J-A16027-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 RAYMOND SOSA                               :    IN THE SUPERIOR COURT OF
                                            :         PENNSYLVANIA
                     Appellant              :
                                            :
                                            :
              v.                            :
                                            :
                                            :
 SEBASTIAN RODRIGUEZ & THE IBS              :    No. 3953 EDA 2017
 GROUP, LLC                                 :

           Appeal from the Judgment Entered November 20, 2017
    In the Court of Common Pleas of Philadelphia County Civil Division at
                          No(s): No. 151105717


BEFORE: BENDER, P.J.E., LAZARUS, J., and FORD ELLIOTT, P.J.E.

CONCURRING STATEMENT BY LAZARUS, J.:                  FILED AUGUST 07, 2019

      I join in the majority’s decision to affirm the trial court’s order denying

Raymond Sosa’s post-trial motion. I am constrained to do so, owing to the

failure of Sosa’s attorney to provide the trial court with any evidence of the

stipulation by and between counsel. I write separately to further explicate the

principles underpinning stipulations, define key terms, and underscore my

disappointment with the unartful practice of law in the court below.

      I am obligated to affirm the result below, purely as result of Mark

Greenfield, Esquire, trial counsel for Sosa, failing to present the trial court with

any evidence whatsoever that he and Lauren Glynn, Esquire, trial counsel for

Sebastian Rodriguez and the IBS Group (“the Defendants”), entered into an

agreement stipulating to Rodriguez’s liability. See Pa.R.A.P. 1925(a) opinion,

2/6/18, at 2 (“No written stipulation was presented to the court and no
J-A16027-18



stipulation had been entered on the docket for court approval.”); see also

Eck v. Eck, 475 A.2d 825, 827 (Pa. Super. 1984) (“[A] trial court may not

consider facts of evidence dehors the record in making its determination.”)

(emphasis added). I, therefore, cannot consider it an abuse of discretion for

the trial court to fail to enforce an agreement for which no evidence was

presented.    See N.T. Trial, 10/11/17, at 13 (ruling below based on

“conversation on the record” which does not reflect a “broad stipulation.”).

      I write separately to make clear that had Attorney Greenfield merely

filed his stipulation with the court or presented evidence in the form of

correspondence between himself and Attorney Glynn, he would have been

able to enforce the agreement stipulating to liability. It has long been settled

law that “[a]ny matter which involves the individual rights or obligations of

the parties inter se may properly be made the subject of a stipulation between

them.” Foote v. Maryland Cas. Co., 186 A.2d 255, 258 (Pa. 1962). Any

such agreement “will become the law of the case.” Muir v. Preferred Acc.

Ins. Co of New York, 53 A. 158, 160 (Pa. 1902) (emphasis added); see

also Tyler v. King, 496 A.2d 16, 21 (Pa. Super. 1985) (“[C]oncessions made

in stipulations are judicial admissions, and accordingly[,] may not later in the

proceeding be contradicted by the party who made them.”).

      Nearly eight months before the case went to trial, Attorney Glynn agreed

“to stipulate to the following: 1. Liability is 100% on defendant, Sebastian

Rodriguez.”   Glynn email, 2/27/17, at 1.     The day of the trial, however,

Attorney Glynn stated “I’m not going to argue liability. In terms of causation

                                     -2-
J-A16027-18



of damages, I am contesting all of it.” N.T. Trial, 10/11/17, at 7. She further

explained “the stipulation to one hundred percent liability[,] as opposed to

one hundred percent negligence[,] assumes both negligence and factual

cause.”     Id. at 7–8.     These statements hint at one of two possibilities:

Attorney Glynn’s actions either expose a fundamental misunderstanding of

basic     legal   principles,   implicating   her   duty   to   provide    competent

representation, or they illustrate a form of legal practice so sharp, it

constitutes nothing less than a lack of candor toward the tribunal.              See

Pa.R.P.C. 1.1, 3.3.

        Negligence is a tort, requiring proof of duty, breach, proximate cause,

factual cause, and damages. See Straw v. Fair, 187 A.2d 966, 982 (Pa.

Super. 2018). Liability is “[t]he quality, state, or condition of being legally

obligated or accountable . . . enforceable by civil remedy[.]”            Black’s Law

Dictionary (11th ed. 2019), liability. Factual cause is “[t]he cause without

which the event could not have occurred.” Black’s Law Dictionary (11th ed.

2019), but-for cause (defining cause in fact as synonymous with but-for

cause).     Negligence, liability, and factual cause are plainly distinguishable

terms, all of which should be equal parts understandable and unambiguous to

a licensed attorney. One is liable for negligence when, inter alia, his actions

were the factual cause of another’s injuries. We are unclear as to whether

Attorney Glynn stipulated to liability being “100% on . . . Rodriguez” as an

inducement to persuade Attorney Greenfield to agree not to call Rodriguez at

trial, or if she genuinely believed being liable for negligence did not encompass

                                         -3-
J-A16027-18



factual cause. In any event, Attorney Glynn had a professional obligation to

understand these terms of art, and a concomitant duty to follow through on

the statements she made to opposing counsel.         Unfortunately, Attorney

Greenfield also had an obligation to provide the trial court with a sufficient

basis to find the parties entered into a binding stipulation. As he did not do

so, I concur.




                                    -4-
