Mudra, M., Sr. v. Schlumberger Technology ( 2023 )

J-A23041-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
MICHAEL J. MUDRA, SR. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
:
v. :
:
:
SCHLUMBERGER TECHNOLOGY : No. 1439 MDA 2021
CORPORATION
Appellant
Appeal from the Judgment Entered November 8, 2021
In the Court of Common Pleas of Bradford County Civil Division
at No(s): 2021CV0283
BEFORE: BOWES, J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED: JULY 26, 2023
Schlumberger Technology Corporation (“STC”) appeals from the
November 8, 2021 judgment entered in favor of Appellee, Michael J. Mudra,
Sr., in this premises liability case, following the September 30, 2021 denial of
STC’s motions for post-trial relief and the October 29, 2021 order granting
Appellee’s motion for delay damages. After careful review, we affirm.
The relevant facts and procedural history of this case, as gleaned from
the certified record, are as follows: Appellee, an employee of Water
Providers, Ltd., d/b/a Sweet H20 (“Sweet H20”), filed a civil action complaint
against STC on June 28, 2012. Appellee claimed he suffered serious and
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* Former Justice specially assigned to the Superior Court.
J-A23041-22
debilitating physical injuries while working on an oil and gas drilling well site
in Troy, Pennsylvania on November, 24 2010, due to STC’s negligence.
Chesapeake Appalachia, LLC (“Chesapeake”) was the leaseholder and
operator of the site and contracted with various other companies to bring the
well into production, including STC, which oversaw the hydraulic fracturing
(“fracking”) operations at the site.
At trial, Appellee claimed that, while doing his job, he slipped off a step
and caught his foot under a large, 12-inch diameter hose that was improperly
placed and under the control of STC. Appellee testified that when he arrived
at the well site he advised STC of the hose and the need to move it, and that
he felt compelled to do his job despite the danger based on the expensive,
urgent, and highly-coordinated fracking process that was already underway.
Appellee had to repeatedly travel up and down a steep metal staircase and
step over the improperly placed hose at the bottom of the stairs. Near the
end of his shift he slipped, caught his foot under the hose, and injured his
ankle, causing painful, serious, and long-term disabilities which require him
to walk with a cane.
On April 10, 2017, nearly five years after Appellee filed his complaint,
STC filed a motion for entry of judgment of non pros, arguing that Appellee’s
failure to exercise due diligence in advancing this matter had hampered STC’s
ability to defend the lawsuit and caused it prejudice. See “Motion for Entry of
Judgment Non Pros,” 4/10/17 at ¶¶ 3-10. On April 16, 2017, the trial court
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entered an order directing Appellee to show cause why the motion for entry
of judgment of non pros should not be granted. Appellee filed a response
and memorandum of law in opposition to STC’s motion, and on July 25, 2017,
the trial court denied the motion without prejudice.
On September 13, 2019, STC filed a motion for summary judgment and
a brief in support of said motion. On January 17, 2020, the trial court held
argument on the matter, at the conclusion of which it denied STC’s motion on
January 23, 2020.
Following some COVID-related delays in this case, a civil jury trial was
ultimately scheduled for the week of November 2, 2020. The trial court also
confirmed that discovery was “complete,” and advised the parties about the
possibility of sanctions for violations that “cause prejudice ... or unreasonably
disrupt or delay the trial proceedings.” See trial court order, 2/14/20 at ¶ 11.
On September 30 and October 13, 2020, Appellee filed motions in
limine seeking to preclude the testimony of STC’s expert, Dr. J.P. Purswell,
and to strike two witnesses, Kevin Schwind and Tim Howard, because they
were named later in the action. On October 14, 2020, the trial court granted
the motions, in part, and denied them, in part, insofar as the trial court allowed
the testimony of Purswell as to certain matters; precluded entirely the
testimony of Schwind; and permitted the testimony of Howard. See trial court
order, 10/14/20 at ¶¶ 2-3.
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Both parties timely filed several proposed jury instructions. All the non-
standard instructions proposed by both parties were rejected at trial, including
STC’s proposed instructions relating to the (i) “open and obvious doctrine”;
(ii) “deliberate encounter exception to the open and obvious doctrine”; and
(iii) “duties of contractors and independent contractors”[.] See STC’s “Motion
for Post-Trial Relief,” 11/13/20, at 12-14.
A jury trial commenced on November 2, 2020. Following the three-day
trial, the jury returned a verdict in the amount of $1,767,827.84 in favor of
Appellee and against STC. The award was reduced by 45% to reflect the jury’s
finding regarding of Appellee’s comparative negligence.
STC made an oral motion for a directed verdict during trial on November
4, 2020, and an oral motion for judgment notwithstanding the verdict
(“JNOV”) following the return of the verdict in the case; both motions were
denied by the trial court. On November 6, 2020, Appellee filed a motion for
delay damages pursuant to Pa.R.C.P. 238, requesting that the verdict be
amended to reflect additional delay damages of $332,600.86.
On November 13, 2020, STC filed motions for post-trial relief,
requesting a new trial. On September 30, 2021, the trial court entered a
comprehensive opinion and order denying STC’s motions for post-trial relief.
See trial court opinion, 9/30/21 at 1-23. The trial court subsequently entered
an opinion and order on October 29, 2021 granting Appellee’s motion for delay
damages. Thereafter, on November 8, 2021, judgment was entered in favor
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of Appellee and against STC in the amount of $1,304,906.17. This timely
appeal followed.1
STC raises the following issues for our review:
A. Whether the trial court erred in denying the
motion for summary judgment of [STC], an
independent contractor hired by Chesapeake to
perform work on its multi-contractor oil and gas
well site, because the open and obvious doctrine
precluded the claims of [Appellee], an employee
of another contractor also hired by Chesapeake,
SweetH2O, when the undisputed facts of record
established that [Appellee] saw the 12-inch
diameter hose, believed it was potentially a
tripping hazard, successfully traversed it
multiple times, but nevertheless still
subsequently tripped over it?
B. Whether the trial court erred in denying [STC’s]
motion for summary judgment under the
“deliberate encounter” exception to the open
and obvious doctrine based only on [Appellee’s]
subjective belief that he had no choice but to
continue working around the hose, and without
evidence that [STC] had any objective reason to
believe that [Appellee] would lose his job
otherwise?
C. Whether the trial court erred in denying [STC’s]
motion for directed verdict and JNOV based on
the open and obvious doctrine even though, by
the trial court’s own assessment, “the open and
obvious nature of the hose was not in dispute”?
D. Whether the trial court erred in refusing to
instruct the jury on the open and obvious
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1 The record reflects that on December 3, 2021, STC filed concise statement
of errors complained of on appeal, in accordance with Pa.R.A.P. 1925(b) and
the trial court’s November 12, 2021 directive. On December 7, 2021, the trial
court filed a statement in lieu of a Rule 1925(a) opinion.
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doctrine based on its belief that the open and
obvious doctrine applies only to duty to warn
claims?
E. Whether the trial court erred in refusing to
instruct the jury on the duty of care owed by an
independent contractor to employees of another
independent contractor on the same job site?
F. Whether the trial court erred and abused its
discretion in precluding a Chesapeake corporate
representative from testifying at trial based on
purported “late disclosure”?
G. Whether the trial court erred and abused its
discretion by only permitting [STC’s] safety
engineering expert to testify about the
applicable OSHA regulations generally and not
allowing him to offer his expert opinion that,
based on the record evidence, [STC] had
complied with those regulations?
H. Whether the trial court erred and abused its
discretion in denying [STC’s] motion for entry of
judgment of non pros due to inactivity without
permitting [STC] to create a factual record and
without holding oral argument?
I. Whether the trial court erred and abused its
discretion by including in its delay damages
calculation the three (3) years of non-activity
caused by [Appellee’s] prior counsel?
STC’s brief at 5-10.
Preliminarily, we note that the issues presented in STC’s “Statement of
Questions Involved” do not align with those raised in the “Argument” section
of its appellate brief. Although STC raises 9 distinct issues above, the
“Argument” section contains only 5 intertwined claims delineated by letters A
through E.
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To the extent STC challenges the trial court’s denial of its motions for
summary judgment and for a directed verdict, see Issues A-C, supra, we
note that these claims are not properly framed for appellate review. See e.g.,
Whitaker v. Frankford Hosp. of City of Philadelphia, 984 A.2d 512, 517
(Pa.Super. 2009) (stating, “[o]nce this case proceeded to trial and Appellants
presented a defense, the trial court’s refusal to grant them summary judgment
and a compulsory nonsuit became moot. Once a jury verdict in favor of
Appellees was entered, the issue became whether the trial court erred in
failing to grant them [JNOV].” (internal citations omitted)). Accordingly, we
now turn to STC’s remaining arguments on appeal.
I. JNOV
STC first argues that the trial court abused its discretion in denying his
motion for JNOV based upon the open and obvious doctrine. STC’s brief at
31-36; issue A(ii)(1). In support of its contention, STC avers that the open
and obvious nature of the hose was not in dispute; it did not own the hose
and was not responsible for its placement; and it did not control the area
where the hose was located. Id. at 25-26. Thus, STC avers it was under no
duty to warn Appellee of a dangerous condition related to the hose. Id. For
the following reasons, we disagree.
Our standard of review of an order denying JNOV is
whether, viewing the record in the light most
favorable to the verdict winner and granting the
benefit of every favorable inference, there is sufficient
competent evidence to support the verdict. Any
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conflict in the evidence is resolved in the verdict
winner’s favor. JNOV may be granted only in clear
cases where the facts are such that no two reasonable
minds could fail to agree that the verdict was
improper. We will disturb a trial court’s grant or denial
of JNOV only for an abuse of discretion or an error of
law.
Ruff v. York Hospital, 257 A.3d 43, 48–49 (Pa.Super. 2021) (citations and
internal quotation marks omitted), appeal denied, 266 A.3d 1064 (Pa.
2021).
“If any basis exists upon which the jury could have properly made its
award, then we must affirm the trial court’s denial of the motion for JNOV. A
JNOV should be entered only in a clear case.” Egan v. USI Mid-Atl., Inc.,
92 A.3d 1, 20 (Pa.Super. 2014) (citation omitted).
Instantly, our review of the record reveals that STC’s claim merits no
relief. As the trial court emphasized in its opinion, in rendering its verdict in
favor of Appellee, there was ample evidence in the record for the jury to
conclude that
[STC] was in control of the worksite where [Appellee]
was injured; that [STC] owned or controlled the hose
at issue; that a dangerous condition existed and had
been reported; and that [STC] owed a duty to
[Appellee]. Additionally, the Court advised [STC’s]
counsel that the “open and obvious” doctrine relied
upon by [STC] in arguing for a directed verdict, did
not operate to compel the relief sought by [STC]
because it was reasonable to conclude that the
potential harm could have been reasonably foreseen.
Trial court opinion, 9/30/21 at 14 (citations omitted).
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Accordingly, as there exists a basis upon which the jury could have
rendered its verdict, the entry of JNOV was clearly not warranted in this
matter. See Egan, 92 A.3d at 20. STC’s claim to the contrary must fail.
II. Jury Instructions
STC next argues that the trial court abused its discretion in refusing to
charge the jury with its proposed jury instructions on: (a) the open and
obvious doctrine and the deliberate encounter exception thereto; and (b) the
duty of care that an independent contractor owes to the employees of another
independent contractor at a job site. STC’s brief at 36-50; issue A(ii)(2). We
disagree.
Our standard of review regarding jury instructions is
limited to determining whether the trial court
committed a clear abuse of discretion or error of law
which controlled the outcome of the case. Error in a
charge occurs when the charge as a whole is
inadequate or not clear or has a tendency to mislead
or confuse rather than clarify a material issue.
Conversely, a jury instruction will be upheld if it
accurately reflects the law and is sufficient to guide
the jury in its deliberations.
The proper test is not whether certain portions or
isolated excerpts taken out of context appear
erroneous. We look to the charge in its entirety,
against the background of the evidence in the
particular case, to determine whether or not error was
committed and whether that error was prejudicial to
the complaining party.
James v. Albert Einstein Med. Ctr., 170 A.3d 1156, 1163–1164 (Pa.Super.
2017) (citation omitted; emphasis added).
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Instantly, the record reflects that STC declined the trial court’s offer to
give the Pennsylvania Suggested Standard Jury Instruction on the “open and
obvious” doctrine. Thus, STC has waived any challenge to omission of its
proposed “open and obvious” charge on appeal. See notes of testimony,
11/4/20 at 39, 44, 115-117.
Likewise, we discern no abuse of discretion on the part of the trial court
in electing not to charge the jury on the deliberate encounter exception to the
open and obvious doctrine, given that STC rejected the trial court’s offer of
the standard instruction. As the trial court properly stated in its opinion:
Because there was no instruction as to the open and
obvious doctrine given, there was no need to give an
instruction on the deliberate encounter exception to
the open and obvious doctrine. Furthermore, [STC]
should not be heard to complain because the Court
declined to charge the jury on a doctrine that is an
exception to a rule of law that [STC] declined to have
explained to the jury in its standard form.
Trial court opinion, 9/30/21 at 21.
The record further reflects that the trial court rejected STC’s proposed
jury instructions on the duty owed among independent contractors as
“inappropriate and confusing,” see id. at 22, opting instead to give the
standard jury instructions on negligence and the duty of care. See notes of
testimony, 11/4/20 at 203-206.
The trial court reasoned that,
the standard jury instructions explaining simple
negligence principles – grounded in reasonableness –
were the most appropriate instructions to give the jury
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to help them determine whether [STC] owed
[Appellee] a duty and failed to reasonably exercise
that duty, whether [STC] controlled the work site
where [Appellee] was allegedly injured, and whether
[STC] had been negligent in not acting to eliminate a
reported dangerous condition. It would be up to the
jury, based on the facts as determined from the
evidence presented, to decide the case.
Trial court opinion, 9/30/21 at 23 (citations omitted).
Upon review, we conclude that the trial court did not abuse its discretion
by declining to give STC’s proposed instructions to the jury. Our independent
review of the record reveals that the trial court’s instructions clearly,
adequately, and accurately presented the relevant law to the jury for its
consideration. This Court has recognized that “there is no right to have any
particular form of instruction given; it is enough that the charge clearly and
accurately explains the relevant law.” James, 170 A.3d at 1164 (citation
omitted). Accordingly, STC’s claim must fail.
III. Motion in Limine to Strike Witness
STC next argues that the trial court abused its discretion in granting
Appellee’s motion in limine to preclude Kevin Schwind, an employee of
Chesapeake, from testifying at trial. STC’s brief at 50-54; issue B.
Our standard of review of an order granting or denying a motion in
limine is well-settled.
A motion in limine is used before trial to obtain a
ruling on the admissibility of evidence. It gives the
trial judge the opportunity to weigh potentially
prejudicial and harmful evidence before the trial
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occurs, thus preventing the evidence from ever
reaching the jury. A trial court’s decision to grant or
deny a motion in limine is subject to an evidentiary
abuse of discretion standard of review.
Questions concerning the admissibility of evidence lie
within the sound discretion of the trial court, and we
will not reverse the court’s decision absent a clear
abuse of discretion. An abuse of discretion may not
be found merely because an appellate court might
have reached a different conclusion, but requires a
manifest unreasonableness, or partiality, prejudice,
bias, or ill-will, or such lack of support so as to be
clearly erroneous.
In addition, to constitute reversible error, an
evidentiary ruling must not only be erroneous, but
also harmful or prejudicial to the complaining party.
E. Steel Constructors, Inc. v. Int'l Fid. Ins. Co., 282 A.3d 827, 843–844
(Pa.Super. 2022), quoting Parr v. Ford Motor Co., 109 A.3d 682, 690-691
(Pa.Super. 2014) (citations omitted), appeal denied, 123 A.3d 331 (Pa.
2015), cert. denied, 577 U.S. 1008 (2015).
Following our careful review of the record, including the briefs of the
parties, the applicable law, the well-reasoned opinion of the trial court, we
find that Schwind was properly precluded from testifying on STC’s behalf
because he was only identified as a prospective witness a mere 26 days before
trial. In reaching this conclusion, the trial court set forth the following
analysis, which we adopt as our own:
[G]iven the extent and protracted duration of
discovery, and the clear opportunity [STC] had to
advise [Appellee] at an earlier date that they wished
to call new, previously unidentified witnesses (given
that the case was originally set for trial in June and
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the parties met with each other and the Court on 3
[June 3, 2020] to discuss new trial dates), the
violation was sufficiently severe such that it should not
be overlooked; [STC] had offered no reasonable,
satisfactory, or verifiable excuse for its apparent
misrepresentation (or, at minimum, insufficient and
inaccurate disclosure) to the Court and [Appellee] on
[February 14, 2020] and again on [June 3, 2020] as
to the completion of discovery and the identity of
potential witnesses, suggesting that the withholding
of the Chesapeake witness was intentional; [STC’s]
failure to timely name both witnesses, but particularly
Kevin Schwind, resulted in prejudice to [Appellee];
the resultant prejudice to [Appellee] could not be
timely cured because of the necessity for the trial to
proceed as scheduled, having already been continued
once due to COVID-19, and the unfairness to
[Appellee] of having to arrange, prepare for, and take
a last-minute deposition (all of which was further
complicated by COVID-19 restrictions) as opposed to
making final preparations for trial; and [STC] had
offered no explanation as to why Schwind’s testimony
was required, given that, according to [STC’s]
summary of their anticipated testimony, both Tim
Howard and Kevin Schwind were going to address the
same topics as Mark Brunet, the initial corporate
representative who had previously been deposed.
Additionally, the Court was permitting Howard to
testify.
Trial court opinion, 9/30/21, at 12 (numeration omitted; date formatting
corrected).
IV. Expert Testimony
STC next argues that the trial court abused its discretion in limiting the
testimony of its liability expert, Dr. J.P. Purswell, at trial. STC’s brief at 54-
59; issue C. We disagree.
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“The admission of expert testimony is a matter of discretion [for] the
trial court and will not be remanded, overruled or disturbed unless there was
a clear abuse of discretion.” A.Y. v. Janssen Pharms. Inc., 224 A.3d 1, 22
(Pa.Super. 2019) (citation omitted), appeal denied, 238 A.3d 341 (Pa.
2020), cert. denied, ___ U.S. ___, 141 S.Ct. 2658 (2021).
It is well settled in Pennsylvania that the standard for
qualification of an expert witness is a liberal one.
When determining whether a witness is qualified as an
expert the court is to examine whether the witness
has any reasonable pretension to specialized
knowledge on the subject under investigation. It is to
ascertain whether the proposed witness has sufficient
skill, knowledge, or experience in the field at issue as
to make it appear that the opinion or inference offered
will probably aid the trier of fact in the search for
truth.
Rettger v. UPMC Shadyside, 991 A.2d 915, 930 (Pa.Super. 2010) (citations
omitted), appeal denied, 15 A.3d 491 (Pa. 2011).
Here, the record reflects that in lieu of presenting Purswell’s live
testimony at trial, STC elected to offer his testimony by reading into the record
the transcript of his deposition. As a result, the trial court was able to review
the transcript and determine which portions should be omitted.
Specifically, STC was permitted to present Purswell’s testimony about
the safety obligations that OSHA imposes on employers at a worksite, as well
as his expert opinion that STC’s actions with regard to Appellee did not violate
OSHA. Purswell opined as follows:
Q. If a company on a multi-employer worksite
doesn’t create the dangerous condition that
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caused an injury to another company’s
employee, can it be citable under OSHA as a
creating employer?
A. If the second contractor does not create the
hazard, they are not citable as the creating
employer, no.
Q. Okay. This case, as you know, involved a hose,
hypothetically speaking, if [STC] did not own or
place the hose that [Appellee] alleges he tripped
over, could it be cited for an OSHA violation as
a creating employer?
A. It could not.
....
Q. Okay, Dr. Purswell. Could — if you don’t recall
my question, my previous question was could
[STC] be held liable as an exposing employer
under the OSHA regulations?
A. If the employees of [STC] are exposed to the
tripping hazard of the hose, it could be cited as
an exposing employer. [STC] could not be cited
as an exposing employer for exposing — for the
exposure of other employee, other businesses,
entities at the site, for their exposure to the
hazard. So whether it is the Sweetwater H2O,
or whether it is a sand fracking supplier,
whether it is something else, whether it’s the
company man coming out who’s at the scene, if
it’s not the [STC] employee, [STC] is not the
exposing employer.
Notes of testimony, 11/4/20 at 162-163.
The trial court, however, precluded Purswell from testifying about the
contractual obligations of the contractors at the well site and the comparative
liability of each. Specifically, the trial court stated that it was improper for
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Purswell to comment on the functioning of the well site and to “point[] a finger
at the other parties, Chesapeake and Sweet Water,” because that was beyond
the scope of his pre-trial report and was based upon his interpretation of the
contract, of which he admitted he had no expertise. Notes of testimony,
11/3/20 at 157-161; see also trial court opinion, 9/30/21 at 8-9.
Upon review, we discern no abuse of discretion on the part of the trial
in limiting the portions of Purswell’s deposition testimony that were read into
evidence to those subjects that were properly within the scope of his pretrial
report and expertise.
This court has long recognized that “[a]n expert’s testimony on direct
examination is to be limited to the fair scope of the expert’s pre-trial report.”
Stalsitz v. Allentown Hosp., 814 A.2d 766, 779 (Pa.Super. 2002), appeal
denied, 854 A.2d 968 (Pa. 2004). Moreover, “in determining whether to
admit expert testimony, the usual test to be applied is whether the witness
has a reasonable pretension to specialized knowledge on the subject matter
in question.” McFeeley v. Shah, 226 A.3d 582, 596 (Pa.Super. 2020)
(citation omitted).
Based on the foregoing, STC’s claim that it was prejudiced by the
omission of those portions of Purswell’s deposition testimony that were clearly
beyond the scope of his pre-trial report and expertise must fail.
V. Judgement of Non Pros
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STC next argues that the trial court abused its discretion in denying its
motion for entry of judgment of non pros. STC’s brief at 59-62; issue D.
STC alleges that it was prejudiced by the nearly three-year period of “docket
inactivity” from July 2014 until April 2017 that was attributable to Appellee,
such that he was incapable of properly preparing for trial. Id.; see also
“Motion for Entry of Judgment Non Pros,” 4/10/17 at ¶¶ 3-10. For the
following reasons, we disagree.
“The standard governing our review of a trial court decision to deny a
petition to open a judgment of non pros is one of abuse of discretion.” Florig
v. Estate of O’Hara, 912 A.2d 318, 323 (Pa.Super. 2006) (citations omitted),
appeal denied, 929 A.2d 1162 (Pa. 2007). “A trial court will be found to
have abused its discretion if, in reaching its conclusion, the law is overridden
or misapplied, or the judgment exercised is manifestly unreasonable or the
result of partiality, prejudice, bias or ill will.” Id. at 323–324 (citation
omitted).
“Relief from a judgment of non pros shall be sought by petition. All
grounds for relief, whether to strike off the judgment or to open it, must be
asserted in a single petition.” Pa.R.C.P. 3051(a). To open a judgment of non
pros, the petition shall allege facts showing that:
(1) the petition is timely filed,
(2) there is a reasonable explanation or legitimate
excuse for the conduct that gave rise to the entry of
judgment of non pros, and
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(3) there is a meritorious cause of action.
Pa.R.C.P. 3051(b)(1-3).
In interpreting Rule 3051, this Court has stated that:
in order for the judgment of non pros to be opened,
three elements must coalesce: 1) the petition to open
must be promptly filed; 2) the default or delay must
be reasonably explained or excused; and 3) facts
must be shown to exist which support a cause of
action.
Madrid v. Alpine Mountain Corp., 24 A.3d 380, 381 (Pa.Super. 2011)
(citations omitted), appeal denied, 40 A.3d 1237 (Pa. 2012).
Instantly, the trial court addressed this issue in its opinions authored in
support of its September 30, 20201 order denying STC’s post-trial motions
and its October 29, 2021 order granting Appellee’s motion for delay damages.
Therein, the trial court found that “[Appellee’s] reasons for the alleged
inactivity … were credible, satisfactory, compelling, and not indicative of bad
faith or intentional delay.” Trial court opinion, 9/30/21 at 5. The trial court
further concluded that STC’s claim that Appellee had done nothing to move
the case forward during the nearly three-year period that the proceeded the
filing of its motion is belied by the record. The trial court stated:
In direct response to [STC’s] claim that there was “no
docket activity” after July 14, 2014, [Appellee]
provides a list of documents that purport to support
[Appellee’s] claim that discovery was ongoing during
this period, including: a subpoena to produce issued
August 15, 2014; a letter from [Appellee] to [STC]
requesting depositions dated November 6, 2014;
supplemental discovery sent by [Appellee] to [STC]
by letter dated November 11, 2014; a subpoena to
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produce issued January 1, 2015; and a subpoena to
produce issued March 5, 2015. While these
documents may not have been listed on the docket
and were not part of the record, their authenticity is
obvious and has not been challenged by [STC].
[Appellee] also notes that [STC] switched counsel, for
the second time, on June 2, 2015, followed by a
change of [Appellee’s] counsel on August 30, 2016.
From this, [Appellee] argues that the “timeline is
indicative of [Appellee’s] due diligence in pursuit of his
claim” and that “[a]ny alleged period of inactivity in
this litigation is not attributable to [Appellee] and
should not bar him from receiving delay damages.”
Trial court opinion, 10/29/21 at 4 (citation omitted; internal quotation marks
in original).
Following our own independent review, we find that the record supports
the trial court’s findings. Accordingly, we discern no abuse of discretion on
the part of the trial court in denying STC relief on its motion for judgment of
non pros.
VI. Delay Damages
Similarly, STC further argues that the trial court abused its discretion in
finding that Appellee was entitled to delay damages for the aforementioned
“3-year period of inactivity from 2014 until 2017” that was the subject of its
motion for entry of judgment non pros. STC’s brief at 62-63; issue E. This
claim is meritless.
“Our standard of review in assessing whether a trial court erred in
calculating delay damages is well-settled. We will not reverse a trial court’s
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decision to impose delay damages absent an abuse of discretion.” Sopko v.
Murray, 947 A.2d 1256, 1258 (Pa.Super. 2008) (citation omitted).
Pennsylvania Rule of Civil Procedure 238 governs delay damages for
actions for bodily injury or death and provides, in relevant part, as follows:
(a)(1) At the request of the plaintiff in a civil action
seeking monetary relief for bodily injury, death or
property damage, damages for delay shall be added
to the amount of compensatory damages awarded
against each defendant or additional defendant found
to be liable to the plaintiff in the verdict of a jury, in
the decision of the court in a nonjury trial … and shall
become part of the verdict, decision or award.
(2) Damages for delay shall be awarded for the period
of time from a date one year after the date original
process was first served in the action up to the date
of the award, verdict or decision.
(3) Damages for delay shall be calculated at the rate
equal to the prime rate as listed in the first edition of
the Wall Street Journal published for each calendar
year for which the damages are awarded, plus one
percent, not compounded.
(b)(1) The period of time for which damages for delay
shall be calculated under subdivision (a)(2) shall
exclude the period of time, if any,
(i) after the defendant made a written offer
which complied with the requirements of
subdivision (b)(2), provided that the plaintiff
obtained a recovery which did not exceed the
amount described in subdivision (b)(3), or
(ii) during which the plaintiff caused delay of the
trial.
Pa.R.C.P. 238(a), (b).
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“The purpose of Rule 238 is to alleviate delay in the courts by providing
an incentive and encouragement for defendants to settle meritorious claims
as soon as reasonably possible.” Sopko, 947 A.2d at 1258 (citation omitted).
“[A] defendant bears the burden of proof when opposing imposition of delay
damages and may do so on two bases: (1) establishing that the requisite offer
has been made in accordance with the terms of Pa.R.C.P. 238(b)(1)(i); or (2)
establishing that the plaintiff was responsible for specified periods of delay.”
Shay v. Flight C Helicopter Servs., Inc., 822 A.2d 1, 20–21 (Pa.Super.
2003) (citation omitted).
As discussed, the trial court found that Appellee did not unnecessarily
delay this case during the nearly three-year period that preceded the filing of
STC’s motion for entry of judgment non pros, and thus, “did not cause a
delay of trial that would bar the recovery of delay damages in whole or part.”
Trial court opinion, 10/29/21 at 4-5. Accordingly, the trial court awarded
Appellee delay damages of $332,600.86, in accordance with the proper
method of calculation – prime rate plus 1% – as set forth in Rule 238(a)(3).
See id. at 2; trial court order, 10/29/21. Upon review, we find this was a
proper exercise of the trial court’s discretion. Accordingly, STC’s final claim
of trial court error must fail.
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For all the foregoing reasons, we affirm the November 8, 2021 judgment
entered in favor of Appellee and against STC in the amount of $1,304,906.17.2
____________________________________________
2 The majority acknowledges there is an inconsistency in the law in this
Commonwealth regarding the appealability of pre-trial motions. Compare,
e.g., Whitaker, 984 A.2d 517 (noting that once the case proceeded to trial
and the defendants presented a defense, the denial of their motion for
summary judgment became moot and, upon entry of a verdict in plaintiff’s
favor, “the issue became whether the trial court erred in failing to grant them
[JNOV]”); and Xtreme Caged Combat v. Zarro, 247 A.3d 42, 50 (Pa.Super.
2021) (applying Whitaker in concluding that “the denial of [plaintiff’s]
summary judgment motion is not appealable as an issue separate from the
grant of the nonsuit at trial”); with Windows v. Erie Insurance, 161 A.3d
953 (Pa.Super. 2017) (reaching merits of trial court’s denial of summary
judgment motion on appeal following trial without explanation as to why the
denial was reviewable); and Brownlee v. Home Depot U.S.A., Inc., 241
A.3d 455 (Pa.Super. 2020) (non-precedential decision at 6-7 & n.5) (holding
that the denial of a motion for summary judgment is not moot following trial
and noting further “that a litigant should be permitted to challenge, on appeal,
a trial court’s denial of a pretrial motion for summary judgment even after the
parties have proceed to trial and a verdict.”). An En Banc panel of this Court
should be considered in light of inconsistent jurisprudence regarding
appealability of pre-trial motions.
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Judgment affirmed.
An En Banc panel of this Court should be considered in light of
inconsistent jurisprudence regarding appealability of pre-trial motions.
Judge McCaffery joins.
Judge Bowes files a Concurring Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/26/2023
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