Mancini v. Giant Food Stores Inc.

16 Pa. D. & C.5th 281
CourtPennsylvania Court of Common Pleas, Montgomery County
DecidedAugust 24, 2010
Docketno. 01-24708
StatusPublished

This text of 16 Pa. D. & C.5th 281 (Mancini v. Giant Food Stores Inc.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Montgomery County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mancini v. Giant Food Stores Inc., 16 Pa. D. & C.5th 281 (Pa. Super. Ct. 2010).

Opinion

SMYTH, J,

I. INTRODUCTION

Plaintiff Mark Mancini was a bread deliveryman who slipped and fell on a patch of ice outside a Giant Food Store, fracturing his leg. He and his wife sued Giant and Montgomery Square Partnership, owner of the development where the store was located and the party responsible for maintaining the common areas, for personal injuries and loss of consortium.

At trial, there was evidence that Mancini had parked his delivery truck in front of the Giant and entered and exited the store through the front door when the accident happened, although he had been directed by store employees not to access the store through the front and that he should use only the receiving area in the back. There was also testimony by store employees that on the occa[283]*283sion of the accident a wide path had been cleared through ice and snow to the front door of the store, and that the patch of ice where Mancini fell was off the path and was an open and obvious condition.

The court instructed the juiy on the duty owed by a possessor of land to a business invitee, as well as, over plaintiff’s objection, to a trespasser. The jury returned a verdict in favor of defendants, finding no negligence on their part.

In a motion for a new trial, and in this appeal to the Superior Court of Pennsylvania after denial of the post-trial motion, plaintiffs raised as the sole issue whether we had erred in alternatively instructing the jury on the definition of trespasser and the duty owed to a trespasser. This opinion is written pursuant to Pa.R.A.P. 1925 to explain the reasons for our ruling, and to suggest that the Superior Court should affirm it.

II. STATEMENT OF THE CASE

A. Standard of Review of the Evidence

Where a motion for a new trial is based on an allegedly erroneous jury charge, the appellate court must examine the charge against the evidence adduced at trial. Palange v. City of Philadelphia Law Department, 433 Pa. Super. 373, 377, 640 A.2d 1305, 1307 (1994). In determining the applicability of instructions given by the trial judge to the evidence, the appellate court must read the evidence in the light most favorable to the appellee (the winner of the verdict). Clee v. Brinks Inc., 135 Pa. Super. 345, 354, 5 A.2d 387, 392 (1939); see also, Steingart v. Kaney, 144 Pa. Super. 534, 19 A.2d 499 (1941) (reviewing evidence on appeal from a ruling [284]*284refusing binding instructions in the light most favorable to appellee/verdict winner). In examining the evidence in the light most favorable to the verdict winner, to reverse the trial court, the Superior Court must conclude that the verdict would change if another trial were granted. Foflygen v. Allegheny General Hospital, 723 A.2d 705, 708 (Pa. Super. 1999) (citing Childers v. Power Line Equipment Rentals Inc., 452 Pa. Super. 94, 104, 681 A.2d 201, 206 (1996) (quoting Dougherty v. Edward J. Meloney Inc., 443 Pa. Super. 201, 225, 661 A.2d 375, 387, (1995))) (affirming denial of a motion for new trial including a claim of improper jury instruction); Robertson v. Atlantic Richfield Petroleum Products Co., 371 Pa. Super. 49, 61, 537 A.2d 814, 820 (1987) (affirming denial of a motion for new trial including numerous claims of error in points for charge).

As we properly instructed the jury, it is sole judge of the facts, and its findings cannot be disturbed if they are supported by competent evidence. A reviewing court (and, by extension, an instructing court) “may not consider the veracity of the witnesses, the conflict of testimony, or the weight of the evidence.” Kimble v. Mackintosh Hemphill Co., 359 Pa. 461, 467, 59 A.2d 68, 71 (1948). “These are matters exclusively for the jury.” Id. Questions of credibility and conflicts in evidence are for the fact-finder to resolve. Foflygen, 723 A.2d at 712. As the finder of fact, the jury exercises the prerogative to believe all, some, or none of the evidence presented. Boggavarapu v. Ponist, 518 Pa. 162, 169, 542 A.2d 516, 519 (1988); Rafter v. Raymark Industries Inc., 429 Pa. Super. 360, 372, 632 A.2d 897, 903 (1993). “[A] jury is entitled to reject any and all evidence up until the point at which the verdict is so disproportionate to the uncontested evidence as to defy common sense and logic.” [285]*285Campagna v. Rogan, 829 A.2d 322, 329 (Pa. Super. 2003); see also, Neison v. Hines, 539 Pa. 516, 653 A.2d 634 (1995). The jury’s prerogative as judge of the facts is bound only by the restraint that there be support for the verdict to be found in the record, consistently with the standard that the verdict not shock our sense of justice. Campagna, 829 A.2d at 328; Rafter, 429 Pa. Super, at 372, 632 A.2d at 903.

B. Facts the Jury Could Have Found Based on the Evidence

In presenting and arguing post-trial motions, plaintiffs offered a selective version of the evidence at trial viewed in the light most favorable to them. However, having reviewed all the evidence presented at trial through the lens of the prism provided by the appellate courts in cases of challenges to jury instructions, we find that the post-trial brief of one of the verdict-winners, Giant Food Stores, provides a fair summary of the facts proved at trial, as the jury may have chosen to interpret them in finding in Giant’s favor. We shall interpolate our own observations of the evidence as we experienced them in presiding over the trial as arbiter of the relevant legal, not factual, determinations to be made in the case, including the decision to charge the jury in a nonbinding fashion on the duty owed by a landowner to a trespasser as well as to a business invitee.

“Plaintiff Mark Mancini is a deliveryman for Stroehmann Bread. On February 7,2000, at approximately 5 a.m., he parked his delivery truck along the curb in front of the front entrance of the Giant Store in Montgomery Square Shopping Center, in North Wales, Pennsylvania. The Giant store was new and had been open for business [286]*286for approximately two weeks before Mr. Mancini’s accident.

“The evidence adduced at trial through the testimony of two Giant employees at the time, the receiver Michael Mocarsky and manager Joanne Kirby, showed that Mr.

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Palange v. Philadelphia Law Dept.
640 A.2d 1305 (Superior Court of Pennsylvania, 1994)
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Von Der Heide v. Commonwealth of Pennsylvania Department of Transportation
718 A.2d 286 (Supreme Court of Pennsylvania, 1998)
Rossino v. Kovacs
718 A.2d 755 (Supreme Court of Pennsylvania, 1998)
Boggavarapu v. Ponist
542 A.2d 516 (Supreme Court of Pennsylvania, 1988)
Robertson v. Atlantic Richfield Petroleum Products Co.
537 A.2d 814 (Supreme Court of Pennsylvania, 1987)
Dougherty v. Edward J. Meloney, Inc.
661 A.2d 375 (Superior Court of Pennsylvania, 1995)
Gaul v. Consolidated Rail Corp.
556 A.2d 892 (Supreme Court of Pennsylvania, 1989)
Neison v. Hines
653 A.2d 634 (Supreme Court of Pennsylvania, 1995)
Carrender v. Fitterer
469 A.2d 120 (Supreme Court of Pennsylvania, 1983)
Updyke v. BP Oil Co.
717 A.2d 546 (Superior Court of Pennsylvania, 1998)
Foflygen v. Allegheny General Hospital
723 A.2d 705 (Superior Court of Pennsylvania, 1999)
Oswald v. Hausman
548 A.2d 594 (Supreme Court of Pennsylvania, 1988)
Childers v. Power Line Equipment Rentals, Inc.
681 A.2d 201 (Superior Court of Pennsylvania, 1996)
Campagna v. Rogan
829 A.2d 322 (Superior Court of Pennsylvania, 2003)
Slavish v. Ratajczak
419 A.2d 767 (Superior Court of Pennsylvania, 1980)
Porreca v. Atlantic Refining Co.
168 A.2d 564 (Supreme Court of Pennsylvania, 1961)
Whigham v. Pyle
302 A.2d 498 (Superior Court of Pennsylvania, 1973)
Rafter v. Raymark Industries, Inc.
632 A.2d 897 (Superior Court of Pennsylvania, 1993)
Kimble v. MacKintosh Hemphill Co.
59 A.2d 68 (Supreme Court of Pennsylvania, 1948)

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Bluebook (online)
16 Pa. D. & C.5th 281, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mancini-v-giant-food-stores-inc-pactcomplmontgo-2010.