Mirabel v. Morales

57 A.3d 144, 2012 Pa. Super. 241, 2012 Pa. Super. LEXIS 3478
CourtSuperior Court of Pennsylvania
DecidedNovember 2, 2012
StatusPublished
Cited by41 cases

This text of 57 A.3d 144 (Mirabel v. Morales) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mirabel v. Morales, 57 A.3d 144, 2012 Pa. Super. 241, 2012 Pa. Super. LEXIS 3478 (Pa. Ct. App. 2012).

Opinion

OPINION BY

PANELLA, J.

Before us is an appeal from the Appellants, Richard Schulgen and Comcast of Philadelphia II, LLC (Comcast), from a post-trial order denying part of the Appellants’ motion for a new trial. On February 15, 2011, a jury found the Appellants liable for injuries the Appellee, Olga Mirabal,1 suffered in a car accident. After the verdict, the Appellants filed a motion for a new trial because Mirabal’s counsel made improper statements at closing regarding race and the size and wealth of Comcast. The trial court granted part of the Appellants’ motion and awarded a new trial solely on damages. After the trial court issued this order, the Appellants appealed. The issues on appeal concern whether the trial court abused its discretion by not granting a new trial on both liability and damages. After careful review, we reverse.

On February 11, 2007, Olga Mirabal was traveling from Union City, New Jersey, to Miami, Florida, on a bus operated by Latin Express, Inc. See N.T., Trial, 2/7/11, at 157-59. While this bus was traveling through Philadelphia, it collided with a van, owned and operated by Comcast, at the intersection of Aramingo Avenue and Cumberland Street. See N.T., Trial, 2/9/11, at 139,145,152-54.

[147]*147Both the driver of the bus, Rolando Morales, and the driver of the Comcast van, Richard Schulgen, testified that they had green lights to proceed through the intersection when the accident occurred. See id., at 145; N.T., Trial, 2/10/11, at 43. According to Morales, he was proceeding southbound on Aramingo Avenue through a green light at the intersection of Aramin-go and Cumberland when the Comcast van pulled into the middle of the intersection. See N.T., Trial, 2/9/11, at 145. Morales tried to avoid hitting the Comcast van by swerving to the right, but the bus ultimately hit the van. See id. According to Schulgen, after his light turned green, he pulled out into the intersection to make a left turn when he saw a bus approaching from Aramingo Avenue. See N.T., Trial, 2/10/11, at 43-46. Schulgen tried to avoid hitting the bus by making a hard left onto Aramingo Avenue. See id., at 55. However, this maneuver was unsuccessful and the bus hit Schulgen’s van. See id., at 56.

Because of this accident, Mirabal suffered back and shoulder pain that ultimately required surgery. See N.T., Trial, 2/7/11, at 174, 182. Mirabal sued Schul-gen, Comcast, Morales, and Latin Express to compensate her for these injuries.2 See Complaint, Mirabel v. Morales, No. 4548, (December 29, 2008).

Before trial, Schulgen and Comcast filed a motion in limine in which they sought to preclude all parties from making statements about the size and wealth of Com-cast. See N.T., Motions Hearing, 2/4/11, at 18-19. No party objected to this motion and the trial court granted it.3 See id., at 19-20. Also before trial, Mirabal settled her claims against Morales and Latin Express. See Order Granting Release of Morales and Latin Express, Mirabel v. Morales, No. 4548 (February 11, 2011). The only claims that were addressed at trial were Mirabal’s claims against Schulgen and Comcast, and the cross-claims between Morales and Latin Express, and Schulgen and Comcast.4

According to the trial court, at trial, the parties selected a jury of ten African-American women, one African-American man, and one Caucasian woman. Trial Court Opinion, at 9. In his closing arguments, Mirabal’s counsel made several statements in which he tried to appeal to the racial makeup of the jury. He stated:

You walked in this room before. Right? You walked in this room. Did it look like a movie studio when you walked in that first day. Everything all taped up and everything? And now it has turned into this. I walked in, I was like, is this Warner Brothers? No it’s Comcast Brothers. Well, maybe no brothers.

[148]*148N.T., Trial, 2/11/11, at 86. Comcast and the trial court believed that Mirabal’s counsel attempted to appeal to the racial composition of the jury with this statement by implying that there were no “brothers” or African-Americans representing Com-cast at the trial. N.T., Post-Trial Motions Hearing, 6/9/11, at 9-11; Trial Court Opinion, at 15. This statement also violated the pre-trial order that excluded statements regarding the size and wealth of Comcast as Mirabal’s counsel compared the technology used by Comcast at trial to a movie studio.

In addition to trying to appeal to the racial composition of the jury, Mirabal’s counsel also emphasized the fact that Mir-abal is Hispanic and was treated poorly by Comcast because she is Hispanic. First, while discussing Comcast’s argument that the bus hit the van because the driver of the bus, Morales, was distracted by passengers on the bus asking him to stop for lunch, Mirabal’s counsel stated:

Come on now. Like, you know, like these Latinos, like we got to get to the Ritz for our 2 o’clock appointment, don’t you know? Otherwise it’s cancelled. Come on. They are a bunch of Latinos on the bus. Like she said, we are talking with each other, we are joking with each other. Hey, stop the bus, we trying to get some lunch. Hey, Poppie, we hungry, we want to get some lunch.

N.T., Trial, 2/11/11, at 76-77. Further, Mirabal’s counsel stated:

Let me tell you something. If that bus wasn’t a bus full of Latinos but it was [sic] bus of CEOs or presidents on their way to a golf outing, okay, and this accident happened, I guarantee you, it would have been a different kind of trial in here if it had even got to here.

Id., at 150. After Comcast and Schulgen objected to this statement, and the trial court sustained that objection, Mirabal’s counsel continued to emphasize the fact that Mirabal was treated poorly by Com-cast because she is Hispanic. See id., at 151. He stated:

Who do we have that they treated in this way? We have Olga Mirabel, [sic] Latino from North Philadelphia — from North Jersey. Who is she? Who is she? What does she have? What does she matter to anybody but her own family? Who knows about her? Who is going to write a story about her? Right? She is a Latino from North Jersey that nobody knows. It is not J-Lo sitting up in here. Okay? That’s nice. But this is who she is. And this is how she was treated. And make no mistake, she was treated this way for who she is.

Id.

Counsel for Latin Express also violated the pre-trial order excluding discussion on the size and wealth of Comcast when counsel for Latin Express made statements about Comcast’s size and wealth at closing. Latin Express’s counsel stated, “Mr. Schulgen gets involved in an accident with a bus. He phones it in. Here comes Wally another driver. And all of a sudden the big machinery of Comcast gets involved about engineering our response to the accident.” Id., at 107. In addition, Latin Express’s counsel stated:

Counsel for the Comcast is going to take his cell phone and he is probably going to step outside that courtroom and he is probably going to call 1-800-Comcast, and they are going to reach that building that I am looking at up there in the big Comcast tower. And they are all going to be waiting for that phone call.

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Cite This Page — Counsel Stack

Bluebook (online)
57 A.3d 144, 2012 Pa. Super. 241, 2012 Pa. Super. LEXIS 3478, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mirabel-v-morales-pasuperct-2012.