J. A33009/15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

CHRISTOPHER STARKEY,                :     IN THE SUPERIOR COURT OF
                                    :           PENNSYLVANIA
                       Appellant    :
                                    :
                  v.                :          No. 502 EDA 2015
                                    :
JANNIE SEGARS                       :


            Appeal from the Judgment Entered April 7, 2015,
          in the Court of Common Pleas of Philadelphia County
                     Civil Division at No. 130203052



MARY SHEAFF BORDERS,                :     IN THE SUPERIOR COURT OF
                                    :           PENNSYLVANIA
                       Appellant    :
                                    :
                  v.                :
                                    :
JANNIE SEGARS AND CHRISTOPHER       :
STARKEY AND STATE FARM MUTUAL       :          No. 628 EDA 2015
AUTOMOBILE INSURANCE COMPANY        :
A/K/A STATE FARM INSURANCE          :


            Appeal from the Judgment Entered April 2, 2015,
          in the Court of Common Pleas of Philadelphia County
           Civil Division at No. October Term, 2012, No. 2178



PAULA PRESSLEY,                     :     IN THE SUPERIOR COURT OF
                                    :           PENNSYLVANIA
                       Appellant    :
                                    :
                  v.                :
                                    :          No. 630 EDA 2015
CHRISTOPHER STARKEY AND             :
JANNIE SEGARS                       :
J. A33009/15



             Appeal from the Judgment Entered April 2, 2015,
           in the Court of Common Pleas of Philadelphia County
           Civil Division at No. October Term, 2013, No. 003622



HELEN WILKERSON,                        :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                       Appellant        :
                                        :
                  v.                    :
                                        :         No. 636 EDA 2015
JANNIE SEGARS AND                       :
CHRISTOPHER STARKEY                     :


              Appeal from the Judgment Entered April 2, 2015,
            in the Court of Common Pleas of Philadelphia County
              Civil Division at No. March Term, 2013; No. 1854


BEFORE: FORD ELLIOTT, P.J.E., STABILE AND STRASSBURGER,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED March 14, 2016

     Christopher Starkey (“Starkey”), Mary Sheaff Borders (“Borders”),

Paula Pressley (“Pressley”), and Helen Wilkerson (“Wilkerson”)1 appeal the

orders of the Court of Common Pleas of Philadelphia County that entered

judgment against them and in favor of Jannie Segars (“Segars”).2



* Retired Senior Judge assigned to the Superior Court.
1
 By order dated July 5, 2015, this court consolidated the appeals of Starkey,
Borders, Pressley, and Wilkerson.
2
  Segars identifies herself as “Jannie” when she testifies. However, at times
in various pleadings she is referred to as “Janine.” This court will refer to
her as “Jannie.”


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      On March 17, 2012, a vehicle operated by Segars was stopped at a

traffic light while traveling north on Broad Street at the intersection of Broad

Street and Butler Street in the City of Philadelphia. A vehicle operated by

Starkey was stopped at the traffic light behind Segars’ vehicle.        Borders,

Pressley, and Wilkerson were passengers in the back seat of Starkey’s

vehicle. The two vehicles made contact with each other.

      Starkey commenced an action in the trial court and sought damages in

excess of $50,000 for injuries suffered as a result of Segars’ negligence.

Starkey alleged:

            5.     On or about the 17th day of March, 2012, at
                   approximately     between     3:00-4:00     p.m.,
                   Plaintiff,   CHRISTOPHER        STARKEY,     was
                   traveling northbound on Broad Street in
                   Philadelphia, Pennsylvania, attempting to cross
                   Butler Street on a green light, when, suddenly
                   and without warning, the motor vehicle directly
                   in front of their car in the intersection, owned
                   and operated by Defendant, JANNIE SEGARS,
                   stopped abruptly, backed up her motor vehicle,
                   and violently crashed into Plaintiff’s motor
                   vehicle not once, but rather twice.

Complaint, 2/28/13 ¶5 at 1-2.

      Segars answered and denied the allegations and, in fact, asserted that

Starkey’s vehicle struck her vehicle twice at the intersection.

      Borders alleged in her complaint that Segars’ vehicle struck Starkey’s

vehicle.   However, Borders also asserted that if the trial court accepted

Segars’ version of the accident, Starkey was negligent.           Borders sought




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damages in excess of $50,000 for injuries she allegedly suffered as a result

of the negligence.

      Wilkerson alleged in her complaint that Segars’ vehicle struck

Starkey’s vehicle.    As a result of Segars’ and/or Starkey’s negligence,

Wilkerson alleged that she suffered permanent injuries which resulted in

damages in excess of $50,000.

      Pressley also alleged in her complaint that Segars’ vehicle struck

Starkey’s vehicle and she suffered injuries as a result of the negligence and

carelessness of Segars and Starkey. She also asserted damages in excess

of $50,000.3

      In the three cases involving the passengers in Starkey’s vehicle,

Segars filed a crossclaim against Starkey.      On October 24, 2014, at a

pre-trial conference, the trial court bifurcated the matter such that a trial

would proceed on the issue of liability only.

      The trial commenced on January 9, 2015.          Counsel for Borders,

Wilkerson, and Pressley did not appear at the trial. Segars testified on cross

that on March 17, 2013, the Jeep Compass she was driving was

“rear-ended” by Starkey’s vehicle in the vicinity of Broad and Butler. (Notes

of testimony, 1/13/15 at 29.)     Segars further testified that there were a

couple of cars in front of her at the intersection.    (Id. at 31.)    Segars



3
  By order dated February 12, 2014, the trial court consolidated the four
cases.


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J. A33009/15


explained that while the light was red, she was struck from behind twice by

Starkey’s vehicle. (Id. at 37-40.) She reported that when she and Starkey

exited their respective vehicles, Starkey told her that he did not see her car

because he “was fighting with a bee.” (Id. at 43.)

      Starkey testified as to what occurred when the vehicles made contact:

            So we’re sitting there for a moment waiting for the
            light to change. The next moment the light changed.
            I go to look at the light and it changes to green. And
            by the time the light changed to green, within a
            matter of seconds I see this lady backing up. And
            everybody in the car that was in view of the vehicle
            started to react including me. And I, of course, was
            driving and Andre was sitting in the passenger’s
            seat. So I grabbed the stick to put the car in
            reverse. But before I could even get the car in
            reverse, to reverse away from her and keep our
            distance, she banged us. She hit us.

Id. at 56. Starkey related that there was a second impact shortly after the

first. (Id. at 59.)

      Wilkerson testified regarding the accident:

            We pulled up to the light. The light had just turned
            red and he stopped. We were sitting there. The
            next thing, the light turned green. Then all of a
            sudden this big car in front of us . . . went boom and
            I went back. It startled me. The next thing I know
            again the car went boom, boom. And I went forward
            and I hit my head on . . . the headrest.

Id. at 93-94.

      Pressley testified that she did not see how the impact occurred but felt

the impact. Shortly after that, Segars’ vehicle struck Starkey’s vehicle twice

more. (Id. at 108-109.)


                                    -5-
J. A33009/15


      Borders, who is Starkey’s mother, testified that Starkey’s vehicle was

stopped at a red light when there was “One bump, boom. I mean a hard

bump.    Second bump, boom.     And I think a third bump.”     (Id. at 126.)

Borders related that the contact came from Segars’ vehicle. (Id. at 126.)

      The jury found that neither Segars nor Starkey was negligent.

      Starkey moved for post-trial relief and sought a new trial on the basis

that the jury refused to make a credibility determination and rendered an

impossible verdict which did not agree with either Starkey’s or Segars’

accounts of the events in question. Starkey asserted that the jury’s verdict

was against the weight of the evidence, was unsupported by the facts, and

shocked the conscience.      He further asserted that the jury did not

understand its instructions regarding negligence and that the trial court

should have directed the jury to return to deliberation until negligence and

liability were decided.

      Starkey also moved for judgment notwithstanding the verdict because

no reasonable jury would have made the decision. Starkey asserted that he

and the other passengers in the car all testified consistently that Segars’

vehicle struck Starkey’s vehicle when it backed up, while Segars’ testimony

was inconsistent. Once again, Starkey asserted that the jury’s verdict was a

miscarriage of justice, was the result of prejudice and/or misapprehension of

the law and/or facts, was against the weight of the evidence, and shocked

the conscience.



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      By order dated February 11, 2015, the trial court denied Starkey’s

post-trial motions.   The trial court subsequently explained that Starkey

waived his right to a judgment notwithstanding the verdict and a new trial

when he failed to move for a directed verdict or object to the verdict at the

close of trial. The trial court explained that Starkey failed to preserve the

basis for his requested relief because he did not raise it during trial or at the

close of trial as required under Pa.R.C.P. 227.1:

            In the case at bar, neither party objected to the
            verdict or the verdict form. Thus, for Appellant’s
            [Starkey] counsel to have preserved his stated
            grounds for appeal, the record must show that
            Appellant’s [Starkey] counsel objected to the specific
            issue of the verdict form and jury verdict. As stated
            infra, in order to preserve an issue for review,
            litigants must make timely and specific objections
            during trial and raise the issue in post trial motions.
            Takes v. Metro Edison Co., . . . 695 A.2d 397, 400
            ([Pa.] 1997). Requiring a litigant to make a timely,
            specific objection during trial ensures that the trial
            court has a chance to correct alleged trial errors.
            This ‘waiver rule’ prevents the trial from becoming a
            mere dress rehearsal and ensures trial counsel is
            prepared to litigate the case and create an adequate
            record for appellate review. Id. There are a litany
            of appellate rulings within the Commonwealth that
            have stressed the importance of this waiver doctrine.
            See e.g. McMillen v. 84 Lumber, Inc., [] 549 A.2d
            932 ([Pa.] 1994).

Trial court opinion, 4/23/15 at 5.

      The trial court also determined that even if the issues were preserved,

Starkey was not entitled to judgment notwithstanding the verdict because

the evidence was such that reasonable minds could disagree as to whether a



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verdict should have been rendered in favor of Starkey. Similarly, the trial

court determined that Starkey was not entitled to a new trial because the

jury verdict was not against the weight of the evidence.4

      Starkey5 has raised the following issue for this court’s review:

            Whether the trial court abused its discretion and
            otherwise committed an error of law in denying
            Plaintiff/Appellant’s post-trial motion seeking a new
            trial because the jury’s verdict was against the
            evidence and the weight of the evidence when it
            found      that   neither     moving     Plaintiff nor
            Defendant/Appellee [Segars] was negligent?

Appellant’s brief at 6.6

      Starkey does not address the trial court’s basis for its denial of his

post-trial motion. The trial court denied the post-trial motion for a new trial

because     it   determined    that      Starkey   failed   to   comply   with

Pa.R.C.P. 227.1(b)(1) as he failed to raise the issue of a new trial after he

was presented with the jury’s verdict.

      Pa.R.C.P. 227.1(b) provides in pertinent part:



4
  Wilkerson essentially filed the same post-trial motion which was denied.
Pressley moved for post-trial relief and requested the same relief as Starkey.
Borders filed a post-trial motion and requested a new trial. Borders also
joined in the motions filed by Starkey and Wilkerson. The trial court denied
these motions.
5
  Wilkerson, Borders, and Pressley essentially raise the same issue in their
respective briefs.
6
  This court’s review is limited to a determination of whether the trial court
acted capriciously, abused its discretion, or committed an error of law.
Parker v. Frelich, 803 A.2d 738 (Pa.Super. 2002).


                                      -8-
J. A33009/15


             Except as otherwise provided by Pa.R.E. 103(a),
             post-trial relief may not be granted unless the
             grounds therefor,

             (1)     if then available, were raised in pre-trial
                     proceedings or by motion, objection,
                     point for charge, request for findings of
                     fact or conclusions of law, offer of proof
                     or other appropriate method at trial; and

             (2)     are specified in the motion. The motion
                     shall state how the grounds were
                     asserted in pre-trial proceedings or at
                     trial. Grounds not specified are deemed
                     waived unless leave is granted upon
                     cause shown to specify additional
                     grounds.

      In Picca v. Kriner, 645 A.2d 868 (Pa.Super. 1994), this court

addressed the necessity of raising the issue of an inconsistent jury verdict

before the trial court discharges the jury.       Lester Kriner (“Kriner”), while

traveling at a speed of 25-30 miles per hour hit Jennifer Picca’s (“Picca”)

vehicle from behind while Picca was stopped at a stop light.           After the

collision, Picca experienced neck and back pain. Picca sued Kriner. Kriner

admitted that he was at fault in the accident.           Kriner’s expert witness

admitted that Picca probably suffered an injury in the form of a minor

ligament and muscle strain as the result of the accident but did not consider

it significant.    The expert attributed her pain to pre-existing degenerative

disc disease which was unrelated to the accident.        The trial court directed

the jury to find Kriner negligent. The jury did as instructed but found that

Kriner’s negligence did not contribute to Picca’s injuries.        Picca brought



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post-trial motions for judgment notwithstanding the verdict or a new trial.

The trial court granted the motion for a new trial because the jury verdict

was so contrary as to shock the conscience because it could not believe that

Picca created her physical complaints and that the jury’s verdict was

incredible. Id. at 869.

      This court noted that the jury’s second interrogatory stated, “Was the

defendant’s negligence a substantial factor in bringing about the plaintiff’s

harm?” Id. at 870. This court reasoned that the “most logical referent to

the phrase ‘the plaintiff’s harm,’ is all of the injuries which Picca alleged to

have been caused by the accident and which she sought to prove at trial.”

Id. at 870 (emphasis in original).       In other words, the jury could have

concluded that while Kriner may have caused some injury to Picca, he may

not have been a substantial factor in causing all of Picca’s alleged injuries.

Therefore, the    jury’s   answer   to   the   interrogatory   could   have   been

reasonable. Picca did not object to the submission of the interrogatory to

the jury.   Further, Picca did not object when the jury returned its verdict

which deprived the trial court of the opportunity to determine whether the

jury incredibly found that Kriner caused no injury at all or whether the jury

considered Kriner’s contribution to Picca’s injuries insubstantial. If the latter

were the case, the trial court could have instructed the jury to find Kriner

liable for the portion of Picca’s injuries that he caused which would have

eliminated any need for a new trial. Id. at 870-871.



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     This court referred to Philadelphia Police Department v. Gray, 633

A.2d 1090 (Pa. 1993), where a jury found that SEPTA was 25% negligent in

causing a collision with a police car but that that negligence was not a

substantial factor in causing the injuries suffered by a passenger on the

SEPTA trolley. Our Pennsylvania Supreme Court found that the passenger

waived any right to a new trial when she failed to object to the inconsistent

jury verdict before the jury was dismissed.    Id. at 870, citing Gray, 633

A.2d at 1095.

     This court determined that Picca waived her right to ask for a new trial

when she failed to raise any objection to the verdict before the jury was

dismissed:

             We cannot tell whether the jury incredibly found that
             Picca suffered no injuries, or whether it found that
             Kriner’s negligence did not cause enough of Picca’s
             alleged injuries to make his negligence a substantial
             factor in bringing them about--a mistaken, albeit
             reasonable, interpretation of the second verdict
             interrogatory. It does not matter, however, because
             in either event, Picca waived her right to ask for a
             new trial by not objecting to the problems with the
             verdict before the jury was dismissed.

             The main purpose of the familiar waiver rule
             announced in Dilliplaine [v. Lehigh Valley Trust
             Co., 322 A.2d 114 (Pa. 1974.)], and recently
             interpreted by Gray [633 A.2d 1090 (Pa. 1993)] is
             to avoid holding new trials through timely, specific
             objections which give the trial judge an opportunity
             to recognize errors and correct them. When a party
             seeks a new trial because the jury returned an
             inconsistent, irrational, incredible, or otherwise
             problematic verdict, Dilliplaine would logically
             require that the party point out the verdict problems


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            to the trial judge before the jury is dismissed. That
            way the judge can explain to the jury why its verdict
            is problematic and that judgment cannot be entered
            upon it. The jury can then resume deliberations in
            light of the court’s corrective instructions, and return
            an error-free verdict. This rule does not require us
            to invade the jury’s sacred deliberation process or
            find out why the jury did what it did; the court need
            only explain that the verdict returned makes no
            sense for the specific reasons raised in counsel’s
            objections, and ask the jury to reconsider its decision
            in light of its new instruction.

            Gray applied the Dilliplaine rule to the problem of
            inconsistent jury verdicts, but there is no reason why
            the rule would be limited to inconsistency problems.
            The rule should apply whenever the jury returns a
            verdict which is objectionable for any reason. An en
            banc panel of this Court recently recognized this
            logical consequence of the Dilliplaine rule in Curran
            v. Greate Bay Hotel and Casino [] 643 A.2d 687
            (Pa.Super. 1994), appeal denied, 652 A.2d 1323 (Pa.
            1994). The panel held that parties must not wait for
            post-trial motions to argue that the jury verdict is
            too flawed to sustain a judgment. Such arguments
            must be made before the court discharges the jury.
            ‘it is this failure to act before the jury was discharged
            that constitutes waiver.’ [Gray]. The purpose of
            requiring action is to enable the jury to correct an
            obvious mistake.’ Curran, [] 643 A.2d at 691.

Picca, 645 A.2d at 871.

      Here, when the jury’s finding that neither Starkey nor Segars was

negligent was revealed in open court, Starkey did not lodge an objection

before the jury was dismissed. He only requested that the jurors be polled.

Starkey now argues that the trial court erred when it allowed this verdict to

be entered in the docket as a complete decision and did not instruct the jury

to continue its deliberations.   Starkey sought a new trial in his post-trial


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motions. However, Starkey did not raise this issue at trial before the jury

was discharged. As this court held in Picca, Starkey cannot seek a new trial

for the first time in post-trial motions.    We agree with the trial court that

Starkey did not preserve this issue as required under Pa.R.C.P. 227.1(b)(1)

and Picca.

      Judgments affirmed.

Judgment Entered.




JosephD.Seletyn,Esq.
Prothonotary

Date: 3/14/2016




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