdict finding Mr. Leighton negligent. After deliberations,
the jury ruled that neither bar was negligent. The jury also awarded $500,000
in damages to the Estate of Ms. Manual from the car accident.
The trial court denied the Administrator post-trial relief, but granted
$94,945.21 in delay damages, and entered a judgment in favor of the Estate.
The Administrator timely appealed.
He raises the following five issues for our review:
1. Whether the trial court erred in not granting a directed verdict [for the Administrator] where the corporate designee [of the] Gun Club specifically admitted that its . . . bartender . . . served a visibly intoxicated [Mr.] Leighton an alcoholic beverage resulting in the death of [Ms.] Manuel and the jury was not instructed as to admissions of fact pursuant to Standard Jury Instruction 2.40 (Civ)?
2. Whether the trial court erred in not granting [JNOV in the Administrator’s] favor where the evidence is such
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that no two reasonable persons could disagree the verdict should have been entered for the [Administrator,] because on the date of this incident [Mr. Leighton] was visibly intoxicated at the time of the Trooper’s interview; the undisputed testimony is that the time of the collision was only minutes after being served a second beer at the Gun Club; and thus, [Mr. Leighton] would have to be visibly intoxicated while being served at the Gun Club?
3. Whether the trial court erred in not granting [the Administrator’s] motion for post-trial relief where Mr. Kolins, the defense Dram Shop expert, was allowed to opine on video surveillance issues outside of the four corners of his report?
4. Whether the trial court erred in not granting [the Administrator’s] Motion for Post-Trial Relief where a mistrial should have been granted concerning defendants questions regarding [Ms. Manuel] possibly not wearing a seatbelt?
5. Whether the trial court erred in not granting [the Administrator’s] Motion for Post-Trial Relief where . . . the jury was not instructed as to spoliation and adverse inferences pursuant to Standard Jury Instruction 5.30(Civ)?
Administrator’s Brief at 7-8. We address each claim in turn.
A. Alleged Admissions of Ms. Westbrook
To begin, the Administrator seeks two different remedies based on his
belief that Ms. Westbrook, the corporate designee, admitted liability on behalf
of the Gun Club. First, the Administrator requests that we award him a
directed verdict on liablity. Alternatively, he seeks a new trial and directive
that the trial court charge the jury on party-opponent admissions.
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Specifically, the Administrator seeks Pennsylvania Standard Jury Instruction
2.40 (Civ). We consider each sub-issue separately.
1. Judgment As a Matter of Law
Regarding his first sub-issue — that the trial court should have entered
a directed verdict and thereby granted judgment as a matter of law 3 — the
Administrator argues that Ms. Westbrook admitted during her deposition that
the Gun Club served Mr. Leighton beer while he was visibly intoxicated. He
3 We note that the Gun Club contends the directed-verdict request is moot at this point in the litigation. See Gun Club Brief at 18-19. A “legal question can become moot [due to] an intervening change in the facts of the case.” In re Gross, 382 A.2d 116, 119 (Pa. 1978).
When a trial court grants a directed verdict, it “directs the jury to bring in the verdict that the court specifies.” 9 STANDARD PENNSYLVANIA PRACTICE 2d § 58:70 (emphasis added). The factual change that arguably renders a post- trial request for a directed verdict moot is that the jury has already returned a verdict. Thus, after a trial has ended, there is no way for trial court (or this Court) to direct a verdict. Instead, the losing party may ask the trial court to “direct the entry of judgment in [that parties’] favor . . . .” Pa.R.C.P. 227.1(a)(2). In that respect, the Gun Club’s point is well taken. The Administrator should have sought JNOV, rather than request “a directed verdict against the Defendant Gun Club . . . .” Administrator’s Post-Trial Motion at 8, ¶ 18 (Wherefore Clause).
However, a motion for a directed verdict and a motion for JNOV are two sides of the same coin. They both seek judgment as a matter of law. Indeed, “Our standards of review when considering the motions for a directed verdict and . . . JNOV are identical.” Hall v. Episcopal Long Term Care, 54 A.3d 381, 395 (Pa. Super. 2012) (some punctuation omitted). Thus, we decline to dismiss as moot the Administrator’s post-trial request for judgment as a matter of law, because the relief he named is, for purposes of appellate review, substantively indistinguishable from the relief he should have requested. Instead, we will treat the Administrator’s post-trial request for a directed verdict as if it were a motion for JNOV.
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also claims that she admitted that serving Mr. Leighton beer was a proximate
cause of Ms. Manuel’s death. See id. at 15.
He asserts that Ms. Westbrook’s testimony binds the Gun Club and
results in it being liable, as a matter of law. The Administrator also includes
block quotes of his questions to Ms. Westbrook concerning the Gun Club’s
alleged failure to implement policies and procedures, training, and other
things that allowed Mr. Leighton, when visibly intoxicated, to be served at the
bar. Id. at 22.
After extensive review, we conclude the Administrator waived this claim,
due to insufficient development of the legal theory in his appellate brief. “The
issue of waiver presents a question of law, and, as such, our standard of
review is de novo, and our scope of review is plenary.” Trigg v. Children's
Hosp. of Pittsburgh of UPMC, 229 A.3d 260, 269 (Pa. 2020).
As Chief Justice Baer has explained, Pennsylvania’s “rules of appellate
procedure are explicit that the argument within a brief must contain ‘such
discussion and citation of authorities as are deemed pertinent.’” Wirth v.
Commonwealth, 95 A.3d 822, 837 (Pa. 2014) (quoting Pa.R.A.P. 2119(a)).
“Where an appellate brief fails to provide any discussion of a claim with
citation to relevant authority . . . that claim is waived. It is not the obligation
of an appellate court to formulate appellant’s arguments for him.” Id. (some
punctuation omitted). “Moreover, because the burden rests with the
appealing party to develop the argument sufficiently, an appellee’s failure to
advocate for waiver is of no moment.” Id.
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Here, the Administrator has failed to include any “citation to relevant
authority.” Id. (emphasis added).
Instead of opening with any applicable law, the Administrator clutters
his argument with pages of block quotes from the various transcripts. He does
not consider our scope and standard of review for a denial of a directed verdict
or JNOV. He likewise neglects to identify which of his claims of negligence
(either negligence per se or common law negligence) he believes Ms.
Westbrook admitted that the Gun Club committed. The cited testimony
involves elements of both theories of liablity. But the Administrator does not
identify which elements of the tort he claims were proven, much less explain
how Ms. Westbrook’s alleged admissions satisfy some or all of those elements
as a matter of law.
As for his primary claim under the Dram Shop Act, nowhere does the
Administrator cite or quote that statute, discuss that law in relation to the
theory of negligence per se, or offer any precedent applying it. By not
identifying the tort at issue, the Administrator has not apprised this Court as
to what he believes the substantive law is, or how he wishes us to apply it to
the evidence from trial.
Instead, this section of his brief is mostly long quotations from Ms.
Westbrook’s deposition and her trial testimony. See Administrator’s Brief at
15-22. Only two pages of argument follow, and this cursory discussion is
unclear, because the Administrator bounces back and forth between seeking
JNOV and seeking a new trial with a jury instruction on admissions of fact.
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See id. at 23-24. The Administrator seems to presume that, by reproducing
whole sections of the trial transcript in his brief, this Court will simply extract
an analysis from it. Instead, a thorough analysis, applying the substantive
law at issue to all the facts of record, was necessary to establish any legal
error that may have occurred. Such analysis is woefully absent here.
Ultimately, the Administrator claims that, even though Ms. Westbrook
was misinformed as to the number of drinks Mr. Leighton consumed at the
Gun Club while answering his hypothetical questions at her deposition, such
“admissions of fact by a corporate designee are binding upon the corporation.”
Id. at 23. To support this legal assertion, the Administrator cites only one
case, Branham v. Rohm & Haas Co., 19 A.3d 1094, 1100 (Pa. Super.
2011)).
Branham is not relevant authority, because it contains no admissions
by a corporate designee. That case involves a dispute over whether a non-
Pennsylvania company, which was not a party to the underlying suit, had to
produce a corporate designee in response to a subpoena. Thus, contrary to
what the Administrator’s brief implies, Branham does not hold that a
designee’s admissions are binding when made in response to unsubstantiated
hypothetical questions during the designee’s deposition. As a result, the
Administrator has failed to cite any relevant law to support his argument or
any “pertinent” authority, as Pa.R.A.P. 2119(a) requires.
In short, the Administrator has offered an undeveloped legal argument
as to why he is entitled to JNOV based on supposed admissions, and this Court
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“may not supply [him] with a better one.” Commonwealth v. Pi Delta Psi,
Inc., 211 A.3d 875, 884 (Pa. Super. 2019). Indeed, this Court “shall
not develop an argument for an appellant, nor shall we scour the record to
find evidence to support an argument; instead, we will deem the issue to be
waived.” Commonwealth v. Cannavo, 199 A.3d 1282, 1289 (Pa. Super.
2018), reargument denied (Jan. 29, 2019); see also Pa.R.A.P. 2119.
This sub-issue seeking JNOV is dismissed as waived.
2. The Requested Instruction Jury Instruction
As part of his first issue, the Administrator seeks an alternative remedy
of a new trial with a jury instruction on admissions of fact. Such instruction
provides:
The admission[s] of fact made by the [agent of the] [defendant] [plaintiff] in the answer to the [complaint] [or other pleading, document, statement, testimony] [has] [have] been offered by the [plaintiff] [defendant] and received in evidence. The [defendant] [plaintiff] is bound by [this] [these] admission[s].
The Standard Jury Instruction 2.40 (Civ). However, the Administrator did not
request that the trial court give this jury instruction during the charging
conference with the judge, nor did he file his proposed points for charge with
the Prothonotary of Bradford County.4
According to the Administrator’s Brief he “asked the [trial] court to give
the above instruction, but the court refused to do so.” Administrator’s Brief ____________________________________________
4 We reviewed the certified record but did not find the Administrator’s proposed points for charge.
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at 24 (citing N.T., 8/20/20, at 243). The Administrator’s citation leads this
Court to a dead end. The only action that he took at that point of the trial
was move for a directed verdict based upon the alleged admission of Ms.
Westbrook. There is no mention of any jury instruction, much less the one at
issue here. The parties and the trial court did not begin to discuss specific
jury instructions until several pages later in the transcript.5 See N.T.,
8/20/20, at 259.
“[I]ssues not raised in the lower court are waived and cannot be raised
for the first time on appeal.” Majorsky v. Douglas, 58 A.3d 1250, 1258 (Pa.
Super. 2012); see also Pa.R.A.P. 302(a).
Regarding the preservation of a challenge to a requested jury
instruction, we note: “A requested point for charge that was presented to the
trial judge becomes part of the record when the point is read into the record,
or filed in the office of the prothonotary prior to filing a motion for post-trial
relief regarding the requested point for charge.” Pa.R.C.P. 226(a). “An
appellate court will not review an objection to a ruling of a trial court regarding
a point for charge unless the point for charge was (1) presented to the court ____________________________________________
5 Even if the Administrator requested the jury instruction on admissions at another point of the trial, his failure to cite to that potential preservation also constitutes waiver under Pa.R.A.P. 2117. The appealing party must identify “the proceedings in the court of first instance . . . at which, and the manner in which, the questions sought to be reviewed were raised[, as well as t]he method of raising them (e.g. by a pleading, by a request to charge and exceptions, etc.).” Pa.R.A.P. 2117(c)(1),(2) (emphasis added). See, e.g., United States v. Morton, 993 F.3d 198, 204 n.10 (3d Cir. 2021) (observing that appellate courts do not root around the record to resolve any “mysteries” the appellant has left unanswered).
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and (2) made a part of the record by either reading the point into the record
or filing it in the office of the prothonotary prior to filing a motion for post-trial
relief.” Pa.R.C.P. 226(a) Note.
In this instance, the Administrator neither read Pennsylvania Standard
Jury Instruction 2.40 (Civ) into the record nor filed it with the prothonotary
prior to seeking post-trial relief. Thus, he has failed to raise this claim in the
court below to preserve it for appellate review.
We dismiss this sub-issue as waived, as well.
B. Additional JNOV Request
As his second claim of error, the Administrator asserts that the trial court
should have granted him JNOV based upon two facts: (1) the Pennsylvania
State Police Officer observed that Mr. Leighton had slurred speech at the scene
of the accident and (2) the Gun Club’s toxicologist opined that Mr. Leighton
would have had a blood-alcohol content (“BAC”) of 0.198.
A party is entitled to JNOV if “no two reasonable minds could disagree
that the outcome should have been rendered in favor of the movant.” Sears,
Roebuck & Co. v. 69th St. Retail Mall, L.P., 126 A.3d 959, 967 (Pa. Super.
2015). Here, the record abounds with factual disputes over whether Mr.
Leighton ever displayed signs of visible intoxication at either bar. The parade
of trial witnesses offered so many factual variations on what occurred that we
can hardly list them all here, nor do we need to do so. Two examples suffice.
First, Mr. Leighton testified that he probably was showing signs of visible
intoxication. But both bartenders testified that he did not, at least not until
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the point where the Gun Club’s bartender related that she cut him off. Thus,
the testimony of these key witnesses conflicts.
Second, and perhaps more critical to the jury’s fact-finding function, the
parties offered conflicting expert opinions on whether Mr. Leighton likely
showed signs of visible intoxication. The Administrator’s expert testified that
he did show those signs prior to being cut off. The defense’s toxicologist
opined that Mr. Leighton was a regular drinker with a higher-than-average
tolerance; the toxicologist concluded that, despite Mr. Leighton’s BAC being
0.198 when he left the Gun Club, he likely would have held his alcohol and
would not have shown outward signs of intoxication. In other words, this
issue came down to a classic battle of the experts, and the Gun Club’s expert
won.
These examples (and other conflicting testimony of record) created
genuine issues of material fact as to whether and when Mr. Leighton exhibited
outward signs of intoxication. As such, the jury could rationally reject the
Administrator’s assertion that Mr. Leighton must have displayed signs of
intoxication at the Gun Club.
The toxicologist testified that slurred speech could have manifested itself
in the ten minutes between when Mr. Leighton left the Gun Club and when the
State Trooper arrived on the accident scene. And, even if Mr. Leighton slurred
his speech at the Gun Club, the Administrator offered no evidence that the
bartender served him a beer after he displayed that sign of intoxication.
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Finally, the jury may have simply found the State Troopers’ recollections
of events to be erroneous. “The jury was free to accept all, some, or none of
the testimony presented to them.” Spencer v. Johnson, 249 A.3d 529, 571
(2021), reargument denied (May 24, 2021). This prerogative of the factfinder
extends to disinterested witnesses, such as the State Troopers, who testified
on behalf of the Administrator.
We therefore conclude that the trial court correctly denied JNOV to the
Administrator.
C. Mr. Koplins’ Testimony on Gaps in The Surveillance Video
Third, the Administrator asserts the trial court “erred” when it did not
grant him a new trial, based upon the fact that Mr. Koplins explained the gaps
in the Gun Club’s surveillance video. This testimony went beyond the four
corners of Mr. Koplins’ expert report.
The Administrator implied during his opening statement and introduced
evidence through his expert witness, Jeffery Jannarone, that the Gun Club
deleted portions of the surveillance video. He then objected to questions by
the Gun Club of its own expert, Mr. Koplins, concerning those gaps. The trial
court overruled that objection, because (1) it had qualified Mr. Koplins as an
expert in the field of video security6 and (2) the Administrator opened the door
6 To the extent the Administrator now complains that Mr. Koplins was not an expert in that field, this contention is waived. The Administrator did not object to the qualification of Mr. Koplins’ expertise during trial, nor did he raise that issue in his Rule 1925(b) Statement.
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to such questioning due to his assertions that the Gun Club tampered with the
evidence.
The Administrator does not address our deferential standard of review
for this issue. Critically, decisions on admissibility of evidence are within the
sound discretion of the trial court and will not be overturned absent an abuse
of discretion. Lykes v. Yates, 77 A.3d 27, 32 (Pa. Super. 2013).
An appellate court will not find an abuse of discretion based on a mere error of judgment, but rather where the trial court has reached a conclusion which overrides or misapplies the law, or where the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will. Importantly, an appellate court should not find that a trial court abused its discretion merely because the appellate court disagrees with the trial court's conclusion.
Commonwealth v. Talley, 265 A.3d 485, 530 (Pa. 2021) (citation omitted).
The Administrator fails to identify, much less establish, which of form of
abuse of discretion the trial court allegedly committed by permitting the expert
to rebut the Administrator’s claims of evidence tampering. Instead, the
Administrator offers eight pages of block quotes from the record, as if our
standard of review were de novo. See Administrator’s Brief at 31-40. He
then reiterates the grounds for his objection, without explaining how the trial
court’s decision to overrule that objection overrode or misapplied the law, was
“manifestly unreasonable, or was the result of partiality, prejudice, bias or ill-
will.” Talley, supra, at 530. Essentially, he wants us to rule on the
admissibility of the evidence and determine whether we disagree with the trial
court. This, we cannot do. See id.
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Accordingly, the Administrator has not persuaded us that the trial court
committed an abuse of discretion by allowing Mr. Koplins to testify beyond the
four-corners of his pre-trial expert report to refute the Administrator’s claim
(made throughout his case-in-chief) that the Gun Club altered the surveillance
video.
Moreover, the trial court reasonably concluded that the Administrator
opened the door to permit the expert to rebut the claim that someone may
have altered the video. Thus, even if the Administrator had properly framed
his appellate argument to address our scope of review, we would not hold that
the trial court abused its discretion.
This issue does not warrant relief.
D. Failure to Move for Mistrial
For his fourth issue, the Administrator argues that the trial court erred
by not granting him a mistrial when the defense attorney cross-examined a
witness regarding injuries Ms. Manuel may have suffered from her seatbelt.
The Administrator has not preserved this issue for appellate review. It
is settled law in this Commonwealth that, “unless a party has raised a specific
objection and moved for mistrial at trial, then any right to a new trial is
waived.” Farese v. Robinson, 222 A.3d 1173, 1184 (Pa. Super. 2019). Our
review of the record reveals the Administrator’s counsel never moved for a
mistrial. See N.T., 8/19/21, at 365-67.
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When discussion of Ms. Manuel’s seatbelt injuries began, the attorney
for the Administrator sought a sidebar conference where he stated, in relevant
part:
you [i.e., defense counsel] were just going to say, “Do you know that the hospital report says [Ms. Manuel] wasn’t wearing her seatbelt?” That’s where you’re going, and, if you do that, I’m going to ask for a mistrial and costs, because it’s inadmissible, and you don’t – that’s all I’m telling you.
Id. at 365 (emphasis added).
The trial court told defense counsel, “You’ve been put on notice.” Id.
Hence, at this point, the Administrator only warned the defendants of a
potential motion for mistrial.
Questioning resumed. A few moments later, the witness said, “I was
pretty sure [the seatbelt] was latched. It was at least around her . . . I couldn’t
see where the seatbelt was latched.” Id. at 366.
Defense counsel then said, “I didn’t describe injuries as seatbelt injuries,
so that’s what I’m trying to figure out.” Id.
Then the Administrator’s attorney requested another sidebar to assert
that his opponent “did exactly what I told him that he was going to do, and
he was trying to do.” Id.
“No, he didn’t,” the trial court replied. Id.
The Administrator’s attorney said, “He’s getting this [witness] to tell
them –” Id.
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“Okay, listen, the liability of the car accident is not an issue. He didn’t
even ask about it though. The witness just brought it up again in response to
the question which was not related to that report,” the court said. Id.
The sidebar concluded, as the Administrator’s attorney told the court,
“The record will reflect what the record reflects.” Id. And, in fact, what the
record reflects is that the Administrator’s attorney did not move for a mistrial.
Thus, any post-trial claim, based on the nonexistent motion for a
mistrial, is waived. See Farese, supra; see also Pa.R.C.P 227.1(b)(1).
E. Spoliation and Adverse-Inference Instructions
Finally, the Administrator contends the trial court erred by not
instructing the jury on adverse inference. He requests that we award a new
trial and direct the trial court to give the jury Pennsylvania Standard Jury
Instruction 5.30 (Civ).
“[I]ssues not raised in the lower court are waived and cannot be raised
for the first time on appeal.” Majorsky, supra at 1258; see also Pa.R.A.P.
302(a). The Administrator did not request that the trial court give the jury
Pennsylvania Standard Jury Instruction 5.30 (Civ) (on adverse inference) at
trial. See N.T., 8/20/20, at 260-65.
During oral argument on the charge, the parties had extensive
disagreement over Pennsylvania Standard Jury Instruction 5.60 (Civ) (on
spoilation). The trial court read it verbatim to the attorneys and confirmed
that it was ruling upon and rejecting the Administrator’s request for that
specific instruction. See id. at 264.
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However, at no time during those arguments, did the Administrator or
the trial court discuss Pennsylvania Standard Jury Instruction 5.30 (Civ) (on
adverse inference). Thus, the Administrator did not raise Standard Jury
Instruction 5.30 (Civ) (on adverse inference) at trial. And, as discussed
above, he did not file his suggested points for charge with the prothonotary in
violation of Pa.R.C.P. 226(a) Note. Accordingly, he has not preserved this
instruction as a ground for post-trial relief or appellate review. See Trigg,
supra; see also Pa.R.A.P. 302(a).
Furthermore, on appeal, the Administrator does not request a new trial
be granted so that Pennsylvania Standard Jury Instruction 5.60 (Civ) (on
spoilation) may be given. He limits his appellate issue and argument to the
unpreserved instruction on adverse inference. See Administrator’s Brief at 8.
Notably, Pennsylvania Standard Jury Instruction 5.60 (Civ) (on spoilation)
does not appear in the Administrator’s brief; nor does he cite to it in his
argument.
By failing to request and argue for Standard Jury Instruction 5.60 (Civ)
in his appellate brief, the Administrator has waived this theory for a new trial,
even though he sought the instruction at the trial. See Pa.R.A.P. 2116(a),
2119(a).
Hence, we dismiss the Administrator’s final appellate issue as waived.
Judgment affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 07/11/2022
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