J-S91023-16

                                   2017 PA Super 64

JOHN VETTER AND ASHLEY JONES                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellants

                       v.

ANTHONY MILLER

                            Appellee                  No. 1038 MDA 2016


                Appeal from the Judgment Entered July 19, 2016
                 in the Court of Common Pleas of Berks County
                        Civil Division at No(s): 12-25023



BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS, P.J.E.*

OPINION BY RANSOM, J.:                                FILED MARCH 10, 2017

       John Vetter and Ashley Jones appeal from the July 19, 20161 judgment

entered in favor of Appellee, Anthony Miller, following a grant of partial

summary judgment and jury trial. After careful review of the briefs of the

parties and the record below, we affirm in part, reverse in part, and remand

for a new trial.



____________________________________________


1
  Appellants purported to appeal from the May 26, 2016 order denying their
motion for post-trial relief; however, entry of final judgment was required to
make the instant matter properly appealable.              See Pa.R.A.P. 301.
Appellants complied with this Court’s Order to praecipe the trial court for
entry of judgment, and the trial court entered judgment on July 19, 2016,
thereby perfecting this Court’s jurisdiction. See Pa.R.A.P. 905(a)(5) (“A
notice of appeal filed after the announcement of a determination but before
the entry of an appealable order shall be treated as filed after such entry
and on the day thereof.”).


*Former Justice specially assigned to the Superior Court.
J-S91023-16


       In light of our disposition, we adopt the following statement of relevant

facts and procedure, garnered from the trial court’s opinion, which in turn is

supported by the record.       See Trial Court Opinion, 8/5/2016 at 1-6.        In

September 2011, Appellants attended a wedding reception at which they

consumed     alcoholic    beverages.     Appellants    left   the   reception   at

approximately 7:30 p.m., and Appellant Vetter was chosen to drive.

Appellant Vetter has no recollection of the events of the evening after

leaving the wedding reception.      However, on their way home, the couple

picked up their 14-month-old son.

       At approximately 9:00 p.m., Appellants were driving on State Road

422.    Appellant Jones testified that Appellee began tailgating Appellants,

purposely driving so close behind that his headlights could not be seen in

their car mirrors.       Appellant Jones testified that Appellant Vetter was

uncharacteristically mad, yelling for Appellee to back off, and tapping his

brakes several times to “brake check” Appellee.          In contrast, Appellee,

denied tailgating and suggested that Appellant Vetter repeatedly and

recklessly applied his brakes.

       It was undisputed at trial that as the parties approached and stopped

at a red light at the intersection of State Road 422 and Krick Lane, Appellant

Vetter exited his car and approached Appellee, who remained in his vehicle

with his driver’s side window down.          Appellee would later suggest in a

statement to police that Appellant Vetter “did not look right and something

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was wrong with him.” Miller Deposition, 10/20/2014, at 114-115. Appellee

attempted to flee the scene in his car.          However, as he did so, Appellant

Vetter   was    knocked      down    by    Appellee’s   vehicle   and   was   dragged

approximately 100 feet.

       Five emergency medical technicians (EMTs) responded to the scene.

Each noted the smell of alcohol coming from Appellant Vetter. Four of these

responders further noted that Appellant Vetter was combative.

       Upon review of information received at the scene, the responding

police officer cited Appellant Vetter with driving under the influence (DUI),

driving with a       suspended      license    (“DWS”), and harassment. 2        The

harassment charge was subsequently dismissed in connection with Appellant

Vetter’s negotiated guilty pleas to DUI (driving with a Blood Alcohol Level

(“BAC”) of .08 to .10) and DWS.                Appellant Vetter testified on direct

examination that his BAC was .09.              Notes of Testimony (N.T.), 12/14-

16/2015, at 251.




____________________________________________


2
  Appellant was convicted under 75 Pa.C.S. § 3802(a)(2) (graded as a
misdemeanor pursuant to 75 Pa.C.S. § 3803(a)(1) and 75 Pa.C.S. § 1543(a)
(graded as a summary offense). Appellant’s charge of harassment under 18
Pa.C.S. § 2709(a) (graded as a summary offense pursuant to 18 Pa.C.S. §
2709(c)(1)) was nolle prossed. Plaintiffs’ Motion in Limine to Preclude
Defendant from Introducing Testimony or Evidence of Arrests, 11/27/2015,
at 5, paragraphs 21-22.



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       In November 2012, Appellants filed a complaint against Appellee for

damages arising out of the incident described above. Appellants alleged that

their injuries were a result of Appellee’s negligence, recklessness, and

negligent infliction of emotional distress.

       At issue in this appeal are two pretrial motions.     In October 2015,

Appellee filed a motion for partial summary judgment, seeking dismissal of

Appellant Jones’ claim of negligent infliction of emotional distress. 3      In

November 2015, Appellants filed a motion in limine, in which Appellants

sought to preclude evidence of Appellant Vetter’s intoxication, his guilty plea

to the criminal charges of DUI and DWS, as well as the dismissed charge of

harassment.

       In December 2015, the trial court granted Appellee’s pretrial motion

for summary judgment, concluding that Appellant Jones could not establish

that she suffered serious bodily injuries.       The lower court also denied

Appellants’ motion in limine, thus permitting Appellee to introduce evidence

of Appellant Vetter’s intoxication, as well as all criminal charges arising from

the incident.      Evidence of Appellant’s criminal charges was thereafter

presented to the jury.




____________________________________________


3
 Appellee did not file a motion for summary judgment for any claims raised
by Appellant Vetter.


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      Following trial in December 2015, the jury returned a verdict assigning

74% of the causal negligence to Appellant Vetter and 26% to Appellee. The

jury was instructed and aware that if more than 50% of the causal

negligence was assigned to Appellant Vetter, that neither Appellant Vetter

nor Appellant Jones would recover damages. Accordingly, the jury awarded

no damages to Appellants.

      Appellants timely filed a motion for post-trial relief.    According to

Appellants, they were entitled to a new trial on three grounds, asserting the

court erred in (1) granting Appellee’s motion for partial summary judgment,

(2) permitting the introduction of evidence of criminal charges arising out of

the incident, and (3) permitting the introduction of evidence of Appellant

Vetter’s alleged intoxication. Appellee responded to the motion. Following a

hearing, the lower court denied Appellants’ motion. Appellants timely filed

the instant appeal and filed a court-ordered Pa.R.A.P. 1925(b) statement.

      Appellants present the following issues for our review:

      1.   Whether the trial court erred and/or abused its discretion in
      denying [Appellants’] Motion for Post[-]Trial Relief.

      2.    Whether the trial court erred and/or abused its discretion in
      permitting [Appellee] Miller to introduce irrelevant and unfairly
      prejudicial evidence of [Appellant] Vetter’s arrest, without
      conviction, for harassment and [Appellant] Vetter’s prior driving
      history.

      3.    Whether the trial court erred and/or abused its discretion in
      permitting [Appellee] to introduce irrelevant and unfairly
      prejudicial evidence of [Appellant] Vetter’s alleged intoxication as


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      contributing   to     the   cause   of    the   incident   without   expert
      testimony.

      4.   Whether the trial court erred and/or abused its discretion in
      preventing [Appellant] Jones from pursuing damages for her non-
      economic harms.

Appellant’s Brief at 4-5.

      In their first claim on appeal, Appellants challenge the court’s denial of

their motion for post-trial relief and renew the same claims raised therein.

See Plaintiffs’ Motion for Post-Trial Relief, 12/28/2015; Plaintiffs’ Concise

Statement of Matters Complained of on Appeal, 7/15/2016. Therefore, we

will address Appellants’ claims through an examination of whether the lower

court’s denial of their request for post-trial relief was proper.          For ease of

analysis, we will address Appellants’ challenge to the lower court’s summary

judgment ruling and then address Appellants’ evidentiary claims. Based on

the following analysis of the court’s evidentiary rulings, infra, we conclude

that Appellants are entitled to a new trial.

      After trial and upon the written motion for post–trial relief filed by any

party, a trial court may order a new trial as to all or any of the issues.

Pa.R.C.P. 227.1(a). When considering a challenge to the trial court's ruling

denying a motion for a new trial, we are guided by the following standard of

review.

      We will reverse a trial court's decision to deny a motion for a
      new trial only if the trial court abused its discretion. We must
      review the court's alleged mistake and determine whether the
      court erred and, if so, whether the error resulted in prejudice

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      necessitating a new trial. If the alleged mistake concerned an
      error of law, we will scrutinize for legal error.          Once we
      determine whether an error occurred, we must then determine
      whether the trial court abused its discretion in ruling on the
      request for a new trial. 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.

Underwood ex rel. Underwood v. Wind, 954 A.2d 1199, 1206 (Pa.

Super. 2008) (citing Gbur v. Golio, 932 A.2d 203, 206–207 (Pa. Super.

2007)).

      Appellants assert that the trial court abused its discretion by

precluding Appellant Jones from pursuing damages related to her claim of

negligent infliction of emotional distress when it granted Appellee’s motion

for summary judgment.        Appellants’ Brief at 17, 33-36.      Specifically,

Appellants claim that Appellant Jones’ inability to sleep impaired an

important body function, and as such, the jury should have been allowed to

determine if this impairment rose to the level of serious injury. Id.

      A motion for post-trial relief may not be filed to orders disposing of

motions for summary judgment. Therefore, the trial court properly denied

Appellants’ post-trial motion on this ground. Pa.R.C.P. No. 227.1, Note; see

U.S. Nat’l Bank in Johnstown v. Johnson, 487 A.2d 809 (Pa. 1985).

      Nevertheless, the lower court’s decision to grant partial summary

judgment is independently appealable upon entry of final judgment.

Pa.R.A.P. 341; Betz v. Pneumo Abex LLC, 44 A.3d 27, 54 (Pa. 2012). We


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review an order granting summary judgment for an abuse of discretion or

error of law. Indalex, Inc. v. Nat'l Union Fire Ins. Co. of Pittsburgh,

PA, 83 A.3d 418, 420 (Pa. Super. 2013). Our standard of review is plenary,

and we view the record in the light most favorable to the nonmoving party.

Id.    A party bearing the burden of proof at trial is entitled to summary

judgment “whenever there is no genuine issue of any material fact as to a

necessary element of the cause of action or defense which could be

established by additional discovery or expert report[.]” Pa.R.C.P. 1035.2(1).

In response to a summary judgment motion, the nonmoving party cannot

rest   upon   the   pleadings,     but   rather   must   set   forth   specific   facts

demonstrating a genuine issue of material fact. Pa.R.C.P. 1035.3.

       In Pennsylvania, when selecting automobile insurance, drivers have

the option of choosing limited-tort coverage or full-tort coverage. 75 Pa.C.S.

§ 1705. “A limited-tort plaintiff … can recover all medical and out-of-pocket

expenses; however, such a plaintiff cannot recover for pain and suffering or

other non-economic damages unless the plaintiff's injuries fall within the

definition of ‘serious injury.’”     Varner–Mort v. Kapfhammer, 109 A.3d

244, 248 (Pa. Super. 2015) (citing 75 Pa.C.S. § 1705(a)(1)(A)). The term

“serious injury” is defined as “a personal injury resulting in death, serious

impairment of body function or permanent serious disfigurement.” 75

Pa.C.S. § 1702.



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      Our Supreme Court has held that in determining whether a
      motorist has suffered a serious injury, “the threshold
      determination was not to be made routinely by a trial court
      judge ... but rather was to be left to a jury unless reasonable
      minds could not differ on the issue of whether a serious injury
      had been sustained.” Washington v. Baxter, 719 A.2d 733,
      740 (Pa. 1998). In conducting this inquiry, “several factors must
      be considered to determine if the claimed injury is ‘serious': ‘[1.]
      the extent of the impairment, [2.] the length of time the
      impairment lasted, [3.] the treatment required to correct the
      impairment, and [4.] any other relevant factors.” Graham v.
      Campo, 990 A.2d 9, 16 (Pa. Super. 2010), appeal denied, 16
      A.3d 504 (Pa. 2011). Our Supreme Court has cautioned that
      “the focus of these inquiries is not on the injuries themselves,
      but on how the injuries affected a particular body function.”
      Washington, supra. We remain cognizant of the principle that
      “[a]n impairment need not be permanent to be serious” under
      section 1705(d). Robinson v. Upole, 750 A.2d 339, 342 (Pa.
      Super. 2000) (citation omitted).

Cadena v. Latch, 78 A.3d 636, 640 (Pa. Super. 2013). Further, evidence

of how a particular injury affects a specific plaintiff, including how that injury

negatively impacted the person’s ability to perform his or her chosen

profession, is relevant in determining whether a plaintiff has suffered a

serious impairment of a body function. Long v. Mejia, 896 A.2d 596, 600

(Pa. Super. 2006).

      It is undisputed that Appellant Jones selected limited-tort coverage

under 75 Pa.C.S. § 1705.         Motion for Summary Judgment Defendant

Anthony Miller, Exhibit E. Thus, Appellant was required to establish serious

injury.   Viewed in the light most favorable to Appellant Jones, reasonable

minds could not differ on the issue of whether she had sustained a serious

injury, as her injury was conclusively not serious.

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       Appellant Jones testified at her deposition that she suffered from sleep

deprivation following the incident. Jones Deposition, 1/6/2015, at 17. She

received counselling and was prescribed antidepressants until the beginning

of 2013.4       Id. at 9-10.         In preparation for litigation, two medical

professionals conducted a psychiatric evaluation of Appellant Jones and both

concluded that she exhibited symptoms of Post-Traumatic Stress Disorder

(PTSD). See Plaintiff’s Response in Opposition to the Motion for Summary

Judgment of Defendant Anthony Miller, 11/12/2015, Exhibits B and C.

       However, Appellant Jones presented no evidence that her injury (here

sleep deprivation and symptoms of PTSD) caused her serious impairment of

a body function, as she was able to perform her chosen profession and

manage a myriad of other activities.               See Long, 896 A.2d at 599-600

(recognizing evidence of how a particular injury affects a specific plaintiff is

relevant in determining whether a plaintiff has suffered a serious impairment

of a body function).

       At the time of the deposition in 2015, Appellant Jones was employed

full-time at her job for five years.           Jones Deposition, 1/6/2015, at 4-5.

Further, Appellant Jones was actively in pursuit of a nursing degree and




____________________________________________


4
 Appellant Jones’ use of antidepressants preceded the incident. Id. at 12-
15.


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helping to care for her son, who was approximately four and one-half years

old. Id. at 4-6.

      The trial court considered the factors outlined in Graham and

observed:

      [Appellant Jones] testified that she cared for her baby,
      [Appellant] Vetter, and their new house while maintaining full-
      time employment and attending school ... There was no credible
      evidence to support the contention that [Appellant] Jones’
      alleged sleep deprivation negatively impacted or restricted her
      daily activities.”

Trial Court Opinion, 8/5/2016, at 10. We agree. Accordingly, we discern no

error or abuse of discretion in the lower court’s conclusion to grant summary

judgment on this matter.

      We next review the lower court’s evidentiary rulings.

      Questions regarding the admissibility or exclusion of evidence
      are [] subject to the abuse of discretion standard of review.
      Pennsylvania trial judges enjoy broad discretion regarding the
      admissibility of potentially misleading and confusing evidence.
      Relevance is a threshold consideration in determining the
      admissibility of evidence. A trial court may, however, properly
      exclude evidence if its probative value is substantially
      outweighed by the danger of unfair prejudice. Generally[,] for
      the purposes of this evidentiary rule, “prejudice” means an
      undue tendency to suggest a decision on an improper basis. The
      erroneous admission of harmful or prejudicial evidence
      constitutes reversible error.

Rohe v. Vinson, --- A.3d ---,*11-12 (Pa. Super. 2016) (citing Whyte v.

Robinson, 617 A.2d 380, 382–83 (Pa. Super. 1992) (internal citations

omitted)).



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        Appellants assert the lower court erred in admitting evidence of

Appellant Vetter’s criminal charges. Here, Appellant Vetter pleaded guilty to

driving under the influence, a misdemeanor; pleaded guilty to driving with a

suspended license (DWS), a summary violation; and the charge of

harassment was nolle prossed.           Appellants suggest this evidence was

irrelevant, unfairly prejudicial, and warrants a new trial. Appellants’ Brief at

20-26.

        Evidence of criminal charges may be admissible in a subsequent civil

case.     In Cromley v. Gardner, 385 A.2d 433 (Pa. Super. 1978), we

examined the decision of Hurtt v. Stirone, 206 A.2d 624 (Pa. 1965), where

the Supreme Court of Pennsylvania concluded:

        “In so deciding [that judgments in criminal cases may be
        admissible to establish the facts in a subsequent civil case
        arising from the same incident], we recognize a valid existing
        distinction in cases involving the record of conviction of relatively
        minor matters such as traffic violations, lesser misdemeanors,
        and matters of like import.        Especially in traffic violations,
        expediency and convenience, rather than guilt, often control the
        defendant's ‘trial technique’” …

Cromley v. Gardner, 385 A.2d at 435 (citing Hurtt, 206 A.2d at 627.). We

observed in Cromley that the Hurtt decision “has been construed as

mandating that a motor vehicle code conviction not be admitted in a civil

case arising from the same incident;” however, we extended the reasoning

of Hurtt by concluding that all motor vehicle code violations are not of equal

gravity based on the penalty’s potential risk to liberty and property:


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      The penalties clearly indicate that driving under the influence is
      not a “minor matter.” The potential penalty for driving under the
      influence contrasts sharply with the fine of ten dollars and costs
      levied in Loughner v. Schmelzer, 218 A.2d 768 (Pa. 1966) in
      which [our Supreme Court] disallowed evidence of the summary
      conviction in a civil action. Certainly a $500 fine and three
      year's imprisonment constitute a significant deprivation of
      property and liberty.      It is inconceivable that one would
      acknowledge guilt of this offense if he believed he was innocent.

                                    ***

      If appellee believed in his innocence and his ability to prove it,
      he would not likely have made such a plea. Believing that his
      guilty plea was clearly indicative of appellee's guilt of
      driving under the influence, not a summary or minor
      offense, we find the plea admissible as an admission
      against interest.

Cromley, 385 A.2d at 435–36 (footnotes omitted) (emphasis supplied); 42

Pa.C.S. § 6142 (providing that evidence of the violation of Title 75 “shall not

be admissible” in a subsequent civil matter).      Finally, evidence of arrest

without conviction is not admissible in a civil case. Smith v. Leflore, 437

A.2d 1250 (Pa. Super. 1981) (recognizing that the prejudicial impact of such

evidence is apparent).

      With these principles in mind, we conclude the following.      Based on

Cromley, the trial court clearly erred in admitting Appellant Vetter’s guilty

plea to DWS. See 75 Pa.C.S. § 1543 (defining DWS as a summary offense).

The trial court committed a second legal error in ruling that the harassment

arrest would be admissible. Smith, 437 A.2d at 1250. As a result of the

lower court’s ruling, both of these inadmissible pieces of evidence were


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presented to the jury. N.T. 12/14-16/2015 at 251-52, 285-88. However,

the lower court properly admitted evidence of Appellant’s DUI as a

statement against interest. Cromley, 385 A.2d at 435–36.

      In the second part of our analysis of whether it was error for the lower

court to deny Appellants’ request for a new trial on the basis of the

introduction of this inadmissible evidence, we must next determine whether

the lower court abused its discretion in its ruling.    Underwood ex rel.

Underwood, 954 A.2d at 1206.

      In our view, admission of Appellant Vetter’s DWS conviction and his

harassment charge constituted reversible error.     In E. Exp., Inc. v. Food

Haulers, Inc., 285 A.2d 152, 153 (Pa. 1971), a trial court permitted a

plaintiff to introduce evidence of defendant’s summary violation in a

negligence action. E. Exp., Inc., 285 A.2d at 153. On review, the Supreme

Court determined that this was in error and of such possible prejudicial

effect as to vitiate the trial proceedings.   Id.    According to the Court,

permitting a police officer to testify to the defendant’s acts in this manner

was tantamount to permitting him to offer a “conclusion that was for the

jury and within its exclusive prerogative.”   Id.    In the instant case, the

court’s evidentiary ruling was legal error, and as this case required

apportioning liability to the parties, we are not persuaded that prejudice did

not result from these facts being before the jury.       Upon review of the

aforementioned, we conclude that the lower court abused its discretion in

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failing to apply the law and in not granting a new trial, as a new trial was

warranted. Pa.R.C.P. 227.1(a); E. Exp., Inc., 285 A.2d at 153; Smith, 437

A.2d at 1250.

        Appellants’ also argue that the trial court erred in permitting Appellee

to introduce irrelevant and unfairly prejudicial evidence of Appellant Vetter’s

intoxication. Appellant’s Brief at 26-32. As part of Appellants’ contention,

they again take issue with the admission of Appellant Vetter’s DUI guilty

plea.

        In consideration of our holding that a guilty plea to DUI is evidence of

guilt and therefore independently admissible in a civil action as an admission

against interest, we conclude that the trial court in the instant case properly

admitted Appellant Vetter’s DUI guilty plea, as it could have considerably

elucidated the issue of Appellant Vetter’s negligence.        See Cromley, 385

A.2d at 435-36. However, evidence of Appellant’s DUI could also be used to

establish    Appellant   Vetter’s   intoxication   in   conjunction   with   other

corroborative evidence.

        The following principles guide the admissibility of intoxication in a civil

negligence case:

        While proof of intoxication is relevant where reckless or careless
        driving of an automobile is the matter at issue, the mere fact of
        drinking intoxicating liquor is not admissible, being unfairly
        prejudicial, unless it reasonably establishes a degree of
        intoxication which proves unfitness to drive.



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Fisher v. Dye, 125 A.2d 472, 476 (Pa. 1956).               Evidence of blood alcohol

level alone may not be admitted for the purpose of proving intoxication;

intoxication must be corroborated by independent evidence. Ackerman v.

Delcomico, 486 A.2d 410, 414 (Pa. Super. 1984).                   In cases that have

admitted blood alcohol tests, the BAC was above the statutorily presumptive

level of unfitness to operate a vehicle. Locke v. Claypool, 627 A.2d 801,

804-05 (Pa. Super. 1993) (noting criminal presumption of unfitness to drive

when driver’s BAC in excess of legal limit inapplicable in civil cases). There

is no precise type or amount of evidence necessary to establish the requisite

degree    of   intoxication;     however,      corroborative   evidence   to   establish

intoxication can be in the form of lay testimony as to the injured party's

conduct just prior to or immediately after the incident, or expert testimony

interpreting the significance of the results of blood alcohol tests. See Braun

v. Target Corp., 983 A.2d 752, 760 (Pa. Super. 2009), appeal denied, 987

A.2d 158 (Pa. 2009); Gallagher v. Ing, 532 A.2d 1179, 1182–83 (1987),

appeal denied, 548 A.2d 255 (1988).5 We extended this rule of admissibility

____________________________________________


5
   In Ackerman, for example, this Court found the trial court properly
admitted evidence of intoxication to the point of unfitness to walk where (1)
plaintiff's girlfriend and roommate stated plaintiff had been drinking beer
since late afternoon on day of accident; (2) defendant and medical personnel
testified plaintiff strongly smelled of beer; (3) plaintiff's BAC was 0.195
percent; (4) hospital records revealed plaintiff admitted drinking heavily;
and (5) plaintiff had slurred speech and low level of alertness following
accident). Ackerman, 486 A.2d at 414-15; but see Whyte, 617 A.2d at
(Footnote Continued Next Page)

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to evidence tending to establish intoxication on the part of a pedestrian.

Ackerman, 486 A.2d at 414; Kriner v. McDonald, 302 A.2d 392, 394 (Pa.

Super. 1973) (evidence of intoxication is inadmissible unless it proves

unfitness to be crossing the street).

      The evidence presented to the trial court in the series of pretrial

motions showed: Appellant Vetter consumed approximately three to four

cups of beer prior to driving. Jones Deposition, 1/6/2015, at 26-27; Vetter

Deposition 1/6/2015, at 35-36. Appellant Jones described Appellant Vetter’s

behavior in getting angry and exiting the car as “very out of character.” Id.

at 31-32.    Appellee stated that Appellant Vetter “did not look right and

something was wrong with him” as he approached Appellee’s car.               Miller

Deposition, 10/20/2014, at 114-115.                 In police documentation of the

incident, five EMTs noted the smell of alcohol coming from Appellant Vetter.

See Memorandum of Law (filed in opposition to motion in limine),

12/7/2015, Exhibit F.          Four of the EMTs also noted that Appellant was

combative. Id. Appellant Vetter subsequently pleaded guilty to DUI for a

BAC of 0.9. Vetter Deposition, 1/6/2015, at 57.




                       _______________________
(Footnote Continued)

382-3 (holding pedestrian with blood alcohol content of .144% determined
after treating physician smelled alcohol on his breath insufficient to establish
intoxication absent more).



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      In the instant case, Appellant Vetter’s intoxication was relevant, as

recklessness and carelessness was at issue. Appellant’s guilty plea to DUI

was independently admissible and established that he had a BAC in excess

of the legal limit while operating a car. The evidence of Appellant Vetter’s

(1) drinking intoxicants, (2) behavior immediately prior to the incident, (3)

odor of alcohol noted by five EMTs and (4) combative behavior directly after

the accident, taken in totality with Appellant’s BAC, could reasonably support

a conclusion that Appellant Vetter was intoxicated to the point of unfitness to

walk. See Ackerman, 486 A.2d at 413; Reedy v. Brown, 150 A.2d 707,

708 (Pa. 1959) (“The requirement is met if it can be factually concluded,

from all the evidence as to drinking intoxicants and intoxication, that

unfitness to [walk] is established to the satisfaction of the jury.”). As such,

the value of the intoxication evidence, viewed together, was more probative

than prejudicial and could elucidate for the jury whether Appellant Vetter

was intoxicated to a degree that might relieve Appellee of liability due to

Appellant Vetter's contributory negligence. Fisher, 125 A.2d at 476. Thus,

we find the trial court’s admission of Appellant Vetter’s DUI and intoxication

proper, and similarly conclude that the trial court’s decision to deny

Appellants’ post-trial relief for admission of same proper.

      In conclusion, the trial court’s order granting partial summary

judgment of Appellant Jones’ negligent infliction of emotional distress claim

is affirmed, as Appellant Jones failed to demonstrate that she suffered

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serious injury.   Varner–Mort, 109 A.3d at 248.      The trial court’s order

denying Appellant’s motion in limine is affirmed in part, as admission of

Appellant Vetter’s DUI and intoxication was admissible; however, the court’s

decision to admit evidence of Appellant Vetter’s DWS and harassment charge

was inadmissible and is reversed. E. Exp., Inc., 285 A.2d at 153; Smith,

437 A.2d 1250. Moreover, evidence of the DWS and harassment charge was

prejudicial and constituted reversible error that the court failed to remedy

when it ruled on Appellants’ Post-Trial Motion.       Underwood ex rel.

Underwood, 954 A.2d at 1206; E. Exp., Inc., 285 A.2d at 153; Smith,

437 A.2d 1250. Accordingly, we are constrained to vacate the judgment and

remand for a new trial. Upon re-trial, while evidence of Appellant Vetter's

intoxication may be introduced, the evidence of his guilty plea to DWS and

the harassment charge may not be admitted.

      Affirmed in part, reversed in part. Judgment vacated and remanded

for a new trial. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/10/2017



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