J-A15022-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

HILDO F. DEFRANCA AND                             IN THE SUPERIOR COURT OF
MARIA DEFRANCA                                          PENNSYLVANIA
                    Appellee

                       v.

ALBINO CONCRETE CONSTRUCTION CO.,
INC. D/B/A AND A/K/A JOAO ALBINO
CONSTRUCTION AND D/B/A AND A/K/A
JVL CONCRETE CO., INC.
JOAO ALBINO CONSTRUCTION AND JVL
CONCRETE CO., INC. AND TRANS-FLEET
CONCRETE, INC. AND SILVA CONCRETE,
INC.
APPEAL OF: TRANS-FLEET CONCRETE,
INC.

                                                      No. 1868 EDA 2014


                Appeal from the Judgment Entered June 17, 2014
              In the Court of Common Pleas of Philadelphia County
               Civil Division at No(s): March Term, 2012, No. 2487

BEFORE: BOWES, J., MUNDY, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.:                           FILED JANUARY 06, 2016

        Appellant, Trans-Fleet Concrete, Inc. (Trans-Fleet), appeals from the

$2,313,590.62 judgment entered on June 17, 2014 in favor of Appellees,

Hildo F. DeFranca and Maria DeFranca, following a jury trial. After careful

review, we affirm.

        The trial court provided the following summary of the facts and

procedural history of this case.
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-A15022-15


                 This negligence action arises out of a
          workplace accident which occurred on March 22,
          2010. [Appellee], Hildo F. DeFranca, was working
          for Girafa Construction which was contracted by
          Albino Concrete Construction Co. Inc. ([h]ereinafter
          “Albino”) to build foundations and footings at new
          homes. On March 22, 2010, [Mr. DeFranca] was
          standing on top of a nine (9) foot wall holding the
          hose to pour cement. The hose from the concrete
          pump trunk clogged three times that day. On the
          third time, the concrete pump truck operator
          increased the pressure on the pump to unclog it.
          However, he did not give a signal to [Mr. DeFranca]
          for him to put the hose down and get out of the way.
          [Mr. DeFranca] was still holding the hose when the
          concrete pump truck operator increased the pressure
          on the pump. Due to the additional pressure on the
          pump, the hose was thrown from side to side and hit
          [Mr. DeFranca] in the head. Subsequently, [Mr.
          DeFranca] fell off the wall he was standing on and
          dropped down nine (9) feet into a basement. [Mr.
          DeFranca] sustained multiple injuries as a result of
          this incident.

                [Mr. DeFranca] identified the concrete pump
          truck that was owned by 5 Star Concrete Pumping,
          LLC ([h]ereinafter “5 Star”) as the concrete pump
          truck involved in his accident. 5 Star was a concrete
          pumping service formed in 2007 by Mr. Franks and
          Mrs. Franks. Mr. Franks owned fifty-one percent
          (51%) and Mrs. Franks owned forty-nine percent
          (49%). Prior to forming 5 Star to provide concrete
          pump truck services, Mr. Franks owned and operated
          concrete pump trucks through his ready-mix
          concrete delivery business, [] Trans-Fleet[.] Mr. and
          Mrs. Franks were the sole officers and executives of
          both [] Trans-Fleet and 5 Star. [] Trans-Fleet and 5
          Star shared a business address, employees, and
          operated out of the same office space.          When
          customers called [] Trans-Fleet, they could order
          concrete and a concrete pump truck all at once. The
          concrete was provided by [] Trans-Fleet. [] Trans-
          Fleet employees would provide a concrete pump
          truck exclusively by 5 Star. Both businesses had

                                  -2-
J-A15022-15


          separate invoicing systems, bank accounts, and tax
          returns. Mr. Franks personally trained all 5 Star
          concrete pump truck operators.

                 The [jury] [t]rial commenced on November 18,
          2013 and concluded on November 25, 2013, when
          the [j]ury returned a verdict in favor of [] Hildo F.
          DeFranca, and Maria F. DeFranca, and against []
          Trans-Fleet. The [j]ury found that 5 Star was an
          agent of [] Trans-Fleet at the time of [Mr.
          DeFranca’s] accident on March 22, 2010. The [j]ury
          determined that 5 Star and [] Trans-Fleet were both
          negligent and their negligence was the factual cause
          of [Mr. DeFranca’s] injuries. The [j]ury attributed
          50% of the liability to 5 Star and 50% to [] Trans-
          Fleet. The [j]ury awarded [Mr.] DeFranca damages
          in the amount of [t]wo [m]illion ($2,000,000.00)
          [d]ollars and awarded [t]wo [h]undred and [f]ifty
          [t]housand ($250,000.00) [d]ollars to [] Maria F.
          DeFranca for her loss of consortium in connection to
          the incident that occurred on March 22, 2010. The
          [j]ury found Albino was not negligent. [Appellees]
          settled their claims against Albino prior to counsels’
          closing arguments.

                 [The DeFrancas] timely filed a [m]otion for
          [d]elay [d]amages which [the trial] [c]ourt [g]ranted
          in the amount of $63,590.62 to be added to the
          $2,250,000 [j]ury [v]erdict in accordance with an
          [o]rder dated June 6, 2014. [The DeFrancas] timely
          filed a [p]ost-[t]rial [m]otion to [m]old the [v]erdict
          which [the trial] [c]ourt [g]ranted as stated in an
          [o]rder dated June 6, 2014.         [The trial] [c]ourt
          further [o]rdered that judgment be entered in the
          amount of $2,313,590.62 in the [DeFrancas’] favor
          and against [] Trans-Fleet to reflect its own
          negligence and its liability for the negligence of 5
          Star.    [] Trans-Fleet timely filed a [m]otion for
          [p]ost-[t]rial relief for [judgment notwithstanding the
          verdict (JNOV) or] a [n]ew [t]rial which [the trial]
          [c]ourt denied pursuant to an order dated June 6,
          2014. [On June 18, 2014, Trans-Fleet filed a timely
          notice of appeal.] On July 9, 2014, [the trial] [c]ourt
          entered an order pursuant to Pa.R.[A].P. 1925(b)

                                   -3-
J-A15022-15


            requiring [Trans-Fleet] to file a [c]oncise [s]tatement
            of [e]rrors [c]omplained of on [a]ppeal. [] Trans-
            Fleet timely filed its 1925(b) Statement[.]

Trial Court Opinion, 10/16/14, at 1-3.

      On appeal, Trans-Fleet raises the following issues for our review.

                   1.   Whether the trial court erred in
            submitting the issue of vicarious liability of Trans-
            Fleet Concrete, Inc. via an alleged agency
            relationship with non-party 5 Star Concrete to the
            jury beyond the statute of limitations when no non-
            party agent had been properly identified throughout
            the course of the case and no evidence of an agency
            relationship between [A]ppellant and 5 Star was
            offered by the DeFrancas?

                  2.    Whether the jury’s verdict that Trans-
            Fleet may be liable as the alleged principal of non-
            party 5 Star is unsustainable, given that no evidence
            was proffered to support a finding of negligence by 5
            Star?

                  3.   Whether the trial court committed
            reversible error in excluding relevant, probative,
            admissible evidence that the alleged vehicle in
            question was not at the location of the incident, as
            confirmed via Global Positioning System Records,
            thereby prejudicing [A]ppellant at trial?

                  4.    Whether the jury’s verdict that Trans-
            Fleet may be liable for negligent training is
            unsustainable, given that the DeFrancas proffered
            nothing to suggest that Trans-Fleet held a legal duty
            to train the employees of another company, and
            there is no competent evidence in the record of
            negligent training in any event?

Trans-Fleet’s Brief at 6-7.

      Our standards of review of a trial court’s denial of post-trial motions

for JNOV and a new trial are as follows.

                                     -4-
J-A15022-15


                An appellate court will reverse a trial court’s
          grant or denial of a JNOV only when the appellate
          court finds an abuse of discretion or an error of law.
          Our scope of review with respect to whether
          judgment n.o.v. is appropriate is plenary, as with
          any review of questions of law.

                      In reviewing a motion for judgment
                n.o.v., the evidence must be considered in the
                light most favorable to the verdict winner, and
                he must be given the benefit of every
                reasonable inference of fact arising therefrom,
                and any conflict in the evidence must be
                resolved in his favor. Moreover, a judgment
                n.o.v. should only be entered in a clear case
                and any doubts must be resolved in favor of
                the verdict winner.        Further, a judge’s
                appraisement of evidence is not to be based on
                how he would have voted had he been a
                member of the jury, but on the facts as they
                come through the sieve of the jury’s
                deliberations.

                      There are two bases upon which a
                judgment n.o.v. can be entered: one, the
                movant is entitled to judgment as a matter of
                law, … and/or two, the evidence was such that
                no two reasonable minds could disagree that
                the outcome should have been rendered in
                favor of the movant[.] With the first a court
                reviews the record and concludes that even
                with all factual inferences decided adverse to
                the movant the law nonetheless requires a
                verdict in his favor, whereas with the second
                the court reviews the evidentiary record and
                concludes that the evidence was such that a
                verdict    for   the   movant    was   beyond
                peradventure.

                Questions of credibility and conflicts in the
          evidence are for the [fact-finder] to resolve and the
          reviewing court should not reweigh the evidence. If
          there is any basis upon which the jury could have


                                  -5-
J-A15022-15


           properly made its award, the denial of the motion for
           judgment n.o.v. must be affirmed.

Braun v. Wal–Mart Stores, Inc., 24 A.3d 875, 890-91 (Pa. Super. 2011)

(brackets in original; internal citations and quotation marks omitted),

affirmed, 106 A.3d 656 (Pa. 2014).

           In reviewing a trial court’s denial of a motion for a
           new trial, the standard of review for an appellate
           court is as follows:

                        [I]t is well-established law that, absent a
                 clear abuse of discretion by the trial court,
                 appellate courts must not interfere with the
                 trial court’s authority to grant or deny a new
                 trial.

                                     *     *   *

                        Thus, when analyzing a decision by a
                 trial court to grant or deny a new trial, the
                 proper standard of review, ultimately, is
                 whether the trial court abused its discretion.

              Moreover, our review must be tailored to a well-
           settled, two-part analysis:

                        We must review the court’s alleged
                 mistake and determine whether the court erred
                 and, if so, whether the error resulted in
                 prejudice 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.




                                     -6-
J-A15022-15


ACE Am. Ins. Co. v. Underwriters at Lloyds and Cos., 939 A.2d 935,

939 (Pa. Super. 2007) (citations omitted), affirmed, 971 A.2d 1121 (Pa.

2009).

      In its first issue on appeal, Trans-Fleet contends that the trial court

should not have submitted the issue of agency to the jury. The argument

section of Trans-Fleet’s brief on appeal presents six subissues purportedly

arising out of this issue. Trans-Fleet’s Brief at 15-46. As such, we address

each subissue in turn.

      In its first three subissues, Trans-Fleet contends that the DeFrancas

did not properly plead that Trans-Fleet was liable under an agency theory.

Id. at 15-25.   Specifically, Trans-Fleet argues that the DeFrancas did not

identify an agent by name in the complaint, which is not sufficient. Id. at

18-25. Because the pleadings were inadequate, Trans-Fleet asserts the trial

court should not have instructed the jury that it could find Trans-Fleet liable

for the acts or omissions of its agent. Id. at 15-18.

      This Court has previously held that averments of unnamed agents read

in the context of the entire complaint are sufficient to put the defendant on

notice of the claims against it, and unless the defendant seeks specification,

it has to defend against those averments. Yocoub v. Lehigh Valley Med.

Assocs., P.C., 805 A.2d 579, 589-590 (Pa. Super. 2002), appeal denied,

825 A.2d 639 (Pa. 2003). In Yocoub, we reversed the trial court’s decision

to preclude the plaintiff from presenting evidence of an agency relationship


                                     -7-
J-A15022-15


between a hospital and its radiologists because the plaintiff did not

specifically identify the radiologists by name in its fourth amended

complaint.    Id. at 590.   We noted that the purpose of allegations in a

complaint is to put the defendant on notice of the claims that they will have

to defend. Id. at 588. To determine whether the claims provided sufficient

notice, we explained that the paragraphs of the complaint cannot be read in

isolation from each other, but must be read together in context. Id. at 589.

Applying these principles, we determined that the averment that the hospital

was liable for the acts and omissions of its unnamed agents, read together

with the allegations that the radiology department was negligent, was

sufficient to put the hospital on notice that it must defend against a claim of

agency. Id.

      Further, we reasoned that because the hospital waited until the eve of

trial to contest the specificity of the allegations of agency instead of filing

preliminary objections requesting a more specific pleading or moving to

strike the allegations of the unspecified agents, “any objection to the

specificity of the complaint has been waived.”         Id. at 590 (citations

omitted). Moreover, we noted that by the time the hospital first raised its

specificity challenge, depositions had been completed and the plaintiff’s

expert had filed his report, concluding that two radiologists, who were not

named as defendants, had been negligent, so it was apparent that the

plaintiff was pursuing an agency theory. Id.


                                     -8-
J-A15022-15


      Herein, we conclude that the allegations in the complaint were

sufficient to put Trans-Fleet on notice that it had to defend against an

agency theory based on its relationship with 5 Star. The complaint pled a

straightforward negligence action against Trans-Fleet, Albino, Joao Albino,

JVL Concrete Co., Inc., and Silva Concrete, Inc. based on the injuries

sustained by Mr. DeFranca on March 22, 2010 at a specific construction site

while operating a cement pump truck hose that had become clogged. First

Amended Complaint, 5/7/12, at 1-5. The complaint also contained several

paragraphs asserting that Trans-Fleet was liable based on the negligence of

its agents. Id. at ¶¶ 9, 23, 27-31. The DeFrancas alleged the negligence of

Trans-Fleet and its agents, in part, as follows.

            23. It is believed and, therefore averred, that the
            Defendants, by and through their agents, servants,
            workers and/or employees, were negligent including,
            but not limited, to the following:

                  a) Failing to provide training and supervision …
                  to its workers and employees …;

                  b) Failing to … adequately and properly warn
                  and instruct the Plaintiff …;

                                       …

                  d) Failing to properly educate, hire, train,
                  supervise   and    monitor its  contractors,
                  subcontractors and employees with regard to
                  work place safety;

                                       …

                  f) Failing to properly inspect the cement pump
                  truck, hose and equipment;

                                      -9-
J-A15022-15



                  g) Failing to properly maintain the cement
                  pump truck, hose and equipment;

                  h) Failing to properly operate the cement
                  truck, hose and equipment;

                  i) Failing to properly prepare, prime and
                  control the cement pump truck, hose,
                  equipment and load;

                                      …

                  m) Defendants failed to take all reasonable and
                  necessary measures to protect the Plaintiff …
                  from dangerous conditions upon its premises,
                  i.e. negligent operation of the pump truck and
                  equipment and lack of fall protection ….

Id. at ¶ 23(a)-(b), (d), (f)-(i), (m) (emphasis added). Therefore, viewing

the complaint as a whole, we conclude that the allegations were sufficient to

put Trans-Fleet on notice that it had to defend against a claim that Mr.

DeFranca sustained injuries as a result of the negligence of Trans-Fleet’s

agents operating the cement pump truck on March 22, 2010 at the

construction site at 317 Chapman Drive, Perkasie, Pennsylvania.

      Moreover, we conclude that Trans-Fleet waived its objection to the

specificity of the complaint because it did not file preliminary objections

seeking more specificity or moving to strike the allegations. See Yocoub,

supra at 590.     Further, we note that the actions taken by Trans-Fleet

indicate that it had actual notice that it had to defend against the negligence

of 5 Star. For instance, in response to the complaint, Mrs. Franks executed

an affidavit of non-involvement denying that Trans-Fleet had any agents at

                                    - 10 -
J-A15022-15


the construction site. Affidavit of Non-Involvement, 8/13/12. On the same

day, Trans-Fleet filed an answer to the complaint, denying that its agents

were negligent.     Trans-Fleet’s Answer, 8/13/12, at ¶¶ 9, 23, 27-31.

Similarly, the deposition of Mrs. Franks, one of the owners of Trans-Fleet

and 5 Star, contained a line of questioning about 5 Star’s potential

negligence.   Plaintiff’s pretrial memorandum also alleged that Trans-Fleet

acted through its “agent and alter ego,” 5 Star. On August 13, 2013, Trans-

Fleet advised the DeFrancas that Mrs. Franks had GPS records that showed 5

Star did not have vehicle at the construction site on the day of the incident.

Similarly, at trial, Trans-Fleet attempted to defend against the allegations of

agency by demonstrating that 5 Star was not at the construction site and,

instead, the pump truck of TD Concrete injured Mr. DeFranca. The foregoing

examples demonstrate Trans-Fleet had actual notice, thus we conclude that

the trial court did not err or abuse its discretion when it found that “Trans-

Fleet should have known that the only possible agent that the [DeFrancas]

would be referring to was 5 Star.”      Trial Court Opinion, 10/16/14, at 6.

Therefore, Trans-Fleet’s first three subissues are meritless and the issue of

agency was properly submitted to the jury.

      Next, we conclude Trans-Fleet has waived its fourth and fifth subissues

to its first issue on appeal. In those subissues, Trans-Fleet asserts that the

proofs at trial varied from the pleadings, and the late addition of the agency

theory constituted an improper de facto amendment of the pleadings.


                                    - 11 -
J-A15022-15


Trans-Fleet’s Brief at 25-37. Neither of these issues were included in Trans-

Fleet’s Rule 1925(b) statement nor are reasonably inferable from any of the

issues included therein.        See Trans-Fleet’s Concise Statement of Errors

Complained of on Appeal, 7/30/14.              Hence, we deem the issues waived.

“Any issues not raised in a Rule 1925(b) statement will be deemed waived.”

Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011).

              Our Supreme Court intended the holding in
              [Commonwealth v. Lord, 719 A.2d 306 (Pa.
              1998)] to operate as a bright-line rule, such that
              “failure to comply with the minimal requirements of
              Pa.R.A.P. 1925(b) will result in automatic waiver of
              the issues raised.” Commonwealth v. Schofield,
              585 Pa. 389, 888 A.2d 771, 774 (2005) (emphasis
              added); see also [Commonwealth v. Castillo, 888
              A.2d 775, 780 (2005)]. Given the automatic nature
              of this type of waiver, we are required to address the
              issue once it comes to our attention.

Greater Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc., 88 A.3d

222, 223-224 (Pa. Super. 2014) (en banc) (emphasis in original).1

       In its sixth subissue to its first issue on appeal, Trans-Fleet contends

that the DeFrancas did not introduce any evidence to support an agency

relationship between Trans-Fleet and 5 Star.          Trans-Fleet’s Brief at 38-42.

Trans-Fleet further argues that the trial court de facto pierced the corporate

____________________________________________


1
  Even if these issues were not waived, we would conclude that the proofs
did not vary from the pleadings because, as discussed above, the DeFrancas’
complaint sufficiently pled a theory of agency. For the same reason, we
would conclude the trial court did not permit a de facto amendment of the
complaint.



                                          - 12 -
J-A15022-15


veil when it permitted Trans-Fleet to be held liable for the acts of a separate

corporate entity. Id. at 42-46.

      This Court has defined an agency relationship as follows.

            An agency relationship may be created by any of the
            following: (1) express authority, (2) implied
            authority, (3) apparent authority, and/or (4)
            authority by estoppel. Express authority exists where
            the principal deliberately and specifically grants
            authority to the agent as to certain matters. Implied
            authority exists in situations where the agent's
            actions are “proper, usual and necessary” to carry
            out express agency. Apparent agency exists where
            the principal, by word or conduct, causes people with
            whom the alleged agent deals to believe that the
            principal has granted the agent authority to act.
            Authority by estoppel occurs when the principal fails
            to take reasonable steps to disavow the third party
            of their belief that the purported agent was
            authorized to act on behalf of the principal.

                                      …

                  The basic elements of agency are the
                  manifestation by the principal that the agent
                  shall act for him, the agent's acceptance of the
                  undertaking and the understanding of the
                  parties that the principal is to be in control of
                  the undertaking. The creation of an agency
                  relationship requires no special formalities.
                  The existence of an agency relationship is a
                  question of fact.     The party asserting the
                  existence of an agency relationship bears the
                  burden of proving it by a fair preponderance of
                  the evidence.      In establishing agency, one
                  need not furnish direct proof of specific
                  authority, provided it can be inferred from the
                  facts that at least an implied intention to
                  create the relationship of principal and agent
                  existed. However, we do not assume agency
                  by a mere showing that one person does an
                  act for another.

                                    - 13 -
J-A15022-15



           B & L Asphalt Industries, Inc. v. Fusco, 753 A.2d
           264, 269 (Pa. Super. 2000).

Walton v. Johnson, 66 A.3d 782, 786-787 (Pa. Super. 2013) (footnote,

some citations, and internal quotation marks omitted).

     The trial court aptly analyzed this issue in its Rule 1925(a) opinion.

                 Here, the facts that were presented to the
           [j]ury were in dispute, thereby, [the] [t]rial [c]ourt
           did not err in allowing the [j]ury to properly
           determine whether an agency relationship existed
           between [] Trans-Fleet and 5 Star. [] Trans-Fleet
           presented the testimony of Mr. and Mrs. Franks who
           were the sole officers and executives of [] Trans-
           Fleet and 5 Star. Mrs. Franks testified that [] Trans-
           Fleet delivered ready-mix concrete and 5 Star was a
           concrete pumping service. Mrs. Franks testified that
           both companies had separate invoicing systems,
           bank accounts, tax returns, pricing, telephone
           numbers, and websites. On cross examination, Mrs.
           Franks testified that the business address for []
           Trans-Fleet and 5 Star was the same and they
           operated out of the same office. There was one sign
           outside of that business address that advertised the
           businesses of both [] Trans-Fleet and 5 Star. The
           employees for [] Trans-Fleet were the same
           employees that generated invoices and answered the
           phones for 5 Star.        In March of 2010, when
           customers called [] Trans-Fleet, they could order
           concrete and a concrete pump truck all with one
           phone call. The concrete was provided by [] Trans-
           Fleet. Then, [] Trans-Fleet’s employees provided a
           concrete pump truck exclusively from 5 Star. As the
           [p]resident of [] Trans-Fleet, Mr. Franks provided the
           only training that was required to operate 5 Star’s
           concrete pump trucks. Mr. John Leal, the owner of
           Albino, testified that when he hired [] Trans-Fleet in
           2010 to deliver concrete and a concrete pump truck,
           he thought that [] Trans-Fleet supplied both the
           concrete and the concrete pumps. As the evidence
           demonstrated at [t]rial and was briefly summarized

                                    - 14 -
J-A15022-15


            above, there was sufficient evidence presented which
            would lead the [j]ury to determine an agency
            relationship existed.    Since there was a factual
            dispute regarding the agency relationship between []
            Trans-Fleet and 5 Star, the question was properly
            submitted to the [j]ury.

Trial Court Opinion, 10/16/14, at 8-9 (citations omitted). We conclude that

the trial court did not commit an error of law or an abuse of discretion, and

this portion of Trans-Fleet’s sixth subissue lacks merit.

      Further, Trans-Fleet contends that the trial court’s actions amounted

to a de facto piercing of the corporate veil under the “single entity” theory.

Trans-Fleet’s Brief at 42, 44. However, Trans-Fleet did not raise this issue in

its Rule 1925(b) statement and it is not reasonably inferable from any of the

issues included therein.     See Trans-Fleet’s Concise Statement of Errors

Complained of on Appeal, 7/30/14.        Accordingly, we deem this portion of

Trans-Fleet’s sixth subissue waived. See Greater Erie, supra.

      In its second issue on appeal, Trans-Fleet argues that the verdict was

against the weight of the evidence because the DeFrancas did not introduce

evidence that a 5 Star pump truck was at the construction site on the day

Mr. DeFranca was injured. Trans-Fleet’s Brief at 46-49. Specifically, Trans-

Fleet submits that Mr. DeFranca’s testimony did not reference 5 Star by

name and Trans-Fleet claims that DeFranca’s description of the color scheme

of the pump truck involved in the incident did not match the color scheme of

5 Star’s pump trucks.      We begin by noting the standard that guides our

review of claims that a verdict is against the weight of the evidence.

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J-A15022-15


                  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, 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.

Haan v. Wells, 103 A.3d 60, 69-70 (Pa. Super. 2014) (citations and

internal quotation marks omitted; brackets in original).

      In the trial court’s opinion, it detailed the evidence the DeFrancas

presented at trial that supported the jury’s verdict as follows.


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J-A15022-15


           During the trial, ample evidence was presented that
           the 5 Star concrete pump truck was the truck that
           caused [Mr. DeFranca’s] injury and that a concrete
           delivery truck owned by [] Trans-Fleet was at the
           worksite at the time of the injury. [Mr. DeFranca]
           testified that on the day of his fall[,] the pump truck
           was yellow. He also identified the 5 Star concrete
           pump truck in a photograph that was marked as
           Exhibit P-4 as a true and accurate depiction of the
           pump truck involved in his accident.           On cross
           examination, [Mr. DeFranca] clarified that when he
           was asked the color of the pump truck in which he
           replied yellow, he was referring to the boom which is
           part of the pump truck that he was holding onto.
           Mrs. Franks, the Secretary and Treasurer of Trans-
           Fleet and the []49%[] owner of 5 Star, testified that
           in March of 2010, 5 Star’s pump trucks were white
           with a yellow and green stripe and a yellow boom.
           [The DeFrancas] also read to the [j]ury from the
           transcript of the deposition testimony of Mr. John
           Leal, the President of Albino Construction. Mr. Leal
           was asked by [] Trans-Fleet whether he had any
           specific recollection of working with Trans-Fleet on
           the job where [Mr. DeFranca] was injured. Mr. Leal
           responded that he [was not] positive as far as Trans-
           Fleet working on that job site but probably. The
           testimony of [Mr. DeFranca], Mrs. Franks, and Mr.
           Leal that was presented to the [j]ury was sufficient
           evidence that could reasonably lead a [j]ury to
           conclude that Trans-Fleet and/or 5 Star’s vehicles
           and operators were involved in [Mr. DeFranca’s]
           accident on March 22, 2010.

Trial Court Opinion, 10/16/14, at 11-12 (citations omitted).

     We have reviewed the record and the trial court’s consideration of the

same, and we discern no abuse of discretion in the trial court’s rejection of

Trans-Fleet’s weight of the evidence claim. As the trial court noted, there

was ample evidence that Mr. DeFranca was injured while operating a pump

connected to a 5 Star pump truck. Id. Specifically, Mr. DeFranca testified

                                    - 17 -
J-A15022-15


that the pump truck pictured in exhibit P-4 was a true and accurate depiction

of the pump truck involved in his accident. See id.; N.T., 11/19/13, at 27.2

Similarly, on cross-examination, Mr. DeFranca clarified that when he

identified the truck as yellow, he was referring to the boom on the truck,

which was the part of the truck that he was in direct contact with.            N.T.,

11/19/13, at 44.        Mrs. Franks’ testimony confirmed that 5 Star’s pump

trucks had a yellow boom. N.T., 11/20/13, at 80, 86. The factfinder was

free to weigh this evidence and conclude it was credible, and to reject Trans-

Fleet’s argument to the contrary. Having reviewed the record, we conclude

the record supported this determination.           Consequently, the trial court did

not abuse its discretion in refusing to grant JNOV based on the weight of the

evidence, and Trans-Fleet’s second issue on appeal is meritless. See Haan,

supra.

       In its third issue on appeal, Trans-Fleet contends that the trial court

improperly excluded, as hearsay, GPS evidence that allegedly indicated that

a 5 Star vehicle was not in the vicinity of the construction site on March 22,


____________________________________________


2
  We note that the trial exhibits are not part of the certified record, and our
attempt to obtain them from the trial court was unsuccessful.               The
DeFrancas’ brief represents that the original exhibit P-4 “cannot be located,”
but the DeFrancas supplemented the reproduced record with a photograph
that they claim is identical to the one that was submitted as P-4. The trial
court’s description of exhibit P-4 in its 1925(a) opinion confirms the contents
of exhibit P-4. Accordingly, we address the merits of this issue and decline
to find waiver.



                                          - 18 -
J-A15022-15


2010.     Trans-Fleet’s Brief at 50-57.     We review trial courts evidentiary

rulings according to the following standard.

             When we review a trial court ruling on admission of
             evidence, we must acknowledge that decisions on
             admissibility are within the sound discretion of the
             trial court and will not be overturned absent an
             abuse of discretion or misapplication of law. 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.

Commonwealth Fin. Sys., Inc. v. Smith, 15 A.3d 492, 496 (Pa. Super.

2011) (citations and internal quotation marks omitted).

        Specifically, 5 Star argues that the GPS evidence was admissible as a

record regularly kept in the course of its business. Trans-Fleet’s Brief at 50.

We note that Pennsylvania Rule of Evidence 803(6) provides a record of a

regularly conducted business activity will not be excluded by the rule against

hearsay if all the following conditions are met.

             Rule 803. Exceptions to the Rule Against
             Hearsay--Regardless of Whether the Declarant
             Is Available as a Witness

                                        …

             (6) Records of a Regularly Conducted Activity.
             A record (which includes a memorandum, report, or
             data compilation in any form) of an act, event or
             condition if,

             (A) the record was made at or near the time by--or
             from information transmitted by--someone with
             knowledge;

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J-A15022-15



           (B) the record was kept in the course of a regularly
           conducted activity of a “business”, which term
           includes    business,    institution,   association,
           profession, occupation, and calling of every kind,
           whether or not conducted for profit;

           (C) making the record was a regular practice of that
           activity;

           (D) all these conditions are shown by the testimony
           of the custodian or another qualified witness, or by a
           certification that complies with Rule 902(11) or (12)
           or with a statute permitting certification; and

           (E) neither the source of information nor other
           circumstances indicate a lack of trustworthiness.

Pa.R.E. 803(6)(A)-(E).

     5 Star asserts that Mrs. Franks, as the user and keeper of the records,

was the only witness necessary to establish the trustworthiness of the

records. Id. at 54. The trial court, however, disagreed and explained that

Mrs. Franks could not do so because she was not the party that actually

made the GPS records as follows.

                  During oral argument at trial, [] Trans-Fleet
           argued that the GPS data records were business
           records of Trans-Fleet because they were regularly
           kept by Mrs. Franks and she had personal knowledge
           of them. The GPS data records would have been
           introduced into evidence through the testimony of
           Mrs. Franks. Mrs. Franks would have testified that
           the GPS data records were maintained on Trans-
           Fleet’s work computer, updated every day, and
           tracked where employees traveled each day and
           what truck and/or equipment was used. Defendant
           Trans-Fleet stated that Mrs. Franks had personal
           knowledge of the GPS data records because she had
           the Five Cubits Track It system open on her office

                                   - 20 -
J-A15022-15


           computer every day and used the printout of the
           information created by that system. Mrs. Franks did
           not create the GPS data records that [] Trans-Fleet
           sought to introduce. Instead, [Mrs. Franks] used the
           GPS data that was created by other companies. The
           GPS data records at issue contained GPS coordinates
           that were taken from a company that operated the
           satellite, who them forwarded the information to the
           Five Cubits Track It system which created the
           records that Mrs. Franks accessed on her Trans-Fleet
           computer to track the location of her employees,
           trucks, and equipment. [The] [t]rial [c]ourt found
           that Mrs. Franks did not have the requisite
           knowledge to establish the trustworthiness needed
           for GPS data records to be admitted into evidence as
           a business record under Pa.[R.E.] 803(6).

                  []Trans-Fleet did not present a witness from
           the company that operated the GPS satellite or a
           witness from Five Cubits Track It system[, the
           company that created the GPS records,] with
           knowledge that could be sufficient evidence for the
           trustworthiness of the GPS data reords. Thus, the
           [DeFrancas] would have been precluded from cross
           examining the creator of the data about how the GPS
           tracking units were calibrated, whether the satellites
           were tested that day to determine if they were
           functional in the area where the incident occurred on
           March 22, 2010. Additionally, the [DeFrancas] would
           have been precluded from inquiring into how Five
           Cubits Track It gathered the information, created the
           GPS data records used by Mrs. Franks, and the
           reliability and accuracy of those GPS data records.
           Therefore, [the] [t]rial [c]ourt [] excluded the GPS
           data records as they were inadmissible hearsay due
           to the lack of trustworthiness created by the absence
           of a witness with knowledge as to the creation and
           accuracy of these records.

Trial Court Opinion, 10/16/14, at 12-13 (citations omitted).

     After careful review, we conclude that the trial court did not abuse its

discretion or commit an error of law. The record supports the trial court’s

                                    - 21 -
J-A15022-15


conclusion that Mrs. Franks was not the proper witness to authenticate the

GPS records and establish their trustworthiness because she was not the one

who created them.     Instead, Five Cubits Track It, a third party company,

created the records based on information it received from a GPS satellite

company. Mrs. Franks merely viewed the records after Five Cubits Track It

created them.    The trial court was in the best position to determine the

trustworthiness of the evidence, and we will not substitute our judgment.

We conclude that the trial court did not abuse its discretion or err as a

matter of law in excluding the GPS records, based on its concerns about the

authentication and trustworthiness of the evidence.       See Smith, supra

(explaining “regardless of a ‘nationwide trend’ and ‘clear federal precedent’

for allowing the introduction of business records consisting of documents

generated by third parties, the Pennsylvania Supreme Court has not seen fit

to adopt the rule of incorporation[]”).

      Moreover, prior to trial, Trans-Fleet’s counsel agreed that the GPS

records were not admissible in the absence of testimony from a Five Cubits

Track It representative. N.T., 11/15/13, at 37 (conceding “If I can’t get [a

representative of Five Cubits Track It] here … I don’t disagree that I can’t

authenticate the [GPS] records[]”). The trial court then stated that it would

revisit the issue if Trans-Fleet presented such a representative. Id. Trans-

Fleet, however, did not obtain a Five Cubits Track It representative to testify

in its case or attempt to introduce the GPS records at trial.   Accordingly, we


                                     - 22 -
J-A15022-15


conclude that Trans-Fleet’s third issue on appeal lacks merit.    See Smith,

supra.

      In its fourth issue on appeal, Trans-Fleet argues that the trial court

erred by submitting the issue of negligent training to the jury. Trans-Fleet’s

Brief at 57-60. Specifically, Trans-Fleet maintains that it did not have a duty

to train 5 Star’s employees because the two companies were separate

entities.   Id. at 57-58.   Further, Trans-Fleet submits that the evidence

presented showed that the pump truck operator actually was trained

properly because he correctly unclogged the hose twice before the accident.

Id. at 58. The trial court explained that the following evidence supported

submitting the issue to the jury.

             The [DeFrancas] presented the testimony of Mr.
             Thomas Cocchiola, P.E., an expert in the fields of
             mechanical and safety engineering. Mr. Cocchiola
             testified that the American Concrete Pumping
             Association    manuals      which    address    safety
             procedures regarding clogs and hose whipping states
             that the pump operator should stop the pump, get
             the people out of the way, and try to jog it back and
             forth to try and release or reduce or remove the
             clog, but ultimately shut it down, dissipate pressure,
             and then disassemble the lines and clean them out.
             The testimony of [Mr. DeFranca] indicated that the
             pump truck operator did not signal [Mr. DeFranca] to
             get out [of] the way and increased the pressure
             which caused the hose whipping.         Mr. Cocchiola
             testified to a reasonable degree of mechanical and
             safety engineering that the pump truck operator did
             not meet the standard of care as described by the
             American Concrete Pumping Association manuals.
             He further testified that the concrete pump truck
             operator did not follow what basically is the industry


                                     - 23 -
J-A15022-15


           custom and practice with respect to operating the
           pump and attending to a clog.

                 Mr. Franks, the owner of Trans-Fleet and the
           []51%[] owner of 5 Star, testified that as the
           president of Trans-Fleet he had been involved with
           providing training to operators of concrete pump
           trucks and continued to do so after 5 Star was
           created in 2007. Mr. Franks did not require the
           pump truck operators that worked for him to be
           tested on the owner’s manuals before they began to
           operate the pump. Mr. Franks required them to go
           through training with him before they operated the
           pump on their own.         A jury could reasonably
           conclude that Trans-Fleet had a duty to train the
           pump truck operators based on Mr. Franks’
           testimony that the only training required to work at
           5 Star is with him. A jury could also reasonably
           conclude that Trans-Fleet’s training was negligent
           because the [DeFrancas’] mechanical and safety
           engineering expert, Mr. Cocchiola, testified that the
           pump truck operator’s actions were below the
           standard of care. Based on the testimony of Mr.
           Franks and Mr. Cocchiola, [the] [t]rial [c]ourt did not
           err in allowing the [j]ury to consider whether there
           was negligent training by Trans-Fleet.

Trial Court Opinion, 10/16/14, at 14-15 (footnote and citations omitted).

     After carefully reviewing the record and the trial court’s opinion, we

conclude that the trial court’s Rule 1925(a) opinion fully sets forth

Appellant’s claims, identifies the proper standard of review, discusses the

evidence presented at trial, and explains the basis for its conclusion that

there was sufficient evidence on the issue of negligent training to submit it

to the jury.   We conclude that the well-reasoned opinion of Judge Paul P.

Panepinto is in agreement with our own views. Accordingly, we conclude the




                                   - 24 -
J-A15022-15


trial court did not abuse its discretion or err as a matter of law in submitting

the issue of negligent training to the jury.

      Based on the foregoing, we conclude all of Trans-Fleet’s issues on

appeal are waived or devoid of merit. The trial court did not commit a clear

abuse of discretion or error of law that would warrant JNOV or a new trial.

See Braun, supra; ACE Am. Ins. Co., supra.            Therefore, we affirm the

June 17, 2014 judgment.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/6/2016




                                     - 25 -
