J-A04004-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 JOHN DUKES, JR.                         :    IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                     Appellant           :
                                         :
                                         :
              v.                         :
                                         :
                                         :
 COMMUNITY TRANSIT OF DELAWARE           :    No. 1142 EDA 2018
 COUNTY AND RAYMOND M. GALLO             :

              Appeal from the Judgment Entered April 2, 2018
    In the Court of Common Pleas of Philadelphia County Civil Division at
                          No(s): No. 160902860


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

MEMORANDUM BY LAZARUS, J.:                          FILED MARCH 05, 2019

      John Dukes, Jr., appeals from the judgment, entered in the Court of

Common Pleas of Philadelphia, after a jury entered a verdict in his favor

against Appellees, Community Transit of Delaware County (“Community

Transit”) and Raymond M. Gallo (collectively, “Defendants”). Upon careful

review, we affirm.

      On September 28, 2014, Dukes was stopped at a traffic light on

Baltimore Pike in Springfield, Delaware County, when his vehicle was rear-

ended by a bus owned by Community Transit and operated by Gallo. As a

result of being thrown “back and forth within the vehicle,” Dukes suffered pain

in his neck, back, right arm and hand, left arm, and right leg.        Brief of

Appellant, at 6.




*Retired Senior Judge assigned to the Superior Court.
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        At the time of the accident, Dukes had a 23-year-old severely autistic

son who enjoyed playing baseball. Dukes and his son regularly played catch

together and participated in a local baseball league. Because of his injuries,

however, Dukes was unable to participate in these activities with his son

following the accident. In July 2016, Dukes’ son unexpectedly passed away.1

        Dukes filed a complaint against the Defendants on September 25, 2016,

alleging negligence and asserting claims for, inter alia, emotional distress and

loss of life’s pleasures. At trial, the parties stipulated that Gallo was negligent

and caused the accident and that he was acting as the agent and employee of

Community Transit at the time. Thus, the only issue for trial was the amount

of damages, if any, to which Dukes was entitled.

        On December 8, 2017, a jury awarded Dukes the sum of $50,000 in

damages. Dukes filed a timely post-trial motion on December 13, 2017, in

which he raised multiple issues concerning the trial court’s failure to permit

him to testify regarding the nature and extent of his son’s disability, his

relationship with his son, and the impact of his injuries on that relationship.

Dukes claimed that the preclusion of that evidence resulted in an

“unreasonably low” verdict. Motion for Post-Trial Relief, 12/13/17, at ¶ 7.

        By order dated March 28, 2018, the trial court denied Dukes’ post-trial

motion and entered judgment against Defendants in the amount of

$50,423.15, representing the jury’s verdict of $50,000 and delay damages of

____________________________________________


1   His death was completely unrelated to Dukes’ accident.

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$423.15. Dukes filed a timely notice of appeal, followed by a court-ordered

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

He raises the following issue for our review:

      Whether the [trial] [c]ourt abused its discretion when it precluded
      Mr. Dukes from introducing evidence that his son suffered from
      severe autism and that he passed away just a year and a half after
      the accident, where that evidence was directly relevant to his
      damages for loss of the ability to enjoy life’s pleasures?

Brief of Appellant, at 5.

      “The admission or exclusion of evidence is within the sound discretion

of the trial court, and in reviewing a challenge to the admissibility of evidence,

we will only reverse a ruling by the trial court upon a showing that it abused

its discretion or committed an error of law.” B.K. v. J.K., 823 A.2d 987, 991–

92 (Pa. Super. 2003).       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. Sutherland v. Monongahela Valley Hosp., 856 A.2d

55, 59 (Pa. Super. 2004).      Moreover, “[t]o constitute reversible error, an

evidentiary ruling must not only be erroneous, but also harmful or prejudicial

to the complaining party.” Hawkey v. Peirsel, 869 A.2d 983, 989 (Pa. Super.

2005).

      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. [See Pa.R.E. 402.] A trial court may,

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        however, properly exclude evidence if its probative value is
        substantially outweighed by the danger of unfair prejudice. [See
        Pa.R.E. 403.] Generally[,] prejudice means an undue tendency to
        suggest a decision on an improper basis.

Braun v. Target Corp., 983 A.2d 752, 760 (Pa. Super. 2009). “The function

of the trial court is to balance the alleged prejudicial effect of the evidence

against its probative value and it is not for an appellate court to usurp that

function.” Parr v. Ford Motor Co., 109 A.3d 682, 696 (Pa. Super. 2014) (en

banc)

        Here, Dukes sought to introduce testimony regarding the fact that his

son was autistic and passed away approximately a year and a half after the

accident. Counsel argued that Dukes’ “need to be away from home and away

from his son for treatment, therapy, and so forth [as a result of his injuries

sustained in the accident], deprived [Dukes] of the enjoyment of life in that

he could [not] interact with his son in the last months of his life.” N.T. Trial,

12/5/17, at 28. The trial court ruled that Dukes could testify that his son had

“limitations,” but could not mention the word “autism,” reasoning that

reference to the disorder was “likely to raise issues of sympathy that are not

relevant to the case.” N.T. Trial, 12/6/17, at 10. The trial court also allowed

Dukes to testify regarding the activities he was accustomed to doing with his

son, including playing baseball and shaving him, over approximately four

pages of testimony.2 However, the trial did not allow Dukes to testify that his

____________________________________________


2 Regardless of his son’s specific diagnosis, Dukes’ testimony illustrated to the
jury that his son was seriously disabled.

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son passed away approximately a year and a half after the accident. Again,

the court concluded that evidence of the son’s death would be “unfairly

prejudicial because it had ‘a tendency to suggest [a] decision on an improper

basis or divert the jury’s attention away from its duty of weighing the evidence

impartially.’” Trial Court Opinion, 8/8/18, at 15, quoting Parr, 109 A.3d at

696.

       The trial court also noted the retroactive nature of Dukes’ claim

regarding the loss of life’s pleasures related to his son’s death. During the

time he was unable to play baseball or otherwise spend sufficient time with

his son, Dukes was unaware that his son would die in the near future.

Accordingly, Dukes’ loss of life’s pleasures as related specifically to his son’s

untimely death were only experienced “in memories after his son died[,] when

[Dukes,] in hindsight[,] regretted that he had not spent more time with his

son in his last year and a half of life.”3 Trial Court Opinion, 8/8/18, at 17

(emphasis omitted). The trial court concluded that:

____________________________________________


3 Dukes was allowed to present substantial testimony regarding the manner
in which his injuries affected his relationship with his son while his son was
alive. Dukes testified that he had been actively involved in assisting his son
up until the day of the accident, see N.T. Trial, 12/6/17, at 69; that he and
his son enjoyed playing baseball and catch and that, after the accident, Dukes
was no longer able to play catch, see id. at 69-71; and that, after the
accident, he could no longer participate in the nightly ritual of shaving his son,
see id. at 71. When asked whether there were “any other things that [he]
couldn’t do with [his] son as far as his limitations,” id., Dukes responded “No,
just basically baseball.” Id. Finally, throughout his testimony, both counsel
and Dukes referred to his son in the past tense, which would have clearly
signaled to the jury that he was no longer alive, despite the trial court’s ruling
that his death could not specifically be referenced.

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      Dukes experienced two distinct emotional injuries, only the first
      of which is compensable in this case. The first was the loss of
      life’s pleasures that resulted from the physical injuries he
      sustained in the bus accident. He fully testified how he was unable
      to play baseball with his son and the loss he felt as a result. The
      jury was instructed that loss of life’s pleasures resulting from a
      physical trauma was compensable. The jury returned a verdict in
      his favor and awarded him damages.

      The second distinct injury [Dukes] sustained was the emotional
      distress caused by the unexpected death of his son one-and-one-
      half years after the bus accident. His son’s death caused [Duke],
      in hindsight, to regret not spending more time with his son in the
      last years of his life. . . . Those regrets and memories are not
      compensable in this case because they were caused by a new and
      distinct trauma—his son’s unexpected death—for which the
      Defendants bear no responsibility. [Dukes] was not entitled to be
      compensated for his regrets over the loss he felt from the
      unexpected and unrelated death of his son which he experienced
      in memories that arose only after his son died.

Id. at 18-19. The trial court aptly discerned that the testimony Dukes sought

to admit did not constitute evidence of damages resulting from the accident,

but rather a plea for solatium, which

      describes a type of monetary damages awarded the decedent’s
      survivors to recompense them for their feelings of anguish,
      bereavement, and grief caused by the fact of the decedent’s
      death. Although most civil law nations provide such damages for
      the bereaved relatives, it has been steadfastly rejected by the
      common law.

Sinn v. Burd, 404 A.2d 672, 675 n.3 (Pa. 1979).

      Upon review of the certified record, the briefs submitted by the parties,

and the relevant law, we conclude that the excellent opinion authored by the

Honorable Marlene F. Lachman cogently, thoroughly, and correctly disposes

of Dukes’ claim on appeal.    In particular, we agree with Judge Lachman’s


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conclusion that the evidence Duke sought to admit was likely to cause unfair

prejudice to the Defendants by eliciting sympathy for Dukes and was, as such,

inadmissible. Accordingly, we affirm on the basis of Judge Lachman’s opinion

and instruct the parties to attach a copy of that opinion in the event of further

proceedings.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/5/19




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