in the superior court of pennsylvania no. 2040 eda …
TRANSCRIPT
IN THE SUPERIOR COURT OF PENNSYLVANIA __________
No. 2040 EDA 2019 (Consolidated with 2011 EDA 2019, 2036 EDA 2019 and 2080 EDA 2019)
__________
KEITH SPENCER, Appellant/ Cross-Appellee
v.
CLEVELAND JOHNSON, Appellee
and
TINA GAINER JOHNSON AND PHILADELPHIA JOINT BOARD WORKERS UNITED, SEIU,
Appellees/ Cross-Appellants
APPLICATION FOR REARGUMENT EN BANC OF APPELLEE/CROSS-APPELLANT,
PHILADELPHIA JOINT BOARD WORKERS UNITED, SEIU
Application from the March 18, 2021 Opinion affirming, reversing, vacating and remanding the May 17, 2019 Judgment entered in the Court of Common Pleas of
Philadelphia County, at Docket No. 2136, August Term, 2016
KARYN DOBROSKEY RIENZI, ESQUIRE ATTORNEY I.D. NO.: 92034 [email protected] POST & SCHELL, P.C. 1600 J.F.K. BOULEVARD FOUR PENN CENTER, 14th FLOOR PHILADELPHIA, PA 19103 (215) 587-1175
COUNSEL FOR APPELLEE/ CROSS-APPELLANT, PHILADELPHIA JOINT BOARD WORKERS UNITED, SEIU
Received 4/1/2021 1:18:57 PM Superior Court Eastern District
Filed 4/1/2021 1:18:00 PM Superior Court Eastern District2011 EDA 2019 and additional consolidated case(s)
TABLE OF CONTENTS
PAGE
i
TABLE OF AUTHORITIES ................................................................................. ii
I. INTRODUCTION ......................................................................................... 1
II. TEXT OF THE ORDER IN QUESTION ................................................... 3
III. STATEMENT OF REASONS RELIED UPON FOR REARGUMENT EN BANC ........................................................................................................ 4
A. THE PANEL’S DECISION THAT AN EMPLOYER IS LIABLE FOR THE ACTIVITIES OF AN ON CALL EMPLOYEE EVEN WHEN THOSE ACTIVITIES ARE NOT IN THE FURTHERANCE OF THE EMPLOYER’S BUSINESS CONFLICTS WITH LONG-STANDING PENNSYLVANIA CASE LAW TO CONTRARY ...................................................................... 4
B. THE PANEL MISAPPREHENDED THE LAW IN SUA SPONTE LIMITING THE APPLICATION OF THE FAIR SHARE ACT ................................................................... 7
C. THE PANEL MISAPPREHENDED THE LAW IN UPHOLDING THE JURY’S APPORTIONMENT OF GREATER LIABILITY TO THE VEHICLE OWNER THAN TO THE INTOXICATED, UNLICENSED DRIVER .................................................................. 10
IV. CONCLUSION ............................................................................................ 12
APPENDIX
CERTIFICATION OF COMPLIANCE WITH WORD COUNT
CERTIFICATE OF SERVICE
TABLE OF AUTHORITIES
CASES PAGE(S)
ii
Capponi v. Berg, 49 Pa. D. & C. 5th 305, 2015 Phila. Ct. Com. Pl. LEXIS 239 (Aug. 12, 2015), aff’d without op., 156 A.3d 333 (Pa. Super. 2016) ...........................................................................................11
City of Philadelphia v. Workers’ Comp. Appeal Bd. (Stewart), 728 A.2d 431 (Pa. Commw. 1999) ......................................................................... 5
Commonwealth v. Fithian, 961 A.2d 66, 74 (Pa. 2008) ............................................ 8
Danville Area Sch. Dist. v. Danville Area Educ. Ass’n, 754 A.2d 1255 (Pa. 2000) ......................................................................................................... 7
Hoy v. Angelone, 720 A.2d 745 (Pa. 1998) .........................................................9, 10
In re Adoption of K.M.G., 240 A.3d 1218 (Pa. 2020) ............................................... 7
Sekulski v. Workers’ Comp. Appeal Bd. (Indy Assocs.), 828 A.2d 14 (Pa. Commw. 2003) ......................................................................................... 5
Spencer v. Johnson, __A. 3d __, 2021 PA Super 48 (Pa. Super. Mar. 18, 2021) ......................................................................................................1, 6
Steiner v. Markel, 968 A.2d 1253 (Pa. 2009) ............................................................ 7
Thompson v. Philadelphia, 493 A.2d 669 (Pa. 1985) ..............................................11
Twp. of Salem v. Workmen’s Comp. Appeal Bd. (Leshow), 437 A.2d 496 (Pa. Commw. 1981) .................................................................................. 5
U.S. Airways v. Workers’ Comp. Appeal Bd. (Dixon), 764 A.2d 635 (Pa. Commw. 2000), alloc. denied, 788 A.2d 382 (Pa. 2001) ....................4, 5
U.S. Steel Corp. v. Workers’ Comp. Appeal Bd. (Luczki), 887 A.2d 817 (Pa. Commw. 2005), appeal denied, 899 A.2d 1125 (Pa. 2006) ................................................................................................................ 9
Wiegand v. Wiegand, 337 A.2d 256 (Pa. 1975) ......................................................... 7
TABLE OF AUTHORITIES
STATUTES PAGE(S)
iii
1 Pa.C.S.A. §1921(a) ................................................................................................. 8 42 Pa.C.S.A. §7102 ................................................................................................8, 9 42 Pa.C.S. §7102(b) (deleted) .................................................................................... 8
RULES
Pa.R.A.P. 2543 .......................................................................................................... 1
OTHER SOURCES
Pennsylvania Senate Journal, 2011 Reg. Sess. No. 43 pp. 719-22 ..........................10
I. INTRODUCTION
On March 18, 2021, this Court’s Panel issued a Majority Opinion1 reversing
the trial court’s Order denying the post-trial motion of Appellant/ Cross-Appellee,
Keith Spencer ( “Plaintiff”), to mold the verdict, reversing in part and affirming in
part the Order regarding Plaintiff’s post-trial motion for delay damages, and
affirming the trial court’s Orders denying the post-trial motions of Appellees/ Cross-
Appellants, Philadelphia Joint Board Workers United, SEIU (“PJB”) and Tina
Johnson (“Tina”). Spencer v. Johnson, __A. 3d __, 2021 PA Super 48 (Pa. Super.
Mar. 18, 2021). See also Appendix “A” to this Application. PJB is seeking
reargument en banc of the Panel’s decision, pursuant to Pennsylvania Appellate
Procedure Rule 2543, for the following reasons.
First, the Panel’s determination, that Tina was in the course of employment
with PJB at the time Plaintiff was injured due to Tina’s on call status, conflicts with
the well-settled case law of this Commonwealth, which holds that an employee is
not in the course of employment while she is on call and reachable by employer but
engaged in non-work-related activities off of the employer’s premises. The Panel
misapprehended the facts and the law when it decided that Tina was in the course of
her employment while attending a gathering at a family member’s home when her
1 The three-judge panel assigned to decide the consolidated appeals consisted of President Judge Jack A. Panella, Judge Daniel D. McCaffery and Judge Maria McLaughlin. Although Judge McLaughlin heard oral argument, the Opinion indicates that she did not participate in the consideration or decision of this case.
2
husband, Appellee, Cleveland Johnson (“Cleveland”), who was not an employee of
PJB, but who was intoxicated and had a suspended driver’s license, took the keys to
Tina’s company vehicle without her permission and ultimately struck Plaintiff while
driving the vehicle. The Panel’s decision improperly imposes liability on an
employer for the acts of its on call employees 24 hours per day regardless of whether
the employee is furthering the employer’s business and opens the door for a greatly
expanded basis for imposing liability upon employers in this Commonwealth.
Reargument en banc is required to address this critical issue.
Second, reargument en banc is required to address the Panel’s sua sponte
decision that, even if PJB was not vicariously liable for Tina’s actions in the course
of her employment, the Fair Share Act (“the Act”) does not apply to situations where,
as here, a plaintiff is not guilty of contributory negligence. The Panel’s incorrect
interpretation of the Act, which reinstates joint and several liability for an untold
number of defendants throughout the Commonwealth, and which conflicts with the
plain language of the Act and its legislative history, should not be permitted to stand.
Finally, the Panel misinterpreted and misapplied the law in refusing to grant
a new trial where the verdict was against the weight the evidence, as jury unfairly
attributed a greater proportion of liability to PJB, the owner of the company vehicle,
based upon its failure to implement a plan sufficient to monitor its employees’ usage
of such vehicles, than to the vehicle’s driver, who admitted negligence, was
3
intoxicated, had a suspended license, and never had permission, from PJB or Tina,
to drive the vehicle on the date of the accident. For each or all of these reasons,
reargument en banc should be granted.
II. TEXT OF THE ORDER IN QUESTION2
Judgment affirmed in part and vacated in part. Order regarding post-trial
motion to mold the verdict reversed. Order regarding post-trial motion for delay
damages reversed in part and affirmed in part. Case remanded with instructions.
Jurisdiction relinquished.
Judge McCaffery joins the Opinion.
Judge McLaughlin did not participate in the consideration or decision of this
case.
Judgment Entered.
_______________________ Joseph D. Seletyn, Esq. Prothonotary
Date: 3/18/21
2 A copy of the Panel’s March 18, 2021 Opinion is contained in the attached Appendix.
4
III. STATEMENT OF REASONS RELIED UPON FOR REARGUMENT EN BANC
A. THE PANEL’S DECISION THAT AN EMPLOYER IS LIABLE FOR THE ACTIVITIES OF AN ON CALL EMPLOYEE EVEN WHEN THOSE ACTIVITIES ARE NOT IN THE FURTHERANCE OF THE EMPLOYER’S BUSINESS CONFLICTS WITH LONG-STANDING PENNSYLVANIA CASE LAW TO CONTRARY
The Panel determined that, at the time Cleveland struck Plaintiff with Tina’s
company vehicle while Tina attended a family gathering, Tina was acting within the
course and scope of her employment because she was on-call “24/7.” The Panel’s
determination is contrary to the law.
The Pennsylvania Workers’ Compensation Act provides that an employee is
considered to be acting within the “course of employment” in the following
circumstances: (1) where the employee is on or off the employer’s premises, while
actually engaged in the furtherance of the employer’s business or affairs; or (2)
where the employee, although not actually engaged in the furtherance of the
employer’s business or affairs, (a) is on the premises occupied or under the control
of the employer, or upon which the employer’s business or affairs are being carried
on, (b) is required by the nature of his employment to be present on the employer’s
premises, and (c) sustains injuries caused by the condition of the premises or by
operation of the employer's business or affairs thereon. U.S. Airways v. Workers’
Comp. Appeal Bd. (Dixon), 764 A.2d 635, 640 (Pa. Commw. 2000), alloc. denied,
5
788 A.2d 382 (Pa. 2001). Where, as here, Tina was not on PJB’s premises at the
time of the accident, whether Tina was acting within the course of employment
depends upon whether she was actually engaged in the furtherance of PJB’s business
at that time. Id., at 640.
In Sekulski v. Workers’ Comp. Appeal Bd. (Indy Assocs.), 828 A.2d 14 (Pa.
Commw. 2003), the Commonwealth Court specifically rejected the blanket
determination made by the Panel in this case – that an employee is considered to act
within the course of her employment at all times while on call. Id., at 17-18. Instead,
the Court held as follows:
The cases relied upon by claimant, as well as our own research, do not support the proposition that an employee is in the course of employment if he sustains an injury while he is “on call” and reachable by employer but engaged in non-work-related activities off of the employer’s premises… To hold otherwise would impose liability on an employer… 24 hours a day regardless of whether the employee is actually furthering its business or affairs...
Id., at 19 (emphasis added). Compare City of Philadelphia v. Workers’ Comp.
Appeal Bd. (Stewart), 728 A.2d 431 (Pa. Commw. 1999) (holding that the on call
electrician was in the course of employment while traveling to the workplace after
an receiving a call regarding an electrical emergency); Twp. of Salem v. Workmen’s
Comp. Appeal Bd. (Leshow), 437 A.2d 496 (Pa. Commw. 1981) (holding that
evidence that the township roadmaster, who was on call 24 hours a day and who had
6
a fatal car accident shortly after the end of his usual work schedule on a road within
his area of responsibility, during weather conditions which would require him to
monitor road maintenance, supported the conclusion that he was within the course
of his employment at the time of the involved incident).
The evidence at trial established that, although she was on call “24/7” for her
job with PJB, Tina and Cleveland were attending a private family gathering at the
time of the accident.3 Tina was not furthering PJB’s business when she drove the
company car to the family gathering or at the time Cleveland caused the accident.
As a result, pursuant to all applicable law, Tina was not in the course of employment
at the time of the accident and PJB was not vicariously liable for Tina’s actions.
The Panel further misapprehended the law when it held that PJB had waived
this issue, based upon its sua sponte decision that PJB failed to request a special
interrogatory allocating damages based on individual or vicarious liability. Plaintiff
never argued that PJB was required to submit a special interrogatory on the issue.
Instead, it was Plaintiff who argued in his Brief that, “[a] special interrogatory was
unnecessary here on the question of course and scope because PJB and [Tina]
3 In further support of its position, the Panel states that the accident occurred on a Thursday and “there was no evidence presented at trial which conclusively disputed that Tina worked the day of the accident.” See Spencer, at *45. A finding that Tina was in the course of employment based upon this speculation cannot support the Plaintiff’s burden of proving that Tina was in the course of her employment at the time of the accident. Significantly, Plaintiff could not and did not present any evidence that Tina’s private family gathering had any connection with her work activities.
7
admitted to it in connection with her use of the company car.” See Appellant Brief,
at 27.
The Panel’s expansion of the course of employment for on call employees
conflicts with well-settled law and would improperly expand employers’ liability for
any and all acts of its on call employees – whether those acts occurred in the
furtherance of the employer’s business or not. Reargument en banc is required to
address this critical issue.
B. THE PANEL MISAPPREHENDED THE LAW IN SUA SPONTE LIMITING THE APPLICATION OF THE FAIR SHARE ACT
It is well-established that where the parties in a case fail to preserve an issue
for appeal, an appellate court may not address that issue sua sponte. Steiner v.
Markel, 968 A.2d 1253, 1257 (Pa. 2009). Appellate courts consider only the
controversies preserved by the litigants because sua sponte consideration of issues
exceeds their proper appellate function and disturbs the process of orderly judicial
decision-making by depriving the court of the benefit of counsel’s advocacy,
Danville Area Sch. Dist. v. Danville Area Educ. Ass’n, 754 A.2d 1255, 1259 (Pa.
2000), and depriving the litigants the opportunity to brief and argue the issues.
Wiegand v. Wiegand, 337 A.2d 256, 257 (Pa. 1975). See also In re Adoption of
K.M.G., 240 A.3d 1218 (Pa. 2020) (sua sponte review by appellate courts “renders
the lower proceedings a mere dress rehearsal for further appellate review.”)
(citations omitted). That is exactly what occurred here.
8
Neither Plaintiff nor his amicus curiae (nor any other party) argued that the
Fair Share Act does not apply because Plaintiff was not contributorily negligent for
the accident.4 As a result, the two-Judge Panel improperly abrogated the Act without
even providing the parties an opportunity to address the issue. A vacation of the
Panel’s Opinion and/or reargument en banc is required to rectify this issue.
Additionally, the Panel’s decision conflicts with the plain language of the Fair
Share Act, 42 Pa.C.S.A. §7102, which was enacted in 2011 to replace the
Comparative Negligence Act, 42 Pa.C.S. §7102(b) (deleted), and abolish joint and
several liability in tort cases other than those specifically enumerated in the Act.
“The Statutory Construction Act provides that the object of interpretation and
construction of statutes is to ascertain and effectuate the intention of the legislature.
1 Pa.C.S.A. §1921(a). The General Assembly’s intent is best expressed through the
plain language of a statute. Commonwealth v. Fithian, 961 A.2d 66, 74 (Pa. 2008).
4 Plaintiff argued only that the trial court erred in refusing to mold the entire verdict as to PJB based upon his claims that (1) PJB and Tina judicially admitted that Tina was within the course of employment “24/7” while possessing the company vehicle; (2) PJB was liable for negligent supervision of Tina’s use of the vehicle within the course of her employment; (3) PJB was vicariously liable for Tina’s negligence because it involved the use of PJB’s chattel (i.e., the company vehicle); (4) the Fair Share Act does not immunize employers for the negligence of its employees; and (5) Section 1574 of the Pennsylvania Motor Vehicle Code required a molding of the entire verdict as to PJB. Similarly, amicus curiae argued only that the trial court erred in refusing to mold the entire verdict as to PJB based upon the allegation that the jury instructions provided only three legal theories for direct liability of PJB, each of which they claimed established PJB’s vicarious liability for Tina’s actions.
9
In Hoy v. Angelone, 720 A.2d 745 (Pa. 1998), our Supreme Court was asked
to interpret the Pennsylvania Human Relations Act (“PHRA”) to contain an implied
right to punitive damages. In declining to judicially amend the PHRA to allow for
the recovery of punitive damages, the Court stated that,
[W]e note that our Legislature was free to provide for punitive damages under the Act. Indeed, even a cursory survey of other statutory enactments by our Legislature makes clear that it knew how to provide for punitive damages in clear and unambiguous terms. Thus, as a starting point, it is reasonable to infer that the General Assembly’s use of specific language to permit the award of punitive damages in numerous statutes reflects an intention to allow such a remedy only when expressly provided for.
Id., 720 A.2d at 748 (emphasis added). See also U.S. Steel Corp. v. Workers’ Comp.
Appeal Bd. (Luczki), 887 A.2d 817, 821-22 (Pa. Commw. 2005), appeal denied, 899
A.2d 1125 (Pa. 2006) (holding that if the General Assembly had not intended Section
440(a) of the Workers’ Compensation Act to apply to contests of Utilization Review
Determinations under Section 306(f.1)(6) of the Act, it would have expressly stated
such an exception).
The Fair Share Act specifically sets forth the limited exceptions where joint
and several liability apply, none of which include the situation in which the plaintiff
is not guilty of contributory negligence. 42 Pa.C.S.A. §7102. The Legislature could
have included a provision in the Act which allowed for joint and several liability to
apply where the plaintiff is not contributorily negligent. Its silence on the issue,
10
however, together with the statutory language, demonstrate that it did not intend to
apply joint and several liability under these circumstances. See e.g., Hoy, supra.
The Panel alleges that “there is no indication the legislature intended to make
universal changes to the concept of joint and several liability outside of cases where
a plaintiff has been found to be contributorily negligent.” A review of the legislative
history of the Act demonstrates that this was, in fact, the Legislature’s intention:
“Everybody who is injured as a result of an accident is not necessarily entitled to full
recovery. That has never been a principle of law. They are entitled to recovery
against the person who is found to be liable, and in the percentage of which they are
liable. That is what this bill says, pure and simple.” Pennsylvania Senate Journal,
2011 Reg. Sess. No. 43. pp. 719-22.
The Panel’s improper and incorrect decision has it has resulted in the judicial
amendment of the Fair Share Act, thereby exponentially increasing the potential
liability of defendants in cases pending in this Commonwealth now and in the future.
The Panel’s decision cannot stand.
C. THE PANEL MISAPPREHENDED THE LAW IN UPHOLDING THE JURY’S APPORTIONMENT OF GREATER LIABILITY TO THE VEHICLE OWNER THAN TO THE INTOXICATED, UNLICENSED DRIVER WHO ADMITTED NEGLIGENCE
The jury’s apportionment of fault in this case is manifestly and palpably
against the weight of the evidence and requires the grant of a new trial. The only
two cases the parties and the Panel identified with facts similar to the instant matter
11
are Thompson v. Philadelphia, 493 A.2d 669 (Pa. 1985) and Capponi v. Berg, 49 Pa.
D. & C. 5th 305, 2015 Phila. Ct. Com. Pl. LEXIS 239 (Aug. 12, 2015), aff’d without
op., 156 A.3d 333 (Pa. Super. 2016). The Panel misapprehended those cases to
support its decision to refrain from interfering with the trial court’s discretion in
denying a new trial.
The Pennsylvania Supreme Court in Thompson and this Court in Capponi did
not disturb the trial courts’ decisions in those cases because the trial courts had
already done what PJB requested in this case – granted a new trial where the
appointment of liability was against the weight of the evidence and resulted in a
miscarriage of justice. See Thompson, supra, at 674 (“We cannot find it wrong to
believe that an inattentive driver barreling into a marked exit ramp at 40-45 miles an
hour, who did not stop for a ‘clearly visible’ stop sign because he did not see it, and
who was unable to control his vehicle at the intersection, is more at fault than those
who maintain the road he was not sure he was on.”); Capponi, supra (“[T]his court
refuses to accept [the] jury’s determination that Defendant Berg was nine times less
negligent when she failed to obey a traffic signal, ignored a posted traffic sign, and
failed to observe oncoming vehicles when the evidence clearly indicates that she
should have performed all of these actions.”).
PJB, the owner of the company vehicle, cannot be more at fault than
Cleveland, an intoxicated, unlicensed driver who took the keys to the vehicle without
12
permission, and who struck and injured the pedestrian-Plaintiff. The Panel’s
determination, that it was not unreasonable for the jury to decide that if PJB had
enforced more stringent guidelines for use of the company vehicle, Cleveland would
not have been involved in the accident, is based purely upon speculation and
involves strained logic that opens the door to unfairly allow greater liability to be
placed upon defendants whose actions are two steps removed from the direct cause
of an accident, such as the situation presented here. Any lack of oversight by PJB
with regard to its company vehicles does not justify the jury’s apportionment of 45
percent liability to PJB, where the jury only apportioned 36 percent liability to
Cleveland. As a result, reargument en banc is required.
IV. CONCLUSION
There are significant and compelling reasons for this Court to grant
reargument en banc. As such, PJB requests that this Court vacate the Panel’s
decision and allow the parties to reargue the appeals before an en banc panel of this
Court.
POST & SCHELL, P.C.
BY: /s/ Karyn Dobroskey Rienzi KARYN DOBROSKEY RIENZI, ESQ. COUNSEL FOR APPELLEE/ CROSS-APPELLANT, PHILADELPHIA JOINT BOARD WORKERS UNITED, SEIU
APPENDIX “A”
J-A19025-20
2021 PA Super 48
KEITH SPENCER
Appellant
v.
CLEVELAND JOHNSON, TINA GAINER
JOHNSON, AND PHILADELPHIA JOINT BOARD WORKERS UNITED,
SEIU
: :
: :
: :
:
: :
: :
IN THE SUPERIOR COURT OF PENNSYLVANIA
No. 2011 EDA 2019
Appeal from the Order Entered April 23, 2019 In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): August Term, 2016 No. 2136
KEITH SPENCER
v.
CLEVELAND JOHNSON; TINA GAINER JOHNSON AND PHILADELPHIA JOINT
BOARD WORKERS UNITED, SEIU
APPEAL OF: TINA GAINER JOHNSON
:
:
: :
: :
: :
: :
: :
IN THE SUPERIOR COURT OF
PENNSYLVANIA
No. 2036 EDA 2019
Appeal from the Judgment Entered May 17, 2019
In the Court of Common Pleas of Philadelphia County Civil Division at No(s): August Term, 2016 No. 2136
KEITH SPENCER
Appellant
v.
CLEVELAND JOHNSON, TINA GAINER
JOHNSON, AND PHILADELPHIA
:
: :
: :
: :
: :
:
IN THE SUPERIOR COURT OF
PENNSYLVANIA
No. 2040 EDA 2019
J-A19025-20
- 2 -
JOINT BOARD WORKERS UNITED, SEIU
:
Appeal from the Order Entered April 23, 2019 In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): August Term, 2016 No. 2136
KEITH SPENCER
v.
CLEVELAND JOHNSON AND TINA
GAINER JOHNSON AND PHILADELPHIA JOINT BOARD
WORKERS UNITED, SEIU
APPEAL OF: PHILADELPHIA JOINT
BOARD WORKERS UNITED, SEIU
: :
: :
:
: :
: :
: :
: :
:
IN THE SUPERIOR COURT OF PENNSYLVANIA
No. 2080 EDA 2019
Appeal from the Order Dated April 23, 2019 In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): August Term, 2016, No. 2136
BEFORE: PANELLA, P.J., McLAUGHLIN, J.,
* and McCAFFERY, J.
OPINION BY PANELLA, P.J.: Filed: March 18, 2021
This consolidated appeal arises out of an automobile accident that
occurred in West Philadelphia, Pennsylvania. On October 16, 2014, the car
that Cleveland Johnson (“Cleveland”) was driving struck Appellant/Cross-
Appellee, Keith Spencer (“Spencer”), a pedestrian, as he lawfully crossed the
street. Spencer suffered permanent, debilitating injuries, which have severely
____________________________________________
* Judge McLaughlin did not participate in the consideration or decision of this case.
J-A19025-20
- 3 -
diminished his quality of life. Central to this appeal is the extent to which the
owner of the car that Cleveland was driving should be held liable for Spencer’s
injuries. The owner, Appellee/Cross-Appellant, Philadelphia Joint Board
Workers United, SEIU (“PJB”), provided the car to its employee,
Appellee/Cross-Appellant, Tina Johnson (“Tina”), who is Cleveland’s wife.1
The parties do not dispute two facts: (1) Spencer was not at fault, and
(2) Cleveland was negligent in his operation of the vehicle. However, the
parties disagree as to whether Tina was negligent in allowing Cleveland to
operate her work vehicle, and whether PJB was negligent under the laws of
agency and vicarious liability in failing to maintain reasonable policies and
regulations for the vehicles it provides to employees like Tina.
As will be discussed in detail below, Spencer instituted a civil action
against Cleveland, Tina, and PJB, and the matter eventually went to trial. The
jury found that all three defendants shared liability for Spencer’s injuries, and
apportioned that liability among the defendants. Spencer sought to mold the
verdict to make PJB jointly and severally liable2 for Tina’s negligence. The trial
____________________________________________
1 On August 15, 2019, this Court entered an order, sua sponte, consolidating
the appeals as cross-appeals. Spencer was designated as Appellant/Cross-Appellee. Tina and PJB were designated as Appellees/Cross-Appellants. See
Pa.R.A.P. 2136. Cleveland did not file a notice of appeal, and is not a party to this present matter.
2 The Pennsylvania Supreme Court defines joint and several liability as follows:
“Under the doctrine of joint and several liability, where there is more than one defendant, an injured party may seek to recover his or her entire judgment
J-A19025-20
- 4 -
court denied Spencer’s request. Because we conclude that Spencer is legally
entitled to this relief, we are constrained to reverse the trial court’s denial of
Spencer’s post-trial motion to mold the verdict, and we consequently remand
for further proceedings.
The essential facts relevant to this appeal are largely undisputed.3
Where there are factual disputes between the parties, we will highlight them.
However, one of the parties’ primary disputes concerns the legal
consequences of PJB’s act in providing Tina with a car. PJB is small labor union
organization that covers the Philadelphia and South Jersey areas. Tina initially
volunteered at the union when she worked at an airport magazine shop, but
later became a fulltime, paid employee.
In 2012, PJB provided Tina with a company car, a 2009 silver Ford
Escape, because PJB considered these vehicles “absolutely essential to the
____________________________________________
from either of the defendants.” AAA Mid-Atlantic Ins. Co. v. Ryan, 84 A.3d
626, 628 n.1 (Pa. 2014). Moreover, the Supreme Court has further stated,
“Joint and several liability as a principle of recovery for an indivisible injury caused by multiple tortfeasors lies at the very heart of the common law of
tort, and also has a solid foundation in Pennsylvania’s statutory law.” Carrozza v. Greenbaum, 916 A.2d 553, 565 (Pa. 2007). See also Glomb
v. Glomb, 530 A.2d 1362, 1365 (Pa. Super. 1987) (“Imposition of joint and several liability enables the injured party to satisfy an entire judgment against
any one of the tort-feasors, even if the wrongdoing of that tortfeasor contributed only a small part to the harm inflicted.”).
3 The relevant facts and procedural history of this complex case are gleaned
from the certified record and the trial court’s Rule 1925(a) opinion, which no party disputes.
J-A19025-20
- 5 -
work of organizers and business representatives” since “employees could be
required to drive out to job sites at any hour of day or night, twenty-four hours
a day.” Trial Court Opinion, 6/24/2019, at 5 (internal quotations marks
omitted).4 The car was considered part of the job so unless someone proved
“unfit,” the employee would be given a car. N.T., 1/22/2019 p.m., at 51.
PJB’s main requirement for providing a company car was that the
employee must have a valid driver’s license. See Trial Court Opinion,
6/24/2019, at 5. PJB also considered the employee’s past performance, her
reputation, and her work ethic. See id.
PJB’s chief of staff at the time was Richard Minter.5 Minter stated that
employees are not “automatically given a car on day one, and that PJB vetted
its employees by making them prove their credibility through their work
performance and history.” Id., at 4 n.1 (quotation marks omitted). Minter
communicated that “the process was complex and was not taken lightly, but
provided no other details about the process other than running the driver’s
license.” Id. (record citation and quotation marks omitted).
____________________________________________
4 PJB provided six of its seven staff members with company cars. 5 At the time of the incident, Minter was the chief of staff and organizer director for PJB. He oversaw the work of the staff and the organization of projects that
the union would undertake. At the time of trial, he transferred positions within the union and his title changed to assistant director. See N.T., 1/25/2019
a.m., at 8-9.
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Notably, PJB did not conduct an interview or a background check prior
to issuing the car to Tina. See id., at 4. Lynne Fox,6 the PJB manager,
indicated that when Tina started volunteering at the union, Tina was still
working at the airport, which conducts “background checks” that were more
specific than what PJB would have done and therefore, PJB “relied on those
checks.” N.T., 1/22/2019 p.m., at 51. Fox never asked Tina to “submit any
type of authorization in order to obtain all the records” from the former
employer that would have given Fox the background information because, as
she put it, the employer “might just have verified it.” Id., at 52. Moreover,
per Fox, PJB did not perform an independent investigation of Tina’s
background prior to providing the car because Tina worked for the union “for
a number of years.” Id., at 53.
PJB’s secretary and treasurer, Mildred Saldana, indicated the union did
not have a written employee handbook at that time and “did not provide their
vehicle usage policy to employees in writing; [rather,] they verbally instructed
employees that the only permissible personal use of company cars was for
commuting to and from work and job sites.” Trial Court Opinion, 6/24/2019,
at 5 (quotation marks omitted). “PJB supervised company car usage only
through employee-submitted time sheets, mileage logs, and expense reports
____________________________________________
6 Fox is a “formally educated and trained attorney,” and her responsibilities at the union included strategic planning and overseeing the budget. N.T.,
1/22/2019 p.m., at 43.
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to cover costs like highway tolls. The auditing was mostly for purposes of
compliance with Internal Revenue Service and Department of Labor
regulations and for employer reimbursement.” Id., at 6.
Fox indicated that “it was the union’s philosophy, as well as the
philosophy of other unions in the community, that company [car] use was not
strictly monitored because if they could not trust a union rep [representative]
with a car, they had no business trusting the employee to represent union
members.” Id., at 5-6. When asked, absent an accident where somebody was
seriously injured, how would she know if a non-employee was driving the
vehicle, Fox responded, “We wouldn’t know.” N.T., 1/22/2019 p.m., at 57.
Fox further stated, “Well let’s just say Philadelphia is a small city. I’m sure
sooner or later we would find out, someone would see. But we have no formal
method for doing it.” Id.
Saldana maintained that she provided Tina with “a diagram to help
explain the difference between personal and business uses,” and told Tina
“several times, as part of repeated seminars for the organization, that the
employee was the only person permitted to drive the company car.” Trial
Court Opinion, 6/24/2019, at 5.
Minter averred that Tina “had attended the regular, mandatory staff
meetings and retreats where significant time was spent reviewing Department
of Labor and Internal Revenue Service guidelines, which allegedly included
discussion of PJB's company car policies.” Id., at 5. He also confirmed, “the
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vehicle use policy was reviewed, at minimum, once per year, occasionally
several times per year.” Id.
Contrary to these statements by PJB’s leadership, Tina alleged that PJB
did not inform her of these policies, and that she “assumed” she could use the
vehicle for both business and personal uses. N.T., 1/23/2019 a.m., at 21-22.
Tina added that she “would not have used [the vehicle] for personal reasons
if she had been informed it was against company policy.” Trial Court Opinion,
6/24/2019, at 6. “There was no written documentation signed by [Tina] to
show that she had ever received the policy verbally or in writing, although
Lynne Fox testified it was the union’s protocol to get signed receipts from the
employees at the yearly meetings where they reviewed the vehicle policy with
employees.” Id. Moreover, Fox could not provide any documentation that Tina
was at these meetings where the policy was provided. See N.T., 1/22/2019
p.m., at 47. Finally, Tina’s testimony conforms to her behavior: the PJB
company car was the only vehicle in the Johnsons’ possession. See N.T.,
1/23/2019 a.m., at 114-115. They had a Honda Accord, but it was no longer
in their possession after they received the PJB vehicle. See id.
Furthermore, Tina noted she was not told or given anything from PJB
that family members were not permitted to use the vehicles. See N.T.,
1/23/2019 a.m., at 36-37. Tina stated that “the only vehicle use policy she
knew of was an understanding that she would not be reimbursed for personal
use mileage, and that no one but her was allowed to drive the car.” Trial Court
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Opinion, 6/24/2019, at 6.7 Tina also indicated PJB did not physically monitor
her vehicle usage, but rather, PJB supervised the vehicle usage through time
sheets and mileage logs. See N.T., 1/23/2019 a.m., at 17, 21-22.
Also relevant to our review was the evidence that Tina did not volunteer
certain information to PJB. First, she did not inform PJB that her driver’s
license had been previously suspended due to failure to pay parking tickets
and second, that her husband’s license had been suspended since 1989. See
id., at 15-17. Additionally, while employed at PJB, Tina received a citation for
failure to stop at a stop sign. See id., at 42. She did not tell PJB about it, but
a copy of the ticket was sent to the union. See id., at 41-42. Tina was unsure
if PJB required employees to tell the union about that kind of incident. Id., at
44-45. She stated that after PJB received the ticket, Saldana asked Tina if she
paid it, but no further reprimand was issued. Id., at 45-46.
Tina stated that although she did not let Cleveland drive the vehicle for
any reason, she did for an emergency. See id., at 38, However, Cheryle
Spencer, Spencer’s older sister, contradicted this account. Cheryle would see
the Johnsons on a daily basis because she and Spencer lived on the same
street as Tina’s mother and had known the Johnsons for a number of years.
See N.T., 1/23/2019 p.m., at 78, 82. Cheryle observed Cleveland driving the
____________________________________________
7 At trial, Tina testified she was not aware of the non-reimbursement policy,
but she was impeached with her January 26, 2018, deposition testimony, wherein she acknowledged that she knew about the policy. See N.T.,
1/23/2019 a.m., at 34-36.
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PJB car “[a]ll the time.” Id. Cheryle indicated Cleveland would be driving Tina,
and in some instances, he would be driving on his own. See id. Cheryle
averred, in an affidavit, that she had seen Cleveland and/or Cleveland and
Tina driving the car “at least a hundred times[.]” Id., at 90.
These policies, actions and inactions taken by PJB and the Johnsons
culminated in the events that occurred on October 16, 2014. On that day, Tina
drove the PJB vehicle to her mother’s house for a small family gathering. She
parked the car on the corner of the street, about six houses away from her
mother’s home. The car was situated so that it jutted out onto the sidewalk,
obstructing the walkway by a foot or two.
That same day, Cleveland was hanging out at a friend’s house in another
part of the city. Between 12:00 p.m. and 2:15 p.m., he consumed
approximately four 24-ounce beers. See N.T., 1/24/2019 a.m., at 31.
Cleveland then left his friend’s home and traveled to his mother-in-law’s home
via public transportation. See id., at 32. He proceeded to drink a fifth beer as
he walked up to the home. See id., at 36.
Approximately five hours later, Cleveland went onto the porch to smoke
a cigarette. See id., at 37. He indicated that he was still intoxicated, due to
previously consuming 120 ounces of beer. See id., at 38. It was at this point
that Cleveland noticed the PJB car parked down the street, and believed that
it was obstructing the sidewalk. See id., at 41-42. However, he did not believe
the car’s location was an “emergency” situation. Id., at 53.
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While walking towards the vehicle, Cleveland observed an open parking
spot, and decided to move Tina’s car. See id., at 54. As noted above, since
his driver’s license had been suspended, Cleveland was not legally permitted
to drive a motor vehicle.
Cleveland then went back into the home to grab his wife’s car keys. He
did not ask Tina or another family member to move the car. See id., at 54-
55. Cleveland believed he could safely operate the vehicle but acknowledged
that based on his level of intoxication, he should not have been driving. See
id., at 60.
After driving a short distance, Cleveland stopped at a traffic light at the
intersection of Baltimore Avenue and 60th Street. In an attempt to make sure
that no pedestrians were crossing the street, he waited “30 to 40 seconds”
before turning left. Id.at 64. Unfortunately, when he made the turn, Cleveland
struck Spencer, who was properly in the crosswalk. See id., at 66-68. Despite
believing that he was only traveling at two miles per hour, Cleveland hit
Spencer hard enough that Spencer was knocked out of one of his shoes. See
id., at 65; see also Trial Court Opinion, 6/24/2019, at 3.
Cleveland got out of the car and helped Spencer to a bench while
bystanders called 9-1-1. See N.T., 1/24/2019 a.m., at 67. Police arrived and
after Cleveland told them that he hit Spencer, they transported him to the
police station where he failed a breathalyzer test. Cleveland was subsequently
J-A19025-20
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criminally charged with driving under the influence (“DUI”), but was not
charged with theft or unauthorized use of a vehicle. See id., at 74.
The investigating officer, Officer Laura Maynard, spoke with Tina after
the accident. Tina indicated she told officers that Cleveland did not have
permission to drive the car that night. See N.T., 1/23/2019 a.m., 72. When
asked if Tina ever mentioned that Cleveland did not have permission to drive
the car, Officer Maynard could not recall. See N.T., 1/23/2019 p.m., at 53.
Nevertheless, she stated that if Tina had offered that information, it would
have been in her crash report and it was not. See id.
Later that night, Tina did not contact PJB to inform them about the
accident. See N.T., 1/23/2019 a.m., at 72. The following day, Tina attempted
to cover-up the incident to PJB.8 She told Saldana that the vehicle had been
impounded due to unpaid parking tickets and that she required a letter from
PJB granting her permission to recover the vehicle. See N.T., 1/22/2019 p.m.,
16-20. Without investigating the issue, Saldana wrote the letter for Tina, and
informed Fox about the situation, believing that Fox would do a follow up. See
id., at 22. Tina also went into the office without telling anyone to obtain a
second copy of the car registration that she kept in her office and took it to
____________________________________________
8 Tina denied this characterization, admitting only that she “actively delayed” the investigation due to the emotional distress she suffered as a result of the
situation. N.T., 1/23/2019 a.m., at 108-109.
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the lot to get the car released from the impound. See N.T., 1/23/2019 a.m.,
at 80.
Several days later, the PJB was notified about the crash when police
officers showed up at the office. See N.T., 1/22/2019 p.m., at 20. Saldana
told Fox, who then interviewed Tina for a lengthy period of time. See id., at
21-23, 63. Tina did not tell Fox how badly Spencer had been injured. See id.,
at 62-63, 66. Fox reviewed the police report, but did not speak with Cleveland
based on his unavailability. See id., at 63.
Following the investigation, Fox did not terminate Tina’s employment
with the union, but merely suspended her for two weeks and revoked her
company car privileges, because she “was a really good and valuable
employee.” Id. Fox also stated that PJB did not fire Tina based on Tina’s
assertion that she did not give Cleveland permission to drive the car. See id.,
at 70. PJB did not press charges against Cleveland for theft of the vehicle
because Tina said he did not have permission and according to Fox, “there
was no need to pursue it any further.” Id., at 72.
Nevertheless, on October 23, 2014, Fox wrote an e-mail to Tina, copying
Saldana and Minter, in which she stated:
I would hope by now you realized Cleveland was driving the car and the events that unfolded were horrible by themselves, but
your covering up what happened after the fact, your failure to report the incident and your active misrepresentations have
overshadowed all the good work that you’ve done over the past couple of years
N.T., 1/22/2019 p.m., at 74-75.
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As a result of the accident, Spencer suffered catastrophic injuries, which
included a skull fracture, multiple brain injuries, and hemorrhagic contusions.
See Trial Court Opinion, 6/24/2019, at 9. Because these injuries have
significantly affected his brain function, Spencer is permanently wheel chair
bound, and unable to care for his basic daily needs. See id. He requires around
the clock supervision and lives in a medical care facility. See id. His brain
injuries have significantly affected his cognitive and executive functions. See
N.T., 1/23/2019, at 22-40. Spencer also now suffers a seizure disorder and is
incontinent. See id. at 24, 26. He was diagnosed with “personality change
due to traumatic brain injury[,]” in which his judgment and insight are
impaired. Id., at 19.
On November 23, 2016, Spencer filed a complaint, claiming “PJB
Defendants acted and/or failed to act through their agents, servants,
employees, predecessors, successors, and/or workmen, and accordingly, any
negligent act and/or omission committed by the Defendants’ agents, servants,
employees, predecessors, successors, and/or workmen imposes liability on
Defendants under the laws of agency, respondeat superior, and/or vicarious
liability.” Complaint, 11/23/2016, at ¶ 5. Moreover, he alleged the accident
and his resulting injuries were caused “by the, individual and/or collective,
negligence, carelessness, and/or recklessness” of Cleveland, Tina, and PJB.
22. Spencer set forth the following causes of action: (1) negligence (including
negligence per se) against Cleveland; (2) negligence against Tina; (3)
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negligence/negligent entrustment against Tina; (4) negligence/negligent
entrustment against PJB; and (5) negligent hiring, negligent retention, and
negligent supervision against PJB. He demanded judgment, jointly and/or
severally, against all three defendants.
The allegations summarized in Spencer’s complaint are as follows. First,
Cleveland owed a duty to operate the vehicle in safe and non-negligent
manner and he breached that duty by driving under the influence and while
his license was suspended. Id., at ¶¶ 29-33. Second, Cleveland was operating
the car with the express or implied permission of Tina and PJB, and Tina was
aware that Cleveland had access to the PJB car and that he used it on the
night in question. Id., at ¶¶ 44-48. Third, because PJB owned the vehicle, it
owed a duty to Spencer to ensure that its vehicle was operated a non-
negligent manner. Id., at ¶ 54. Moreover, PJB knew that Tina used the
company car in furtherance of its interest and activities as part of her
employment, and knew or should have known of Tina’s carelessness and
incompetence relating to her use of the company car. Id., at ¶¶ 59-63.
Spencer claimed PJB knew or should have known that Tina would give
permission to family members, including Cleveland, to operate the vehicle.
Id., at ¶ 64-66. Lastly, Spencer asserted PJB failed to enforce its vehicle policy
“despite actual or constructive knowledge that its employees, agents, and/or
volunteer organizers used PJB vehicles for personal use and/or permitted
family members to operate said vehicles.” Id., at ¶ 82.
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Tina and PJB initially filed a joint answer with new matter and a cross-
claim directed to Cleveland pursuant to Pennsylvania Rule of Civil Procedure
1031.1. See generally Defendants’ Philadelphia Joint Board Workers United,
SEIU and Tina Gainer Johnson’s Answer to Plaintiff’s Complaint with New
Matter and Crossclaim pursuant to Pa.R.C.P. 1031.1, 4/18/2017. Tina and PJB
admitted that it was PJB’s vehicle and that Tina had possession of the vehicle
due to the course and scope of her employment, but generally denied the
allegations set forth in Spencer’s complaint, including that Cleveland had
authorization or permission to use the car and that they were negligent and
breached any duty of care. See id., at ¶¶ 1-86. In the new matter, Tina and
PJB alleged, inter alia, that Spencer’s claims were barred or limited by the
provisions of Pennsylvania Comparative Negligence Act, 42 Pa.C.S.A. § 7102
(“Fair Share Act”),9 and the Pennsylvania Motor Vehicle Financial
Responsibility Law, 75 Pa.C.S.A. § 1701, et. seq. See Defendants’ Philadelphia
Joint Board Workers United, SEIU and Tina Gainer Johnson’s Answer to
Plaintiff’s Complaint with New Matter and Crossclaim pursuant to Pa.R.C.P.
____________________________________________
9 As will be discussed in more detail below, the Fair Share Act abolished joint and several liability in most tort cases. See 42 Pa.C.S.A. § 7102(a.1)(1).
However, the statute provides for several exceptions to this general rule, including where the defendant has been held liable for not less than 60% of
the total liability apportioned to all parties. See 42 Pa.C.S.A. § 7102(a.1)(3)(iii).
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1031.1, 4/18/2017, at ¶¶ 88-90. Pleadings and discovery were thereafter
exchanged.10
On March 5, 2018, Tina and PJB filed separate motions for summary
judgment. They both allege that while intoxicated, Cleveland operated the
vehicle at issue without Tina’s or PJB’s permission or knowledge, and that Tina
was outside the course and scope of her employment at the time of the
accident. See Defendant Philadelphia Joint Board Workers United, SEIU’s
Motion for Summary Judgment, 3/5/2018, at ¶¶ 39-42.11 Moreover, PJB
contended there was no evidence to support Spencer’s claim of vicarious
liability against PJB by pointing to the fact that Cleveland was not an employee
of PJB, Tina was not acting within her scope of employment at the time of the
accident, and Tina did not give Cleveland permission to drive the car. See id.,
at ¶¶ 46-57. PJB also claimed Spencer failed to put forth evidence supporting
a negligent entrustment cause of action because it was not foreseeable that
Cleveland would take the car without Tina‘s permission. See id., at ¶¶ 58-77.
Lastly, PJB asserted that even assuming PJB and Tina owed a duty to Spencer,
and Tina was negligent in leaving her keys in an area where they could be
accessed by Cleveland, Cleveland‘s unauthorized and careless use of the car
severed the chain of causation. See id., at ¶¶ 79-88.
____________________________________________
10 During this time, Tina retained her own private counsel.
11 See also Motion for Summary Judgment of Defendant, Tina Gainer
Johnson, 3/5/2018, at ¶ 23-36.
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On April 27, 2018, after receiving Spencer’s response, the trial court
denied both motions. The parties subsequently exchanged numerous motions
in limine and answers. After the court issued decisions concerning these
evidentiary issues, the matter proceeded to trial.
A five-day jury trial began on January 22, 2019.12 Cleveland and Tina
both took the stand in addition to Cheryle Spencer, Officer Maynard, Fox,
Saldana, and Minter. The jury also heard the following: (1) the testimony of
Susan Teresa Morris, Ph.D., a clinical neuropsychiatrist; (2) the testimony of
Jody Masterson, RN, MSN, CRRN, a life care planner;13 and (3) the videotaped
deposition of Guy Fried, M.D., an expert in physical medicine and rehabilitation
medicine. The parties stipulated to Spencer’s past medical expenses, which
were in the amount of $683,311.47. See N.T., 1/28/2019, at 107.
At the close of Spencer’s case, Tina and PJB both moved for a directed
verdict, claiming Spencer failed to make a prima facie case against them. See
N.T., 1/24/2019 p.m., at 57-67. The court denied both motions. See id., at
60, 67.
____________________________________________
12 Shortly before trial, the matter was reassigned to another trial judge. Cleveland represented himself at trial.
13On the morning of January 24th, the defendants opted to not call their
medical expert, who was scheduled to give life expectancy testimony. Upon learning this, Spencer’s counsel sent a subpoena to that expert the morning
that he was expected to be called to testify. The trial court quashed the subpoena as improper pursuant to Spino v. John S. Tilley Ladder Co., 696
A.2d 1169 (Pa. 1999).
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It merits mention while instructing the jury, the court noted that
Cleveland had admitted negligence in the case and that in terms of his liability,
the jury was to determine what injury, if any, Spencer sustained that was
caused by the accident and the amount of damages, if any, to which Spencer
was entitled as compensation for such injury. See N.T., 1/28/2019, at 89. In
terms of Tina and PJB, the court instructed the jury to determine whether they
were negligent and if so, whether their individual negligence was the factual
cause in bringing harm to Spencer. See id., at 99.
At the conclusion of the trial, the jury found all three defendants were
negligent and their negligence were each factual causes of harm to Spencer.
See Jury Verdict Form, 1/28/2019, at 1-2.14 The jury allocated liability as
follows: Cleveland (36%), Tina (19%), and PJB (45%). The jury then awarded
Spencer $683,311.47 for past medical expenses, $7,300,000 for future
medical expenses, and non-economic damages of $5,000,000, for a total
verdict amount of $12,983,311.47.
After the court read the verdict, Spencer’s counsel stated it was his
position that because PJB was Tina’s employer and their combined negligence
____________________________________________
14 Those were the only questions posed to the jury on the verdict slip. Additionally, the verdict slip was pre-marked “Yes” for the question, “Was
Defendant, Cleveland Johnson, negligent?” due to his criminal conviction and the negligence per se claim. See Trial Court Opinion, 6/24/2019, at 10 n.7.
The questions as to whether his negligence was the factual cause of Spencer’s harm and if so, the percentage of liability he bore were left for the jury to
decide. See id.
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was greater than 60%, PJB should be liable for the entire damages award as
to all three defendants under a provision of the Fair Share Act. See N.T.,
1/28/2019, at 127. The court noted the request on the record, but did not
agree to it. See id., at 128. Tina and PJB both orally requested relief in the
form of judgment notwithstanding the verdict (“JNOV”), which the trial court
denied. See id., at 128-129.
Spencer filed a post-trial motion for delay damages pursuant to
Pa.R.C.P. 238, which he alleged amounted to $1,005,228.44. Spencer alleged
that the entire verdict was collectible against the PJB “based upon the jury’s
finding that the [PJB] and its employee, Tina Gainer Johnson were more than
60% responsible.” Plaintiff’s Petition for Delay Damages Pursuant to Pa.R.C.P.
238, 2/4/2019, at 2 n.1.
Spencer also filed a post-trial motion to mold the verdict. He submitted
two bases to hold PJB jointly and severally liable for his harms and losses –
one, PJB was directly and vicariously liable for the jury’s allocation of fault on
Tina as her employer, and two, Section 1574 of the Motor Vehicle Code
subjected PJB to liability. See Plaintiff’s Post-Trial Motion to Mold the Verdict,
2/7/2019, at ¶¶ 74-91. Moreover, he asserted that since the combined
negligence of PJB and Tina exceeded 60%, PJB was responsible for the entire
amount pursuant to the Fair Share Act. See id., at ¶ 92.
Tina and PJB also filed post-trial motions, seeking relief in the form of
JNOV, a new trial, and remittitur, or reduction of the amount of, the jury’s
J-A19025-20
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verdict. See Motion for Post-Trial Relief of Defendant, Philadelphia Joint Board
Workers United, SEIU, 2/4/2019; see also Motion for Post-Trial Relief of
Defendant, Tina Gainer Johnson, 2/15/2019. Both Tina and PJB alleged that
the verdict was against the weight of the evidence because Cleveland was
unlicensed, intoxicated, and he admitted his actions were the sole contributing
cause of the accident at issue. They contended it shocked one’s sense of
justice that Cleveland as found to be only 36% liable. They also asserted
remittitur is proper because Spencer did not proffer an expert to testify
regarding his life expectancy at trial, and therefore, the verdict was excessive
as it did not represent reasonable compensation for Spencer’s injuries.
Tina separately argued there was insufficient evidence to support the
jury’s finding of negligence against her because she alleged that Pennsylvania
law did not permit a finding of negligence based on an allegation that she left
car keys where they could be accessed by a spouse or any other competent
adult. See Motion for Post-Trial Relief of Defendant, Tina Gainer Johnson,
2/15/2019, at ¶ 3. She stated the trial testimony unequivocally established
that Cleveland took the keys without her permission or knowledge and
therefore, she had not breached a duty to Spencer and her conduct was
neither the factual nor the legal cause of his harm. See id.
On April 23, 2019, the trial court denied Tina’s and PJB’s post-trial
motions. That same day, the court entered the following order, disposing of
Spencer’s motion to mold the verdict and his motion for delay damages:
J-A19025-20
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AND Now, this 23rd day of April, 2019, upon consideration of [Spencer]’s Post-Trial Motion to Mold the Verdict …, it is hereby
ORDERED and DECREED that said Motion is DENIED. As a matter of law, Defendant Philadelphia Joint Board is liable for
compensatory damages only in the amount of $5,842,490.16.1
Furthermore, upon consideration of [Spencer]’s Motion for Delay Damages …, it is hereby ORDERED AND DECREED that said
Motion is DENIED IN PART, GRANTED IN PART as follows: Pursuant to Rule of Civil Procedure 238, [Spencer] is entitled to
delay damages only as calculated from August 17, 2017 to January 28, 2019, and only as calculated on the compensatory
damages for which it is actually liable (see above).Thus the total amount of delay damages is $453, 872.69.2 Adding this amount
to the compensatory damages amount above, the full amount of
damages attributed to Philadelphia Joint Board is $6,296,362.85. The verdict shall be so molded.
___________________________
1 45% of the total compensatory damages award of $12,983,311.47 under the jury’s apportionment of liability.
2 136 days of 2017 (from 8/17/17 to 12/31/17) divided by
365 (.0.3726), multiplied by $5,842,490.16 (yielding $2,176,911.83), multiplied by the interest rate (“IR”) of
4.75% = $103,403.31 for 2017 interest; 365 days of 2018, calculated as above on 5.5% IR = $321,336.96 for 2018
interest; and 28 days of 2019 (from 1/1/19 to 1/28/19), calculated as above on 6.5% IR = $29,132.42 for 2019
interest.
Order, 4/23/2019, at 1-2.
On May 17, 2019, the court entered judgment in favor of Spencer and
against PJB in the amount of $6,296,362.85, against Tina in the amount of
J-A19025-20
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$2,466,829.18, and against Cleveland in the amount of $4,673,992.13.
Spencer, Tina, and PJB all filed notices of appeal.15, 16
Spencer raises the following issues on appeal:
1. Did the trial court err as a matter of law when it refused to mold the entire verdict against the [PJB] because its direct and
vicarious liability (64%) exceeded the 60% threshold under the Fair Share Act?
2. Did the trial court err as a matter of law when it failed to mold
the entire verdict against the PJB where the PJB is estopped from retracting its judicial admission that [Tina] acted within
the course and scope of her employment “24/7” while
possessing and controlling the PJB’s vehicle?
3. Did the trial court err as a matter of law when it failed to mold the entire verdict against the PJB when the PJB is legally
responsible for the negligent acts or omissions of [Tina], regardless of whether the negligent conduct occurred within
the scope of her employment or outside the course and scope of her employment?
4. Did the trial court commit an abuse of discretion in failing to
mold the verdict to impose the full measure of delay damages against the [PJB]?
Brief of Appellant, at 3-4.
____________________________________________
15 After Spencer filed his notice of appeal, he filed an amended post-trial motion for delay damages on May 30, 2019. He alleged the delay damages
were awarded only against the PJB, and not Tina and Cleveland, and therefore, he sought an amended order reflecting relief against all three defendants. The
trial court did not rule on the amended motion because it no longer had jurisdiction pursuant to Pa.R.A.P. 1701.
16 The court did not order the parties to file concise statements pursuant to
Pa.R.A.P. 1925(b). Nevertheless, the court issued a Pa.R.A.P. 1925(a) opinion on June 24, 2019. We also note that the Pennsylvania Association for Justice
filed an amicus curiae brief on behalf of Spencer in this matter.
J-A19025-20
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PJB presents the following issues on appeal:
A. Did the trial court correctly deny [Spencer]’s request to mold the entire verdict against the [PJB] because there was no
evidence to support a determination that [Tina] was acting in the course and scope of her employment at the time of the
accident and the jury was never asked to make such a determination?
B. Did the trial court correctly deny [Spencer]’s request to mold
the entire verdict against the [PJB] where the jury separately assessed the direct and vicarious liability of [Tina] and the
[PJB] and where there is no basis to mold the verdict under the Fair Share Act?
C. Did the trial court correctly deny [Spencer]’s request to mold the entire verdict against the [PJB] based upon the
Restatement (Second) of Torts, Section 317, or Section 1547(B) of the Motor Vehicle Code, because the jury separately
assessed the liability of the parties and, therefore, there is no basis to mold the verdict under the Fair Share Act?
D. Did the trial court correctly deny [Spencer]’s request to impose
the full measure of delay damages as to the [PJB], where the rules of civil procedure and all relevant case law provide that
delay damages are only to be awarded on the portion of the verdict attributable to each defendant?
E. Did the trial court abuse its discretion in denying the request
for a new trial where the jury attributed a greater percentage
of liability to the owner of the vehicle involved in the accident than to the other defendants, including the intoxicated driver,
who admitted negligence?
F. Did the trial court err in denying the request for a remittitur?
Brief of Appellee/Cross-Appellant, Philadelphia Joint Board Workers United,
SEIU, at 2-3.
Lastly, Tina raises the following claims:
1. Did the trial court err by denying Tina Johnson judgment JNOV or a new trial on all issues, as the verdict was not supported by
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sufficient evidence to establish a prima facie case of negligence or causation against Tina Johnson, and, at a minimum, the
verdict was against the weight of the evidence?
2. Did the trial court err by denying Tina Johnson a new trial on all issues because the verdict apportioning only 36% liability to
Cleveland Johnson was against the weight of the evidence?
3. Did the trial court err by denying a new trial on damages, or alternatively, a substantial remittitur as the verdict of over $13
million was against the weight of the evidence and manifestly excessive, the verdict was not supported by the evidence, there
was no expert medical testimony on life expectancy and other matters, and the “punitive” verdict violated basic fairness and
due process, could only be the product of highly prejudicial
errors, and shocks the conscience? Brief for Designated Cross-Appellant/Appellee, Tina Gainer Johnson, at 5.
Based on the nature of the issues in Spencer’s appeal and PBJ’s and
Tina’s cross-appeals, we have divided the arguments by subject matter.
I. Vicarious Liability and the Fair Share Act Arguments
The polestar of Spencer’s appeal is that Tina’s negligence should be
imputed to PJB, as her employer, because she was purportedly acting in the
course and scope of her employment at time of the accident. Therefore,
Spencer contends PJB should be held vicariously liable for Tina’s actions.
Based on this assertion, Spencer argues the court should have molded
the verdict under a provision of the Fair Share Act that permits a plaintiff to
recover solely from a single defendant, where the defendant has been found
to be at least 60% responsible for the plaintiff’s injuries. See 42 Pa.C.S.A. §
7102(a.1)(3)(iii) (“A defendant’s liability in any of the following actions shall
be joint and several, and the court shall enter a joint and several judgment in
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favor of the plaintiff and against the defendant for the total dollar amount
awarded as damages … [w]here the defendant has been held liable for not
less than 60% of the total liability apportioned to all parties.”).
In support of this central argument, Spencer first contends the court
erred in failing to mold the verdict against PJB because PJB and Tina judicially
admitted that Tina possessed the PJB car within the course and scope of her
employment, and therefore, PJB is vicariously liable for Tina’s negligence. See
Brief of Appellant, at 24-25. Additionally, he argues the trial court erred as a
matter of law interpreting what constituted the “course and scope of
employment” issue because it “focused on the fact that [Tina] had driven to
her mother’s home for a family gathering and that the visit was not for union
business as the only basis the jury could consider that she was not acting
within the course and scope of employment.” Id., at 26.
Spencer also asserts the trial court erred in instructing the jury to
consider whether Tina acted within the course and scope of her employment.
See id. Spencer contends that there was no issue regarding Tina’s conduct as
within the course and scope of her employment: Tina’s “24 [hours]/7 [days a
week] possession and control” of the car fell within the course and scope of
employment “because (1) it was the kind of activity [Tina] had been retained
to perform; (2) occurred within the time and space limits of her employment;
and (3) was actuated, at least in part, to serve the PJB.” Id., at 27.
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Spencer continues, in his second argument, that the court erred in
failing to mold the verdict against PJB where the jury determined Tina was an
agent of PJB and PJB negligently supervised Tina within the course and scope
of her employment. See Brief of Appellant, at 28. Spencer noted the court
charged the jury with Pennsylvania Standard Civil Jury Instruction 6.70
(Principal’s Negligent Hiring or Retaining of Employee or Independent
Contractor),17 which is based on Restatement (Second) of Agency § 213.18
____________________________________________
17 In his brief, Spencer incorrectly cites to Pa. SSJI (Civ), §6.120, which is the former number for this jury instruction. Spencer did reference the correct jury
instruction number in his post-trial motion to mold the verdict. See Plaintiff’s Post-Trial Motion to Mold the Verdict, 2/7/2019, at ¶ 85.
18 Section 213 provides:
A person conducting an activity through servants or other agents
is subject to liability for harm resulting from his conduct if he is negligent or reckless:
(a) in giving improper or ambiguous orders of in failing to make
proper regulations; or
(b) in the employment of improper persons or instrumentalities in
work involving risk of harm to others:
(c) in the supervision of the activity; or
(d) in permitting, or failing to prevent, negligent or other tortious conduct by persons, whether or not his servants or agents, upon
premises or with instrumentalities under his control.
Restatement (Second) of Agency, § 213 (1958).
The Pa. SSJI (Civ), §6.70 instruction
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See Brief of Appellant, at 28. He states that because the court charged the
jury on the question of PJB’s potential negligence within the course and scope
of Tina’s employment, and the jury found PJB was liable on the issue, it was
obvious that Tina’s liability flowed from her negligent control and possession
of the vehicle within the course and scope of her employment as an agent of
PJB. See id., at 29.
In Spencer’s third issue, he offers a related argument contending that
even if PJB and Tina did not concede that Tina’s conduct fell within the course
____________________________________________
is based on Restatement (Second) of Agency section 213, which
has been recognized, although not formally adopted, by the Pennsylvania appellate courts. Heller v. Patwil Homes, Inc.,
713 A.2d 105 (Pa.Super. 1998). The Pennsylvania Superior Court in Heller recognized that “an action for negligent hiring provides
a remedy to injured third parties who would otherwise be foreclosed from recovery under the master-servant doctrine
because the wrongful acts of employees in these cases are likely to be outside the scope of employment or not in furtherance of
the master’s business.” Id. at 107. The Superior Court in Heller cited the earlier Pennsylvania Supreme Court decision in
Dempsey v. Walso Bureau, Inc., 246 A.2d 418 (Pa. 1968),
which had also cited section 213. However, the Dempsey court had not formally adopted section 213, and its analysis of the
employer’s liability was conducted solely under the Restatement (Second) of Torts section 317. Notably, in Heller, the Superior
Court indicated that in order to assess liability under section 213, a “similar inquiry” to the one conducted by the Supreme Court in
Dempsey under section 317 must be made in order to assess whether the defendant employer knew, or should have known, of
the employee’s propensities.
Pa. SSJI (Civ), §6.70, Subcommittee Note.
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and scope of her employment, PJB is still vicariously liable for the full verdict
because the incident involved the use of PJB’s chattel, the company car, and
its negligent supervision of Tina. See Brief of Appellant, at 30-35. He states
that Restatement (Second) of Torts § 31719 “provides the basis for holding an
employer directly liable for conduct outside the course and scope of
employment involving the use of the employer’s chattel.” Id., at 30. Moreover,
Spencer contends that both Restatement (Second) of Torts § 317 and
Restatement (Second) of Agency § 213 impose a duty on an employer to
____________________________________________
19 Section 317 provides:
A master is under a duty to exercise reasonable care so to control
his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so
conducting himself as to create an unreasonable risk of bodily harm to them, if
(a) the servant
(i) is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant,
or
(ii) is using a chattel of the master, and
(b) the master
(i) knows or has reason to know that he has the ability to control his servant, and
(ii) knows or should know of the necessity and opportunity
for exercising such control.
Restatement (Second) of Torts, § 317 (1965).
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exercise reasonable care in selecting and supervising employees. See id., at
31. Spencer states that to prevail on a claim for negligent supervision, “there
must be some evidence that had the employer been more diligent in
performing a background investigation of the employee or better supervising
the employee, the tortious conduct could have been prevented.” Id. (citation
omitted).
Based on this notion, he points to the following evidence: (1) there was
no dispute Tina used the chattel of her employer; (2) at trial, PJB conceded it
did not supervise Tina’s use of the car; and (3) the jury concluded that Tina’s
actions created a risk of harm to others. See id. Spencer contends PJB was
still vicariously liable based on its failure to supervise Tina’s use of the car in
a proper manner. See id. Furthermore, he states the inquiry to determine
liability under Restatement (Second) of Torts § 317 and Restatement (Second)
of Agency § 213 is similar and therefore, the result is the same whether or
not Tina was acting within or outside the scope of employment as PJB is legally
responsible for her conduct under either scenario. See id., at 32-33.
Next, Spencer maintains joint and several liability under the Fair Share
Act applies to the present matter based on the theory that Tina was acting
within the course and scope of her employment and PJB was vicariously liable
for her actions. In this argument, he contends the Fair Share Act does not
immunize employers for the negligence of its employees. See Brief of
Appellant, at 35. Specifically, he asserts Tina’s liability is attributable to PJB,
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and therefore, pursuant to Subsection 7102(a.1)(3)(iii) language of the Fair
Share Act, PJB should be fully liable for the entire judgment. See id., at 37.
Relying on Livingston v. Greyhound Lines, Inc., 208 A.3d 1122 (Pa. Super.
2019), Spencer also states the Fair Share Act “did not expressly overturn
established precedent regarding an employer’s vicarious liability for acts
within the course and scope of employment[,]” and “it did not extinguish an
employer’s liability for acts inside or outside the scope of employment with
the employer’s chattel which are reasonably foreseeable and are the result of
negligent supervision.” Brief of Appellant, at 36.
Moreover, Spencer contends the Fair Share Act “does not preclude a
trial court from molding the verdict when an employer’s negligence is less than
60%.” Id. Pointing again to Livingston, he states a panel of this Court held
as a matter of law that the employer in that case “was liable for the full
measure of the plaintiff’s damages based on vicarious liability.” Brief of
Appellant, at 36.
In response to Spencer’s arguments, PJB counters that the trial court
correctly denied Spencer’s request to mold the entire verdict against it
because there was no evidence to support a determination that Tina was
acting in the course and scope of her employment. See Brief of
Appellee/Cross-Appellant, Philadelphia Joint Board Workers United, SEIU, at
12. PJB states Spencer waived this argument because he never asked that the
jury make any specific findings of fact as to whether Tina was acting with the
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course and scope of her employment. See id. PJB further asserts that even if
the trial court were to decide the course and scope of employment issue rather
than the jury, Spencer could not prove that Tina was acting within the course
and scope of her employment at the time of the accident. See id., at 13. In
this regard, PJB states that Spencer cannot demonstrate it made any judicial
admissions that Tina acted within the course and scope of her employment at
all pertinent times, and Spencer’s counsel never asked the court to instruct
the jury that such an admission had been made. See id.20
Moreover, PJB notes that as for the jury instructions given by the court,
Spencer did not object to any of these instructions or the questions on the
verdict sheet. See Brief of Appellee/Cross-Appellant, Philadelphia Joint Board
Workers United, SEIU, at 16-17. PJB also states the court correctly determined
that the Fair Share Act applies and mandates that it is only responsible for
that portion of the damages attributable to its percentage of liability as
determined by the jury. See id., at 19.
Our review of a trial court’s denial of a motion for post-trial relief is
limited:
____________________________________________
20 PJB further alleges that the “on call” description regarding the nature of
Tina’s job was not a judicial admission, and “this evidence does not support a determination that every action that [Tina] performed 24 hours per day, 7
days per week was considered to be within the course and scope of her employment.” Brief of Appellee/Cross-Appellant, Philadelphia Joint Board
Workers United, SEIU, at 14. Rather, PJB states Tina was “on call” but engaged in non-work related activities at the time of the accident that did not serve the
interests of PJB. Id.
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Our review is limited to determining whether the trial court abused its discretion or committed an error of law. An abuse of discretion
exists when the trial court has rendered a judgment that is manifestly unreasonable, arbitrary, or capricious, has failed to
apply the law, or was motivated by partiality, prejudice, bias, or ill will. If the alleged mistake concerned an error of law, we will
scrutinize for legal error. On questions of law, our standard of review is de novo and our scope of review is plenary.
Zaleppa v. Seiwell, 9 A.3d 632, 635 (Pa. Super. 2010) (citations and
quotation marks omitted).
To resolve the question of how the Fair Share Act applies here, we must
examine the precise nature of the claims and defenses presented in the trial
court. To prove his negligence claim, Spencer was permitted to proceed on
theories of direct and vicarious liability. The concepts of vicarious and direct
liability are central to the arguments presented by the parties:
A plaintiff may pursue a negligence action against a defendant on the theory of direct liability or vicarious liability. Under a direct
liability theory, a plaintiff seeks to hold the defendant responsible for harm the defendant caused by the breach of a duty owing
directly to the plaintiff. Vicarious liability, on the other hand,
is a policy-based allocation of risk. Vicarious liability,
sometimes referred to as imputed negligence, means in its simplest form that, by reason of some relation existing
between A and B, the negligence of A is to be charged against B although B has played no part in it, has done
nothing whatever to aid or encourage it, or indeed has done all that he possibly can to prevent it. Once the requisite
relationship (i.e., employment, agency) is demonstrated, the innocent victim has recourse against the principal, even
if the ultimately responsible agent is unavailable or lacks the ability to pay.
Green v. Pa. Hosp., 123 A.3d 310, 316 (Pa. 2015) (citations and quotation
marks omitted). “Where a corporation is concerned, the ready distinction
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between direct and vicarious liability is somewhat obscured because we accept
the general premise that the corporation acts through its officers, employees,
and other agents. The corporation, as principal, assumes the risk of individual
agents’ negligence under the theory of vicarious liability.” Scampone v.
Highland Park Care Ctr., LLC, 57 A.3d 582, 597 (Pa. 2012) (citations
omitted).
Under Pennsylvania law, in order to hold an employer vicariously liable for the negligent acts of its employee, these acts
must be committed during the course of and within the scope of
the employment.
[Generally,] [t]he conduct of an employee is considered within the scope of employment for purposes of vicarious
liability if: (1) it is of a kind and nature that the employee is employed to perform; (2) it occurs substantially within the
authorized time and space limits; (3) it is actuated, at least in part, by a purpose to serve the employer; and (4) if force
is intentionally used by the employee against another, the use of force is not unexpected by the employer.
Ludwig v. McDonald, 204 A.3d 935, 943 (Pa. Super. 2019) (citations and
quotation marks omitted). See also Restatement 2d of Agency, § 228.
“Generally, the scope of [an employee’s] employment is a fact question
for the jury. Where the facts are not in dispute, however, the question of
whether … the [employee] is within the scope of this [] employment is for the
court.” Ferrell v. Martin, 419 A.2d 152, 155 (Pa. Super. 1980). See also
Ludwig, 204 A.3d at 943.
Additionally, the theory of negligent entrustment is relevant to our
review:
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It is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor
knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as
to create an unreasonable risk of harm to others.
... However, our cases do require that the entrustee be causally negligent before the entrustor may be held liable through
negligent entrustment.
Phillips v. Lock, 86 A.3d 906, 913 (Pa. Super. 2014) (citation omitted). See
also Restatement (Second) of Torts § 308.
Here, the trial court found that Spencer’s Fair Share Act argument
depended on the premise that PJB was vicariously liable. See Trial Court
Opinion, 6/24/2019, at 20. The court rejected this premise because the jury
never made a specific finding to that effect, and the court did not conclude
that the evidence supported such a finding. See id. The trial court further
explained its rationale as follows:
Firstly, we note that, despite [Spencer]’s contention that the
jury was free to conclude that [Tina] was acting as an employee/agent, and also that she had consented to [Cleveland]
driving, the jury simply did not make any specific findings as to
either of those issues. The verdict slip, which was drafted with the input of all counsel, had only two questions regarding [Tina]: “Was
Defendant Tina Gainer Johnson negligent?” and “Was Defendant Tina Gainer Johnson’s negligence a factual cause of harm to
Plaintiff Keith Spencer?” (See verdict slip Questions 3 and 4). There were no specific queries addressing whether [Tina] was
acting as a PJB’s agent at the time of the incident, or whether she had authorized [Cleveland] to use the vehicle. [Spencer]’s counsel
approved the verdict form as it was given to the jury. The Complaint describes direct negligence/negligent entrustment
claims against [Tina] and against PJB, though only PJB was averred to have acted in the course of its employment relationship
(“More specifically, the acts and/or omissions of PJB, by and through, Defendant Tina Gainer Johnson or Cleveland Johnson
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which constituted negligence, carelessness, and recklessness …..” [Compl. ¶ 56]). As [Spencer] himself admitted in his Motion to
Mold the Verdict, “whether a person acted in the course and scope of their employment is ordinarily a question for the jury.” As
[Spencer] did not put those specific questions to the jury, the jury did not answer them, and it is not clear from the verdict slip
whether they found [Tina] directly liable, directly and vicariously liable, or only vicariously liable. The full sum and substance of the
jury’s verdict is the verdict as read and affirmed in Court. The jury’s verdict simply did not include the factual findings [Spencer]
needs to say that, after a trial in which [Tina] and PJB were tried as wholly distinct parties with separate defenses and different
legal counsel, the jury intended to hold PJB fully liable for [Tina]’s negligence.
Furthermore, even if it were appropriate for this Court to decide these questions of fact in the place of the jury, we find it
highly unlikely [Spencer] could prevail in arguing that [Tina] was acting within the course and scope of her employment during the
incident. It is undisputed that [Tina] was making a family visit at the time of the incident, and she admitted that her driving the car
to her mother’s house was personal, rather than business-related. Furthermore, the visit was for recreational purposes, and [Tina]
was not normally required by her job to perform such visits. Furthermore, there was no evidence that her visit was actuated,
to any degree, by her performance of her work as a union organizer. Therefore, we do not see that there would have been
sufficient basis for the jury to find, if it had been specifically queried, that [Tina] was acting in the course and scope of her
employment such that PJB must bear vicarious liability for her
negligence in permitting [Cleveland] to use the car.
Trial Court Opinion, 6/24/2019, at 20-22 (some citations and quotation marks
omitted).
We are constrained to disagree with the trial court’s rationale based on
the following. First, we conclude there was sufficient evidence to support a
finding that Tina’s acts were committed during the course of and within the
scope of her employment. It is uncontested that Tina and Cleveland were
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attending a family gathering at the time of incident. She testified that the
purpose of driving the company car to her mother’s house was personal,
rather than related to the business of PJB. See N.T., 1/23/2019 a.m., at 47.
Furthermore, Tina’s actions were not of the kind and nature that she was
employed to perform, she was not acting substantially within the authorized
time and space limits of her employer, and her acts were not actuated, in part,
by a purpose to serve PJB. See Ludwig, 204 A.3d at 943.
None of these undisputed facts alter another undisputed fact: that Tina
was on-call “24/7” for her job with PJB. Here, as summarized by the trial court,
PJB considered these vehicles “absolutely essential to the work of organizers
and business representatives” since “employees could be required to drive out
to job sites at any hour of day or night, twenty-four hours a day.” Trial Court
Opinion, 6/24/2019, at 5. See also N.T., 1/23/2019 a.m., at 17 (Tina
testifying that they were “24-hour workers”). Further, it is undisputed that
Tina was continuously on-call and that this was the reason PJB supplied her
with a company vehicle. Undoubtedly, the vehicle was provided so that while
Tina was at home, engaged in personal, not union, business, she could
respond immediately by driving directly to a worksite to respond to union
needs. However, nothing in the record indicates that Tina was excused from
being on-call if she left her home for non-union reasons.
At any time when Tina was not explicitly off-duty (for example, on
vacation), she was expected to drive directly from where she was to a
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worksite. It was expected that she have the company car nearby when she
was on-call, and would therefore use the company car while she was on-duty.
This is further supported by the undisputed fact that Tina and Cleveland had
only the company car for their personal use, having sold their other car when
Tina received the company car. As we stated above, the trial court found that
PJB supplied the cars because “employees could be required to drive out to
job sites at any hour of day or night, twenty-four hours a day.” Trial Court
Opinion, 6/24/2019, at 5.
Moreover, it is telling that PJB did not have a written employee
handbook at that time and did not provide their vehicle usage policy to
employees in writing. See id., at 5. Rather, they alleged that at seminars and
meetings, they provided verbal instructions to employees that the only
permissible personal use of company cars was for commuting to and from
work and job sites. See id. Nevertheless, there was no written documentation
signed by Tina to show that she had ever received the policy, and PJB could
not provide any documentation that Tina attended those meetings where the
policy was provided. See id., at 5-6; see also N.T., 1/22/2019 p.m., at 47.
Furthermore, Tina testified that PJB never informed her of the vehicle usage
policies. See N.T., 1/23/2019 a.m., at 21-22.
Under these circumstances, we agree with Spencer that the jury could
have reasonably concluded that Tina was acting in the course and scope of
her employment when she drove the company car to her mother’s house on
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the day of the accident. Underscoring the undefined nature of Tina’s work
obligations, the accident occurred on a Thursday. There was no evidence
presented at trial which conclusively disputed that Tina worked the day of the
accident. When asked at trial whether she worked on that Thursday, Tina
responded that she could not definitively say. See N.T., 1/23/2019 a.m., at
19-20. Additionally, the evidence at trial did not decisively establish Tina was
aware of the union’s motor vehicle policy. Accordingly, the jury could have
found that PJB was vicariously liable for the negligent acts of Tina.
Likewise, the jury could have also concluded that PJB negligently
entrusted the vehicle to Tina where it failed to conduct to a background check
on Tina and failed to monitor her vehicle usage. See N.T, 1/22/2019 p.m., at
51-53, N.T., 1/23/2019 p.m., at 17, 21-22. Moreover, the jury could have
inferred that because of these failures, PJB should have known that Tina
intended to use the car in such a manner as to create an unreasonable risk of
harm to others, i.e., allowing her non-licensed husband to drive the company
car, the only car that was in the couple’s possession. See Phillips, 86 A.3d
at 913.
This leads us to the verdict slip. Contrary to the trial court’s
determination, while the verdict slip did not set forth specific findings as to
vicarious liability, we cannot conclude the lack of special interrogatories should
read to narrow the verdict in favor of Spencer. Instead, our research leads us
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to conclude that any ambiguity in the verdict is to be construed in Spencer’s
favor as the verdict winner.
We begin with the Pennsylvania Supreme Court’s decision in Halper v.
Jewish Family & Children’s Services, 963 A.2d 1282 (Pa. 2009). In
Halper, the plaintiffs filed a civil action against the defendant, alleging two
theories of negligence. The jury returned a general verdict finding the
defendant was negligent, but the jury was not asked to differentiate between
the two theories of negligence. The verdict was problematic because the
plaintiff was only able to recover under one of those theories.
In addressing the matter, the Halper Court adopted the “general verdict
rule,” which provides that “when the jury returns a general verdict involving
two or more issues and its verdict is supported as to at least one issue, the
verdict will not be reversed on appeal.” Id., at 1289. It further stated that it
adopted and applied the rule because it would not shift the burden to the
plaintiffs due to the defendant’s failure to request a special verdict slip, and
the evidence was clearly sufficient to support at least one of the plaintiffs’ two
theories of liability. See id.
More recently, in Shiflett v. Lehigh Valley Health Network, Inc.,
217 A.3d 225 (Pa. 2019) (“Shiflett II”), the plaintiff couple sued the hospital
for negligence in connection with injuries the wife sustained while in the
hospital for knee surgery. The plaintiffs presented three claims of negligence:
(1) vicarious liability related to a post-surgical unit (“PSU”) nurse-employee;
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(2) vicarious liability related to a transitional skills unit (“TSU”) nurse-
employee, and one for corporate liability associated to events that occurred in
the PSU. The verdict sheet included general questions of negligence regarding
the nurses and the hospital. See id., at 229-231. The verdict sheet then
provided that if the jury find either nurse or the hospital was negligent, then
it should determine the amount of damages. See id., at 231. Neither party’s
counsel raised objections.
The jury found that the TSU nurse and the hospital were negligent and
awarded damages of over two million dollars. The hospital filed a post-trial
motion, in which it did not challenge the unallocated nature of the damages,
but reiterated a claim it had previously raised that the vicarious liability cause
of action, relating to the TSU nurse, was improper because it allowed the time-
barred claim to be submitted to the jury.21 See id.
A panel of this Court agreed and determined that the vicarious liability
(as to the TSU nurse) claim was time-barred and should not have been
submitted to the jury. Shiflett v. Lehigh Valley Health Network, Inc., 174
A.3d 1066, 1086 (Pa. Super. 2017) (“Shiflett I”). The panel then addressed
the question of whether the case would have to be remanded. The panel
determined that because the verdict sheet did not itemize the award of
____________________________________________
21 The plaintiffs raised the claim regarding the TCU nurse for the first time in their second amended complaint, which was filed more than two years after
the incident occurred, thereby invoking the statute of limitations.
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damages by claim, it was impossible to ascertain whether a portion of the
award was attributable to the finding of negligence on the time-barred claim.
See id., at 1092. The panel then concluded that “[i]t is impossible to
determine from the verdict sheet (which did not break down damages by
claim) whether all of the damages awarded by the jury were caused by [the
wife’s] fall in the PSU, or whether some portion of those damages was the
result of the negligence found to have taken place in the TSU.” Id.
Finding “the general verdict rule” in Halper governed, the Supreme
Court reversed the panel’s decision and held that “[w]here a plaintiff has at
least one viable theory of recovery supported by competent evidence, a new
trial will not be awarded where the issue complained of on appeal would have
been avoided but for the defendant’s failure to request a special interrogatory
on the verdict sheet that would have resolved the issue.” Shiflett II, 217
A.3d at 234.
The Shiflett II Court further stated:
As the Superior Court itself recognized in its parenthetical remark, a special interrogatory on the verdict sheet allocating damages by
claim would have eliminated this quandary, as it would have clarified whether the jury’s award of damages was for the
[h]ospital’s corporate negligence in the PSU, the [h]ospital’s vicarious liability for [nurse-employee]’s negligence in the TSU, or
some combination of both. The [h]ospital’s failure to request a special interrogatory allocating damages by claim, despite
multiple opportunities to do so, results in a waiver of any right to a new trial.
Id., at 235 (footnote omitted).
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The Supreme Court noted that the Superior Court panel’s decision to
grant a retrial on damages was based on an assumption that the plaintiffs
suffered separate and distinct injuries from the hospital’s corporate negligence
in the PSU and its vicarious liability in the TSU. See id. However, the Supreme
Court determined that the evidence at trial was “entirely consistent” with a
finding that the plaintiffs suffered a single injury caused by the hospital’s
corporate negligence in the PSU. Id. Moreover, the Court stated that the
hospital “never introduced any evidence at trial to support a determination
that the [plaintiffs] suffered separate and distinct injuries from its alleged
negligence in the PSU and in the TSU.” Id. The Court concluded:
As such, it was within the jury’s province, based upon the above-
referenced evidence, to find that while [the nurse-employee] was negligent in the TSU, this negligence did not result in any
additional damages not already caused by the [h]ospital’s corporate negligence in the PSU. Because the [plaintiffs] have a
remaining viable theory of liability (corporate negligence) and a damage award that may be fully attributable to that theory of
liability, the jury’s verdict must stand.
Id., at 235–236. Lastly, the Court reiterated that like in Halper, it “will not
shift to a plaintiff the burden of a new trial based upon a defendant’s failure
to request a clarifying special interrogatory.” Id., at 236 (footnote and citation
omitted).
While the issue here does not include a request for a new trial, we find
the same principles in Halper and Shiflett II can be applied. As noted above,
Spencer pursued multiple theories of negligence against PJB and Tina,
including, but not limited to, negligent entrustment and vicarious liability.
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At trial, the court charged the jury, in relevant part, as follows:
I will now explain what negligence is. A person, meaning [Tina] and also [PJB] when I say person, must act in a reasonably,
careful manner to avoid injuring or harming others. The care required varies according to the circumstances and the degree of
danger at a particular time. You must decide how a reasonably, careful person would act under the circumstances established by
the evidence in this case.
A person or entity who does something that a reasonably, careful person would not do under the circumstances is negligent.
A person also can be negligent by failing to act. A person who fails to do something that a reasonably, careful person would do under
the circumstances is negligent.
In order for [Spencer] to recover in this case, a defendant’s
negligent conduct must have been a factual cause in bringing about harm. Conduct is a factual cause of harm when the harm
would not have occurred absent the conduct.
To be a factual cause the conduct must have been the actual real factor in causing the harm, even if the result is unusual or
unexpected. A factual cause cannot be an imaginary or a fanciful fact having no connection or only an insignificant connection with
the harm. To be a factual cause a defendant’s conduct need not be the only factual cause. The fact that some other causes concur
with the negligence of a defendant in producing an injury does not relieve a defendant from liability as long as its own negligence is
a factual cause of the injury.
Sometimes a person’s negligent conduct combined with
other circumstances or other people’s conduct can cause an injury. When a defendant’s negligent conduct combined with other
circumstances or the conduct of other persons, the defendant is legally responsib[le] if his or her conduct was one of the factual
causes of the harm. In such a case a defendant is fully responsible for the harm suffered by the plaintiff regardless of the extent to
which a defendant’s conduct contributed to the harm.
Pennsylvania law presumes that the driver of a vehicle has the vehicle owner’s permission to drive the vehicle. In this case
[Tina and PJB] offered evidence that they did not give [Cleveland] permission to drive the vehicle. If you find this testimony
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believable, then you may find that one or both did not give [Cleveland] permission to drive the vehicle.
A person should not authorize or permit his or her vehicle
to be driven by someone he or she knows or should have known would create a [un]reasonable risk of harm to others while
operating the vehicle or was not licensed to drive the vehicle.
The defendant [PJB] is a corporation and can only act through its officers, agents, and employees. Any act or admission
of an officer, agent, or employee of the corporation performed within the scope of his or her employment is chargeable to the
corporation.
The issue here for you to decide is whether [Tina] as a union
representative of the defendant corporation was acting as an employee of the corporation and within the scope of her agency
or authority. If you find her acts and the situation here involved were such as are customarily performed by one holding a
possession of a similar nature and that they … pertain to the ordinary business of the corporation, you may conclude that she
was authorized to perform such acts and that the corporation is liable for the consequences of such acts.
If you find that she acted without the authority or beyond
the scope of her authority but find that her acts were later ratified by the corporation either expressly or either by accepting and
retaining the benefits of such acts, you may find the corporation responsible for the consequences of such acts.
A person, that is the [PJB], conducting activ[ity] through servants or other agents is liable for harm to others if the person
is either negligent or reckless. First, an employee, an improper person in work involving risk of harm to others. And second,
supervising the activity. Or third, in permitting or failing to prevent negligence or other wrongful conduct by a person whether or not
his or her servants or agents or people is under her or her control.
In determining whether the [PJB] was negligent or reckless in hiring, supervising, or retaining [Tina], you should consider
whether the [PJB] knew or should have known that [Tina] possessed certain characteristics or propensities in behavior or
conduct that rendered her unfit or incompetent to work in a position with the [PJB].
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…
As I’ve told you, in order to recover in this case against one
or more of the defendants, you must find that the conduct of the defendant whom you have found negligent was a factual cause in
bringing about the plaintiff’s damages. If you find that a defendant cause distinct damage from those of another defendant, you must
decide what percentage of the plaintiff’s damages was caused by that defendant’s negligence.
N.T., 1/28/2019, at 100-104, 109. No one objected to these jury instructions.
Notably, the instructions informed the jury that the jury was to decide
the issue of whether Tina was acting as an employee of PJB and within the
scope of her agency or authority. Furthermore, the instructions imparted that
PJB could be found responsible even if Tina’s acts were not within the course
and scope of employment if the jury found that PJB subsequently ratified her
actions. Likewise, the court’s instructions touched upon both cumulative and
independent theories of negligence regarding PJB and Tina. Accordingly, the
jury could infer PJB’s and Tina’s negligence based on individual or vicarious
liability theories.
The verdict slip form revealed a generalized jury determination. The
verdict slip had only two special interrogatories regarding Tina: “Was
Defendant, Tina Gainer Johnson negligent?” and if so, “Was Defendant, Tina
Gainer Johnson’s negligence a factual cause of harm to Plaintiff Keith
Spencer?” Jury Verdict Form, 1/31/2019, at 1. Likewise, the slip asked the
jury the same two questions regarding PJB– “Was Defendant Philadelphia Joint
Board negligent?” and if so, “Was Defendant, Philadelphia Joint Board’s
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negligence a factual cause of harm to Plaintiff Keith Spencer?” See id., at 2.
We reiterate that the verdict slip was drafted with the consultation of all
counsel. Moreover, once the jury’s verdict was read in open court, the parties
did not request a clarification or ask for any additional special interrogatories.
Given the inherent ambiguity in the verdict slip, the issue is which party suffers
from the failure to take steps to clarify the verdict slip.
Pursuant to Halper and Shiflett II, we cannot agree with the trial court
that Spencer should be precluded from recovery under the theory of vicarious
liability simply because the jury was not asked to make specific findings that
Tina was acting as an employee/agent. The jury returned a general verdict in
favor of Spencer. A special interrogatory on the verdict sheet indicating
whether Tina was acting within the course and scope of her employment would
have eliminated the predicament we are now faced with, as it would have
clarified whether the jury’s award of damages was for PJB’s vicarious liability
for Tina’s negligence or its own negligence. However, we cannot disregard the
fact that Spencer was the verdict winner and he receives the benefit of doubt
in terms of these ambiguities in the verdict sheet. PJB’s failure to request a
special interrogatory allocating damages based on individual or vicarious
liability, despite several opportunities to do so, constitutes waiver. As
indicated in Halper and Shiflett II, we will not shift the burden based upon
PJB’s failure to request a clarifying special interrogatory.
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Therefore, we constrained to conclude the trial court erred in failing to
grant Spencer’s motion to mold the verdict pursuant to the Fair Share Act, as
the jury’s general verdict warranted a finding that PJB was vicariously liable
for Tina’s negligence and therefore, the theory of joint and several liability
applied. PJB’s and Tina’s combined liability exceeded the 60% liability
threshold. See 42 Pa.C.S.A. § 7102(a.1)(3)(iii). Accordingly, we reverse the
court’s denial of Spencer’s post-trial motion and remand for further
proceedings as PJB and Tina remain jointly and severally liable for Spencer’s
injuries.
Nevertheless, assuming arguendo that the jury’s verdict did not
demonstrate PJB was vicariously liable, we would have found the court erred
in failing to grant the motion to the mold the verdict as the question of whether
the Fair Share Act applies to the present matter remains.
In determining the scope of the Fair Share Act, we must always
remember that “[t]he object of all interpretation and construction of statutes
is to ascertain and effectuate the intention of the General Assembly. Every
statute shall be construed, if possible, to give effect to all its provisions.” 1
Pa.C.S. § 1921(a). See also Green v. Pa. Prop. & Cas. Ins. Guar. Ass’n,
158 A.3d 653, 662 (Pa. Super. 2017). “The best indication of legislative intent
is the plain language of the statute.” Roverano v. John Crane, Inc., 226
A.3d 526, 535 (Pa. 2020) (quotation marks and citations omitted). Moreover,
“[w]e review a question of statutory interpretation de novo, and the scope of
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our review is plenary.” Frempong v. Richardson, 209 A.3d 1001, 1009 (Pa.
Super. 2019).
To understand the intent behind the Fair Share Act, we must understand
what motivated the legislature to enact it. For most of the history of this
Commonwealth, our courts adhered to the legal doctrine that if a plaintiff’s
negligence contributed even one percent to his injuries, the plaintiff was
completely barred from holding any other party liable. See Elder v. Orluck,
515 A.2d 517 (Pa. 1986).
The Fair Share Act’s predecessor, the Comparative Negligence Act22
replaced the harsh common law doctrine of contributory negligence. The
comparative negligence statute “provide[d] a more reasonable approach to
issues of liability and insure[d] that an injured plaintiff will recover against a
negligent defendant or defendants even though plaintiff’s negligence
contributed to the accident in an equal or lesser way[,] ”but the plaintiff’s
recovery was reduced based on his negligence. See id., at 524. Moreover, the
former statute provided that, under the rule of joint and several liability, the
plaintiff may recover the full amount of the allowed recovery from any
defendant against whom the plaintiff is not barred from recovery. See
Jazbinsek v. Chang, 611 A.2d 227, 230 (Pa. Super. 1992).
____________________________________________
22 See July 9, 1976, P.L. 855, No. 152.
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In 2002, the legislature amended the Comparative Negligence Act to
modify its expansion of joint and several liability into cases involving
contributory negligence. See Harsh v. Petroll, 887 A.2d 209, 218 n.19 (Pa.
2005). See also Act of June 19, 2002, P.L. 394. However, the amendment
was subsequently found to be unconstitutional as violative of the single-
subject rule. See DeWeese v. Weaver, 880 A.2d 54 (Pa. Cmwlth. 2005).
The statute was thereafter re-enacted as the Fair Share Act, effective
June 28, 2011.
We now turn to the relevant language of Fair Share Act:
(a) General rule. —In all actions brought to recover damages for
negligence resulting in death or injury to person or property, the fact that the plaintiff may have been guilty of contributory
negligence shall not bar a recovery by the plaintiff or his legal representative where such negligence was not greater than the
causal negligence of the defendant or defendants against whom recovery is sought, but any damages sustained by the plaintiff
shall be diminished in proportion to the amount of negligence attributed to the plaintiff.
(a.1) Recovery against joint defendant; contribution.
(1) Where recovery is allowed against more than one person, including actions for strict liability, and where
liability is attributed to more than one defendant, each defendant shall be liable for that proportion of the total
dollar amount awarded as damages in the ratio of the amount of that defendant’s liability to the amount of liability
attributed to all defendants and other persons to whom liability is apportioned under subsection (a.2).
(2) Except as set forth in paragraph (3), a defendant’s
liability shall be several and not joint, and the court shall enter a separate and several judgment in favor of the
plaintiff and against each defendant for the apportioned amount of that defendant’s liability.
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42 Pa.C.S.A. § 7102 (emphasis added).
Immediately, we note the structure of the statute. Subsection (a)
provides the “general rule” that a plaintiff’s contributory negligence is not a
complete bar to recovery. Instead, the “general rule” provides for two
scenarios based upon comparing the plaintiff’s negligence with that of the
defendants. First, if the plaintiff’s negligence was a greater cause of her
injuries than the defendants’ negligence, then the plaintiff’s recovery is
barred. Second, if the defendants’ negligence was a greater cause of the
plaintiff’s injuries than the plaintiff’s own negligence, then the plaintiff’s
recovery against the defendant will be reduced in proportion to the amount of
the plaintiff’s negligence. Importantly, neither scenario deals with the
circumstances present here, where there has been no allegation of a plaintiff’s
own negligence, let alone no jury finding of contributory negligence.
The statute then proceeds to subsection (a.1). Read in context, this
subsection only applies when the plaintiff has overcome the obstacles to
recovery set forth in section (a). Significantly, subsection (a.1) begins with
the phrase, “[w]here recovery is allowed against more than one person …"
(emphasis added).
This limited construction is also supported by the history of the
Comparative Negligence Act. “Joint and several liability as a principle of
recovery for an indivisible injury caused by multiple tortfeasors lies at the very
heart of the common law of tort, and also has a solid foundation in
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Pennsylvania's statutory law.” Carrozza v. Greenbaum, 916 A.2d 553, 565
(Pa. 2007) (citations omitted). “The policy justification for allocating 100
percent liability (from the plaintiff's perspective) to one who bears only, say,
40 percent of the responsibility is that, as between an innocent injured party
and a culpable defendant, the defendant should bear the risk of additional
loss.” Maloney v. Valley Med. Facilities, Inc., 984 A.2d 478, 489 (Pa. 2009)
(citation omitted). The Comparative Negligence Act provided “a method for
determining how much responsibility should be allocated to the defendant in
light of the plaintiff's conduct.” Krentz v. Consol. Rail Corp., 910 A.2d 20,
28 (Pa. 2006) (emphasis added). Therefore, the legislature, in enacting the
Comparative Negligence Act, merely sought to modify which parties bear the
risk of additional losses in cases where the plaintiff was not wholly innocent.
In contrast, there is no indication the legislature intended to make
universal changes to the concept of joint and several liability outside of cases
where a plaintiff has been found to be contributorily negligent. “We should be
and are reluctant to disturb the elemental doctrine of joint and several liability
in the absence of express direction from the legislature.” Carrozza, 916 A.2d
at 565–566 (citation omitted).
The subsequent enactment of the Fair Share Act does not alter our
conclusion. As noted, the “general rule” of the Fair Share Act continues to be
focused on cases where a plaintiff is found to have negligently contributed to
her own injuries. The addition of subsection (a.1) does not clearly or explicitly
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expand the scope of the Fair Share to include cases where the plaintiff has not
been found to be contributorily negligent. Therefore, for the Fair Share Act to
apply, the plaintiff’s negligence must be an issue in the case.
Here, as noted above, Spencer’s fault was never alleged or raised during
litigation, an instruction was not provided to the jury on the matter, nor was
a question about Spencer posed to the jury on the verdict form. Rather, it was
an undisputed fact that Spencer was “lawfully walking in the crosswalk at the
time of the accident[,]” and his actions were not a contributing factor to the
incident. Trial Court Opinion, 6/24/2019, at 3. Moreover, Tina and PJB never
raised a defense at trial that Spencer may have contributed to his injuries.
As such, we decline to disregard the plain language of the statute. The
Fair Share Act concerns matters where a plaintiff’s own negligence may have
or has contributed to the incident; that set of circumstances does not apply to
the present matter. While this case involved multiple tortfeasors, it would have
been improper to apply a statute that addresses the scenarios where a
claimant may have contributed to the accident and the possible preclusion of
recovery based on a plaintiff’s own negligence.
Therefore, as an alternative basis, we would have concluded the trial
court erred in applying the Fair Share Act to the present matter because
Spencer was never alleged or found to have contributed to the accident.
Accordingly, PJB and Tina would still be jointly and severally liable for
Spencer’s injuries. See Baker v. ACandS, 755 A.2d 664, 669 (Pa. 2000)
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(under the theory of joint and several liability, a plaintiff “may recover the
entire damages award from only one of the joint tortfeasors.”).
II. Section 1547 Argument
As an alternative argument, Spencer claims the court erred in failing to
mold the entire verdict against PJB because it is jointly and severally liable
pursuant to a section of the Pennsylvania Motor Vehicle Code, 75 Pa.C.S.A. §
1574.23 See Brief of Appellant, at 37. Spencer points to Shomo v. Scribe,
686 A.2d 1292 (Pa. 1996), for the principle that Section 1574 imputes joint
and several liability on someone who commits a Section 1574 violation with
the driver for any damages caused by the driver’s negligence. See Brief of
Appellant, at 38. Shomo provides that “for effective enforcement of the
summary offense provision of [S]ection 1574(a), it must be shown that the
owner or controller knew, or had reason to know, at the time he entrusted his
vehicle to another, that the driver he was authorizing or permitting to drive
____________________________________________
23 Section 1574 of the Pennsylvania Motor Vehicle Code provides:
(a) General rule. — No person shall authorize or permit a motor vehicle owned by him or under his control to be driven upon any
highway by any person who is not authorized under this chapter or who is not licensed for the type or class of vehicle to be driven.
(b) Penalty. — Any person violating the provisions of subsection
(a) is guilty of a summary offense and shall be jointly and severally liable with the driver for any damages caused by the
negligence of such driver in operating the vehicle.
75 Pa.C.S.A. § 1574.
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his vehicle was unlicensed.” Shomo, 686 A.2d at 1295 (citations omitted).
Spencer states both PBJ and Tina are jointly and severally liable because: (1)
Tina either directly or indirectly permitted Cleveland to drive the car while
intoxicated and without a license; and (2) PJB permitted Cleveland to operate
the vehicle by not enforcing its policies and failing to supervise Tina’s use of
the car. See Brief of Appellant, at 39.
PJB responds by claiming Section 1574 does not apply to the case
because the union and Tina offered evidence that they did not give Cleveland
permission to drive the car. See id., at 24. Moreover, PJB states that evidence
established that it provided the vehicle for the sole use of Tina and she was
aware that she was prohibited from allowing any other individual to use the
car. See id. PJB asserts that as a result, there cannot be a finding that it was
in violation of Section 1574. Furthermore, PJB contends the Fair Share Act
specifically sets forth the limited exceptions where joint and several liability
apply, and those exceptions do not include Section 1574. See id., at 25-26.
As previously stated, we concluded that the jury’s general verdict
necessitated a finding that PJB was vicariously liable for Tina’s negligence, and
therefore, the theory of joint and several liability applied pursuant to the Fair
Share Act. Accordingly, it would be redundant to decide whether the
imputation of joint and several liability under Section 1574 applies to the
present matter. Therefore, we need not address this claim further.
III. Delay Damages Argument
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In Spencer’s final argument, he contends the court erred in failing to
award him the full measure of delay damages pursuant to Pennsylvania Rule
of Civil Procedure 238. See Brief of Appellant, at 40. He notes that original
process was first served on August 17, 2016 and August 20, 2016 and the
defendants did not make any settlement offer until shortly before closing
arguments on January 28, 2019. See id., at 41. Spencer states that if we
determine that PJB is jointly and severally liable for any reason, then the court
committed an abuse of discretion in failing to award the entire measure of
delay damages. See id., at 42.
PJB counters Spencer’s argument and states that the trial court properly
determined that he was only entitled to delay damages from each defendant
in accordance with the percentage of liability for each defendant as determined
by the jury. See Brief of Appellee/Cross-Appellant, Philadelphia Joint Board
Workers United, SEIU, at 27.
Our standard of review concerning a motion for delay damages under
Rule 238 is whether the court committed an abuse of discretion. See Roth v.
Ross, 85 A.3d 590, 592 (Pa. Super. 2014). “An abuse of discretion is not
merely an error of judgment, but if in reaching a conclusion the law is
overridden or misapplied, or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by
the evidence or the record, discretion is abused.” Id., at 592-593.
The rule in question, Rule 238, provides, in relevant part, as follows:
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At the request of the plaintiff in a civil action seeking monetary relief for bodily injury, … 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.
Pa.R.C.P. 238(a)(1)
As noted above, the court denied in part and granted in part Spencer’s
motion for delay damages. Specifically, the court found he was entitled to
delay damages only as calculated from August 17, 2017 to January 28, 2019,
and only as calculated on the compensatory damages for which PJB was
deemed liable – 45%. The total amount of delay damages assigned to PJB was
$453,872.69. The trial court explained its computation as follows:
As stated in the Order, the denial was directed towards [Spencer]’s arguments that delay damages should be calculated
on the full verdict amount, since (as [Spencer] argued in his Motion to Mold the Verdict) PJB would be liable for the entirety of
the damages amount. The Court disagreed, stating that each defendant was only liable for delay damages on the amount of
compensatory damages attributed to each based on the jury’s apportionment of liability. Hence, PJB would only be liable for
delay damages calculated on 45% of the total verdict amount,
rather than 100%. As the Court read the Motion to only request delay damages against PJB and [Tina] (apparently an oversight),
it did not award delay damages against [Cleveland]. [Spencer]’s Amended Delay Damages Motion sought to recover delay
damages against him as well, but as explained above, the Court was not able to rule on this Motion before the Notice of Appeal
was filed and our jurisdiction over the case was removed pursuant to Pa. R.A.P. 1701.
Trial Court Opinion, 6/24/2019, at 11 n.9.
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Based on our conclusion that PJB was joint and severally liable, we are
constrained to disagree with the court’s determination. We are guided by the
following:
[A]s a general precept[,] Rule 238 damages awarded against all defendants in a negligence action are properly aggregated with
the verdict such that the defendants are jointly and severally liable for the aggregated delay damages. The fact that delay damages
under Rule 238 may be calculated in the first instance on an individualized basis before being aggregated with the general
liability verdict does not alter the analysis.
Allen v. Mellinger, 784 A.2d 762, 766 (Pa. 2001).
Accordingly, we are compelled to reverse that portion of the trial court's
order that apportioned delay damages to each defendant, and remand for the
recalculation of damages.
IV. Tina’s Sufficiency Arguments
In her first, second, and third arguments, Tina contends the trial court
erred in failing to grant her post-trial motion for JNOV because there was
insufficient evidence to support prima face cases of negligence or negligent
entrustment against her. See Brief for Designated Cross-Appellant/Appellee,
Tina Gainer Johnson, at 22, 30, 36. Tina has a high hurdle to clear to get the
trial court’s order reversed: “We will reverse a trial court’s grant or denial of
a JNOV only when we find an abuse of discretion or an error of law.” Reott v.
Asia Trend, Inc., 55 A.3d 1088, 1093 (Pa. 2012).
When reviewing the propriety of an order granting or denying judgment notwithstanding the verdict, we must
determine whether there is sufficient competent evidence to sustain the verdict. We must view the evidence in the light most
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favorable to the verdict winner and give the verdict winner the benefit of every reasonable inference arising therefrom while
rejecting all unfavorable testimony and inferences. We apply this standard in all cases challenging the grant of a motion for J.N.O.V.
Pennsylvania law makes clear that a judgment
notwithstanding the verdict is proper only in clear cases where the facts are such that no two reasonable minds could disagree that
the verdict was improper. Questions of credibility and conflicts in evidence are for the fact-finder to resolve. This Court will not
substitute its judgment based upon a cold record for that of the fact-finder where issues of credibility and weight are concerned.
Dubose v. Quinlan, 125 A.3d 1231, 1237-1238 (Pa. Super. 2015) (quotation
and internal citations omitted).
We begin our analysis by noting that all three of Tina’s challenges to the
sufficiency of the evidence are premised on accepting her trial testimony as
true, while ignoring contradictory testimony. These arguments ignore our
standard of review. Further, as we will demonstrate, the record amply
supports the jury’s verdict.
Tina first focuses on the pure negligence verdict. A negligence cause of
action has several elements:
To establish a cause of action sounding in negligence, a
party must demonstrate they were owed a duty of care by the defendant, the defendant breached this duty, and this breach
resulted in injury and actual loss.
[T]he determination of whether an act or failure to act constitutes negligence, of any degree, in view of all the evidence
has always been particularly committed to determination by a jury. It is an issue that may be removed from consideration by a
jury and decided as a matter of law only where the case is entirely free from doubt and there is no possibility that a reasonable jury
could find negligence.
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Snead v. SPCA, 929 A.2d 1169, 1183 (Pa. Super. 2007) (citations omitted;
brackets in original).
Tina argues the uncontroverted evidence established that she was not
the driver of the PJB car at the time of the accident. Rather, she continues to
assert that Cleveland took the keys and drove the company car without her
knowledge or permission and his negligent driving was the sole cause of
Spencer’s harm. See Brief for Designated Cross-Appellant/Appellee, Tina
Gainer Johnson, at 23. Tina claims that based on the facts, she did not have
a duty nor did she breach any duty. See id., at 24. In support of her argument,
Tina relies on her own testimony at trial as well as Cleveland’s statements
concerning his procurement of the keys without her knowledge or permission,
his intoxication at the time of the accident, and his admission at trial that he
was at fault. See id., at 25-29.
While Tina’s trial testimony certainly supports her argument, the jury
was not required to find it credible. The jury was entitled to find that Tina’s
self-interest affected this testimony. Further, it is undisputed that Tina was
not immediately truthful with PJB about the circumstances of the accident.
Tina explained that she was not intentionally deceitful, but again, the jury was
not required to credit this exculpatory testimony.
There was also significant testimony that directly contradicted Tina’s
testimony. Tina admitted that she and Cleveland had only one car – the
company car. See N.T., 1/23/2019 a.m., at 114. Cleveland’s willingness to
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move the car for a minor reason on the night of the incident also implies a
history of permissiveness in using the car. Finally, Cheryle Spencer testified
that she had often observed Cleveland driving the car in the past. See N.T.,
1/23/2019 a.m., at 78, 82. Under these circumstances, we cannot conclude
that the trial court erred in refusing to grant Tina JNOV on the pure negligence
verdict.
In her second argument, Tina challenges the negligent entrustment
verdict. The tort of negligent entrustment is set forth in Section 308 of the
Restatement (Second) of Torts:
§ 308 Permitting Improper Persons to Use Things or Engage in
Activities
It is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor
knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as
to create an unreasonable risk of harm to others.
Restatement (Second) of Torts § 308 (1965).
“Under a theory of negligent entrustment, liability is imposed upon a
defendant because of his or her own actions in relation to the instrumentality
or activity under his or her control. The entrustor’s liability is not dependent
on, derivative of, or imputed from the entrustee’s actual liability for damages.”
Ferry v. Fisher, 709 A.2d 399, 403 (Pa. Super. 1998) (citations omitted).
“However, our cases do require that the entrustee be causally negligent before
the entrustor may be held liable through negligent entrustment.”
Christiansen v. Silfies, 667 A.2d 396, 400 (Pa. Super. 1995).
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Tina claims that even if “the jury did find that Tina Johnson permitted
her husband to drive the vehicle, simply allowing him to drive was insufficient
to find that she negligently entrusted him with the car and that such
negligence was the cause of the harm.” See id., at 31. She relies on Gibson
v. Bruner, 178 A.2d 145 (Pa. 1961), to support her claim.
Tina alleges the court opined that there was evidence Cleveland “often
drove the car” with her “knowledge, if not her permission.” Brief for
Designated Cross-Appellant/Appellee, Tina Gainer Johnson, at 33. Tina
contends that assuming the jury ignored the evidence that Cleveland did not
have permission and believed his wife allowed him to drive, “there was no
evidence that she entrusted the vehicle to [Cleveland] when he took the
vehicle at the date and time of the accident” and “that she knew or should
have known that [Cleveland] was incompetent to drive the vehicle on that
date, or at any time, by reason of intoxication or otherwise.” Brief for
Designated Cross-Appellant/Appellee, Tina Gainer Johnson, at 33-34
(quotations marks omitted).
She relies on her own testimony that at the family gathering, she and
Cleveland “exchanged a few words at most[,]” “she did not know how many
drinks he had before arriving at her mother’s house, and was not with him
long enough to know if he was intoxicated.” Id., at 34. Moreover, she points
to Cleveland’s testimony, in which he stated that “he drank his last beer before
he went into the house, that no one was drinking at the gathering, that at
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most he exchanged a word with his wife, and there is no evidence that anyone
was aware of his state when he took the car.” Id.
She further contends the mere fact that his “license had been suspended
years ago was insufficient to support a negligent entrustment claim,” and the
accident was caused by his drunk driving, and not his lack of driving privileges.
See id. Tina concludes that as a result, the trial court erred in failing to grant
her motions for JNOV and a new trial. See id., at 35-36.
Viewing the evidence in the light most favorable to Spencer as the
verdict winner, we concur with the trial court that there was sufficient evidence
to support a finding that Tina had negligently entrusted Cleveland to drive her
work car. A negligent entrustment cause of action required proof that: (1)
Tina was the operator of the work vehicle, (2) Tina permitted Cleveland to use
the car, and (3) Tina knew or had reason to know Cleveland intended to or
was likely to use the car in a manner which would create an unreasonable risk
of harm to others. See Restatement (Second) of Torts § 308.
Applying the elements to this case, we note the following: (1) the work
vehicle was issued to Tina and she testified she used it for employment and
personal reasons; (2) as explained by the trial court, there was ample
circumstantial evidence that Cleveland serially drove the car with Tina’s
explicit or implicit knowledge despite the fact that he did not have a proper
license; and (3) one can reasonably infer that the jury disbelieved Tina’s
testimony that she did not know her husband was intoxicated at the time of
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the family gathering, and therefore, she had reason to know he would use the
car in a manner which would create an unreasonable risk of harm to others.
See id. Lastly, Cleveland was causally negligent for Spencer’s injuries. See
Christiansen, 667 A.2d at 400.
In her third challenge to the sufficiency of the evidence, Tina returns to
the negligence cause of action and claims the trial court erred by denying
JNOV because the jury’s verdict that was based on a novel theory of
negligence: the “keys on the counter or purse” or “accessibility” theory of
negligence was invalid as a matter of law, and therefore, the verdict was
supported by insufficient evidence. See id., at 36. She states she did not leave
the keys in the ignition or at a public place; rather, she left them in her
mother’s home during a private family get-together.
Tina asserts the court erred in denying JNOV because Spencer’s theory
of negligence on this basis is not recognized in Pennsylvania. See id. Tina
contends that Pennsylvania law “does not impose a duty, nor permit a finding
of negligence based on the allegation that Tina Johnson/any other person left
car keys in a private, family home, where they could be accessed by a spouse
or any other competent adult in these circumstances.” Id., at 37. She states
that under Spencer’s theory, every vehicle owner would have to keep his or
her car keys on their person or inaccessible at all times, which would be an
“absurd result.” Id., at 38. Tina further states that case law has held that “the
mere fact that a vehicle owner leaves the vehicle accessible to a family
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members or friend does not impose liability for harm caused by that driver.”
Id., at 38-39. She asserts she did not owe or breach a duty on this basis, and
there was no evidence supporting a finding that her conduct in leaving the
keys was a cause of Spencer’s harm. See id., at 40. Lastly, Tina argues the
jury’s acceptance of “keys on the counter or purse” theory rendered a verdict
that was against the weight of the evidence. See id., at 40-42.24
We agree with the trial court’s conclusion. In her post-trial motion for
JNOV, Tina alleged the jury’s finding of liability was not supported by sufficient
evidence because “Pennsylvania law does not and should not permit a finding
of negligence based on the allegation that [Tina] or any other person left car
keys where they could be accessed by a spouse or any other competent
adult[,]” and in the present matter, “the trial testimony unequivocally
established that Cleveland Johnson took the keys without the knowledge or
permission of [Tina] (his wife) and [Tina] had made clear that [Cleveland] was
not permitted to drive the car at any time.” Motion for Post-Trial Relief of
Defendant, Tina Gainer Johnson, 2/15/2019, at ¶ 3. However, as the court
correctly points out, the verdict slip did not explain the exact theory the jury
relied on to form its verdict, and Tina did not solicit the jury’s rationale on the
record or request special interrogatories on the matter. The parties were
____________________________________________
24 To the extent Tina raises weight arguments, we will address these assertions in the next section, which involves both Tina’s and PBJ’s weight
claims.
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disputing numerous theories of negligence. Therefore, contrary to Tina’s
assertion, the jury’s verdict was not clearly based on a novel “accessibility”
theory of negligence.
As such, we conclude the trial court did not err in denying Tina’s post-
trial motion for JNOV because the facts are such that no two reasonable minds
could disagree that the verdict was improper. See Dubose, 125 A.3d at 1237-
1238.
V. PJB’s and Tina’s Weight Argument
Both Tina and PJB contend that the trial court improperly denied their
motions for post-trial relief based on the assertion that the verdict was against
the weight of the evidence. See Brief of Appellee/Cross-Appellant,
Philadelphia Joint Board Workers United, SEIU, at 20; see also Brief for
Designated Cross-Appellant/Appellee, Tina Gainer Johnson, at 42. PJB alleges
“the percentage of liability apportioned to [PJB] when compared to the
percentage of liability apportioned to co-defendant, [Cleveland], is against the
weight of the evidence and resulted in a miscarriage of justice.” Brief of
Appellee/Cross-Appellant, Philadelphia Joint Board Workers United, SEIU, at
20. PJB states that it was an error for the jury to allocate greater liability to it
based upon a purported lack of oversight of the use of its vehicle than to
Cleveland, who was drunk and took his wife’s keys without her knowledge and
permission and hit Spencer. See id., at 21.
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Similarly, Tina contends the court erred by denying her a new trial
because the jury’s apportionment of only 36% liability to Cleveland was
against the weight of the evidence given the record and his admissions that
he took the car without Tina’s knowledge or permission. See Brief for
Designated Cross-Appellant/Appellee, Tina Gainer Johnson, at 42-48. Tina
states the court merely speculated that the jury found she had negligently
authorized Cleveland to drive the PJB car and that he used the car with her
express and implied permission, and such a finding was against the weight of
the evidence. See id., at 43.
When presented with a challenge to weight of the evidence claim, our
standard of review is well-settled.
Initially, we note the following relevant legal precepts:
Appellate review of a weight claim is a review of the [trial
court's] exercise of discretion, not of the underlying question of whether the verdict is against the weight of the
evidence. Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court
will give the gravest consideration to the findings and
reasons advanced by the trial judge when reviewing a trial court’s determination that the verdict is against the weight
of the evidence. One of the least assailable reasons for granting or denying a new trial is the lower court’s
conviction that the verdict was or was not against the weight of the evidence and that a new trial should be granted in the
interest of justice.
The factfinder is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses.
The trial court may award a judgment notwithstanding the verdict or a new trial only when the jury’s verdict is so
contrary to the evidence as to shock one’s sense of justice. In determining whether this standard has been met,
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appellate review is limited to whether the trial judge’s discretion was properly exercised, and relief will only be
granted where the facts and inferences of record disclose a palpable abuse of discretion. When a fact finder’s verdict is
so opposed to the demonstrative facts that looking at the verdict, the mind stands baffled, the intellect searches in
vain for cause and effect, and reason rebels against the bizarre and erratic conclusion, it can be said that the verdict
is shocking.
However, [i]f there is any support in the record for the trial court’s decision to deny the appellant’s motion for a new trial based on
weight of the evidence, then we must affirm. An appellant is not entitled to a new trial where the evidence presented was
conflicting and the fact-finder could have decided in favor of either
party.
McFeeley v. Shah, 226 A.3d 582, 594 (Pa. Super. 2020) (citations and
quotation marks omitted).
In support of their weight arguments, PJB and Tina point to the following
facts: at the time of the accident, Cleveland was the sole driver of the vehicle,
he was intoxicated, he did not possess a license, and he was not authorized
by PJB to drive the vehicle. In addition, they note Cleveland’s assertions at
trial that he was the only one at fault, and that the others should bear no
blame.
Moreover, both PJB and Tina rely on Thompson v. City of
Philadelphia, 493 A.2d 669 (Pa. 1985), in an attempt to bolster their
argument that the jury’s apportionment of liability was against the weight of
the evidence, and warranted a new trial. See Brief of Appellee/Cross-
Appellant, Philadelphia Joint Board Workers United, SEIU, at 21; see also
Brief for Designated Cross-Appellant/Appellee, Tina Gainer Johnson, at 45.
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Tina and PJB also argue that Thompson stands for the theory that the driver
of a vehicle that causes an accident should bear more liability than any other
party that is involved in the matter. Turning to the present matter, since
Cleveland did not bear the greatest percentage of liability, PJB and Tina
contend that the jury’s verdict was against the weight of the evidence.
In disposing of PJB’s and Tina’s weight arguments, the trial court held
that the jury had properly considered the evidence when they imputed greater
liability on PJB than on Cleveland. The court highlighted the following
evidence: (1) PJB had given Tina a company vehicle without first checking her
background; (2) PJB provided all employees vehicles unless specifically given
reason not to do so; (3) Cleveland was known to frequently drive Tina’s
company vehicle; and (4) PJB did not conduct mileage tracking or auditing
and instead relied on “the honor system” for enforcing vehicle use. Trial Court
Opinion, 6/24/2019, at 15-16.
Additionally, the trial court pointed to evidence which showed that PJB
did not implement any safety measures aside from “periodic reminders of the
usage policies and instructions that employees should wear their seatbelts and
use other basic road safety practices.” Id., at 16. The trial court further
elaborated that this complete lack of oversight regarding vehicle allocation
and usage stemmed from PJB’s belief that “they would find out” about any
misuse because Philadelphia was “a small town.” Id.
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Lastly, the court opined that “overturning a jury’s verdict is a drastic
measure” and should not be done unless “an egregious error is manifest or
palpably apparent.” Id., at 15 (internal quotation marks omitted). In
considering PJB’s lack of enforcement of company car policies and safety
measures, the trial court held that the jury’s decision that PJB shared the
greatest percentage of fault was supported by evidence and was reasonable.
Therefore, it concluded it did not abuse its discretion by denying PJB’s and
Tina’s motions for a new trial.
As noted above, both PJB and Tina cite Thompson in support of their
argument that the driver who causes an accident should bear more liability
than any other party. However, contrary to their assertion, Thompson does
not stand for the notion that a new trial must be granted when the driver does
not bear the largest share of liability.
By way of background, Thompson arose from an automobile accident,
where a furniture truck driver negligently exited an interstate. Unable to stop,
the driver barreled through a guardrail, and toppled off an overpass onto the
highway below, crushing and killing the decedent. The plaintiff, the
administratrix of the estate of the decedent, subsequently brought suit against
the truck driver, his employer, the City of Philadelphia, and the
Commonwealth of Pennsylvania. After a jury trial, the Commonwealth and the
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City were each found 35% liable, while the driver and his employer, together,
were found only 30% liable.25
The trial court granted a new trial on apportionment of liability alone.
The court held that the jury’s apportionment of liability was against the weight
of the evidence where the driver failed to notice or follow the clearly visible
directional signs, traffic speed signs, and multiple stop signs.
On direct appeal, a panel of this Court reversed, explaining that expert
testimony at trial proved the intersection’s poor design, and justified the jury’s
verdict. The panel “determined that the trial court’s order exceed[ed] the
limited standards for the grant of a new trial because of the weight of the
evidence.” Thompson, 493 A.2d at 672 (citation and quotation marks
omitted).
On allocator review, the Pennsylvania Supreme Court explained the
differences between the standard of review applied by this Court and how it
interpreted the standard of review. It agreed with this Court “that the power
to grant a new trial is as inherent in a trial court for the apportionment of
liability as the power exists for all the traditional reasons for granting a new
trial.” Id. However, the Supreme Court determined that in measuring whether
____________________________________________
25 At trial, the plaintiff averred that the Commonwealth had failed to exercise
reasonable care when posting traffic signs on the interstate, which resulted in the driver being confused, and ultimately caused the accident. Although there
were numerous traffic signs posted on the exit ramp, expert testimony at trial helped show that poor design may have resulted in the driver not seeing the
signs.
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a new trial should be granted, the Superior Court panel erroneously “adopted
the view that a grant is a most unusual judicial act and if there is any credible
evidence which under any reasonable view supports the jury’s findings the
verdict should be sustained.” Id. The Supreme Court held:
In reviewing the entire record to determine the propriety of a new trial, an appellate court must first determine whether the trial
judge’s reasons and factual basis can be supported. Unless there are facts and inferences of record that disclose a palpable abuse
of discretion, the trial judge’s reasons should prevail. It is not the place of an appellate court to invade the trial judge’s discretion
any more than a trial judge may invade the province of a jury,
unless both or either have palpably abused their function.
Id., at 673.
The Supreme Court then cited to the evidence and rationale offered by
the trial court for granting a new trial. See id., at 673-674 (“this court refuses
to accept the jury's apportionment of damages to the defendant [driver]
where he failed to follow posted traffic directional signs, ignored posted traffic
speed signs, and states that he did not see either one of two stop signs even
though the evidence clearly establishes that he should have seen those
signs.”).
In reversing the Superior Court panel’s decision, the Supreme Court
opined:
The Superior Court panel did not find that these facts were not of
record or that if true they would not support a conscious shocking paradigm. The Superior Court instead, countered the argument by
finding that expert testimony suggested that the highway junction was ill designed and therefore the jury could find justification for
their apportionment of liability. The jury could and did do exactly that. That, however, begs the question before us; the question
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being whether the trial judge’s reasons for his act in granting a new trial were justified. If he was supported by facts of record,
the very point of his grant is that, notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them
or to give them equal weight with all the facts is to deny justice. We cannot find it wrong to believe that an inattentive driver
barreling into a marked exist ramp at 40-45 miles an hour, who did not stop for a clearly visible stop sign because he did not see
it, and who was unable to control his vehicle at the intersection, is more at fault than those who maintain the road he was not sure
he was on.
Id., at 674 (quotation marks omitted).
Turning to the present matter, although both cases concern a motor
vehicle accident, it is evident that Thompson is distinguishable based on the
procedural posture of this case. Here, unlike in Thompson, the trial court
denied the motions for a new trial, finding that the jury’s apportionment of
fault was not manifestly and palpably against the weight of the evidence. As
noted above, the court concluded the verdict reasonably flowed from the
actions and omissions of both PJB and Tina, which resulted in Cleveland driving
the vehicle on the night in question. As a result, the court found it was not
unreasonable for a jury to decide that if PJB would have enforced stricter
supervision of the company vehicle, Husband would not have been in control
of the vehicle on the night in question.
We are reminded that it is not the place of this Court to invade the trial
judge’s discretion any more than a trial judge may invade the province of a
jury, unless both or either have palpably abused their function. Id., at 673.
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We now turn to the record, which reveals the following. At trial, Spencer
presented evidence of PJB’s complete lack of oversight over Tina’s fitness as
a possessor of a company vehicle. Through questioning, Spencer
demonstrated that PJB’s policies surrounding the employee vehicles were
extremely lax in nature. Aside from making sure an employee had a valid
driver’s license, PJB did little to no investigation into the employee’s prior
record as a driver or overall suitability for having control over a vehicle.
Rather, according to PJB’s manager, Fox, the company vehicles were simply
given to all employees as a right unless they somehow proved otherwise unfit
to have one. See N.T., 1/22/2019 p.m., at 51. Moreover, Fox indicated that
whether an employee already had a personal car was “irrelevant” to the
company’s decision to give someone a car. N.T., 1/22/2019 p.m., at 67.
Fox further described the only true requirements for an employee
getting a vehicle as follows: “what their work product is like, what members
say about them, what results they produce, what their work ethic is, if we
have any issues, if there are any complaints.” N.T., 1/22/2019 p.m., at 49. As
a result of this organization’s approach, PJB did not evaluate Tina’s fitness for
having a company car, and thus failed to discover that she had previously had
her license suspended, and that providing her with a vehicle may have been
a risk.
Additionally, once employees were provided with company vehicles,
they were allowed to possess the vehicle at all times, but were not supposed
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to drive the cars for personal reasons. However, PJB administered minimal
oversight of vehicle usage by employees. For example, PJB did not record or
audit mileage usage, or even conduct any sort of periodic or surprise
inspections. Rather than attempting to ensure that employees only drove their
vehicles for work purposes, PJB simply used “the honor system,” and hoped
that employees would follow the rules. N.T., 1/22/2019 a.m., at 107.26
Moreover, PJB held regular meetings as well as retreats where all
“policies and procedures are gone over and thoroughly given[.]” N.T.,
1/25/2019 a.m., at 23.27 However, PJB had no employee handbook or manual,
and gave little to no vehicular safety training. PJB had a two-page vehicle
policy document, drafted by Saldana and Fox, that was reviewed orally with
employees when they received the car and at meetings. See N.T., 1/22/2019
a.m., at 90-91. PJB failed to produce any documentation at trial that Tina had
____________________________________________
26 Fox testified:
We don’t monitor our employee’s use of the vehicles. No one gets
shadowed. No one gets followed. We know what their work is. We would know very quickly if someone was not doing the work, if
they were not showing up where they were supposed to be showing up…. So we never had a program. I mean, that’s the
general, reasonable protocol that all unions use. If you don’t trust your rep to drive your car, you certainly don’t trust your rep to
service your members.
N.T., 1/22/2019 p.m., at 53. 27 Minter testified the retreats were mandatory, but employees were excused if they had a personal health crisis or were “caught up in negotiations[.]” N.T.,
1/25/2019 a.m., at 23.
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signed acknowledging the policy, or even indicated that she had attended any
of those meetings when the vehicle policy was discussed. See id. See also
N.T., 1/25/2019 a.m., at 46-47; N.T., 1/28/2019, at 13.
Furthermore, rather than focusing on any of these safety measures, the
company instead concentrated on complying with IRS and DOL regulations,
and stood behind the creed that because Philadelphia is “a small city,” PJB
simply would find out “sooner or later” about any misuse of the vehicles,
including unauthorized use by a family member. N.T., 1/22/2019 p.m., at 57.
Under these circumstances, we cannot conclude the trial court abused
its discretion in refusing to grant a new trial. The jury could reasonably find
that PJB’s failure to manage Tina led to her allowing Cleveland to regularly
driving the company vehicle without their knowledge or authorization. It even
resulted in Tina’s failure to report to PJB that the company vehicle was
impounded after the accident because, as Tina testified, “there was no need
to notify [PJB] for that.” N.T., 1/22/2019 a.m., at 74.28
As for Tina’s liability, an examination of the record not only explains how
a jury could have found her negligent, but also overwhelmingly justifies the
jury’s apportionment of liability to her. First, there was the evidence
____________________________________________
28 It also merits mentioning that after the accident, PJB did not terminate
Tina’s employment with the union, but merely suspended her for two weeks and revoked her company car privileges. Additionally, PJB did not press
charges against Cleveland for theft of the vehicle even in light of Tina’s explanation that she did not give me permission to drive the car.
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demonstrating Cleveland’s extensive usage of the vehicle. While Cleveland
and Tina both admitted that he did have her permission to drive the vehicle
in the past, they maintained that this permission only applied to rare occasions
for unidentified emergency situations. See N.T., 1/23/2019 a.m., at 38; N.T.,
1/24/2019 a.m., at 24-28. Nevertheless, their portrayal of his use of the
vehicle was contradicted by Spencer’s sister. Cheryle testified that she had
personally seen Cleveland driving the car “[a]ll the time[,]” both with and
without Tina in the vehicle. N.T., 1/2/2019 p.m., at 78.29 The jury was free to
accept or reject the testimony by these witnesses, and it is obvious the jury
found Cheryle’s testimony more credible than Cleveland’s and Tina’s
statements.
Second, there was the evidence of Tina’s attempt to hide the accident
from PJB. The accident occurred on a Thursday night. Tina did not immediately
contact PJB to inform them about the accident. The following day, Tina tried
to cover-up the incident to PJB by telling Saldana that the vehicle had been
impounded due to unpaid parking tickets. See N.T., 1/22/2019 p.m., 16-20.
Tina also went into the office without telling anyone in order to obtain a second
copy of the car registration that she kept in her office. She needed the car
registration to get the car released from the impound lot. See N.T., 1/23/2019
____________________________________________
29 Cheryle Spencer provided an affidavit in response to a pleading. See N.T.,
1/23/2019 p.m., at 85-86. In the affidavit, she averred she observed Cleveland and/or Cleveland and Tina driving the car at least 100 times. See
id., at 90.
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a.m., at 80. When PJB questioned Tina after finally being notified about the
crash by police officers who showed up at the office, Tina did not tell Fox the
severity of Spencer’s injuries. See N.T., 1/22/2019 p.m., at 62-63, 66.
We reiterate “it was solely for the [jury], as the finder of fact, to
determine the credibility of witnesses and to resolve any conflicts or
inconsistencies in the evidence.” Commonwealth v. Upshur, 764 A.2d 69,
74 (Pa. Super. 2000) (citation omitted). The jury was free to accept all, some,
or none of the testimony presented to them. Accordingly, as Thompson sets
forth, we conclude the record supports the trial court’s analysis that: (1) PJB’s
lack of enforcement of company car policies and safety measures and
supervision over the vehicles reasonably led to the jury’s decision that PJB
shared the greatest percentage of fault, which finding was supported by
evidence and was reasonable; and (2) the evidence could reasonably support
a finding that Tina had negligently authorized Cleveland to drive the PJB car
and that he used the car with her express and implied permission. While
Cleveland may have been the driver of the vehicle that struck Spencer, his
fault did not erase the negligent acts of PJB and Tina that contributed to the
incident. Therefore, we conclude the trial court did not act capriciously or
abuse its discretion in determining that the verdict was not against the weight
of the evidence. Accordingly, PJB’s and Tina’s weight claims merit no relief.
VI. Remittitur Argument
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Lastly, PJB and Tina both argue the court erred in denying the request
for a remittitur. They contend the court erred by denying a new trial on
damages, or a substantial remittitur, because the over $12,000,000 verdict
was against the weight of the evidence, manifestly excessive, and not
supported by credible evidence since there was no expert medical testimony
on life expectancy and other matters. See Brief of Appellee/Cross-Appellant,
Philadelphia Joint Board Workers United, SEIU, at 26-27; see also Brief for
Designated Cross-Appellant/Appellee, Tina Gainer Johnson, at 48-51. Tina
also points out that Spencer’s life care planning expert, Nurse Masterson,
testified to alternate plans for Spencer’s life which she projected for alternative
life expectancies of ages 70 and 82, but Nurse Masterson specifically stated
she would not give an opinion on life expectancy as it was not within her
expertise. See id., at 52.
Moreover, Tina contends there was no evidence to support the court’s
instruction on life expectancy because there was no expert medical testimony
on the subject. See id., at 53. She states the charge was based upon general
tables that have no connection with Spencer’s injuries from the accident and
his actual medical condition, and therefore, this evidence cannot support the
damages award. See id., at 54.
Tina further argues that the court erred in opining that a jury may decide
on a plaintiff’s life expectancy without expert testimony because the impact of
a plaintiff’s serious medical condition on his or her life expectancy would not
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be within the common knowledge of a juror. See id., at 54-55. In this regard,
she alleges that the court’s reliance on Helm v. Eagle Downs-Keystone
Racetrack, 561 A.2d 812, 813 (Pa. Super. 1989), is misplaced because, as
she contends, Helm is not controlling. Tina specifically asserts Helm does not
stand for “the proposition that a jury’s award for future medical and
noneconomic damages can be sustained where the award is based solely upon
a jury instruction as to the life expectancy tables, and in the absence of any
life expectancy testimony by medical experts.” Brief for Designated Cross-
Appellant/Appellee, Tina Gainer Johnson, at 55.
Tina also asserts the award was excessive because of “the disparity
between the amount of the out-of-pocket expenses and the amount of the
verdict.” Id., at 57. Tina states the parties stipulated that the amount of past
medical bills paid was $683,311.47 and yet, the verdict was more than twelve
times that amount for future medical expenses and non-economic damages.
See id., at 57-58. Lastly, she argues the verdict was so grossly excessive that
it amounted to an award of punitive damages that violated basic fairness and
due process rights. See id., at 58-59.
We begin with our well-settled standard of review:
Our standard of review in considering the reversal of a trial court's order denying a remittitur is to determine whether the trial
court abused its discretion or committed an error of law in reaching such decision. In that regard, this Court, in Mecca v.
Lukasik, 366 Pa. Super. 149, 530 A.2d 1334 (Pa. Super. 1987), discussed the factors to be considered in determining whether or
not a verdict is excessive:
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The grant or refusal of a new trial because of the excessiveness of the verdict is within the discretion of the
trial court. This court will not find a verdict excessive unless it is so grossly excessive as to shock our sense of justice.
We begin with the premise that large verdicts are not necessarily excessive verdicts. Each case is unique and
dependent on its own special circumstances and a court should apply only those factors which it finds to be relevant
in determining whether or not the verdict is excessive. A court may consider the following factors, inter alia:
(1) the severity of the injury; (2) whether the
Plaintiff’s injury is manifested by objective physical evidence or whether it is only revealed by the
subjective testimony of the Plaintiff (and, herein, the
court pointed out that where the injury is manifested by broken bones, disfigurement, loss of
consciousness, or other objective evidence, the courts have counted this in favor of sustaining a verdict); (3)
whether the injury will affect the Plaintiff permanently; (4) whether the Plaintiff can continue
with his or her employment; (5) the size of the Plaintiff’s out-of-pocket expenses; and (6) the amount
Plaintiff demanded in the original complaint.
Paliometros v. Loyola, 932 A.2d 128, 134-35 (Pa. Super. 2007) (some
citations omitted).
Here, the trial court discussed those “excessive” factors and found the
following:
At trial, the Court gave the jury Standard Civil Instruction
7.240, which gives the average life expectancy for the plaintiff’s age and demographic group (in this case, 26.5 additional years).
It also notes that the jury is free to find that the life expectancy would be longer or shorter based on considerations like the
plaintiff’s health status.
…
In this case, the jury awarded the stipulated amount for the past medical expenses, but also awarded $7.3 million for future
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medical expenses and $5 million for noneconomic damages. [PJB and Tina] aver these amounts are excessive on their face, and
that the future medical expenses award is unfounded in the absence of expert testimony on life expectancy. Firstly, we
address the claim that the verdict is excessive. Looking to the factors enumerated above, we note that [Spencer]’s traumatic
brain injury has left him in a wheelchair, unable to attend to his basic daily needs, and that he now suffers recurrent seizures that
at one point resulted in hospitalization and medical induction of a coma and mechanical ventilation. He is unaware of his deficits and
diminished capabilities, a factor which makes it particularly important that he receive constant supervision and procession
care. He also needs frequent doctor visits and medication management, and he has endured frequent hospitalizations. He is
also at heightened risk for wounds and infections due to his
wheelchair and diaper use, and he suffers osteoporosis that is caused by his anti-seizure medication. According to the expert
report of Dr. Guy Fried, [Spencer] reported being able to walk for miles and go dancing every weekend before his injury; now, he
can walk perhaps 100 feet with assistance and a rolling walker and is at high risk for fall injuries. He cannot stand independently
or drive. His short-term memory is impaired. Dr. Fried opined that his injuries were serious and permanent, and that he would need
medical care in a facility setting for the rest of his life.
[Spencer]’s injuries are physically manifested, rather than being alleged only through subjective testimony, as his medical
records and test results show. Gainful employment is clearly out of the question. His past medical expenses were stipulated to as
greater than $680,000. Expert life-care planner Nurse Masterson
calculated his costs of living to the age of 70, and separately to the age of 82, both for in-home care and facility care (but
excluding medication costs). She opined that, if he lived only to age 70, his minimum living costs would exceed $3million; if he
lived to age 82, his costs were estimated at $6.8 million and $7.3 million.
Furthermore, Dr. Fried’s report states that [Spencer]
reported nonstop, aching pains in his neck, back, arms, and legs, and that he had never had chronic pains prior to the accident. He
also has losses of sensation and diminished eyesight. He suffers depression due to his awareness of his loss of quality of life. He
reported being a previously active person in reasonable health
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who played with his children and children around his neighborhood, and who enjoyed basketball and football.
For these reasons, this Court finds the jury’s damages award
was not so excessive as to shock our sense of justice. The award for future care costs is not excessive on its face because it accords
with Nurse Masterson’s careful accounting of costs, both for in-home and facility care, including costs of diagnostic tests, mobility
aids and home modifications, physical/occupational/cognitive therapies, nursing services, and specialized day programs for
patients with brain injuries. Additionally, we observe that [Spencer]’s medication costs (which were explicitly omitted from
calculations) would significantly add to Nurse Masterson’s estimates. We find the award for noneconomic damages is not
excessive because [Spencer]’s quality of life has been drastically
reduced, and he is no longer able to live as an independent, active person. For the rest of his life, he will need to rely on others to
move him around, feed him, clean him, and attend to his medical needs, and he lives in constant pain.
Lastly, we reject [PJB’s and Tina’s] claim that the award for
future medical costs is improper because [Spencer]’s experts did not opine on his life expectancy. A jury may decide on a plaintiff’s
life expectancy without expert testimony. See Helm v. Eagle Downs–Keystone Racetrack, 561 A.2d 812, 813-14 (Pa. Super.
Ct. 1989) (lay testimony of diminished quality of life, along with approved mortality tables, the appropriate considerations for a
jury to determine life expectancy); see also SSJI 7.240 Subcommittee Note (“The jury must make its own determination
[of life expectancy] based on all factors that affect the duration of
life”), citing Pauza v. Lehigh Valley Coal Co., 80 A, 1126, 1127 (Pa. 1911).
Trial Court Opinion, 6/24/2019, at 16-19 (record citations and quotation
marks omitted).
The trial court thoroughly explains its rationale for denying remittitur
and we affirm on the basis of that analysis while adding several comments.
First, it merits emphasis that large verdicts are not necessarily excessive
verdicts, and each case is unique and dependent on its own special
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circumstances. As noted above, Spencer suffered catastrophic injuries as a
result of the accident at issue and is wheelchair bound with additional loss of
function of his right arm, unable to attend to his basic daily needs, and now
suffers from recurring seizures and incontinence. Furthermore, according to
Dr. Fried, Spencer will require admission at an acute care facility for the rest
of his life, he will need one-on-one supervision for the rest of his life, and he
will require ongoing consultations with doctors over a variety of specialties
during the course of his life. See Trial Deposition of Guy W. Fried, M.D.,
9/11/2018, at 41-42. Spencer will also need ongoing medication, physical and
cognitive therapies, a security system, a brain injury support day program,
and testing. See id., at 42-43. Lastly, it is obvious Spencer can no longer
maintain employment at the bank in which he previously worked, Glenmede
Trust. See id., at 33.
Second, the trial court instructed the jury in detail that Spencer sought
compensation for past medical expenses, future medical expenses, and
noneconomic losses. See N.T., 1/28/2019, at 106-107. The court also
instructed that if the jury found Spencer was entitled to damages for future
pain and suffering, his life expectancy was an additional 26.5 years.
According to the statistic complied by the United States Department of Health and Human Services, the average
life expectancy of all persons of the plaintiff’s age at the time of the incident, his sex and race was 26.5 additional
years. This figure is offered to you only as a guide and you are not bound to accept it if you believe that the plaintiff
will live longer or less than the average individual in his category. In reaching this decision, you are to consider the
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plaintiff’s health before the incident, his manner of living, his personal habits and other factors that may affect the
duration of his life.
See id., at 109-110. PJB and Tina did not object to these instructions.
Third, while PJB and Tina are alleging there was no expert testimony on
life expectancy, they opted to not call their own medical expert, who was
scheduled to give life expectancy testimony. Moreover, Spencer did present
the testimony of life care planning expert, Nurse Masterson. The expert
provided testimony regarding her recommendations for medical and daily
costs, which were based on the average needs of Spencer if he were to reside
in a nursing facility or at home with his sister and if he lived to age of 70 and
then 82. See N.T., 1/24/2019 p.m., at 13-50. The jury was free to believe or
reject this expert testimony. See Rettger v. UPMC Shadyside, 991 A.2d
915, 934 (Pa. Super. 2010). Here, it obviously credited Masterson’s expert
testimony.
Lastly, we touch upon Tina’s argument that the court erred in relying on
Helm because that decision does not stand for the proposition that a jury’s
award for future medical and noneconomic damages can be sustained where
the award is based solely upon a jury instruction as to the life expectancy
tables, and in the absence of any life expectancy testimony by medical
experts. We find her argument is misplaced. Helm specifically held:
It is well settled that mortality tables are admissible in Pennsylvania for the purpose of determining a plaintiff’s future
damages. However, in instructing the jury on the use of such tables, the court is required to instruct the jury that certain
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variables must be taken into consideration in determining the possible duration of life. The court’s instructions must include a
survey of such matters as sex, prior state of health, nature of daily employment, and its perils, if any, manner of living, personal
habits, individual characteristics, and other facts concerning the injured party which may affect the duration of his or her life. Since
mortality tables are not to be applied rigidly, failure to adequately instruct the jury on their use constitutes reversible error and
warrants the grant of a new trial on the issue of damages.
Helm, 561 A.2d at 813 (citations omitted).
Additionally, a panel of this Court has also stated that “[w]hen such
tables are submitted in a personal injury case, the jury must be permitted to
consider individual characteristics that impact on the injured party’s life
expectancy.” Kraus v. Taylor, 710 A.2d 1142, 1144 (Pa. Super. 1998)
(citation omitted). As indicated above, while Spencer did not present a life
expectancy expert, Spencer did introduce a life care planning expert who
testified to future medical and noneconomic damages based on certain life
expectancy ages. Tina has not presented any case law nor does our research
reveal any support for the notion that a life expectancy expert must testify
before a jury can assess damages based on a certain life expectancy.
Accordingly, in light of the testimony offered by Dr. Fried and Nurse
Masterson, the jury’s award is supported by the record and not excessive,
arbitrary or unreasonable in relation to the evidence adduced at trial.
Therefore, we conclude the trial court did not erred in denying the request for
a remittitur.
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Judgment affirmed in part and vacated in part. Order regarding post-
trial motion to mold the verdict reversed. Order regarding post-trial motion
for delay damages reversed in part and affirmed in part. Case remanded with
instructions. Jurisdiction relinquished.
Judge McCaffery joins the opinion.
Judge McLaughlin did not participate in the consideration or decision of
this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/18/21
APPENDIX “B”
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
TRIAL DIVISION - CIVIL SECTION
-KEITH SPENCER
v. AUGUST TERM, 2016 NO.: 2136
CLEVELAND JOHNSON; TINA GAINER JOHNSON; and PHILADELPHIA JOINT BOARD WORKERS UNITED, SEM
ORDER
AND NOW, this .43/(1_ day of April, 2019, upon consideration of the Motions for Post -
Trial Relief filed by Defendants Tina Gainer Johnson (at control number 19022754) and
Philadelphia Joint Board Workers United (at control number 19020717), and the responses thereto,
it is hereby ORDERED and DECREED that said Motions are DENIED.
Spencer Vs Johnson Etal-ORDER
1111111111018111211101f11111111
BY THE COURT:
ROBINSON, J.
Case ID: 160802136 Control Nos.: 19022754, 19020717
APPENDIX “C”
MESSA & ASSOCIATES, P.C. By: Joseph L. Messa, Jr., Esquire
Ramon A. Arreola, Esquire Attorney I.D. Nos. 53645/205499 123 S. 22nd Street Philadelphia, PA 19103 (215) 568-3500/Fax: (215) 568-3501
KEITH SPENCER, Plaintiff
v.
CLEVELAND JOHNSON, et al., Defendants.
Filed Office
17
Attorneys for Plaintiff
COURT OF COMMON PLEAS PHILADELPHIA COUNTY
AUGUST TERM, 2016 NO. 2136
y the cords
PRAECIPE FOR ENTRY OF JUDGMENT ON JURY VERDICT PURSUANT TO Pa.R.C.P. 227.4
TO THE PROTHONOTARY:
Pursuant to Pa.R.C.P. 227.4(2), and in accordance with this Honorable Court's April 7,
2016 Order, kindly enter judgment in favor of Plaintiff, Keith Spencer, and against Defendants in
the amount of $6,296,362.85 (incorporating the gross verdict entered against Defendant,
Philadelphia Joint Board Workers United, SEIU, of $5,842,490.16 and delay damages in the
amount of $453,872.69); against Defendant, Tina Gainer Johnson on Jury Verdict recorded on
January 28, 2019 in the amount of $2,466,829.18; and against Defendant Cleveland Johnson on
the Jury Verdict recorded on January 28, 2019 in the amount of $4,673,992.13.
MESSA & ASSOCIATES, P.C.
By: s/Ramon A. Arreola Ramon A. Arreola, Esquire Brett M. Furber, Esquire Attorneys for Plaintiff
Date: May 17, 2019
pm
Case ID: 160802136
CERTIFICATION OF SERVICE
I, Ramon A. Arreola, the undersigned attorney for Plaintiff, hereby certify that a true and
correct copy of the foregoing was served upon all counsel of record on this date via electronic
filing notification of the Court, and upon unrepresented defendant as listed below via first class
U.S. mail:
Cleveland Johnson 5542 Catherine Street
Philadelphia, PA 19143
MESSA & ASSOCIATES, P.C.
/s/ Ramon A. Arreola Ramon A. Arreola, Esquire Attorney for Plaintiff
Dated: May 17, 2019
Case ID: 160802136
APPENDIX “D”
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
TRIAL DIVISION - CIVIL SECTION
KEITH SPENCER,
Plaintiff, EDA 2019
v. EDA 2019
CLEVELAND JOHNSON; EDA 2019 TINA GAINER JOHNSON; and PHILADELPHIA JOINT BOARD WORKERS UNITED, SEIU, Tr. Ct. Docket No. 160802136
Defendants.
OPINION PURSUANT TO RULE OF APPELLATE PROCEDURE 1925(A)
ROBINSON, J. JUNE 24, 2019
This is an appeal from a catastrophic personal injury matter. Plaintiff, Keith Spencer, was
a pedestrian lawfully crossing an intersection when he was struck by a vehicle driven by
Defendant Cleveland Johnson. Defendant Mr. Johnson was driving the work vehicle of his wife,
Defendant Tina Gainer Johnson, who was an employee of Defendant Philadelphia Joint Board
Workers United.
Plaintiff suffered traumatic brain injuries. He sued for negligence, negligence per se, and
negligent entrustment. At trial, the jury found that all three Defendants were causally negligent.
The jury awarded Plaintiff damages of $12,983,311.47. Defendant Tina Gainer Johnson has
appealed, and Defendant Philadelphia Joint Board and Plaintiff have both cross appealed. We
discuss the issues raised in all three appeals in this Opinion.
1
Spencer Vs Johnson Etal-OPFLD
1111111 1111111E1111111111 16080213600245
COPIES SENT PURSUANT TO Pa.R.C.P. 236(b) S. MACGREGOR 07/19/2019
FACTS
Vehicle/pedestrian collision involving Mr. Johnson and Mr. Spencer
At all times relevant in this case, Defendant Ms. Johnson was employed by Defendant
Philadelphia Joint Board ("PJB"), which is a labor union. PJI3 had provided her with a work
vehicle, as discussed at length later in this Opinion.
On October 16, 2014, Ms. Johnson drove her work vehicle to her mother's house to visit
with family. She did not recall if she had worked that day. She parked the car on the corner of
Millick and Wharton Streets, which was about six houses away from her mother's house.
Ms. Johnson's husband, Defendant Mr. Johnson, had been at home for the morning, and
then went to a friend's house around noon to help move furniture. He testified that, while he had
not been drinking that morning, he drank about four "big beers, like the 24 -ounce[] [ones]"
between noon and 2:15 p.m. (N.T. 1/24/19 a.m. at 31.) Around that time, Ms. Johnson contacted
him and told him to come to her mother's house. He left his friend's house around 2:15 p.m. and
traveled by bus and trolley, arriving around 3:00 p.m. He testified, "by time I got to the bus stop,
I wasn't drinking no more, but I still had one more [24 -ounce beer] left, though." He stated that
he opened the fifth beer as he got off the trolley and finished it on his mother-in-law's porch. (Id.
at 33, 35.)
The Johnsons were at the house approximately from 3:00 p.m. to 8:00 p.m. Mr. Johnson
testified that, around 8:00 p.m., Mr. Johnson went onto the front porch to smoke a cigarette, as
he had been doing frequently throughout the visit. He was still intoxicated from the 120 ounces
of beer he had consumed that afternoon. He testified that, despite it being dark outside, he
noticed that his wife's work car, six houses down, was parked so that it jutted onto the sidewalk,
obstructing the walkway by a foot or two. Mr. Johnson finished his cigarette and walked to the
2
corner of the street, where he saw an open parking space on Wharton. He allegedly decided to
move the car into the Wharton spot. Mr. Johnson was not a licensed driver, as his license had
been suspended since 1989. He was aware of this.
He returned to the house and took Ms. Johnson's car keys. Plaintiff argued at trial that his
wife gave him permission to move the car or at least knew he was doing it; Defendants averred
that Mr. Johnson was acting entirely on his own impulse and did not ask or receive permission.
Mr. Johnson testified that he took her car keys from an end table next to the couch in the main
living area near the front door. Ms. Johnson testified that she could not remember if the keys
were on a table, in her purse, or on the couch. She had testified at a pretrial deposition that the
keys were not in her purse.
Wherever the keys were, Mr. Johnson acquired them, walked to the car, and then started
it. He testified that, although he was still drunk, he felt at the time that he was sober enough to
drive. However, he admitted that in retrospect he was not safe to drive at the time. He testified
that he was planning on taking the car around the block only to the other parking spot, and not to
any other or additional destinations. He drove down Millick Street, turned left onto Baltimore
Avenue, and prepared to make a left turn from Baltimore to 60th Street. He stated that he waited
30 to 40 seconds before making the turn, checking to see that no pedestrians were in the
crosswalk. He testified that he made the turn during his green light, moving at approximately two
miles per hour.
Tragically, Mr. Johnson hit Plaintiff, Keith Spencer, while Mr. Spencer was lawfully
walking in the crosswalk. Despite the alleged low speed at which Mr. Johnson was driving, Mr.
Spencer was struck hard enough that he was knocked out of one of his shoes. Mr. Johnson got
out of the car and helped him to a nearby bench. While Mr. Johnson testified that only the nose
3
of his car was over the crosswalk line at impact, the police officer on the scene testified that he
found the car parked a half block away from the crosswalk.
Ms. Johnson found out about the accident through a phone call from her sister, and she
either walked, ran, or rode a neighbor's bicycle to the scene. She allegedly told the investigating
officer that Mr. Johnson had driven her car without permission, but the officer testified that she
did not recall Ms. Johnson saying any such thing, and she averred that her crash report would
have included that detail if it had been given. Ms. Johnson was unable to find the proper
registration papers for the car, so police impounded it.
Mr. Johnson voluntarily informed the officer that he was the driver of the car. The officer
took him to a police station on suspicion of intoxication due to his odor of alcohol. He failed a
breathalyzer test and was charged with DUI, but he was not charged with theft of a vehicle. He
eventually received a sentence of two years of parole and five years of probation for vehicular
assault and served just ten days in jail. He testified he was still on probation at the time of trial.
Corporate vehicle usage policies at PJB, and the Johnsons' use of the PJB vehicle
Defendant Ms. Johnson had volunteered at PJB starting in 2006, and she became a full-
time paid employee in 2011. In 2012, PJB provided her with an SUV, a Ford Escape, and PJB
replaced it with another Ford Escape in 2013. PJB is a small organization, and six of their seven
staff members (counting Ms. Johnson) had company cars. PJB did not interview Ms. Johnson
before giving her a car, and they did not check her driving background before doing so.' Ms.
' The PJB manager testified that Ms. Johnson began volunteering for PJB when she worked at an airport magazine shop, so they relied on the background check they assumed the airport conducted when it hired her. PJB chief of staff, Richard Minter, also testified at trial that "[employees] aren't automatically given a car on day one," and that PJB vetted its employees by making them "prove their credibility" through their work performance and history. He stated that "the process" every employee went through before receiving a car included a check of the employee's driving record. He averred the process was "complex" and "was not taken lightly," but provided no other details about the process other than "running the driver's license." (N.T. 1/25/19 a.m. at 16-19.)
4
Johnson also did not volunteer to them that she had had her driver's license previously
suspended due to parking tickets.
PJB provided company cars because its employees could be required to drive out to job
sites at any hour of day or night, twenty-four hours a day. PJB's essential requirements for
getting a company car, aside from being a licensed driver, was the employee's past performance
with the company, their reputation, their productivity and work ethic, etc. However, as having a
car was "absolutely essential" to the work of organizers and business representatives, those
employees would receive a car "unless they proved unfit." (N.T. 1/22/19 p.m. at 51.)
PJB's secretary, Mildred Saldana, testified that they also did not provide their vehicle
usage policy to employees in writing; they verbally instructed employees that the only
permissible "personal use" of company cars was for commuting to and from work and job sites.
She stated that she even drew Ms. Johnson a diagram to help explain the difference between
personal and business uses. PJB also did not have a written employee handbook at the time. Ms.
Saldana also testified that she had told Ms. Johnson several times, as part of repeated seminars
for the organization, that the employee was the only person permitted to drive the company car.
Another corporate officer, Richard Minter, testified that Tina personally had attended the regular,
mandatory staff meetings and retreats where significant time was spent reviewing Department of
Labor and Internal Revenue Service guidelines, which allegedly included discussion of PJB's
company car policies. He testified that the vehicle use policy was reviewed, at minimum, once
per year, occasionally "several times" per year.
The PJB manager, Lynne Fox, testified that it was the union's philosophy, as well as the
philosophy of other unions in the community, that company car use was not strictly monitored
because if they could not trust a union rep with a car, they had no business trusting the employee
5
to represent union members. Furthermore, she testified that she assumed PJB would eventually
find out about any improper usage because "Philadelphia is a small city...sooner or later we
would find out, someone would see." (Id. at 57.) However, she admitted she had not known that
Mr. Johnson ever drove the car until the incident at issue.
Ms. Johnson offered contrary testimony that she had never been instructed not to use the
car for personal purposes. She stated that she "assumed" it was permissible, since no one had
told her otherwise, and that she would not have used it for personal reasons if she had been
informed it was against company policy. She testified that the only vehicle use policy she knew
of was "an understanding" that she would not be reimbursed for personal use mileage, and that
no one but her was allowed to drive the car. She testified that she "assumed" PJB was aware that
she used her car for personal reasons. There was no written documentation signed by Ms.
Johnson to show that she had ever received the policy verbally or in writing, although Lynne Fox
testified that it was the union's "protocol" to get signed receipts from the employees at the yearly
meetings where they reviewed the vehicle policy with employees.'
PJB supervised company car usage only through employee -submitted time sheets,
mileage logs, and expense reports to cover costs like highway tolls. The auditing was mostly for
purposes of compliance with Internal Revenue Service and Department of Labor regulations and
for employer reimbursement. Ms. Saldana testified that employees were entrusted with cars "on
the honor system," and that they never conducted usage audits or any other periodic checks of
proper use or accurate reporting. The mileage log forms did contain a space to log personal use
mileage, but Ms. Johnson testified that she never used it and did not know why it was on the
sheet. She also admitted that, before the incident in question, she had received a written citation
2 Ms. Fox also stated that she was unaware if this "protocol" had been followed at the yearly meetings Ms. Johnson would have attended.
6
ti
for running a stop sign while driving her company car, and that she knew PJB had been notified
of it because Ms. Saldana had discussed it with her. Ms. Saldana testified that she had no
knowledge of the ticket prior to trial. Ms. Johnson testified that she paid the fine but was not
reprimanded by PJB in any way.
Mr. Johnson's alleged uses of the vehicle prior to the events at issue
Ms. Johnson also testified that it was "a known fact" that family members were not
permitted to drive company cars, although again she alleged she had never been given any
formal written or verbal instruction to that effect. Nevertheless, she testified that she permitted
her husband Mr. Johnson to drive it on "a few" occasions, but only for emergencies. Ms. Johnson
was fully aware that Mr. Johnson did not have a driver's license and had not for the past thirty
years. Ms. Johnson's company car was the only vehicle in the Johnson family's possession.
Mr. Johnson agreed that he was permitted to drive the car in "emergency" situations,
which he explained were times his wife needed to rush out of the car to attend to medical issues.
He stated he would park the car for her on those occasions. However, Plaintiffs sister testified
that she had seen Mr. Johnson driving a silver SUV "all the time" around the neighborhood,
specifically around his mother-in-law's house, sometimes with Ms. Johnson and sometimes by
himself.' She alleged she had seen the Johnsons visiting Ms. Johnson's mother "[a]lmost on a
daily basis" at some point, and that she had seen him driving "at least a hundred times." (N.T.
1/23/19 p.m. at 84, 90.)
Ms. Johnson's mother lived on the same street as Plaintiff and his sister. The Johnsons had previously lived on that street as well and were acquaintances of the Spencers.
7
Aftermath of car accident
Ms. Johnson attempted to cover up the October 16 incident to PJB.4 According to Ms.
Saldana,5 she informed Ms. Saldana the next day that the car had been impounded due to unpaid
parking tickets, and that she needed a letter to the police stating that Ms. Johnson had PJB's
permission to recover the car from the impound lot. Ms. Saldana wrote her the letter and
informed PJB's manager, Lynne Fox, about the incident. She trusted Ms. Fox would follow up.
Ms. Saldana did not conduct any sort of investigation into the incident herself. Ms. Johnson
testified that, the day after the incident, she sneaked into the office without telling anyone to
obtain the second copy of the car registration that she kept in her office and took it to the lot to
get the car released from impound.
Ms. Fox testified that her investigation consisted of a "lengthy" interview with Ms.
Johnson, in which she did not think Ms. Johnson lied to her, although she did later discover that
Ms. Johnson had downplayed the severity of Mr. Spencer's injuries. She stated that she reviewed
the police report but that she could not interview Mr. Johnson, as he was "unavailable,
incarcerated, I don't know." She eventually concluded "that [Ms. Johnson] was a really good and
valuable employee, so we'd bring her back, but we wouldn't let her have the car anymore." (N.T.
1/22/19 p.m. at 63.) She did not conduct any further investigation. Mr. Minter testified that he
had also been present for the interview, and that, while he and Ms. Fox expressed their
"disappointment" to Ms. Johnson about her failure to report the incident, they felt she deserved a
second chance due to her good work history and performance (N.T. 1/25/19 a.m. at 24-25.)
4 Ms. Johnson denied this characterization, admitting only that she "actively delayed" the investigation due to the emotional distress the situation caused her. (N.T. 1/23/19 a.m. at 108-109.) Ms. Johnson testified that she never talked to Ms. Saldana about the vehicle being impounded.
8
Ms. Fox suspended Ms. Johnson for two weeks and took away the company car, although
Ms. Johnson retained driving privileges (of non -company cars) until she was laid off from her
job in 2017. Ms. Fox testified that she did not remember if Ms. Johnson had received a formal
reprimand, but that a reprimand would not have been needed in the face of having her company
car revoked. She testified that she did not fire Ms. Johnson, despite the fact that such a
circumstance would normally be cause for termination, because she did not believe Ms. Johnson
had ever given Mr. Johnson permission to drive the car. PJB did not press charges against Mr.
Johnson for theft of the vehicle.
Injuries to Mr. Spencer'
As a result of the collision, Mr. Spencer suffered traumatic brain injuries that have left
him wheelchair -bound and unable to care for his basic daily needs. He suffered a skull fracture,
injuries to multiple regions of the brain, and hemorrhagic contusions, and he underwent an
emergency brain surgery to remove a pool of blood that had accumulated dangerously beneath
the skull. The injuries significantly affected his brain function.
He currently requires 24/7 supervision and care and now lives in a residential medical
care facility. The impact significantly affected his cognitive and executive functions (abilities to
reason, perform simple tasks, and control behavior), motor skills, memory, speech, and
personality. He has also developed a seizure disorder. The neuropsychology expert, Dr. Terri
Morris, and Plaintiff's sister, Cheryle Spencer, testified as to the extent of the injuries and the
impact they have had on Plaintiff's quality of life. We discuss his injuries in more detail later in
this Opinion.
Defendants did not contest Plaintiff's damages.
9
PROCEDURAL HISTORY
Plaintiff sued PJB for negligent entrustment and negligent hiring and supervision; Ms.
Johnson, for negligence and negligent entrustment; and Mr. Johnson, for negligence
encompassing negligence per se. Trial was held before this Court from January 22 to 28, 2019.
The jury found' all three Defendants causally negligent as follows: Cleveland Johnson, 36%;
Tina Johnson, 19%; and PJB, 45%. The jury also awarded the stipulated amount for past medical
expenses of $683,311.47, along with future medical bills of $7.3 million, and noneconomic
damages of $5 million. The total verdict was $12,983,311.47.
Upon hearing the verdict, Plaintiff's counsel stated it was his position that, as PJB was
Ms. Johnson's employer, and as the combined negligence of Ms. Johnson and PJB was greater
than 60%, PJB should be liable for the entire damages amount as to all three defendants under a
provision of the Fair Share Act. Plaintiff filed a Post -Trial Motion to Mold the Verdict to that
effect, which the Court denied. Plaintiff also filed a Motion for Delay Damages which apparently
sought damages against Defendants PJB and Ms. Johnson. The Court partially granted and
partially denied that motion, and Plaintiff then filed an amended Motion seeking delay damages
against all three defendants. However, while this amended motion was pending, Plaintiff, PJB,
and Ms. Johnson all filed Notices of Appeal.' Pursuant to Rule of Appellate Procedure 1701(a)
and (b), this Court did not rule on the amended Motion, as we no longer have jurisdiction to do
so.9
' The verdict slip was pre -marked "Yes" for the question, "Was Defendant, Cleveland Johnson, negligent?" due to
Mr. Johnson's criminal conviction and the negligence per se claim. However, the jury did freely find that (1) his
negligence was a factual cause of injury and (2) that he bore 36% of the liability. (See verdict slip at 1-2.)
Due to the present inaccessibility of this Court's docket and filing functions, we are unable to specify the exact date
on which the appeals were filed. The Court was made aware of the Notices via copies hand -delivered and/or mailed
to chambers on June 14, 17, and 18, 2019, respectively. 9 Plaintiff filed two separate Notices of Appeal, one for his Motion for Delay Damages, and one for the denial of his
Post -Trial Motion to Mold the Verdict. Regarding Plaintiff's Notice of Appeal "from the Order denying Plaintiffs Post -Trial Motion for Delay Damages," we note that the Order in fact granted the Motion in part and denied it in
10
Prior to the Notices of Appeal, PJB, Ms. Johnson, and Plaintiff had filed Motions for
Post -Trial Relief, which the Court denied. PJB averred that the verdict was against the weight of
the evidence, specifically as to the fact that PJB bore the greatest percentage of liability despite
Mr. Johnson freely admitting that it was "all his fault and nobody else's," and averring that
remittitur was warranted as to the excessive verdict. Ms. Johnson also sought remittitur and
averred that the verdict and apportionment of negligence were not supported by the weight of the
evidence and/or were against the weight of the evidence.
Plaintiff's Motion for Post -Trial Relief sought to mold the verdict so that PJB was either
solely or jointly and severally liable for the entire damages amount attributed to all defendants.
Plaintiff did not raise any evidentiary allegations of error.
As this Court did not require clarification of the errors being raised on appeal, we
declined to order the Appellants to file Concise Statements of Matters Complained on Appeal.
(See Pa. R.A.P. 1925(b).) Thus, no Statements were filed.
DISCUSSION
The Court did not err in refusing to grant a judgment notwithstanding the verdict or a new
trial. Judgments notwithstanding the verdict may only be entered if (1) the movant is entitled to
judgment as a matter of law, or (2) the evidence was such that no two reasonable minds could
disagree that the outcome should have been rendered in favor of the nonmovant, such that a
verdict for the movant was "beyond peradventure." Nelson v. Airco Welders Supply, 107 A.3d
part. As stated in the Order, the denial was directed towards Plaintiff's arguments that delay damages should be calculated on the full verdict amount, since (as Plaintiff argued in his Motion to Mold the Verdict) PJB would be liable for the entirety of the damages amount. The Court disagreed, stating that each defendant was only liable for delay damages on the amount of compensatory damages attributed to each based on the jury's apportionment of liability. Hence, PJB would only be liable for delay damages calculated on 45% of the total verdict amount, rather than 100%. As the Court read the Motion to only request delay damages against PJB and Ms. Johnson (apparently an oversight), it did not award delay damages against Mr. Johnson. Plaintiff's Amended Delay Damages Motion sought to recover delay damages against him as well, but as explained above, the Court was not able to rule on this Motion before the Notice of Appeal was filed and our jurisdiction over the case was removed pursuant to Pa. R.A.P. 1701.
11
146, 155 (Pa. Super. Ct. 2014) (en bane) (citation omitted). A request for a new trial will only be
granted if the verdict is so contrary to the weight of evidence that it shocks one's sense of justice
and results in a miscarriage of justice. Angelopoulos v. Lazarus PA, Inc., 884 A.2d 255, 259 (Pa.
Super. Ct. 2005) (citation omitted). "The entry of a judgment notwithstanding the verdict...is a
drastic remedy. A trial court cannot lightly ignore the findings of a duly selected jury." Stange v.
Janssen Pharm., Inc., 179 A.3d 45, 53 (Pa. Super. Ct. 2018) (citation omitted).
1. The verdict was supported by sufficient evidence and was not against the weight of the evidence.
a. Findings
We first address Ms. Johnson's argument that the finding of liability against her was
unsupported by sufficient evidence. She averred in her Post -Trial Motion that the jury
improperly subscribed to a theory of liability unsupported by Pennsylvania law: that she had
been negligent in leaving the car keys in an accessible place where someone could take them and
steal the car. However, from the Court's perspective, this interpretation of the verdict is
misguided)"
Based on the evidence in the case, it seems clear that the jury instead found that Ms.
Johnson had negligently authorized Mr. Johnson to drive her work car. There was ample
circumstantial evidence that Mr. Johnson often drove the car with Ms. Johnson's knowledge, if
not her permission: Cheryle Spencer testified that she had seen him driving the SUV "hundreds
of times" with and without Ms. Johnson, the Johnsons had gotten rid of their personal vehicle
when they received the company car and had no other vehicle, and Mr. Johnson was apparently
not deterred from driving by his unresolved, decades -old license suspension. While Mr.
1° The verdict slip does not explain exactly what theory the jury subscribed to, and this information was not solicited from the jurors on the record. However, one explanation is supported by much more evidence than the other, and thus we find it the likelier alternative.
12
Johnson's truthfulness was not impeached at trial, there was evidence that Ms. Johnson had been
untruthful, if not willfully deceptive, in several respects regarding her awareness of PJB 's
company car policies and the coverup of the incident. The jury apparently disbelieved Mr.
Johnson's testimony that he was simply moving the car to a different parking spot, especially due
the apparently minor inconvenience or danger presented by the car's position. The jury may also
have found the argument, "Mr. Johnson felt, for unknown reasons, that he needed to re -park the
car," irreconcilable with Mr. Johnson's testimony that he and his wife were careful to "never" let
him drive unnecessarily because doing so could jeopardize their livelihood." The jury clearly had
sufficient basis to conclude that Mr. Johnson used the car with his wife's implied or express
permission. It is unlikely that the jury's verdict reflects a finding that Mr. Johnson drove the car
without permission, and that Ms. Johnson had been negligent leaving her keys in the open.
Because we believe Ms. Johnson's interpretation of the verdict is incorrect, we do not agree with
her contention that there was insufficient evidence to support the verdict. There was sufficient
circumstantial evidence to find her negligent for authorizing Mr. Johnson's driving.
b. Allocation of liability
The bulk of Ms. Johnson's and PJB 's post -trial arguments is directed to the jury's
apportionment of liability. Both Defendants argue it was manifestly against the weight of the
evidence for the jury to determine that Mr. Johnson did not bear the highest percentage of
liability among the Defendants. (As stated earlier, Mr. Johnson bore 36% of the liability, while
PJB bore 45%.) Defendants argue that Mr. Johnson was indisputably the sole driver of the car,
he was intoxicated, he knew he was unlicensed and unauthorized by PJB to drive the car, and he
was the only party to encounter Plaintiff the night of the incident. Both Defendants also cite to
Mr. Johnson's repeated statements on his own direct testimony that he was the only one at fault:
" Mr. Johnson testified that Ms. Johnson had steadier employment than he did. (N.T. 1/24/19 a.m. at 21.)
13
...[A]ll this was - we wouldn't be here if it wasn't for me.... Like, I messed my life up now and
messed somebody else's life up because my negligence of not thinking and doing the right
thing.... [N]obody's - it shouldn't go on nobody besides me. I'm the one who's the fault for all
this. The PBD [sic] don't have it, my wife don't have it...." (N.T. 1/24/19 p.m. at 68-69.) He
reiterated those sentiments at length during closing arguments. (N.T. 1/28/19 at 67-71.)
Both Defendants cite to the Supreme Court case of Thompson v. City of Philadelphia,
493 A.2d 669 (Pa. 1985) in support of their argument that a new trial is warranted on
apportionment of liability. Defendant PJB also cites to a Rule 1925(a) opinion from the
Honorable Judge Carpenter of this Court, Capponi v. Berg, 49 Pa. D. & C. 5th 305, 2015 WL
13780413 (Phila. Ct. Common Pleas August 12, 2015).12
In Thompson, a furniture truck driver was taking an exit ramp off the interstate. The exit
ramp was apparently both uphill from the highway and an overpass. There were multiple signs
identifying the exit, and there was a sign where the exit ramp split off that said, "Exit, 25 Miles
Per Hour." At the end of the ramp, there were two stop signs, one on each side of the ramp,
which controlled the intersection of the ramp with a cross street. The truck driver traveled down
the ramp at 40-45 miles per hour, ran through the stop signs, and crashed through a guardrail.
The truck fell off the overpass and onto the road below, landing on a car and killing its occupant.
At trial, the driver testified that he had been confused and had not seen any of the clearly visible
traffic signs.
The plaintiff sued the truck driver, his employer, the City of Philadelphia, and the
Commonwealth of Pennsylvania. The plaintiff sought relief from the driver for negligence, and
from his employer for negligence and vicarious liability. She averred that the Commonwealth
'While the Superior Court issued an unreported opinion on this case at 1453 EDA 2015, 2016 WL 5380085, it did
not analyze the issue of liability apportionment.
14
had failed to use reasonable care in posting signs on the expressway, and that this failure had
caused the driver's confusion. She alleged that the City failed to provide adequate visible signs,
guardrails, and barriers. The jury held that the Commonwealth and City were 35% liable each,
and that the driver and employer were together 30% liable. The trial court granted a new verdict
on the apportionment of liability only, stating that the jury's apportionment was "manifestly and
palpably against the weight of evidence," and holding that the court "refuses to accept the jury's
apportionment of damages to the [driver] defendant Smith where he failed to follow posted
directional signs, ignored posted traffic speed signs, and states that he did not see either one of
two stop signs even though the evidence clearly establishes that he should have seen those
signs." 493 A.2d at 671, 673-74. The Superior Court reversed, holding that there was sufficient
expert testimony about the poor design of the intersection to justify the apportionment of
liability. However, the Supreme Court agreed with the trial court, holding, "We cannot find it
wrong to believe that an inattentive driver barreling into a marked exit ramp at 40-45 miles an
hour, who did not stop for a 'clearly visible' stop sign because he did not see it, and who was
unable to control his vehicle at the intersection, is more at fault than those who maintain the road
he was not sure he was on." Id. at 674.
Similarly, Defendants in this case aver that the weight of evidence mandates that Mr.
Johnson bear more liability than any other party. We are mindful that overturning a jury's verdict
is a drastic measure, and we are loath to invade the province of the jury unless an egregious error
is "manifest" or "palpably" apparent. See Stange, 179 A.3d at 53. In this case, it appears the jury
properly considered the evidence and concluded that PJB was the party most at fault. There was
evidence that PJB essentially gave Ms. Johnson a company vehicle simply based on trust and
"the honor system," that they did not conduct a background check aside from "running her
15
driver's license" before giving her the car, that Mr. Johnson was known to frequently drive his
wife's vehicle around town, that PJB was going to give Ms. Johnson a car unless they were
specifically given reason not to, and that no records were kept or audits conducted of vehicle
usage beyond tracking reimbursable miles. PJB did not conduct any oversight of vehicle use and
trusted that "they would find out" about any misuse that occurred, since Philadelphia is "a small
town." PJB's employees' testimony showed that their main concern regarding vehicle use was
compliance with IRS and DOL regulations, and that they did not put forth any safety initiatives
beyond periodic reminders of the usage policies and instructions that employees should wear
their seat belts and use other basic road safety practices.
PJB appears to have put utmost faith in its ability to gauge its employees' character, as its
employees often emphasized that trust in working relationships was of highest priority, rather
than gauging an employee's likelihood to "cut corners" on policy compliance and safety
measures. For these reasons, we find that the evidence does not warrant the "drastic" step of
overturning the jury's attribution of liability to PJB.
2. The Court did not abuse its discretion in refusing to grant remittitur. The jury's award was not manifestly excessive.
Defendants aver that the jury award was objectively excessive, and excessive because
Plaintiff presented no evidence of life expectancy at trial. Neither Plaintiff's expert life -care
planner, Jody Masterson, R.N., nor his medical expert, Dr. Guy Fried, offered testimony about
his life expectancy." At trial, the Court gave the jury Standard Civil Instruction 7.240, which
gives the average life expectancy for the plaintiff's age and demographic group (in this case,
26.5 additional years). It also notes that the jury is free to find that the life expectancy would be
" Defendants opted at the last minute not to call their medical expert, who was slated to give life expectancy testimony. Upon learning of this, Plaintiff's counsel sent a subpoena to the expert the morning he was expected to be called. The Court quashed the subpoena as improper under Spino v. John S. Tilley Ladder Co., 696 A.2d 1169 (Pa. 1999). The expert never testified.
16
longer or shorter based on considerations like the plaintiff's health status. (N.T. 1/28/19 at 109-
110.)
Remittitur is only appropriate when a damages award is so manifestly excessive that it
shocks the court's sense of justice. Carrozza v. Greenbaum, 866 A.2d 369, 382-83 (Pa. Super.
Ct. 2004) (citation omitted). The Court's decision on whether to grant or deny remittitur will not
be disturbed absent a gross abuse of that discretion. Id. Among other things, a court determining
the alleged excessiveness of a damages award should consider, as applicable to the particular
facts of the case: (1) the severity of the injury; (2) whether the injury is manifested by objective
physical evidence or whether it is only revealed by the subjective testimony; (3) whether the
injury is permanent; (4) whether the plaintiff can continue with his or her employment; (5) the
size of out-of-pocket expenses; and (6) the amount of compensation demanded in the original
complaint. Id. (citation omitted).
In this case, the jury awarded the stipulated amount for past medical expenses, but also
awarded $7.3 million for future medical expenses and $5 million for noneconomic damages.
Defendants aver these amounts are excessive on their face, and that the future medical expenses
award is unfounded in the absence of expert testimony on life expectancy. Firstly, we address the
claim that the verdict is excessive. Looking to the factors enumerated above, we note that
Plaintiff's traumatic brain injury has left him in a wheelchair, unable to attend to his basic daily
needs, and that he now suffers recurrent seizures that at one point resulted in hospitalization and
medical induction of a coma and mechanical ventilation. (N.T. 1/24/19 p.m. at 24.) He is
unaware of his deficits and diminished capabilities, a factor which makes it particularly
important that he receive constant supervision and professional care. He also needs frequent
doctor visits and medication management, and he has endured frequent hospitalizations. He is
17
also at heightened risk for wounds and infections due to his wheelchair and diaper use, and he
suffers osteoporosis that is caused by his anti -seizure medication. (Id. at 25-27, 31.) According to
the expert report of Dr. Guy Fried, Plaintiff reported being able to walk for miles and go dancing
every weekend before his injury; now, he can walk perhaps 100 feet with assistance and a rolling
walker and is at high risk for fall injuries. He cannot stand independently or drive. His short-term
memory is impaired. Dr. Fried opined that his injuries were "serious and permanent," and that he
would need medical care in a facility setting for the rest of his life. (Tr. Ex. P-2 at 7-9.)
Plaintiff's injuries are physically manifested, rather than being alleged only through
subjective testimony, as his medical records and test results show. Gainful employment is clearly
out of the question. His past medical expenses were stipulated to as greater than $680,000.
Expert life -care planner Nurse Masterson calculated his costs of living to the age of 70, and
separately to the age of 82, both for in -home care and facility care (but excluding medication
costs). She opined that, if he lived only to age 70, his minimum living costs would exceed $3
million; if he lived to age 82, his costs were estimated at $6.8 million and $7.3 million.
(Masterson Report at 45-46.)
Furthermore, Dr. Fried's report states that Plaintiff reported nonstop, aching pains in his
neck, back, arms, and legs, and that he had never had chronic pains prior to the accident. He also
has losses of sensation and diminished eyesight. He suffers depression due to his awareness of
his loss of quality of life. He reported being a previously active person in reasonable health who
played with his children and children around his neighborhood, and who enjoyed basketball and
football. (Tr. Ex. P-2 at 7-8.)
For these reasons, this Court finds the jury's damages award was not so excessive as to
shock our sense of justice. The award for future care costs is not excessive on its face because it
18
accords with Nurse Masterson's careful accounting of costs, both for in -home and facility care,
including costs of diagnostic tests, mobility aids and home modifications,
physical/occupational/cognitive therapies, nursing services, and specialized day programs for
patients with brain injuries. Additionally, we observe that Plaintiff's medication costs (which
were explicitly omitted from calculations) would significantly add to Nurse Masterson's
estimates. We find the award for noneconomic damages is not excessive because Plaintiff's
quality of life has been drastically reduced, and he is no longer able to live as an independent,
active person. For the rest of his life, he will need to rely on others to move him around, feed
him, clean him, and attend to his medical needs, and he lives in constant pain.
Lastly, we reject Defendants' claim that the award for future medical costs is improper
because Plaintiff's experts did not opine on his life expectancy. A jury may decide on a
plaintiff's life expectancy without expert testimony. See Helm v. Eagle Downs -Keystone
Racetrack, 561 A.2d 812, 813-14 (Pa. Super. Ct. 1989) (lay testimony of diminished quality of
life, along with approved mortality tables, the appropriate considerations for a jury to determine
life expectancy); see also SSJI 7.240 Subcommittee Note ("The jury must make its own
determination [of life expectancy] based on all factors that affect the duration of life"), citing
Pauza v. Lehigh Valley Coal Co., 80 A. 1126, 1127 (Pa. 1911).
3. The Court did not err in declining to hold PJB 100% liable for the entire damages award when the jury found it only 45% liable.
In his Post -Trial Motion to Mold the Verdict and supplemental brief thereto, Plaintiff
avers he is entitled to hold PJB liable for the entire $13 million verdict. He reasons as follows:
under a provision of the Fair Share Act, "A defendant's liability in any of the following actions
shall be joint and several, and the court shall enter a joint and several judgment in favor of the
plaintiff and against the defendant for the total dollar amount awarded as damages: [...] (iii)
19
Where the defendant has been held liable for not less than 60% of the total liability apportioned
to all parties." 42 Pa. C.S.A. § 7102(a.1)(3)(iii). Under this provision, if a single defendant in this
case were held to be more than 60% liable, the court would enter a judgment against that single
defendant for the full damages amount, despite allocations of liability made to other defendants.
Additionally, under an unrelated Motor Vehicle Code provision, any person who permits an
unlicensed driver to drive a vehicle under their control on a public road is guilty of a summary
offense, and shall be held jointly and severally liable with the driver for any damages caused by
the negligence of the driver. 75 Pa. C.S.A. § 1574. Plaintiff avers that Ms. Johnson's negligence
is imputed to her employer, PJB, since she was allegedly acting "in the course and scope of her
employment" at the time (since she was on -call at all hours for work emergencies), so that PJB
should be vicariously liable. If PJB is vicariously liable, Plaintiff contends, PJB's and Ms.
Johnson's liability apportionments should be combined, which would then invoke the Fair Share
Act provision permitting the plaintiff to recover solely from the single defendant, PJB.
Furthermore, if Ms. Johnson's actions can be imputed to PJB, and if she did actually permit Mr.
Johnson to drive the car, PJB is "jointly and severally liable with the driver" under the relevant
Motor Vehicle Code statute.
Both these arguments depend on the premise that PJB was vicariously liable because Ms.
Johnson's actions or omissions were made in the course and scope of her employment. The
Court rejects this premise because the jury never made specific findings to that effect, and we do
not see that the evidence would support such a finding. Firstly, we note that, despite Plaintiff's
contention that the jury was "free to conclude" that Ms. Johnson was acting as an
employee/agent, and also that she had consented to Mr. Johnson driving, the jury simply did not
make any specific findings as to either of those issues. The verdict slip, which was drafted with
20
the input of all counsel, had only two questions regarding Ms. Johnson: "Was Defendant Tina
Gainer Johnson negligent?" and "Was Defendant Tina Gainer Johnson's negligence a factual
cause of harm to Plaintiff Keith Spencer?" (See verdict slip Questions 3 and 4.) There were no
specific queries addressing whether Ms. Johnson was acting as PJB's agent at the time of the
incident, or whether she had authorized Mr. Johnson to use the vehicle. Plaintiff's counsel
approved the verdict form as it was given to the jury. The Complaint describes direct
negligence/negligent entrustment claims against Ms. Johnson and against PJB, though only PJB
was averred to have acted in the course of its employment relationship ("More specifically, the
acts and/or omissions of PJB, by and through, Defendant Tina Gainer Johnson or Cleveland
Johnson which constituted negligence, carelessness, and recklessness include...." [Compl.
56]). As Plaintiff himself admitted in his Motion to Mold the Verdict, "whether a person acted in
the course and scope of their employment is ordinarily a question for the jury." (Mot. Mold
Verdict at ¶ 79, citing Butler v. Flo -Ron Vending, 557 A.2d 730, 736 (Pa. Super. Ct. 1989)). As
Plaintiff did not put those specific questions to the jury, the jury did not answer them, and it is
not clear from the verdict slip whether they found Ms. Johnson directly liable, directly and
vicariously liable, or only vicariously liable. The full sum and substance of the jury's verdict is
the verdict as read and affirmed in Court. See Commonwealth v. Zlatovich, 269 A.2d 469, 473
(Pa. 1970) ("The verdict as uttered is the sole embodiment of the jury's act....") (citation
omitted). The jury's verdict simply did not include the factual findings Plaintiff needs to say that,
after a trial in which Ms. Johnson and PJB were tried as wholly distinct parties with separate
defenses and different legal counsel, the jury intended to hold PJB fully liable for Ms. Johnson's
negligence.
21
Furthermore, even if it were appropriate for this Court to decide these questions of fact in
the place of the jury, we find it highly unlikely Plaintiff could prevail in arguing that Ms.
Johnson was "acting within the course and scope of her employment" during the incident. See
Butler, 557 A.2d at 736, adopting Restatement (Second) of the Law - Agency § 228 (conduct of
an agent "within the scope and course of' the agency must be "of the kind [the agent] is
employed to perform" and must be "actuated, at least in part, by a purpose to serve the master;"
"[c]onduct...is not within the scope of employment if it is different in kind from that authorized,
far beyond the authorized time or space limits, or too little actuated by a purpose to serve the
master."). It is undisputed that Ms. Johnson was making a family visit at the time of the incident,
and she admitted that her driving the car to her mother's house was "personal," rather than
business -related. (N.T. 1/23/19 a.m. at 23.) Furthermore, the visit was for recreational purposes,
and Ms. Johnson was not normally required by her job to perform such visits. Furthermore, there
was no evidence that her visit was actuated, to any degree, by her performance of her work as a
union organizer. Therefore, we do not see that there would have been sufficient basis for the jury
to find, if it had been specifically queried, that Ms. Johnson was acting in the course and scope of
her employment such that PJB must bear vicarious liability for her negligence in permitting Mr.
Johnson to use the car.
Additionally, we are not persuaded that PJB is vicariously liable based on the legal
presumption that a driver of a car does so with the owner's permission." As stated above, the
verdict slip provided to the jury (with the consent of counsel) did not instruct them to specifically
answer whether or not Ms. Johnson was acting as an agent of PJB such that PJB would be
vicariously liable for her negligence. Similarly, without such a finding, the Motor Vehicle Code
" The jury was given Standard Instruction 5.100, and the Court included the appropriate clause for when rebuttal evidence has been offered to show that the driver of the car did not have permission. (N.T. 1/28/19 at 101-102.)
22
provision (75 Pa. C.S.A. § 1574, "Permitting unauthorized person to drive") holding the
unlicensed driver of the car jointly and severally liable with the "person" who permitted them to
do so,15 could only apply to Mr. and Ms. Johnson. PJB is not implicated without a finding of
vicarious liability.
CONCLUSION
For the reasons set forth herein, we respectfully request the Superior Court affirm.
BY THE COURT:
15 No party has argued that PJB directly authorized Mr. Johnson to drive Ms. Johnson's car, so vicarious liability is the only potential basis for recovery here.
23
CERTIFICATE OF COMPLIANCE
I, Karyn Dobroskey Rienzi, Esquire, hereby certify that I am associated with
the law firm of Post & Schell, P.C., and that I am counsel for Appellee/ Cross-
Appellant, The Philadelphia Joint Board Workers United, SEIU, in this appeal. I
submit this Certification of Compliance pursuant to Pa.R.A.P. 2544(d)(1).
The Application for Reargument En Banc conforms to the type-volume
limitation of Pa.R.A.P. 2544(c). The number of words, calculated pursuant to
Pa.R.A.P. 2544(c), is 2,986. The Application also complies with Pa.R.A.P. 124, as
it has been prepared in Times New Roman 14-point proportionally-spaced
typeface.
I certify that the foregoing statements made by me are true. I am aware that
if any of the foregoing statements made by me are willfully false, I am subject to
punishment.
POST & SCHELL, P.C.
BY: /s/ Karyn Dobroskey Rienzi KARYN DOBROSKEY RIENZI, ESQ.
Dated: April 1, 2021
CERTIFICATE OF SERVICE
I, KARYN DOBROSKEY RIENZI, ESQUIRE, counsel for Appellee/
Cross-Appellant, The Philadelphia Joint Board Workers United, SEIU, hereby
certify that the foregoing Application for Reargument En Banc was submitted to
the Superior Court of Pennsylvania via the PACfile System on April 1, 2021. In
addition, one (1) copy of the Application will be sent to the Prothonotary of the
Superior Court (Eastern District) via U.S. First Class Mail, postage prepaid, within
seven (7) days of this date.
It is further certified that a copy of the Application was served on each of the
following persons via the PACfile System and/or via the manner provided:
Ramon A. Arreola, Esquire Brett M. Furber, Esquire Messa & Associates, P.C. 123 S. 22nd Street Philadelphia, PA 19103 Counsel for Appellee, Keith Spencer Via electronic correspondence
David F. White, Esquire Anne T. Marshall, Esquire Audrey J. Copeland, Esquire Marshall Dennehey Warner Coleman & Goggin 620 Freedom Business Center, Suite 300 King of Prussia, PA 19406 Counsel for Appellee, Tina Gainer Johnson Via electronic correspondence
Mary Ellen Conroy, Esquire Cipriani & Werner, P.C. 450 Sentry Parkway, Suite 200 Blue Bell, PA 19422 Co-counsel for Appellant, Philadelphia Joint Board Workers United, SEIU Via electronic correspondence
Mr. Cleveland Johnson 5542 Catherine Street Philadelphia, PA 19143 Pro se Appellee Via U.S. First Class Mail, postage prepaid
POST & SCHELL, P.C.
BY: /s/ Karyn Dobroskey Rienzi KARYN DOBROSKEY RIENZI, ESQUIRE
Dated: April 1, 2021