J-A04008-19

                                   2019 PA Super 336


    LOUIS FARESE AND KATHARINE                 :   IN THE SUPERIOR COURT OF
    FARESE                                     :        PENNSYLVANIA
                                               :
                                               :
                 v.                            :
                                               :
                                               :
    JAMES ROBINSON AND VENTURI                 :
    TECHNOLOGIES, INC.                         :   No. 145 EDA 2018
                                               :
                       Appellant               :

              Appeal from the Judgment entered December 4, 2017
      In the Court of Common Pleas of Philadelphia County Civil Division at
                          No(s): April 2015 No. 01084


BEFORE: LAZARUS, J., KUNSELMAN, J., and COLINS, J.*

DISSENTING OPINION BY LAZARUS, J.:                  FILED NOVEMBER 08, 2019

        I respectfully dissent. First, I do not believe that Appellants waived their

request for a new trial based upon counsel failing to “clearly”1 or “explicitly”2

request a mistrial during or after the conclusion of closing argument. Second,

contrary to the majority’s determination that the trial judge’s efforts

“extinguished” the “flames of prejudice”3 ignited by Appellees, I believe that

the trial court’s lackadaisical attempts to control counsel’s conduct hardly

cured the harm.           Third, Appellees’ counsel’s repeated inflammatory

comments, made throughout his opening and closing arguments, prejudiced
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1   See Majority Opinion, 11/8/19, at 17.

2   Id. at 10.

3   Id. at 19.



*Retired Senior Judge assigned to the Superior Court.
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the fact finder, so much so that even a proper curative instruction would not

have “adequately obliterate[ed] the taint.”4 Accordingly, I conclude that a

new trial on damages is warranted under the specific facts of this case.

       I wholeheartedly disagree that Appellants waived their argument to

support a new trial on the basis of counsel’s comments made during closing

argument. Here, the rule of issue preservation, first espoused in Dilliplaine

v. Lehigh Valley Trust Co., 322 A.2d 114 (Pa. 1974),5 was clearly satisfied

where Appellants’ counsel renewed his objections throughout opening and

closing arguments on the same general basis – Appellees’ counsel improperly

interjecting punitive elements into the case. Moreover, Appellees’ counsel’s

error was repeatedly brought to the court’s attention as Appellants’ counsel

referenced “mistrial” no fewer than ten times throughout opening argument.

See N.T. Trial (Jury), 9/27/16 at 46, 67, 71, 73, 111, 146, 194, 19-97.

Notably, when overruling Appellants’ counsel’s objection to Appellees’


____________________________________________


4   Young v. Washington Hosp., 761 A.2d 559, 561-62 (Pa. Super. 2000).

5 The Dilliplaine Court explained that requiring a timely, specific objection at
trial promoted judicial efficiency by giving the trial court the opportunity to
correct trial errors, reducing the need for appellate review of those issues, and
avoiding the delay to litigants inherent in appellate review. Id. at 117. The
“Dilliplaine rule” has come to be known as the “contemporaneous objection”
rule and is now codified in Pa.R.C.P. 227.1(b). See Stapas v. Giant Eagle,
Inc., 197 A.3d 244, 248 (Pa. 2018). Cases such as McMillen v. 84 Lumber,
649 A.2d 932 (Pa. 1994) and Tagnani v. Few, 426 A.2d 595 (Pa. 1981),
have extended this waiver principle to require not only timely objections, but
now, in certain circumstances, request of an additional remedy such as a
curative instruction or mistrial before a litigant can be deemed to have
preserved his or her right to request a new trial.

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counsel’s repeated references to Appellants’ “ill motives,” the trial court noted

Appellees’ counsel’s remarks were “borderline,” id. at 66, and that if counsel

were to continue down that path it would be grounds for a mistrial. Id. at 67

(“We’re borderline – I don’t think that last question isn’t proper. The last

thing. I’m going to allow it, but if it gets to the point where I’m going to have

to allow [Appellants’ counsel] to say, in my mind, we’ve been more than

generous. Then it’s a mistrial.”) (emphasis added). Compare Tagnani v.

Lew, 426 A.2d 595 (Pa. 1981) (where opposing counsel asked one improper

question, as opposed to continuously interjecting improper references

throughout trial, counsel’s singular objection was inadequate to protect

client’s interests; request for curative instruction or mistrial required to

preserve issue and warrant grant of new trial), with Siegal v. Stefanyszyn,

718 A.2d 1274, 1277 n.5 (Pa. Super. 1998) (in refuting waiver argument,

Court noted appellants’ counsel’s continuing contest of trial judge’s ruling

effectuated purpose of objecting, promulgated in Dilliplaine, which is “to

acquaint the trial judge with a claim of error and present the judge with an

opportunity to correct the error.”).

         In addition to the multiple objections made by Appellants’ counsel

throughout closing argument, several of counsel’s objections were either

overruled by the trial judge in closing arguments or never ruled upon in open

court.     Thus, this situation better aligns with the facts in Factor than

McMillen, and militates against waiver. See Factor v. Bicycle Tech., 707

A.3d 504 (Pa. 1998) (where objection to evidence in McMillen was sustained

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by court and where trial court in Factor denied appellants’ motion to strike

expert testimony, no waiver found in Factor where asking for mistrial would

be irrelevant). See also Deeds v. Univ. of Pa. Med. Ctr., 110 A.3d 1009

(Pa. Super. 2015) (same holding as Factor); Siegal, supra (same).

        With regard to a curative instruction, it is imperative to note that

Appellants’ counsel actually began to ask for a curative instruction after

Appellees’ counsel made repeated, improper references to the cost of litigation

in closing arguments; Appellants’ counsel, however, was interrupted by the

trial judge who told counsel he could give him an instruction before they broke

for lunch. See N.T. Trial (Jury), 10/3/16, at 73. In fact, earlier on the morning

of closing arguments, Appellants’ counsel asked the court to give an

instruction (#14)6 regarding punitive damages not being an issue in the case

based on Appellees’ counsel’s prior inflammatory remarks.            The court,



____________________________________________


6   Appellants’ proposed jury instructions #14 stated:

        You may not include in any award to the Plaintiff any amount that
        you might add for the purpose of punishing Defendant or to serve
        as an example or warning for others. Such damages would be
        punitive, and are not authorized. Wildman v. Burlington
        Northern R. Co., 825 F.2d 1392 (9th Cir. 1987); Kozar v.
        Chesapeake & Ohio Ry., 449 F.2d 1238, 1240 (6th Cir. 1974);
        Matter of Mardoc Asbestos Case Clusters 1, 2, 5 and 6, 768
        F.Supp. 595, 597 (E.D. Mich. 1991); Toscano v. Burlington
        Northern R. Co., 678 F.Supp. 1477, 1479 (D. Mont. 1987).

Defendants’ Proposed Jury Instructions, 9/19/16, at ¶ 14.




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however, left that requested charge “open . . . [r]ight now . . . [and did] not

. . . accept it.” Id. at 18-19.

        Finally, the court’s bland instruction that the jury should “keep [their]

deliberations free of any bias or prejudice”7 falls woefully short of curing any

prejudice inflicted by Appellees’ counsel in opening and closing arguments.

Siegal, supra (in deciding to grant new trial, Court noted that it “was forced

to conclude that . . . the [court’s] instruction did not accurately convey to the

jury what was true. . . and the thrust of the instruction was not directed toward

that damage done[.]”). The court gave no explanation of punitive damages

to the jury, nor did it provide an admonition that punitives were not at issue

in the case.

        Moreover, had Appellants offered a curative instruction, in addition to

their proposed Jury Instruction #14, which the court left “open” and never

issued, see N.T. Trial (Jury), 10/3/16 at 18, I would find that the current

situation falls within the narrow line of cases “where the comments of counsel

are so offensive or egregious that no curative instruction can adequately

obliterate the taint.” Young, 761 A.3d at 561-62. The trial court’s repeated

tolerance of Appellees’ counsel’s inflammatory remarks made throughout

opening and closing arguments,8 overruling of several of Appellants’ counsel’s

____________________________________________


7   N.T. Trial (Jury), 10/3/16, at 169.

8 Although the relevant prejudicial comments and interjections by Appellees’
counsel occurred during opening and closing arguments, Appellants also



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objections, and failure to make critical rulings on other objections in open

court neither “alleviated any such concern[s],” nor amounted to “numerous

and persistent efforts to ameliorate each transgression and preserve the

integrity of the trial.” Majority Opinion, 11/8/19, at 18.

       In coming to my conclusion that there is no waiver and that a new trial

is warranted under the facts of this case, I recognize the strong policy

considerations behind the waiver rule, first espoused in Dilliplaine and

reiterated in McMillen. However, I do not believe those are implicated by the

facts of this case where the court was clearly aware9 of counsel’s repeated

objections to Appellees’ counsel’s prejudicial actions throughout opening and

closing arguments and where the court had more than sufficient opportunity

to correct the error. Cf. McMillen, supra (court found waiver where trial


____________________________________________


objected to several errors during trial. In particular, Appellants’ counsel
objected to the Appellees showing the jury photographs of Mr. Farese’s vehicle
after the accident, on the grounds that the photos allowed the jury to
speculate how the severe damage related to the plaintiff’s injuries and that it
unduly prejudiced Appellants. See N.T. Trial (Jury), 10/30/16, at 38-39.

9 To illustrate just how aware the trial judge was regarding Appellants’
objections to Appellees’ counsel’s prejudicial behavior, the trial judge, himself,
noted:

       I’ve been practicing for 27 years. I’ve never in the courtroom
       seen closing arguments in a personal injury lawsuit concentrate
       more on the behavior of the attorney and his clients and how
       horrible.

N.T. Trial (Jury), 10/3/16, at 90-93




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J-A04008-19



counsel’s singular and sustained objection to opposing counsel’s violation of

court order limiting witness testimony did not also consist of motion for

mistrial); Tagnani, 426 A.2d at 374-75 (“Appellate court consideration of

issues not raised in the trial court results in the trial becoming merely a dress

rehearsal. . . . Failure to interpose a timely objection at trial denies the trial

court the chance to hear argument on the issue and an opportunity to correct

the error.”).10

       Here, where Appellees’ counsel’s comments had the unavoidable effect

of   improperly    influencing     the   jury’s   determination,11   a   new   trial   is

____________________________________________


10 While the preferred course of action may have been for counsel to request
a second mistrial after closing arguments, as discussed supra, the waiver
doctrine is not served by applying it to the instant case, where Appellees’
counsel did move at the beginning of trial for a mistrial, and repeatedly and
consistently objected to Appellees’ counsel’s continuing prejudicial remarks –
a common thread woven throughout the case.
11  The following excerpts from opening and closing statements illustrate
Appellees’ counsel’s inflammatory and prejudicial remarks necessitating a new
trial:

       The next reason we’re suing the defendants is because they have
       a low value for human well-being.

       They don’t want [Plaintiff] to have [ongoing medical treatment].
       They don’t want to pay for it.

       The last reason we’re here is because the defendants refused to
       provide full and fair compensation. We’re forced to bring them to
       trial.

       Defendants know how expensive this [trial] is. They bring
       us to court.



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J-A04008-19




____________________________________________


N.T. Trial (Jury), 9/27/16, at 63-64, 69-70, 74 (emphasis added).

       They know just how difficult that is to do, spending thousands of
       dollars to bring plaintiff’s treating physicians in to have them
       testify on their behalf.

                                       *       *   *

       Well, what’s crazy is having to spend $5,000 to pay a doctor
       to come in here.

       We all know how expensive medical care costs are. We know what
       it costs to go for treatments and get medicines and things like
       that. What’s crazy is forcing us to have to do that, and people like
       Venturi with companies like that and people like Mr. Robinson,
       they know this. What they also know is there’s [sic] a certain
       amount of people that can’t do it.

                                       *       *   *

       You may be outraged by it. You should be. That’s a lot of
       money to have to spend. But those are crazy numbers.

N.T. Trial (Jury), 10/3/16, at 70-71 (emphasis added). In closing statements,
Appellees’ counsel also made the following remarks:

       They’re calling Mr. Farese a fraud. That’s what they’re saying he
       is here in court, a fraud.

       Shame on them for doing this to him, for what they’ve put him
       through for the past years and what he has to go through for the
       next at least 20 years and what they’ve done to him in this
       courtroom. Shame on those defendants for doing this to
       him.

       They brought [Mr. Farese] to court, and the part about this that
       really is so aggravating to Mr. Farese and his family is that this
       saying that they’ve agreed to negligence, it wasn’t always like
       that. They didn’t want to agree until they were forced to about
       what happened here.



                                           -8-
J-A04008-19




____________________________________________


       They blamed Mr. Farese for what happened. They then go and
       file, if an accident occurred in the manner alleged by the plaintiffs,
       then such accident occurred as a result of the negligence of the
       plaintiff, Mr. Farese. Are you kidding me? This is what this
       gentleman has been tormented for in the past years. They knew
       exactly what they were doing. This case was going to court from
       day one and he had to do everything possible to protect himself
       from how he was being treated.

       What sort of people slams somebody in the rear, causes the car
       to flip up in the air, causes injury to these people and then says,
       let’s make up an excuse, let’s come up with some reason why we
       don’t have to pay them as much money as they’re entitled to.

       They could [sic] care less about what they did to Mr. Farese, trying
       to make him look like he’s not hurt that bad.

       []This is how he gets treated by these people.

       You know what? The thought always is, well, let’s throw out what
       we can, let’s say that we’re responsible for the accident. Because
       maybe the jury will like us if we do that so we can save some
       money. That’s not taking responsibility for anything, ladies
       and gentlemen. These people didn’t even bother to show
       up to court. [T]hey don’t even have the courtesy to show
       up here.

       Responsibility is paying in full for what you did.

       [W]hat these people are doing here is trying to avoid what their
       responsibility is. They’re hiding from it. . . . You see, the
       defendants also have no limits on how they attack someone’s
       character.

                                       *       *   *

       This is about real human suffering that’s going on and the
       defendants just don’t want to pay for it. That’s the bottom line.

N.T. Trial (Jury), 10/3/16, at 59, 61-65, 70-71, 88 (emphasis added). Finally,
the following portion of Appellees’ counsel’s closing argument certainly “fan[s]



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J-A04008-19


____________________________________________


the flames of prejudice,” Proposed Majority Opinion, 11/8/19, at 19, and
improperly injects punitive elements into a compensatory damages case:

       How the defendants view human well-being is in your
       hands. The only tool that you have that you’[v]e giv[en] in our
       judicial system is one by entering a full and fair award. That will
       be the determinant for these people to follow the rules.

       Society is going to have to know any time they’re driving in
       front of a Venturi Technologies truck, they’re going to be
       okay. These people have to know they need to spend more
       money on making the highway safe for other motorists
       tha[t] come to court and try [] to protect their money now.

       Protecting money can never be more important than
       protecting the safety and well-being of a human being. All
       we’re asking you to do is hold them responsible for what they
       broke.

                                       *       *    *

       What they’ve taken away from [Mr. Farese] is his good name, a
       good name he’s enjoyed before he get involved with any of this.
       To prevent the amount of money. They’ve put Mr. Farese’s good
       name in jeopardy in public.

                                        *   *    *
       It’s all to protect their money. They’ll do anything to protect
       that money. Blame people and tell the jury things they shouldn’t
       be telling him. You see it didn’t just stop there. It wasn’t just
       [Mr. Farese] they attacked in court here. It was his doctors too.

                                               *    *   *

       That’s what [Mr. Farese] wants. The doctors will be vindicated
       by you. That’s what they want.


N.T. Trial (Jury), 10/3/16, at 94-96 (emphasis added).

      The language emphasized in the above-quoted text from counsel’s
opening and closing arguments, read in the context of the entire proceedings,
certainly prejudiced the fact finder where Appellees interjected the issues of



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J-A04008-19



unquestionably warranted. See Deeds, supra; see also Nelson v. Airco

Welders Supply, 107 A.3d 146 (Pa. Super. 2014). In essence, Appellees’

counsel’s repeated remarks about Appellants’ improper motives tainted the

entire judicial proceeding, such that Appellants’ counsel’s objections and

request of a mistrial in opening statements, combined with his repeated

objections throughout closing arguments, sufficed to preserve Appellant’s

request for a new trial. Poust v. Hylton, 940 A.2d 380 (Pa. Super. 2007).

Thus, I dissent.




____________________________________________


Appellants’ allegedly frivolous defenses, the exorbitant amount of money
Appellants had to spend to find doctors to testify in the case, and the alleged
need to protect society’s well-being from Appellants’ actions. The language
was prejudicial to Appellants, especially where the statements appealed to the
passions of the jury and the trial judge neither sustained objections to those
statements in open court, nor issued a curative instruction to correct any
potential prejudice.
       As demonstrated by the above-quoted excerpts from trial, Appellants
were in a no-win situation. They could either object to almost every statement
made by Appellees’ counsel, or they could remain silent and allow Appellees’
counsel to repeatedly inflame the jurors’ passions, prey on their emotions and
appeal to their sense of outrage. It is axiomatic that defense counsel, even
after stipulating to causation and liability, had the right, if not the obligation,
to question Mr. Farese’s damages, which Appellants legitimately felt were
inflated. Given a fair presentation of both sides, the jury would have been
called upon to make a determination free from undue influence. That did not
happen in this trial. Appellees’ counsel did his clients no favor in the manner
he excoriated the defense without justification.


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