J-A11026-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 ROBERT & LINDA SOLO                                IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellant

                        v.

 SAMUEL POLIT

                                                       No. 1830 MDA 2016


               Appeal from the Judgment Entered December 5, 2016
                 In the Court of Common Pleas of Luzerne County
                       Civil Division at No(s): 2013-CV-4294


BEFORE: SHOGAN, J., MOULTON, J., and STEVENS, P.J.E.*

MEMORANDUM BY MOULTON, J.:                        FILED NOVEMBER 09, 2017

       Robert and Linda Solo appeal from the December 5, 2016 judgment

entered in favor of Samuel Polit in the Luzerne County Court of Common Pleas

following a jury trial.1 We affirm.

       The trial court set forth the factual and procedural history of this case

as follows:



____________________________________________


       *   Former Justice specially assigned to the Superior Court.

       1 The Solos prematurely filed their notice of appeal on November 3,
2016, after the denial of their post-trial motion but before the entry of a final
judgment. Because the trial court subsequently entered judgment, we
consider the Solos’ appeal timely filed from the December 5, 2016 judgment.
See Johnston the Florist, Inc. v. TEDCO Constr. Corp., 657 A.2d 511, 513
(Pa.Super. 1995) (en banc) (stating that “jurisdiction in [the] appellate courts
may be perfected after an appeal notice has been filed upon the docketing of
a final judgment”).
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            [The Solos], a tenant and his wife, filed a Complaint
         against [Polit], their landlord, on April 8, 2013, alleging that
         [Polit] was negligent in maintaining the porch rail on their
         home, resulting in severe and permanent damage to
         Appellant Robert Solo [(“Robert”)] when he fell from the
         porch [at approximately 12:00 a.m. on March 8, 2012]. On
         June 8, 2015, [the Solos], through their counsel, certified
         the case for trial. Later, on August 20, 2015, [Polit] filed a
         Motion for Summary Judgment that this Court denied on
         October 8, 2015.

             On April 29, 2016, [the Solos] filed a Motion in Limine to
         preclude evidence of [Robert’s] blood alcohol level and
         expert testimony regarding such evidence[.] [Polit] filed his
         response to [the Solos’] Motion in Limine on May 3, 2016.
         On May 23, 2016, a jury trial commenced. After three days
         of testimony, the jury returned its verdict on May 26, 2016,
         finding in favor of [Polit].

            [The Solos] filed a Motion for Post-Trial Relief on June 3,
         2016. In their Motion for Post-Trial Relief, [the Solos]
         argued that the trial court erred by admitting evidence of
         [Robert’s] blood alcohol content [(“BAC”)] on the day of the
         incident. [They] also challenged the trial court’s denial of
         their motion for mistrial related to instructions given by the
         court and comments from the jury during deliberations. By
         Order dated October 6, 2016, this Court denied [the Solos’]
         Post-Trial Motion.

            On November 3, 2016, [the Solos] filed a Notice of
         Appeal to the Pennsylvania Superior Court. [The Solos] filed
         their [Pennsylvania Rule of Appellate Procedure 1925(b)]
         Statement of Matters Complained of on Appeal on
         November 28, 2016 . . . .

Opinion, 1/5/17, at 1-2 (“1925(a) Op.”) (internal citations omitted).

      On appeal, the Solos raise three issues:
         Whether the Trial Court erred in admitting [the] toxicology
         evidence when there was no evidence offered at trial to
         indicate that [Robert] was visibly intoxicated at the time of
         the incident of March 8, 2012 that gave rise to this claim.



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           Whether the Trial Court erred in relying upon the matter of
           Coughlin v. Massaquoi, 138 A.3d 638 (Pa. Super. 2016)[2]
           as the controlling case law on the issue of the admissibility
           of [the] toxicology evidence.

           Whether the Trial Court erred in failing to grant [the Solos’]
           Motion for a Mistrial during jury deliberations when the jury
           inappropriately revealed how it stood in its deliberations in
           open court prior to the entry of a final verdict in this matter.

Solos’ Br. at 5 (suggested answers omitted).

       In their first two issues, the Solos challenge the trial court’s admission

of toxicology evidence presented by Polit’s expert, Dr. Ronald E. Gots, who

testified that Robert’s BAC shortly after the accident was .244.3 The Solos

argue that the evidence of Robert’s BAC was inadmissible because “a [BAC]

cannot be admitted into evidence in a civil case for the purpose of proving

intoxication without other evidence.” Solos’ Br. at 14-15. They assert that

because there were no eyewitnesses to the accident nor any evidence

regarding Robert’s physical condition preceding the accident, the BAC

evidence was inadmissible. We disagree.

       We apply the following standard when reviewing a trial court’s ruling on

the admissibility of evidence:


____________________________________________


       2The Pennsylvania Supreme Court affirmed our decision in Coughlin
after oral argument in this case. See Coughlin v. Massaquoi, __ A.3d __,
2017 WL 4287350 (Pa. filed Sept. 28, 2017).

       3 In their brief, the Solos also argue that Dr. Gots was not properly
qualified to provide expert testimony in the field of toxicology. Solos’ Br. at
20-21. However, because the Solos did not raise this issue in either their Rule
1925(b) statement or their statement of questions of involved, it is waived.
See Pa.R.A.P. 1925(b)(4)(vii), 2116(a).

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            Questions concerning the admissibility of evidence lie
         within the sound discretion of the trial court, and we will not
         reverse the court’s decision absent a clear abuse of
         discretion. An abuse of discretion may not be found merely
         because an appellate court might have reached a different
         conclusion, but requires a manifest unreasonableness, or
         partiality, prejudice, bias, or ill-will, or such lack of support
         so as to be clearly erroneous.

Keystone Dedicated Logistics, LLC v. JGB Enters., Inc., 77 A.3d 1, 11

(Pa.Super. 2013) (internal citations and quotation omitted).

      Recently, in Coughlin v. Massaquoi, __ A.3d __, 2017 WL 4287350

(Pa. filed Sept. 28, 2017), our Supreme Court considered the question of

whether evidence of a pedestrian’s BAC may be admitted in a civil trial without

independent, corroborating evidence of intoxication.          In that case, the

administratrix of Thomas Coughlin’s estate filed a negligence action against

the driver whose automobile struck Coughlin as he walked across the street.

Id. at *1. Coughlin later died at the hospital; at the time of his death, his

BAC was .313. Id. No eyewitnesses had observed Coughlin’s condition or

behavior immediately before the accident, and the police report did not

indicate that Coughlin had appeared intoxicated at the accident scene. Id.

      At trial, the trial court permitted the defense expert to testify regarding

the impact that a .313 BAC would have on a person’s coordination, judgment,

and self-control. Id. at *2. The expert opined that “the average person with

a BAC of .313 would be ‘severely intoxicated’” and “could not safely cross the

street without endangering his life and well-being.” Id.




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       On appeal, the administratrix challenged the trial court’s admission of

Coughlin’s post-mortem BAC without independent, corroborating evidence of

his intoxication.    Id.   After reviewing prior precedent from this Court, the

Supreme Court stated:
           [W]e reject the standard advanced by Appellant and utilized
           by the Superior Court in Ackerman [v. Delmonico, 486
           A.2d 410 (Pa.Super. 1984),] and its progeny that requires
           independent, corroborating evidence of intoxication before
           BAC evidence may be admitted. We emphasize, however,
           that a pedestrian in a case such as this one is free to
           challenge such evidence by thorough cross-examination, or
           with testimony from his or her own expert.

Id. at *9.4     Thus, the Supreme Court held that “the admissibility of BAC

evidence is within the trial court’s discretion based upon general rules

governing the admissibility of evidence, see Pa.R.E. 401-403, and the [trial]

court’s related assessment of whether the evidence             establishes the

pedestrian’s unfitness to cross the street.” Id. at *1.    The Court ultimately

concluded that the evidence of Coughlin’s BAC was admissible because it

reasonably established his unfitness to cross the street. Id. at *9.

       Here, Dr. Gots testified in detail regarding the impact of Robert’s BAC

on an individual’s coordination and judgment. The trial court summarized Dr.

Gots’ testimony as follows:
           [Polit] presented expert testimony from Dr. Gots describing
           the effect of [Robert’s BAC] on an individual and facts from
           the night of the accident consistent with that level of
____________________________________________


       The Coughlin Court was “unpersuaded by Ackerman and its progeny,
       4

which provided no rationale for requiring BAC evidence to be accompanied by
independent corroborating evidence of intoxication.” 2017 WL 4287350, at
*8.

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           intoxication. [Robert’s BAC] once in the emergency room
           was about .244. With that information, Dr. Gots estimated
           [Robert’s BAC] to be .27 on the night of the accident.
           According to Dr. Gots, this level of intoxication is consistent
           with poor reflexes, lack of coordination, and poor memory,
           as demonstrated by [Robert’s] inability to remember how
           he ended up on the ground.

1925(a) Op. at 15-16 (internal citations omitted); see id. at 5-7. Dr. Gots

opined “that, on the night of the incident, [Robert] was sufficiently intoxicated

to affect all aspects of his functioning, including his ability to walk.” Id. at 7.

Therefore, pursuant to Coughlin, we conclude that the trial court properly

admitted the evidence of Robert’s BAC.5

       Next, the Solos assert that the trial court erred in (1) failing to declare

a mistrial after the jury asked questions during deliberations and improperly



____________________________________________


       5 Even if we were to decide this issue based on pre-Coughlin law, we
would still conclude that the BAC evidence was admissible because it was
sufficiently corroborated by other evidence of intoxication. As the trial court
explained:

           [Gloria] Williams testified that, on the night of the accident,
           when she asked [Robert’s] wife what happened, Mrs. Solo
           responded that [Robert] had been drinking that day. Also,
           emergency room records from the night of the incident
           described [Robert] as appearing intoxicated with an odor of
           alcohol. In fact, [Robert’s] treating physicians diagnosed
           him as intoxicated and they could not medically clear his
           neck due to the intoxication.

1925(a) Op. at 15 (internal citations omitted). Further, the West Pittston
Police Department Incident Investigation Report from the night of the accident
stated, “[Robert] was on the ground screaming in pain and both officers
observed [that Robert] had been drinking.” Polit’s Resp. to Mot. in
Limine, 5/3/16, Ex. C (emphasis added).


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revealed its verdict and (2) sua sponte instructing the jury on comparative

negligence in response to those questions. These claims do not merit relief.

     We review a trial court’s denial of a motion for mistrial for an abuse of

discretion. Commonwealth v. Chamberlain, 30 A.3d 381, 422 (Pa. 2011).

We may grant a new trial based on an erroneous jury instruction only if “the

jury charge in its entirety was unclear, inadequate, or tended to mislead or

confuse the jury.” Hall v. Jackson, 788 A.2d 390, 399 (Pa.Super. 2001)

(quoting Fragale v. Brigham, 741 A.2d 788, 790 (Pa.Super. 1999)).

Moreover, “a trial judge has wide latitude in his or her choice of language

when charging a jury, provided always that the court fully and adequately

conveys the applicable law.” Id. (quoting Wilson v. Anderson, 616 A.2d 34,

36 (Pa.Super. 1992)).

     The Solos contend that the trial court should have declared a mistrial

after the following exchange occurred:

        THE COURT: Have you reached a verdict?

        THE FOREPERSON: We have, Your Honor.

        (Court reviewed verdict.)

        THE COURT: Okay, so we may have you – you may have
        to do a little more work.

        THE FOREPERSON: Okay.

        THE COURT: So I’m going to . . . well, I’m going to have
        you read the verdict first and then I’m going to . . .

        [SOLOS’ COUNSEL]: Figure it out.

        THE COURT: Then we’ll have a sidebar. Okay? So Mr.
        Foreperson, if you would read the verdict, please.

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        THE FOREPERSON:           In the first – do you find the
        Defendant, Sam Polit, was negligent on March 8, 2012? The
        jury has found, yes. Was the negligence of the Defendant
        the factual cause of bringing about the Plaintiff’s harm? The
        jury found, no.

        THE COURT: Okay. So I’m going to ask for a sidebar of
        counsel. [Sidebar ensued.]

                                     ...

        THE COURT: You’re not going home yet. I have to send
        you out to do a little bit more work, and here’s what it is.
        I’m going to read you the instruction and we’ll have a short
        discussion. This is the instruction that I’m going to read to
        you:

        The parties agree that the Plaintiff sustained some injury in
        the accident. The Defense medical expert testified that the
        accident caused some injury to the Plaintiff. The Defense
        disputes the extent of the injury caused. Therefore, if you
        find the Defendant negligent, you must award the Plaintiff
        some damages for those injuries. So that, therefore, there
        has to be some damages. Okay?

        THE FOREPERSON: Um-hum.

        THE COURT: I would send you out with that in mind.

        JUROR No. 6: Do we have to stick to the Defendant being
        negligent? Can that be changed?

        THE COURT: I would say that that was a conclusion you’ve
        already drawn.

        THE FOREPERSON: Correct.

        THE COURT: Go ahead.

N.T., 5/24-26/16, at 162-65.

     After sending the jury out to deliberate further, the trial court notified

counsel that it was going to call the jury back into the courtroom to clarify


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J-A11026-17



what it perceived as an area of potential confusion based on the jurors’

questions. The trial court stated: “I’m getting the jury back to give them

more instructions because they could find that even if there’s a factual cause

of injury, if Mr. Solo’s negligence is more than Mr. Polit’s that he’s not entitled

to damages, and I did not instruct them that way.” Id. at 165. The trial court

then gave the jury a supplemental instruction on comparative negligence. Id.

at 166-67. Thereafter, the Solos’ counsel objected and requested a mistrial,

which the trial court denied. Id. at 167-68.

      The trial court explained its reasons for denying a mistrial and giving

the supplemental instruction as follows:
         During the jury’s initial return to the courtroom, an
         inconsistency with the verdict was revealed and all parties
         agreed that further instruction by the Court was necessary.
         After being instructed that, if you find [Polit] negligent, you
         must award some damages, the jury foreperson asked, on
         the record, whether the jury could change its finding of
         negligence.     The jury foreperson never revealed any
         information about where the jury stood numerically. The
         only information revealed to this Court and the parties was
         the information written on the initial verdict interrogatories.
         In response to the foreperson’s question, this Court did not
         direct the jury how to find and did not inquire as to where it
         stood, rather, this Court merely responded, on the record,
         that it appeared the jury had already rendered its decision
         regarding [Polit’s] negligence.

            Soon after the jury left the courtroom, this Court raised
         the issue that its prior instruction on damages would . . .
         further confuse the jury if it were given in the absence of
         the comparative negligence instruction. Indeed, had this
         Court given only the instruction that a finding of negligence
         by [Polit] would require an award of damages, it would have
         prejudiced [Polit] and failed to assist the jury in rendering
         an informed decision. Accordingly, this Court called the jury


                                       -9-
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         back to the courtroom and instructed on the issue of
         comparative negligence. Prior to reading the instruction,
         this Court explained to the jury that the comparative
         negligence instruction was necessary in conjunction with the
         prior instructions regarding disputed negligence and
         disputed extent of injury. The instructions must have been
         given as a whole to avoid any confusion to the jury or
         prejudice toward either party.

            Finally, the comparative negligence instruction was also
         necessary during deliberations because of the verdict
         interrogatories that had been previously agreed to by the
         parties. This Court first raised with the parties that the
         verdict slip they had approved did not instruct that [Robert]
         would be barred from recovery if the jury determined that
         he was more than 50% negligent. Had a clear instruction
         regarding the issue of apportionment and contributory
         negligence not been given during deliberations, an improper
         verdict may have been rendered . . . .

1925(a) Op. at 19-21 (internal citations omitted).

      The Solos do not challenge the substance of the trial court’s

supplemental instruction, only that the instruction was given.     There is no

indication in the record that the supplemental instruction confused the jury;

rather, it was intended to alleviate the jury’s apparent confusion regarding the

apportionment of liability and damages.       The instruction also adequately

conveyed the applicable law. Based on our review of the record and the jury

instructions as a whole, we conclude that the trial court did not abuse its

discretion in either charging the jury on comparative negligence, see Hornak

v. Pittsburgh Rys. Co., 249 A.2d 312, 315 (Pa. 1969) (“[A] trial judge has

wide discretion in directing further deliberations by a jury so that the jury

might correct matters of . . . uncertainty.”), or denying the motion for a

mistrial, see Chamberlain, 30 A.3d at 422.

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J-A11026-17



     Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/9/2017




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