J-A04024-26
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
KYLIE MAJOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : FIVE STAR EQUIPMENT INC. : No. 735 MDA 2025
Appeal from the Judgment Entered May 9, 2025 In the Court of Common Pleas of Lackawanna County Civil Division at No(s): 2020-03550
BEFORE: PANELLA, P.J.E., KING, J., and LANE, J.
MEMORANDUM BY KING, J.: FILED JUNE 30, 2026
Appellant, Kylie Major, appeals from the judgment1 entered in the
Lackawanna County Court of Common Pleas, against Appellant and in favor of
Appellee, Five Star Equipment Inc. (“Five Star”). We affirm.
The relevant facts and procedural history of this case are as follows. On
September 14, 2020, Appellant filed a complaint against Five Star and GBGDS
Equipment Company, Inc.2 The complaint alleged that on October 8, 2019,
at 6:55 a.m., Appellant was crossing the street on Lycoming Creek Road when ____________________________________________
1 Appellant purports to appeal from the order denying her post-trial motion.
Nevertheless, an appeal properly lies from the entry of judgment following the disposition of any post-trial motions. See Johnston the Florist, Inc. v. TEDCO Const. Corp., 657 A.2d 511, 514 (Pa.Super. 1995) (en banc). The record reflects that judgment was entered on May 9, 2025, the same day that the court denied Appellant’s post-trial motion. We have amended the caption accordingly.
2 The claims against GBGDS Equipment Company, Inc. were subsequently dismissed and are not at issue in this appeal. J-A04024-26
she was struck by the driver’s side mirror of a Dodge Ram 5500 owned by
Five Star and operated by Todd Gesselman, an employee of Five Star.
Appellant did not assert claims against Mr. Gesselman individually but claimed
that Mr. Gesselman was acting as Five Star’s agent and thus, Five Star was
vicariously liable for Mr. Gesselman’s conduct. Appellant further asserted
direct claims against Five Star, alleging that Five Star was negligent in its
hiring, supervision and retention of Mr. Gesselman and that Five Star was
negligent in entrusting the vehicle to Mr. Gesselman. The complaint
additionally sought punitive damages on the grounds that Five Star engaged
in reckless conduct vicariously, based on Mr. Gesselman’s conduct, and
directly, in hiring, supervising and entrusting Mr. Gesselman with the vehicle.
On November 13, 2023, Five Star filed a motion for partial summary
judgment seeking to dismiss all of Appellant’s claims for punitive damages.
Five Star noted that surveillance video showed that Appellant was crossing
the street diagonally on a dark and foggy morning in a location where there
was not a designated crosswalk when she was struck. Additionally, Appellant
was stopped in the middle of the road with her back to the northbound traffic,
the direction in which Mr. Gesselman was traveling, when the accident
occurred. In his deposition, Mr. Gesselman stated that on the morning of the
accident, he woke up at approximately 5:30 a.m. and affirmed that he did not
have difficulty sleeping the night before. He left his house at 6:00 a.m. and
was approximately five minutes away from work when the accident occurred.
The impact with Appellant occurred two to three seconds after Mr. Gesselman
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changed lanes from the right lane to the left lane. Immediately prior to
merging, there was a vehicle in front of Mr. Gesselman in the right lane. While
merging, he looked in the driver’s side mirror to ensure that it was safe to
merge, and he did not see Appellant in the roadway before the impact. Mr.
Gesselman reported that he had his headlights on and estimated that he was
traveling at a speed of 40mph in a 35mph zone. Further, based on the police
report and depositions of the responding officers, there was no evidence that
Mr. Gesselman was under the influence of drugs or alcohol at the time of the
accident. During their depositions, the responding officers stated that they
did not believe Mr. Gesselman’s speed contributed to the accident. Based on
the foregoing, Five Star argued that Appellant failed to produce any support
for her claim that Mr. Gesselman or Five Star acted recklessly such that
punitive damages were warranted.
On November 30, 2023, Appellant filed a response to the motion for
partial summary judgment asserting that there were genuine issues of
material fact as to whether Five Star engaged in reckless conduct such that
the issue of punitive damages should be submitted to the jury. Specifically,
Appellant claimed that Five Star failed to keep accurate records to ensure that
its drivers were not operating a vehicle when fatigued and inattentive.
Additionally, Appellant noted that Joseph Hudak, the accident reconstruction
expert retained by Appellant, estimated that Mr. Gesselman was traveling at
a speed of 46mph. Mr. Hudak further opined that if Mr. Gesselman was driving
attentively and traveling at the posted speed limit, he would have had
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sufficient time to avoid the collision with Appellant.
On May 20, 2024, following oral argument, the court granted Five Star’s
motion for partial summary judgment and dismissed all of Appellant’s claims
for punitive damages. That same day, the court issued an order scheduling
the trial for November 18, 2024. On July 30, 2024, Five Star filed a motion
seeking to bifurcate the trial into liability and damages phases. Five Star
argued that bifurcation was required to prevent unfair prejudice to Five Star
based on the risk that any verdict rendered by the jury would be tainted by
sympathy for Appellant’s injuries. On August 12, 2024, Appellant filed a
response, opposing Five Star’s motion to bifurcate. On October 21, 2024, the
parties filed a joint pre-trial order, which listed the witnesses the parties
expected to call. The pre-trial order further specified that the parties
estimated the trial would take five days.
On October 28, 2024, the court entered an order granting Five Star’s
motion to bifurcate the trial. In its order, the court rejected Five Star’s
argument that bifurcation was necessary to prevent unfair prejudice to Five
Star due to the risk of the jury sympathizing with Appellant’s injuries. Rather,
the court noted that it only scheduled five days for trial based on the parties’
estimation. Based on the list of witnesses the parties intended to call, the
court determined that it was highly unlikely that the parties would conclude
trial within the allotted time period. To avoid unnecessary costs and facilitate
judicial economy, the court determined that bifurcation was appropriate in this
case. The court bifurcated the trial into liability and damages phases,
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specifying that “the jury to be selected on November 18, 2024, will decide
only the issue of liability involving questions of negligence and causation[.]”
(Bifurcation Order, filed 10/28/24, at 10).
On November 12, 2024, Appellant filed a proposed verdict slip with the
following questions:
1. Do you find that [Mr.] Gesselman, as the employee of [Five Star] was negligent? Yes__ No__
2. Do you find that [Five Star] was negligent for the hiring and supervision of [Mr.] Gesselman? Yes__ No__
3. Do you find that [Five Star] was negligent in entrusting their commercial motor vehicle to [Mr.] Gesselman? Yes__ No__
4. Was Kylie Major negligent? Yes__ No__
The negligence of the parties must equal 100%
[Mr.] Gesselman, as employee of Five Star __
[Five Star] for negligent hiring and supervision __
[Five Star] for negligent entrustment __
Kylie Major __
Total 100%
(Appellant’s Proposed Verdict Slip, filed 11/12/24).
The liability phase of the trial commenced on November 18, 2024. The
parties completed presenting their evidence on November 20, 2024. During
the charging conference, the court inquired whether the parties had any
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objections to the verdict sheet that it intended to give the jury. The verdict
sheet drafted by the court differed from Appellant’s proposed verdict sheet in
that it only included one general question as to whether Five Star was
negligent. It further only allotted one line for the jury to apportion a
percentage of causal negligence to Five Star. Appellant’s counsel objected as
follows:
[Appellant’s Counsel]: … [W]ith regard to the verdict slip, they have disputed agency, and as a result of them disputing the agency, the claims for negligent hiring, supervision and entrustment are standalone claims for which the jury can find an apportionment for Five Star. We just have one line for Five Star, which doesn’t take into consideration the other standalone claims against them for hiring and supervision and then entrustment.
I thought that it would be – there would essentially be, was the Five Star through Mr. Gesselman negligent? Was Five Star negligent for the hiring and supervision – which those claims morph into one under the restatement. And then was Five Star negligent for the entrustment? And then was Kylie Major negligent? And then obviously a factual cause for each of those particular areas and then an apportionment between those claims.
(N.T. Trial, 11/20/ 24, at 83-84). Five Star’s counsel objected to the format
of the verdict slip that Appellant requested, noting that all of Appellant’s claims
related to the negligence of one party. The court agreed, finding that it was
unnecessary to include multiple lines to apportion negligence between one
defendant. The court further noted that the jury instructions would sufficiently
inform the jury regarding all the theories of liability they could find and assign
to Five Star.
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While instructing the jury, the court detailed all the theories of
negligence Appellant asserted against Five Star. The court summarized the
relevant portion of its instructions as follows:
The jury was provided with separate instructions concerning the vicarious liability of Five Star for the conduct of [Mr.] Gesselman and Five Star’s independent liability for negligent hiring and supervision of [Mr.] Gesselman and negligent entrustment of a vehicle to him. With respect to Five Star’s vicarious liability, the jury was advised that [Appellant] “claims that [Mr.] Gesselman was acting as [Five Star’s] agent at the time of the accident,” and pursuant to Pa.SSJI (Civ) § 6.00 (6th ed.), the jury was instructed that “[a]n agent is someone who agrees to act for someone else, called the principal, under the principal’s control” and that “[a] principal may be legally responsible for the negligence of its agent.” [(N.T. Trial, 11/20/24, at 102)]. Since Five Star asserted at trial “that [Mr.] Gesselman’s conduct was not part of his work when the accident occurred,” the jury was charged under Pa. SSJI (Civ) § 6.30 (6th ed.) regarding the factors to be considered in determining whether [Mr.] Gesselman was acting within the course and scope of his employment at the time of the accident. (Id. at … 102-103).
Immediately thereafter, the jury was provided instructions pertaining to “the rules of the road” which governed [Mr.] Gesselman’s actions as a motorist. (Id. at … 103). The jury was provided with three separate negligence per se instructions under Pa. SSJI (Civ) §13.100 (6th ed.) for driving in excess of the posted speed limit, 75 Pa.C.S. §3362, traveling at a reasonable and prudent speed under the circumstances that would “permit the driver to bring his vehicle to a stop within the assured clear distance ahead,” 75 Pa.C.S. § 3361, and yielding the right-of-way to a pedestrian within an unmarked crosswalk at an intersection, 75 Pa.C.S. § 3542. (Id. at … 103-107). On each occasion, the jury was expressly advised that “if you find that [Five Star’s] agent violated this law, then you must find that [Five Star] was negligent,” but that even if the jury concluded that Five Star’s “agent did not violate this law, [it] must still decide whether [Five Star’s] agent was negligent because he failed to act as a reasonably careful person would under
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the circumstances.” (Id. at … 104, 105-106, 106-107). Additionally, in accordance with Pa. SSJI (Civ) § 13.100, the jury was given a distinct instruction concerning 49 C.F.R. § 392.14, stating “that extreme caution in the operation of a commercial motor vehicle must be exercised when hazardous conditions, such as those caused by fog, adversely affect visibility or traction” and “that the speed of the commercial vehicle must be reduced when such conditions exist,” and was informed that if “[Five Star’s] agent violated this regulation, then his violation of this regulation is evidence that you may consider, along with all the other evidence, in deciding whether [Five Star] was negligent.” (Id. at … 107).
After the jury was finished with instructions pertaining to Five Star’s vicarious liability for the actions of Gesselman, it was charged relative to Five Star’s direct liability. To that end, the jury was advised that “[i]n addition to asserting a vicarious negligence claim against [Five Star] for the actions of its alleged agent, [Appellant] also asserts” claims against Five Star for negligent hiring of [Mr.] Gesselman, negligent supervision, direction, or control of [Mr.] Gesselman, and negligent entrustment of a vehicle to [Mr.] Gesselman, and was instructed as to the elements of those three causes of action in accordance with Pa. SSJI (Civ) §§ 6.70, 6.80, and 13.71 (6th ed.). (Id. at … 107-109). To ensure that the jury understood that the negligence and causation inquiries on the verdict slip applied not only to the vicarious liability claims against Five Star for the conduct of [Mr.] Gesselman, but also to the direct negligence claims against Five Star, the jury was specifically informed:
You must decide whether [Five Star] was negligent in any of these respects. And when I say in any of these respects, I mean either for the conduct of [Mr.] Gesselman, if he is found to be an agent of [Five Star], or for negligent hiring of [Mr.] Gesselman, or for negligent supervision of [Mr.] Gesselman, or for negligent entrustment of a motor vehicle. If you decide that [Five Star] was negligent in any of these respects, you will then proceed to answer question number two on the verdict slip and determine whether that negligence was a factual cause of the accident.
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(Id. at … 109-110).
(Trial Court Opinion, filed 5/9/25, at 14-17) (footnotes omitted).
The court further reviewed the verdict sheet with the jury. The jury did
not ask any questions regarding the instructions while deliberating. The jury
returned the following verdict:
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(Jury Verdict Slip, filed 11/20/24).
On Monday, December 2, 2024, Appellant filed a timely post-trial
motion, which the court denied on May 9, 2025. That same day, judgment
was entered in favor of Five Star and against Appellant. Appellant filed a
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notice of appeal on June 5, 2025. That same day, the court ordered Appellant
to file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b), and Appellant timely complied on June 25, 2025.
Appellant raises the following issues for our review:
Where [Five Star] throughout the jury trial of this matter disputed the agency relationship between itself and the individual operating its vehicle, which struck Appellant while crossing a street, but, as here, never requested special interrogatories for the jury to make a factual determination as to said agency relationship, did the trial court commit reversible error in its formulation of the verdict slip and related jury instructions by failing to require separate findings on agency, failing to distinguish between vicarious liability and direct negligence theories, and failing to list each theory of liability on the verdict slip independently?
Did the trial court err in granting partial summary judgment on behalf of [Five Star], thereby dismissing [Appellant’s] claim for recklessness and in excluding relevant post- accident evidence regarding Appellee driver’s competence, thereby permitting comparative negligence arguments before the jury that Pennsylvania law would have otherwise barred pursuant to 42 Pa.C.S. § 7102, thereby depriving the jury of critical liability evidence?
Where, the trial court abuses its discretion in bifurcating a trial pursuant to Pa.R.C.P. 213(b), and, as here, committed other errors during the course of the trial, whether the cumulative effect of those errors, including the defective verdict slip, improper dismissal of recklessness claims, evidentiary exclusions, and bifurcation, combined to deprive Appellant of a fair trial thereby warranting reversal and remand?
(Appellant’s Brief at 10-11).
In her first issue, Appellant asserts that Five Star disputed at trial that
Mr. Gesselman was acting as its agent at the time of the accident. Appellant
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contends that because the issue was disputed, there should have been a
special interrogatory on the verdict sheet for the jury to determine whether
they found that Mr. Gesselman was acting as Five’s Star’s agent at the time
of the accident. Appellant argues that Five Star did not request that such a
question be included in the verdict sheet and as such, any resulting ambiguity
should be held against Five Star. Additionally, Appellant contends that the
verdict slip erroneously compressed multiple independent theories of liability
into a single negligence inquiry. Appellant asserts that this forced “the jury
to perform mental gymnastics, answering multiple questions through a single
interrogatory with no mechanism to record distinct findings.” (Id. at 28).
Appellant claims that she was prejudiced as a result because if the theories of
liability had been listed individually, the jury may have found that Five Star’s
combined percentage of fault, based on all the theories of liability, was higher
than the percentage assigned to Appellant. Appellant concludes that the court
erred by providing the jury with a deficient verdict sheet, and this Court must
grant relief in the form of a new trial. We disagree.
In evaluating a request for a new trial, this Court has stated:
Our standard of review regarding a trial court’s denial of a motion for a new trial is limited[.] The power to grant a new trial lies inherently with the trial court and we will not reverse its decision absent a clear abuse of discretion or an error of law[,] which controls the outcome of the case. In conducting review, we employ a two-part analysis[.] First, we determine if an error occurred. If so, we ascertain whether the error resulted in prejudice necessitating a new trial. Under the second aspect of this analysis, the consideration of all new trial claims is grounded firmly in the
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harmless error doctrine. The error in question must have affected the verdict.
Chavers v. 1605 Valley Center Pky, LP, 294 A.3d 487, 503 (Pa.Super.
2023) (citations and quotation marks omitted).
Additionally,
In Pennsylvania, verdicts may be general, special, or general with special findings. A general verdict is a finding by the jury in terms of the issue or issues referred to them and is, either wholly or in part, for the plaintiff or for the defendant. … In contrast, when the trial court exercises its discretion to employ a general verdict with special findings, … the analytical subparts of the jury’s process will be set forth in individual questions to be answered by the jury, and the answers thereto are always given in connection with the ultimate general verdict.
Fritz v. Wright, 589 Pa. 219, 233-34, 907 A.2d 1083, 1091 (2006) (citations
omitted).
“A party is not entitled to have special interrogatories submitted to the
jury.” Id. at 234 n.8, 907 A.2d at 1091 n.8. “It is within the discretion of the
trial judge whether to grant or refuse a request to submit special
interrogatories to the jury.” Wiggins v. Synthes (U.S.A.), 29 A.3d 9, 18
(Pa.Super. 2011). The trial court “may grant or refuse a request for special
findings on the basis of whether such would add to the logical and reasonable
understanding of the issue.” Century 21 Heritage Realty, Inc. v. Bair, 563
A.2d 114, 116 (Pa.Super. 1989). It is not reversible error for a court to refuse
to submit special interrogatories to the jury where the issues are neither
complex nor lengthy. See Moran ex rel. Estate of Moran v. G. & W.H.
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Corson, Inc., 586 A.2d 416, 429 (Pa.Super. 1991), appeal denied, 529 Pa.
650, 602 A.2d 860 (1992). See also Harsh v. Petroll, 840 A.2d 404, 440
(Pa.Cmwlth. 2003), aff’d, 584 Pa. 606, 887 A.2d 209 (2005) (concluding court
did not err in denying appellant’s request to submit special interrogatories to
jury regarding different theories of negligence in product liability case).3
Instantly, the trial court found that Appellant waived her claim that a
special interrogatory inquiring whether Mr. Gesselman was an agent of Five
Star should have been included on the verdict sheet. Notably, Appellant’s
proposed verdict sheet did not include a question regarding agency and
Appellant did not request that an agency question be added while discussing
her objections to the verdict sheet during the charging conference. While
Appellant referenced the fact that Five Star disputed agency as support for
her request to include separate questions regarding the different theories of
negligence on the verdict sheet, Appellant’s counsel did not request that a
question regarding agency be added. As such, we agree with the trial court
that Appellant waived this issue for purposes of appeal.4 See Kimble v. Laser
____________________________________________
3 Although opinions of the Commonwealth Court are not binding on this Court,
we may rely on them for their persuasive value. See In re Brown, 30 A.3d 1200, 1204 n.2 (Pa.Super. 2011).
4 The vast majority of Appellant’s argument in her brief on this issue is based
on her assertion that Five Star, as the party who disputed agency, was required to request a special interrogatory on agency. Appellant claims that any ambiguity resulting from Five Star’s failure to do so should be construed against Five Star. In support of this argument, Appellant cites to Shiflett v. (Footnote Continued Next Page)
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Lehigh Valley Health Network, Inc., 655 Pa. 115, 217 A.3d 225 (2019), Cowher v. Kodali, 674 Pa. 666, 283 A.3d 794 (2022), and Spencer v. Johnson, 249 A.3d 529 (Pa.Super. 2021). Nevertheless, these cases do not support Appellant’s position. In fact, they reinforce that Appellant’s claim is waived. In Shifflet, the jury returned a verdict in favor of the plaintiff, but the verdict sheet did not specify which theory of liability, of the two the plaintiff asserted, underpinned the jury’s determination. This Court decided that one of the theories of liability was time barred and should not have been submitted to the jury. This Court granted a new trial because it was unclear whether the jury’s verdict was based on the properly submitted theory or the time barred theory. Our Supreme Court reversed, holding that the defendant failed to request a special interrogatory to clarify the jury’s verdict and could not then seek to invalidate the verdict based on an ambiguity it could have sought to prevent. Similarly, in Cowher, the jury awarded damages to the plaintiff, but the verdict sheet did not itemize the damages or specify whether any portion of the damages was for pain and suffering. This Court determined that the plaintiff’s expert testimony regarding pain and suffering should have been precluded and thus remanded for a new trial on damages. Again, our Supreme Court reversed holding that the defendants waived their claim for a new trial by failing to request a special interrogatory itemizing the damages. In Spencer, the jury returned a verdict in favor of the plaintiff and found that three defendants, one of whom was the employer of the other, shared liability for plaintiff’s injuries. The plaintiff sought to mold the verdict to make the employer jointly and severally liable for the employee’s negligence. The trial court denied the motion, noting that the verdict slip did not specify whether the jury found that the employer was vicariously liable for the employee’s actions. This Court reversed based on Shiflett, deciding that the employer did not seek a special interrogatory and that the plaintiff as “the verdict winner … receive[s] the benefit of doubt in terms of these ambiguities in the verdict sheet.” Spencer, supra at 557.
Here, there is no similar ambiguity in the verdict as in Shiflett, Cowher, and Spencer. None of the theories of negligence on which the jury could have based its determination are invalid. As such, the jury’s resolution of the question of agency does not result in an ambiguity in the verdict such that it may be rendered invalid or unenforceable. Therefore, Shiflett, Cowher, and Spencer are inapplicable to the issue here. Additionally, even if there was a similar ambiguity in the verdict in this case, Five Star is the verdict winner and Appellant is the party seeking to invalidate the verdict based on an alleged ambiguity. As such, Five Star’s failure to request a special interrogatory is irrelevant here. Rather, under Shiflett, Cowher and Spencer, Appellant’s (Footnote Continued Next Page)
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Spine Institute, LLC, 264 A.3d 782, 794 (Pa.Super. 2021), appeal denied,
672 Pa. 589, 274 A.3d 722 (2022) (concluding that appellant waived challenge
to format of verdict sheet by failing to object to issue at trial).
Regarding Appellant’s claim that the verdict sheet should have included
separate questions as to each theory of negligence Appellant asserted against
Five Star, the trial court determined that such a special interrogatory was
unnecessary in this case. The court’s instructions to the jury specified all the
theories of negligence that Appellant asserted against Five Star, including
vicarious liability based on the actions of Mr. Gesselman. The court repeatedly
instructed the jury that if they found negligence on any of these grounds, they
must find that Five Star was negligent. We cannot say that the issues in this
case were so complex or lengthy that the jury would be unable follow the
court’s instructions without a special interrogatory. See Moran ex rel.
Estate of Moran, supra. On this record, we discern no abuse of discretion
in the court’s denial of Appellant’s request for special interrogatories. See
Wiggins, supra; Harsh, supra.
Additionally, Appellant cannot establish that she suffered any prejudice
by the absence of separate interrogatories on the verdict sheet. Regardless
of the underlying theory or theories that supported the determination, the jury
ultimately found that both Five Star and Appellant were causally negligent.
failure to request a special interrogatory regarding agency would result in waiver of her claim for a new trial.
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There is no support in the record for Appellant’s claim that if the separate
theories of negligence were listed on the verdict sheet, the jury would have
apportioned a higher percentage of the causal negligence to Five Star. This
argument entirely ignores that the jury specifically found that 75% of the
causal negligence was attributable to Appellant. Thus, even if there were
individual lines to apportion liability to Five Star based on the individual
theories of liability, the total percentage attributable to Five Star would not
have exceeded 25%, resulting in the same ultimate verdict in favor of Five
Star. Appellant’s argument hinges on the erroneous assumption that the
jury’s assignment of fault to Appellant was arbitrary. There is no support in
the record for this contention. As such, even if the court erred in denying
Appellant’s request for special interrogatories, Appellant was not prejudiced
as a result and would not be entitled to a new trial. See Chavers, supra.
In her second issue, Appellant asserts that at the summary judgment
stage, she demonstrated that Five Star failed to keep adequate records of its
drivers’ hours, in compliance with federal regulations, to ensure that its drivers
were not fatigued or working past mandated driving hour restrictions.
Appellant further argues that Mr. Gesselman acted recklessly in driving the
vehicle by ignoring fatigue risks and driving above the posted speed limit, and
Five Star was vicariously liable for Mr. Gesselman’s actions. Appellant
contends that she was prejudiced by the court’s decision to dismiss Appellant’s
claims of recklessness because it affected the evidence and the theories of
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liability that were presented at trial. Appellant concludes the court erred in
granting partial summary judgment dismissing Appellant’s claims of punitive
damages, and this Court should grant a new trial. We disagree.
Our standard of review of an order granting summary judgment requires
us to determine whether the trial court abused its discretion or committed an
error of law. Mee v. Safeco Ins. Co. of America, 908 A.2d 344, 347
(Pa.Super. 2006).
Judicial discretion requires action in conformity with law on facts and circumstances before the trial court after hearing and consideration. Consequently, the court abuses its discretion if, in resolving the issue for decision, it misapplies the law or exercises its discretion in a manner lacking reason. Similarly, the trial court abuses its discretion if it does not follow legal procedure.
Miller v. Sacred Heart Hosp., 753 A.2d 829, 832 (Pa.Super. 2000) (internal
citations omitted). Our scope of review is plenary. Pappas v. Asbel, 564 Pa.
407, 418, 768 A.2d 1089, 1095 (2001), cert. denied, 536 U.S. 938, 122 S.Ct.
2618, 153 L.Ed.2d 802 (2002).
In reviewing a trial court’s grant of summary judgment:
[W]e apply the same standard as the trial court, reviewing all the evidence of record to determine whether there exists a genuine issue of material fact. We view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Only where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to a judgment as a matter of law will summary judgment be entered. All doubts as to the existence of a genuine issue of a material fact must be resolved against the moving party.
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Motions for summary judgment necessarily and directly implicate the plaintiff’s proof of the elements of [a] cause of action. Summary judgment is proper if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. In other words, whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense, which could be established by additional discovery or expert report and the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. Thus, a record that supports summary judgment either (1) shows the material facts are undisputed or (2) contains insufficient evidence of facts to make out a prima facie cause of action or defense.
Upon appellate review, we are not bound by the trial court’s conclusions of law, but may reach our own conclusions.
Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 61 (Pa.Super. 2006)
(internal citations and quotation marks omitted).
Further, “[w]here the nonmoving party bears the burden of proof on an
issue, he may not merely rely on his pleadings or answers in order to survive
summary judgment.” Gubbiotti v. Santey, 52 A.3d 272, 273 (Pa.Super.
2012), appeal denied, 620 Pa. 701, 67 A.3d 797 (2013). “Failure of a non-
moving party to adduce sufficient evidence on an issue essential to his case
and on which he bears the burden of proof establishes the entitlement of the
moving party to judgment as a matter of law.” Id.
Regarding punitive damages, our Supreme Court has stated:
[P]unitive damages are an extreme remedy available in only the most exceptional matters. Punitive damages may be appropriately awarded only when the plaintiff has
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established that the defendant has acted in an outrageous fashion due to either the defendant’s evil motive or his reckless indifference to the rights of others. A defendant acts recklessly when his conduct creates an unreasonable risk of physical harm to another [and] such risk is substantially greater than that which is necessary to make his conduct negligent. Thus, a showing of mere negligence, or even gross negligence, will not suffice to establish that punitive damages should be imposed. Rather, the plaintiff must adduce evidence which goes beyond a showing of negligence, evidence sufficient to establish that the defendant’s acts amounted to intentional, willful, wanton or reckless conduct.
Phillips v. Cricket Lighters, 584 Pa. 179, 188–89, 883 A.2d 439, 445–46
(2005).
Additionally, for a motor vehicle accident, “punitive damages can be
awarded against a defendant only if the plaintiff shows that the defendant had
a subjective appreciation of the risk of harm to which the plaintiff was exposed
and acted or failed to act in conscious disregard of that risk.” Livingston v.
Greyhound Lines Inc., 208 A.3d 1122, 1130 (Pa.Super. 2019). “The mere
fact that the defendant knew of a possibility of accidents and did not undertake
additional safety measures is not sufficient by itself to support a claim for
punitive damages.” Id.
Here, the only evidence that Appellant cited in support of her claim for
punitive damages against Five Star directly was that Five Star failed to keep
adequate records to ensure that its drivers did not work past the federally
mandated hours restriction and drive while fatigued. Nevertheless, Appellant
failed to produce any evidence to show that Mr. Gesselman was fatigued due
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to driving extended hours over the federally mandated hours restriction when
the accident occurred. The evidence demonstrates the contrary. The
uncontroverted evidence established that Mr. Gesselman was driving from his
home to work in the morning when the accident occurred. He was reporting
to work to begin his shift at the time. As such, there is no support in the
record to suggest that the accident was caused in any part by fatigue due to
Mr. Gesselman driving continuous, extended hours. Therefore, Appellant
failed to produce any evidence to show that Five Star’s alleged reckless
conduct in failing to keep adequate records resulted in harm to Appellant. On
this record, we cannot say the court erred in dismissing Appellant’s punitive
damages claim against Five Star based on its direct actions. See; Phillips,
supra; Mee, supra.
Regarding Appellant’s claim for punitive damages based on vicarious
liability, the trial court explained that the only evidence Appellant cited as
proof of Mr. Gesselman’s reckless conduct was “his operation of the service
truck in excess of the posted speed limit and his entry into the left lane while
momentarily viewing his sideview mirror for traffic, rather than maintaining a
continuous view of the roadway ahead of him.” (Trial Court Opinion at 43).
The court found that these actions demonstrate only negligence, or at best,
gross negligence. They are insufficient to establish reckless conduct to justify
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punitive damages.5 We agree with the court’s assessment. See Smith v.
Brown, 423 A.2d. 743 (Pa.Super. 1980) (holding that allegations that
defendant was driving too fast for conditions, failed to have vehicle under
proper control, and failed to have due regard for plaintiff’s position on road as
pedestrian was insufficient to plead claim for punitive damages). Compare
Dillow v. Myers, 916 A.2d 698, 702 (Pa.Super. 2007) (concluding that
evidence that plaintiff sent truck out on road when load could not properly be
distributed, failed to brake when traveling down hills so that truck exceeded
speed limit, drove with limited visibility because view from side mirror was
obscured, and changed lanes without signaling was sufficient to justify
punitive damages under these circumstances). As such, the court did not
abuse its discretion in granting Five Star’s motion for partial summary
judgment and Appellant is not entitled to relief on this issue.6 See Phillips,
5 Appellant asserts that the court applied an erroneous legal standard in evaluating Appellant’s claim because it improperly conflated the standard for evaluating recklessness with the higher standard for evaluating claims for punitive damages. Regardless of Appellant’s framing of the issue as a dismissal of Appellant’s assertions of recklessness, the decision that Appellant is challenging on appeal is the court’s grant of partial summary judgment. Five Star moved for partial summary judgment seeking to dismiss Appellant’s claims of punitive damages. The court granted Five Star’s motion and dismissed Appellant’s claims for punitive damages. On this record, the court evaluated Appellant’s claim under the proper standard.
6 Appellant further asserts that he was prejudiced by the court’s grant of partial summary judgment because it led to consequences that affected the outcome of trial. Specifically, Appellant complains that the dismissal of Appellant’s assertions that Five Star engaged in reckless conduct permitted (Footnote Continued Next Page)
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In her third issue, Appellant claims that the court’s decision to bifurcate
the trial was based solely on the court’s unsupported belief that the trial would
exceed the five days allotted for trial. Appellant maintains that the fact that
the liability phase of the trial consumed only three days disproves the court’s
reasoning. Appellant further claims that bifurcation resulted in prejudice to
Appellant because the extent of Appellant’s injury was essential context that
the jury needed to evaluate Five Star’s breach of duty. Appellant further
claims that bifurcation forced the court to issue a verdict slip that asked
whether Five Star was “a factual cause of the accident” rather than “a factual
cause of the harm.” Appellant claims that this change “created an entirely
new and unfounded element of negligence that [Appellant] was forced to
prove which does not comport with Pennsylvania law.” (Appellant’s Brief at
62). Appellant concludes that the trial court’s erroneous decision to bifurcate
the trial exacerbated the cumulative prejudicial effect of the other errors,
resulting in an unreliable verdict, and this Court must remand for a new trial.
We disagree.
the use of comparative negligence at trial. Appellant further claims that if Appellant’s claims of recklessness were not dismissed, post-accident evidence would have been admissible at trial to support those claims. Appellant does not appear to be challenging the court’s decisions in this regard but noting that these were prejudicial consequences of the court’s decision to grant partial summary judgment. As we have determined that the court did not err in granting partial summary judgment, we need not discuss Appellant’s argument in this regard further.
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Pennsylvania Rule of Civil Procedure 213 authorizes a court to order a
separate trial on any issue in a case “in furtherance of convenience or to avoid
prejudice.” Pa.R.C.P. 213(b). “The decision whether to … bifurcate under
Rule 213(b) is entrusted to the discretion of the trial court, which is in the best
position to evaluate the necessity for taking measures the rule permits.” Ball
v. Bayard Pump & Tank Co., 620 Pa. 289, 304, 67 A.3d 759, 767 (2013).
“An abuse of discretion occurs only where the trial court has reached a
conclusion that overrides or misapplies the law, or when the judgment
exercised is manifestly unreasonable, or is the result of partiality, prejudice,
bias or ill-will.” Id. at 303-04, 67 A.3d at 767. “Before ordering bifurcation,
the court should carefully consider the issues raised and the evidence to be
presented to determine whether the liability and damages issues are
interwoven, as is often the case in personal injury litigation.” Ptak v.
Masontown Men's Softball League, 607 A.2d 297, 300 (Pa.Super. 1992),
appeal denied, 533 Pa. 661, 625 A.2d 1194 (1993).
Further, in a personal injury case:
[T]he plaintiff must establish two causal [n]exuses in order to be entitled to recovery: (a) a causal nexus between the defendant’s conduct and the event sued upon; and (b) a causal nexus between the event sued upon and the plaintiff’s injuries.
The causal nexus between the defendant’s conduct and the event sued upon relates to the liability portion of plaintiff’s cause of action. Here, we use the term “liability” to mean legal responsibility for the event upon which suit is based ...
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Whether the event sued upon caused any injuries to the plaintiff is another matter entirely. The causal nexus between the event sued upon and the plaintiff’s injuries is strictly referable to the damages portion of the plaintiff’s cause of action.
Derbyshire v. Jefferson Frankford Hospital, 329 A.3d 676, 684 (Pa.Super.
2024), appeal denied, __ Pa. __, 341 A.3d 1271 (2025), (quoting and
adopting Morgan v. Compugraphic Corp., 675 S.W. 2d 729 (Tex. 1984)).
Here, the trial court explained that it scheduled five days for trial in this
case based on the parties’ estimation for the amount of time they believed
trial would take. At the pre-trial conference, the parties indicated that they
intended to call eleven lay witnesses and nine expert witnesses to testify. The
parties further estimated that one of the four days scheduled would be taken
up by the jury selection process, the court’s introductory instructions and
counsel’s opening statements. The court determined that it was highly
unlikely that the remaining four days of trial would be sufficient time for all
the witness testimony, closing arguments, jury instructions and deliberation.
The court expressed concern that it would be forced to declare a mistrial if the
trial was not completed in the allotted time due to the predetermined judicial
calendar which did not leave flexibility for additional days for this trial. Such
a result would be a waste of judicial resources. The court determined that if
it bifurcated the trial into liability and damages phases, a trial on the issue of
liability alone was much more likely to be completed within the allotted time.
The court further found that the evidence that was to be presented on those
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two issues did not overlap. As such, the court concluded that in the interest
of judicial economy and convenience, bifurcation of the trial was appropriate.
The court further explained:
The number of trial days that were actually used for the litigation of liability only in this matter vindicate the decision to bifurcate this trial. Although the parties only called four lay witnesses and one expert witness during the liability trial, it consumed three full trial days, with the jury returning its verdict at 5:23 p.m. on the evening of the third day of trial. It is inconceivable that the parties would have been able to present the testimony of seven additional lay witnesses and eight more expert witnesses in a mere two days.
(Trial Court Opinion at 51).
Further, Appellant failed to establish that he was prejudiced by the
court’s decision. Other than making a conclusory statement, Appellant
entirely fails to explain why the extent of Appellant’s injuries was relevant for
the jury to evaluate Five Star’s breach of duty. Regarding the phrasing of the
causation issue on the verdict sheet, the trial court explained:
Since the liability and damages portions of this case were bifurcated, the jury only considered the causal nexus between Five Star’s negligence and the occurrence of the accident on October 8, 2019. The causal connection between Five Star’s negligence and the accident was hotly contested, whereas the nexus between the accident and [Appellant]’s injuries was largely undisputed. In fact, Five Star agreed that if [Appellant] succeeded with her liability claim and a second, damages phase of the trial was conducted, the verdict slip would not include a “factual cause of harm” inquiry since all the expert medical witnesses agreed that the accident caused some compensable harm. In the event of a damages trial, … a causation interrogatory would not have appeared on the verdict slip.
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(Trial Court Opinion at 27-28) (citations omitted).
On this record, we discern no abuse of discretion in the court’s decision
to bifurcate the trial. See Ball, supra. See also Ptak, supra (holding court
did not abuse its discretion in bifurcating trial on liability and damages where
it was undisputed that appellant’s injuries were caused by accident). As we
have concluded that each of Appellant allegations of error lack merit, Appellant
is not entitled to relief as a result of the cumulative prejudice of those alleged
errors. Accordingly, Appellant has failed to establish any of her issues on
appeal, and we affirm.
Judgment affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq. Prothonotary
Date: 06/30/2026
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