J-A20004-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
VERIZON PENNSYLVANIA, LLC : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : CMT LABORATORES, INC. : No. 1573 MDA 2022
Appeal from the Judgment Entered October 31, 2022 In the Court of Common Pleas of Centre County Civil Division at No(s): 2019-1662
BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, P.J.: FILED: JANUARY 3, 2024
Verizon Pennsylvania, LLC appeals from the judgment entered against
them following the jury verdict in favor of CMT Laboratories, Inc. Verizon now
claims that the verdict was against the weight of the evidence, and they are
due a new trial. After careful review, we affirm.
Verizon filed a civil complaint against CMT alleging that CMT damaged
Verizon’s underground facilities in State College performing an excavation in
2017. See Complaint, 5/10/19 at 2. Specifically, Verizon alleged that CMT
struck and damaged copper cables underneath a thoroughfare know as D Alley
(also known as Hole Alley), requiring Verizon to replace said cables and incur
$185,385.49 in damages. See id. Verizon alleged that CMT acted negligently
and committed trespass by striking Verizon’s equipment. See id. at 3-5. A
____________________________________________
* Former Justice specially assigned to the Superior Court. J-A20004-23
jury found that CMT did not act negligently. See Verdict, 7/26/22. Verizon
filed a motion for a new trial, arguing that the verdict was against the weight
of the evidence. See Motion, 8/5/22. The trial court denied the motion and
judgment was entered in favor of CMT. Verizon timely filed a notice of appeal
to this Court and both Verizon and the trial court complied with Pa.R.A.P.
1925.
On appeal, Verizon raises one issue: that the trial court abused its
discretion in denying Verizon’s motion for a new trial because the
overwhelming weight of the evidence proved CMT was negligent and
compelled a different verdict. See Appellant’s Brief at 2.
The trial court justifies its conclusion by stating that, “[w]hile [Verizon]
may have stated [an] argument why the [j]ury could have [come] to a
different verdict, [Verizon] failed to show the evidence was so one sided that
no reasonable jury could have found for [CMT].” 1925(a) Opinion, 12/21/22.
We leave a motion for a new trial based on a weight of the evidence
claim to the discretion of the trial court. See Ruff v. York Hospital, 257 A.3d
43, 49 (Pa. Super. 2021). A trial court’s role is to determine whether the
verdict rendered was so contrary to the weight of the evidence that it shocks
one’s sense of justice and demands a new trial. See id. Conversely, upon
review of such a claim, our role is to simply review the trial court’s exercise of
discretion. See id. We give the highest consideration to the trial court’s
finding. See id. “One of the least assailable reasons for granting or denying a
-2- J-A20004-23
new trial is the lower court’s conviction that the verdict was or was not against
the weight of evidence …”. Id. (citations omitted).
A finding of ordinary negligence requires that the defendant owed a duty
of care to the plaintiff, breached that duty, the breach caused injury to the
plaintiff and the plaintiff suffered an actual loss. See Schemberg v.
Smicherko, 85 A.3d 1071, 1074 (Pa. Super. 2014). Negligence per se applies
to conduct of a defendant that violates a statute or regulation that was
designed to protect a group of people, as opposed to the public in general,
and obviates the need to prove that the defendant owed the plaintiff a duty
and breached that duty. See id.
Here, there is no dispute that Verizon suffered a loss caused by actions
taken by CMT. The crux of the dispute is whether CMT breached is statutory
duties in causing those losses. The statute at issue, Pennsylvania’s
Underground Utilities Protection Law (“UUPL”) provides that it is an
excavator’s statutory duty to notify facility owners of their intent to excavate
through the Pennsylvania One Call System (“POCS”). See 73 P.S. § 180(2.1)-
(2.2). Excavators must provide information that identifies the work site and
the date of the work. See id.
Here, it is undisputed that CMT notified the POCS in an attempt to
ensure the area they were excavating was not conflicting with utility lines.
See Appellant’s Brief, at 6. Further, since there is a recording of the phone
call, there is no dispute as to what information CMT provided to POCS. Verizon
asserted that the information CMT provided POCS was insufficient to alert
-3- J-A20004-23
Verizon that CMT intended to excavate in D Alley. In contrast, CMT asserted
that the ticket generated by POCS and given to Verizon provided sufficient
notice of CMT’s intent to excavate in D Alley.
Verizon’s case was based largely on the content of CMT’s phone call to
POCS. When CMT placed the call to POCS, CMT’s representative requested a
POCS mark out of the intersection of W. Nittany Avenue and South Fraser
Street. CMT further informed POCS that “it was working at the Memorial Field
which is at the corner of [West Nittany Avenue and South Fraser Street.] …
Working on all sides of the property except the [South Fraser Street] side.”
CMT did not explicitly tell POCS that it was excavating in D Alley.
In response, POCS generated a ticket that provided, under the heading
of “Work Site” information that identified the intersection of West Nittany
Avenue and South Fraser Street. Verizon’s automated, cloud-based response
system interpreted this statement as indicating work would only be performed
at the intersection. See N.T., 7/26/22, at 87. Based on this location, the
system determined that none of Verizon’s assets were at risk. See id. at 91.
And Verizon presented testimony from several witnesses, including an
employee of POCS, to support its belief that CMT failed to provide sufficient
information to POCS to allow Verizon to identify D Alley as an area where
excavation would be performed. See N.T., 6/17/2022, at 39.
However, CMT highlighted that the POCS ticket given to Verizon also
included more information. Under “Location Information”, the ticket indicated
that work would be performed “at the Memorial Field which is on the corner
-4- J-A20004-23
of W Nittany Ave and S Fraser St. Site is marked but [the CMT representative]
is not sure what color. Working on all sides of the property except the S Fraser
St side.” (unnecessary capitalization removed). Just below that, the ticket
included a section titled “Mapped Type” which provided four latitude/longitude
coordinates that formed a box as the boundary for the POCS request. Verizon
does not dispute that its damaged equipment was located within the box
drawn by POCS. See Appellant’s Brief at 6-10. And Verizon’s employee
testified that Verizon’s automated response system did not utilize the
“Location Information” or latitude/longitude coordinates in assessing whether
Verizon needed to respond to CMT’s request. See N.T., 7/25/22, at 99.
Verizon’s employee conceded that no human ever reviewed the ticket
generated by POCS. See id. at 97. Further, he conceded that if a human had
Free access — add to your briefcase to read the full text and ask questions with AI
J-A20004-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
VERIZON PENNSYLVANIA, LLC : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : CMT LABORATORES, INC. : No. 1573 MDA 2022
Appeal from the Judgment Entered October 31, 2022 In the Court of Common Pleas of Centre County Civil Division at No(s): 2019-1662
BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, P.J.: FILED: JANUARY 3, 2024
Verizon Pennsylvania, LLC appeals from the judgment entered against
them following the jury verdict in favor of CMT Laboratories, Inc. Verizon now
claims that the verdict was against the weight of the evidence, and they are
due a new trial. After careful review, we affirm.
Verizon filed a civil complaint against CMT alleging that CMT damaged
Verizon’s underground facilities in State College performing an excavation in
2017. See Complaint, 5/10/19 at 2. Specifically, Verizon alleged that CMT
struck and damaged copper cables underneath a thoroughfare know as D Alley
(also known as Hole Alley), requiring Verizon to replace said cables and incur
$185,385.49 in damages. See id. Verizon alleged that CMT acted negligently
and committed trespass by striking Verizon’s equipment. See id. at 3-5. A
____________________________________________
* Former Justice specially assigned to the Superior Court. J-A20004-23
jury found that CMT did not act negligently. See Verdict, 7/26/22. Verizon
filed a motion for a new trial, arguing that the verdict was against the weight
of the evidence. See Motion, 8/5/22. The trial court denied the motion and
judgment was entered in favor of CMT. Verizon timely filed a notice of appeal
to this Court and both Verizon and the trial court complied with Pa.R.A.P.
1925.
On appeal, Verizon raises one issue: that the trial court abused its
discretion in denying Verizon’s motion for a new trial because the
overwhelming weight of the evidence proved CMT was negligent and
compelled a different verdict. See Appellant’s Brief at 2.
The trial court justifies its conclusion by stating that, “[w]hile [Verizon]
may have stated [an] argument why the [j]ury could have [come] to a
different verdict, [Verizon] failed to show the evidence was so one sided that
no reasonable jury could have found for [CMT].” 1925(a) Opinion, 12/21/22.
We leave a motion for a new trial based on a weight of the evidence
claim to the discretion of the trial court. See Ruff v. York Hospital, 257 A.3d
43, 49 (Pa. Super. 2021). A trial court’s role is to determine whether the
verdict rendered was so contrary to the weight of the evidence that it shocks
one’s sense of justice and demands a new trial. See id. Conversely, upon
review of such a claim, our role is to simply review the trial court’s exercise of
discretion. See id. We give the highest consideration to the trial court’s
finding. See id. “One of the least assailable reasons for granting or denying a
-2- J-A20004-23
new trial is the lower court’s conviction that the verdict was or was not against
the weight of evidence …”. Id. (citations omitted).
A finding of ordinary negligence requires that the defendant owed a duty
of care to the plaintiff, breached that duty, the breach caused injury to the
plaintiff and the plaintiff suffered an actual loss. See Schemberg v.
Smicherko, 85 A.3d 1071, 1074 (Pa. Super. 2014). Negligence per se applies
to conduct of a defendant that violates a statute or regulation that was
designed to protect a group of people, as opposed to the public in general,
and obviates the need to prove that the defendant owed the plaintiff a duty
and breached that duty. See id.
Here, there is no dispute that Verizon suffered a loss caused by actions
taken by CMT. The crux of the dispute is whether CMT breached is statutory
duties in causing those losses. The statute at issue, Pennsylvania’s
Underground Utilities Protection Law (“UUPL”) provides that it is an
excavator’s statutory duty to notify facility owners of their intent to excavate
through the Pennsylvania One Call System (“POCS”). See 73 P.S. § 180(2.1)-
(2.2). Excavators must provide information that identifies the work site and
the date of the work. See id.
Here, it is undisputed that CMT notified the POCS in an attempt to
ensure the area they were excavating was not conflicting with utility lines.
See Appellant’s Brief, at 6. Further, since there is a recording of the phone
call, there is no dispute as to what information CMT provided to POCS. Verizon
asserted that the information CMT provided POCS was insufficient to alert
-3- J-A20004-23
Verizon that CMT intended to excavate in D Alley. In contrast, CMT asserted
that the ticket generated by POCS and given to Verizon provided sufficient
notice of CMT’s intent to excavate in D Alley.
Verizon’s case was based largely on the content of CMT’s phone call to
POCS. When CMT placed the call to POCS, CMT’s representative requested a
POCS mark out of the intersection of W. Nittany Avenue and South Fraser
Street. CMT further informed POCS that “it was working at the Memorial Field
which is at the corner of [West Nittany Avenue and South Fraser Street.] …
Working on all sides of the property except the [South Fraser Street] side.”
CMT did not explicitly tell POCS that it was excavating in D Alley.
In response, POCS generated a ticket that provided, under the heading
of “Work Site” information that identified the intersection of West Nittany
Avenue and South Fraser Street. Verizon’s automated, cloud-based response
system interpreted this statement as indicating work would only be performed
at the intersection. See N.T., 7/26/22, at 87. Based on this location, the
system determined that none of Verizon’s assets were at risk. See id. at 91.
And Verizon presented testimony from several witnesses, including an
employee of POCS, to support its belief that CMT failed to provide sufficient
information to POCS to allow Verizon to identify D Alley as an area where
excavation would be performed. See N.T., 6/17/2022, at 39.
However, CMT highlighted that the POCS ticket given to Verizon also
included more information. Under “Location Information”, the ticket indicated
that work would be performed “at the Memorial Field which is on the corner
-4- J-A20004-23
of W Nittany Ave and S Fraser St. Site is marked but [the CMT representative]
is not sure what color. Working on all sides of the property except the S Fraser
St side.” (unnecessary capitalization removed). Just below that, the ticket
included a section titled “Mapped Type” which provided four latitude/longitude
coordinates that formed a box as the boundary for the POCS request. Verizon
does not dispute that its damaged equipment was located within the box
drawn by POCS. See Appellant’s Brief at 6-10. And Verizon’s employee
testified that Verizon’s automated response system did not utilize the
“Location Information” or latitude/longitude coordinates in assessing whether
Verizon needed to respond to CMT’s request. See N.T., 7/25/22, at 99.
Verizon’s employee conceded that no human ever reviewed the ticket
generated by POCS. See id. at 97. Further, he conceded that if a human had
reviewed the ticket, they would have realized that the proposed worksite
covered more than the intersection reviewed by the automated response
system. See id. at 100.
Under these circumstances, it is clear that the jury’s primary task was
to determine whether Verizon was justified in relying on only part of the
information contained in the POCS ticket. As noted by the trial court, there
was conflicting evidence presented at trial on this issue, including expert
opinion from both parties. See, e.g., N.T., 7/26/22, at 17 (CMT’s expert
opining that the information CMT provided to POCS complied with UUPL’s
requirements to identify where it planned to excavate); N.T., 9/15/2, at 29
-5- J-A20004-23
(Verizon’s expert opining that CMT did not comply with the UUPL requirement
to provide POCS with exact information about where excavation was planned).
We cannot conclude that the trial court abused its discretion in denying
Verizon a new trial based on this record. Verizon has failed to persuade us
that the evidence was so shockingly one-sided that only an irrational court
would refuse to grant a new trial. As this is the only issue raised by Verizon
on appeal, we affirm the judgment.
Judgment affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq. Prothonotary
Date: 01/03/2024
-6-