[J-21-2018] [MO: Mundy, J.] IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT
JOHN STAPAS, : No. 44 WAP 2017 : Appellant : Appeal from the Order of the Superior : Court entered December 23, 2016 at : No. 1287 WDA 2015, vacating the v. : Judgment of the Court of Common : Pleas of Allegheny County entered : July 24, 2015 at No. GD09-012965 GIANT EAGLE, INC., A PENNSYLVANIA : and remanding. ENTITY; GIANT EAGLE, INC., T/D/B/A : GETGO FROM GIANT EAGLE, A : ARGUED: April 10, 2018 PENNSYLVANIA ENTITY; GIANT EAGLE : INC., T/D/B/A SOUTHSIDE GETGO, A : PENNSYLVANIA ENTITY; NADEEN : MCSHANE, AN INDIVIDUAL; GETGO : PARTNERS SOUTH, A PENNSYLVANIA : ENTITY; GETGO PARTNERS SOUTH- : MARYLAND, LLC, A PENNSYLVANIA : ENTITY; AND GETGO HOLDINGS, LLP, : A PENNSYLVANIA ENTITY, : : Appellees :
DISSENTING OPINION
JUSTICE DOUGHERTY DECIDED: NOVEMBER 21, 2018 The majority concludes a post-verdict objection prior to the discharge of the jury
was required to preserve a challenge to an award that had no relation to the evidence
presented during trial, and which included amounts not specified on the approved verdict
slip. Under the particular circumstances of this case, where the jury acted unpredictably
and against the direction of the trial court and all counsel, I discern no reason to require
such an objection prior to and in addition to the filing of post-trial motions. Accordingly,
I dissent. The discrete issue before this Court is whether Giant Eagle waived its challenge
to the verdict by challenging it for the first time in post-trial motions, and not via an
objection before the jury was discharged. This Court has clearly articulated when an
objection is required to preserve an issue for appeal. See, e.g., Criswell v. King, 834 A.2d
505 (Pa. 2003); Dilliplaine v. Lehigh Valley Trust Co., 322 A.2d 114 (Pa. 1974). Under
this well-established jurisprudence, if Giant Eagle’s challenge to the verdict was grounded
in trial error, Dilliplaine controls and a “contemporaneous objection” was required to
preserve the issue for appeal. Conversely, if the challenge to the verdict is based on its
being contrary to the weight of the evidence, Criswell applies and the claim may be raised
for the first time in post-trial motions.
In my view, the Superior Court correctly assessed Giant Eagle’s challenge to the
jury’s verdict as one based on the weight of the evidence, which was therefore correctly
preserved through the timely filing of post-trial motions. A claim challenging the weight
of the evidence “is not premised upon trial court error or some discrete and correctable
event at trial, but instead ripens only after, and because of, the jury’s ultimate verdict in
the case.” Criswell, 834 A.2d at 512. A new trial under such circumstances is warranted
only “when the jury’s verdict is so contrary to the evidence as to shock one’s sense of
justice and the award of a new trial is imperative so that right may be given another
opportunity to prevail.” Armbruster v. Horowitz, 813 A.2d 698, 703 (Pa. 2002) (emphasis
in original), quoting Commonwealth v. Brown, 648 A.2d 1177, 1189 (Pa. 1994) (additional
citations omitted). “A trial judge cannot grant a new trial ‘because of a mere conflict in
testimony or because the trial judge on the same facts would have arrived at a different
conclusion.’” Id., quoting Brown, 648 A.2d at 1189 (additional citations omitted). This
case presents the requisite extraordinary circumstances because the jury undoubtedly
disregarded the facts presented by the witnesses, the arguments of counsel, and the
[J-21-2018] [MO: Mundy, J.] - 2 unambiguous verdict slip when it awarded the largest percentage of damages for future
lost wages — a category of damages specifically excluded by both parties and completely
absent from the verdict slip.
This was not a case of mere conflict in testimony which the jury resolved based on
credibility; rather the jury’s award was so completely unmoored to the evidence it was the
rare verdict that actually “shocks the conscience.” Moreover, I cannot detect any trial
court error which might have been cured by contemporaneous objection. The majority
suggests Giant Eagle should have: 1) objected because the jury’s verdict did not conform
to the trial court’s instructions regarding a lump sum of damages; 2) submitted a point for
charge on wage loss; 3) objected to the trial court’s instruction on wage loss; 4) objected
to the verdict slip because it did not differentiate between past and future wage loss.
First, although a contemporaneous objection may in theory allow a jury to adjust
the amounts it awarded for certain categories of loss, it is implausible that further
deliberation by this particular jury — which disregarded the evidence and arguments
presented, as well as the plain language on the verdict slip — would have altered the total
amount of the verdict. In fact, in such circumstances, it is not proper to “issue a corrective
instruction to the jury suggesting that the weight of the evidence does not support its
verdict without invading the province of the jury by essentially directing a verdict.”
Criswell, 834 A.2d at 512 (citations omitted).
The majority’s suggestion Giant Eagle should have objected to the jury instructions
or verdict slip is also unavailing. The verdict slip presented the categories of damages as
follows: “(a) Scarring; (b) Wage loss; (c) Past and future medical expenses; (d) Past,
present and future pain and suffering; (e) Loss of life’s pleasures.” Majority Op., slip.
op. at 4, quoting Verdict Slip, 11/17/14 (emphasis added). The verdict slip unquestionably
delineated what categories of damages included future calculations — medical expenses
[J-21-2018] [MO: Mundy, J.] - 3 and pain and suffering. The plain language of the verdict slip together with the evidence
presented by Stapas made it clear the case for damages was limited to past lost wages;
there simply was no evidence of future wage loss.1 Stapas’s counsel himself conceded
this point during closing argument when he stated they were seeking only “past and
present wage loss” which was a small amount for “six weeks of [work at] eight or nine
dollars an hour[.]” Id. at 3, quoting N.T. 11/17/14 at 836. Further, Giant Eagle’s counsel
“estimated Stapas’s wage loss at $2,000 to $3,000.” Id., citing N.T. 11/17/14 at 804.
Nevertheless, despite this clear limitation in the evidence which was properly spelled out
on the verdict slip, the jury “went rogue” and awarded $1,300,000 for lost future wages.
Counsel could not have foreseen this turn of events, and therefore Giant Eagle should
not be penalized for failing to anticipate and preemptively object to the verdict slip or
instructions on this basis.2
1 The majority notes the jury was not instructed it could not award damages for future wage loss and the jury was unaware its award should be limited to past lost earnings because the verdict slip merely listed “wage loss” as a category of damages. See Majority Op., slip op. at 15, n.1 (emphasis added). When fairly examining the verdict slip as a whole, however, it is clear the categories which permitted a calculation for future damages were strictly delineated.
Free access — add to your briefcase to read the full text and ask questions with AI
[J-21-2018] [MO: Mundy, J.] IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT
JOHN STAPAS, : No. 44 WAP 2017 : Appellant : Appeal from the Order of the Superior : Court entered December 23, 2016 at : No. 1287 WDA 2015, vacating the v. : Judgment of the Court of Common : Pleas of Allegheny County entered : July 24, 2015 at No. GD09-012965 GIANT EAGLE, INC., A PENNSYLVANIA : and remanding. ENTITY; GIANT EAGLE, INC., T/D/B/A : GETGO FROM GIANT EAGLE, A : ARGUED: April 10, 2018 PENNSYLVANIA ENTITY; GIANT EAGLE : INC., T/D/B/A SOUTHSIDE GETGO, A : PENNSYLVANIA ENTITY; NADEEN : MCSHANE, AN INDIVIDUAL; GETGO : PARTNERS SOUTH, A PENNSYLVANIA : ENTITY; GETGO PARTNERS SOUTH- : MARYLAND, LLC, A PENNSYLVANIA : ENTITY; AND GETGO HOLDINGS, LLP, : A PENNSYLVANIA ENTITY, : : Appellees :
DISSENTING OPINION
JUSTICE DOUGHERTY DECIDED: NOVEMBER 21, 2018 The majority concludes a post-verdict objection prior to the discharge of the jury
was required to preserve a challenge to an award that had no relation to the evidence
presented during trial, and which included amounts not specified on the approved verdict
slip. Under the particular circumstances of this case, where the jury acted unpredictably
and against the direction of the trial court and all counsel, I discern no reason to require
such an objection prior to and in addition to the filing of post-trial motions. Accordingly,
I dissent. The discrete issue before this Court is whether Giant Eagle waived its challenge
to the verdict by challenging it for the first time in post-trial motions, and not via an
objection before the jury was discharged. This Court has clearly articulated when an
objection is required to preserve an issue for appeal. See, e.g., Criswell v. King, 834 A.2d
505 (Pa. 2003); Dilliplaine v. Lehigh Valley Trust Co., 322 A.2d 114 (Pa. 1974). Under
this well-established jurisprudence, if Giant Eagle’s challenge to the verdict was grounded
in trial error, Dilliplaine controls and a “contemporaneous objection” was required to
preserve the issue for appeal. Conversely, if the challenge to the verdict is based on its
being contrary to the weight of the evidence, Criswell applies and the claim may be raised
for the first time in post-trial motions.
In my view, the Superior Court correctly assessed Giant Eagle’s challenge to the
jury’s verdict as one based on the weight of the evidence, which was therefore correctly
preserved through the timely filing of post-trial motions. A claim challenging the weight
of the evidence “is not premised upon trial court error or some discrete and correctable
event at trial, but instead ripens only after, and because of, the jury’s ultimate verdict in
the case.” Criswell, 834 A.2d at 512. A new trial under such circumstances is warranted
only “when the jury’s verdict is so contrary to the evidence as to shock one’s sense of
justice and the award of a new trial is imperative so that right may be given another
opportunity to prevail.” Armbruster v. Horowitz, 813 A.2d 698, 703 (Pa. 2002) (emphasis
in original), quoting Commonwealth v. Brown, 648 A.2d 1177, 1189 (Pa. 1994) (additional
citations omitted). “A trial judge cannot grant a new trial ‘because of a mere conflict in
testimony or because the trial judge on the same facts would have arrived at a different
conclusion.’” Id., quoting Brown, 648 A.2d at 1189 (additional citations omitted). This
case presents the requisite extraordinary circumstances because the jury undoubtedly
disregarded the facts presented by the witnesses, the arguments of counsel, and the
[J-21-2018] [MO: Mundy, J.] - 2 unambiguous verdict slip when it awarded the largest percentage of damages for future
lost wages — a category of damages specifically excluded by both parties and completely
absent from the verdict slip.
This was not a case of mere conflict in testimony which the jury resolved based on
credibility; rather the jury’s award was so completely unmoored to the evidence it was the
rare verdict that actually “shocks the conscience.” Moreover, I cannot detect any trial
court error which might have been cured by contemporaneous objection. The majority
suggests Giant Eagle should have: 1) objected because the jury’s verdict did not conform
to the trial court’s instructions regarding a lump sum of damages; 2) submitted a point for
charge on wage loss; 3) objected to the trial court’s instruction on wage loss; 4) objected
to the verdict slip because it did not differentiate between past and future wage loss.
First, although a contemporaneous objection may in theory allow a jury to adjust
the amounts it awarded for certain categories of loss, it is implausible that further
deliberation by this particular jury — which disregarded the evidence and arguments
presented, as well as the plain language on the verdict slip — would have altered the total
amount of the verdict. In fact, in such circumstances, it is not proper to “issue a corrective
instruction to the jury suggesting that the weight of the evidence does not support its
verdict without invading the province of the jury by essentially directing a verdict.”
Criswell, 834 A.2d at 512 (citations omitted).
The majority’s suggestion Giant Eagle should have objected to the jury instructions
or verdict slip is also unavailing. The verdict slip presented the categories of damages as
follows: “(a) Scarring; (b) Wage loss; (c) Past and future medical expenses; (d) Past,
present and future pain and suffering; (e) Loss of life’s pleasures.” Majority Op., slip.
op. at 4, quoting Verdict Slip, 11/17/14 (emphasis added). The verdict slip unquestionably
delineated what categories of damages included future calculations — medical expenses
[J-21-2018] [MO: Mundy, J.] - 3 and pain and suffering. The plain language of the verdict slip together with the evidence
presented by Stapas made it clear the case for damages was limited to past lost wages;
there simply was no evidence of future wage loss.1 Stapas’s counsel himself conceded
this point during closing argument when he stated they were seeking only “past and
present wage loss” which was a small amount for “six weeks of [work at] eight or nine
dollars an hour[.]” Id. at 3, quoting N.T. 11/17/14 at 836. Further, Giant Eagle’s counsel
“estimated Stapas’s wage loss at $2,000 to $3,000.” Id., citing N.T. 11/17/14 at 804.
Nevertheless, despite this clear limitation in the evidence which was properly spelled out
on the verdict slip, the jury “went rogue” and awarded $1,300,000 for lost future wages.
Counsel could not have foreseen this turn of events, and therefore Giant Eagle should
not be penalized for failing to anticipate and preemptively object to the verdict slip or
instructions on this basis.2
1 The majority notes the jury was not instructed it could not award damages for future wage loss and the jury was unaware its award should be limited to past lost earnings because the verdict slip merely listed “wage loss” as a category of damages. See Majority Op., slip op. at 15, n.1 (emphasis added). When fairly examining the verdict slip as a whole, however, it is clear the categories which permitted a calculation for future damages were strictly delineated. The jury here went outside the express categories provided on the verdict sheet and wrote in the word “future” next to the “wage loss” category. Id. at 4, quoting Verdict Slip, 11/17/14, Question 6. This handwritten addendum indicates the jury recognized it was acting outside the directives of the court and the parties. Today the majority apparently holds a trial court’s failure to instruct on a particular category of damages, which are also specifically excluded from a verdict slip, properly provides the jury with the authority to award such damages. This counterintuitive ruling imposes a new (and untenable) burden on parties and the trial court to specifically instruct juries not to award damages which were never at issue. 2 The unusual fact scenario presented here includes the confusing manner in which the verdict was read into the record. Although the trial judge requested the tipstaff to read just the lump sum amount of damages into the record, the tipstaff nevertheless began reading the itemized damages into the record. The trial judge twice interrupted the tipstaff and requested the total lump sum only. In response to the trial judge’s correction, the tipstaff read the lump sum amount of damages, but not before he also read a portion of the itemized list of damages. N.T. 11/17/14 at 862-63. This unpredictable sequence of events not only creates additional questions as to what objection trial counsel could have
[J-21-2018] [MO: Mundy, J.] - 4 In any event, I question whether we properly granted review in this matter. We
have “consistently recognized that, while an appellate court may review whether the trial
court abused its discretion in deciding a weight claim, its role is not to consider the
underlying question in the first instance.” Armbruster, 813 A.2d at 703, quoting Brown,
648 A.2d at 1191. Couching the issue before the Court as a legal question regarding
waiver principles, the majority employs a de novo standard of review, and considers the
underlying factual question based on the cold record. The majority’s analysis is
tantamount to error review in a unique and fact-bound matter where the decision will likely
muddy the waters and engender confusion in what was heretofore a clearly established
area of law.
Chief Justice Saylor joins this dissenting opinion.
made on an incomplete and chaotic verdict reading, but also demonstrates the unique nature of this case. As a result, the Court’s decision turns on error review and is unlikely to provide any guidance to the bench or bar regarding when post-trial motions alone may preserve issues for review.
[J-21-2018] [MO: Mundy, J.] - 5