J-A10016-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 CAROLINE KUSHNER                    :   IN THE SUPERIOR COURT OF
                                     :        PENNSYLVANIA
                                     :
              v.                     :
                                     :
                                     :
 CONEX FREIGHT, INC. AND RODNEY      :
 BEGGS AND JAMES D. MORRISSEY,       :
 INC., ESTABLISHED TRAFFIC           :   No. 662 EDA 2018
 CONTROL, INC.; ARMOUR & SONS        :
 ELECTRIC CO.                        :
                                     :
                                     :
 APPEAL OF: JAMES D. MORRISSEY,      :
 INC.                                :

            Appeal from the Order Entered January 23, 2018
          In the Court of Common Pleas of Philadelphia County
                 Civil Division at No(s): No. 150702642



 CAROLINE KUSHNER                    :   IN THE SUPERIOR COURT OF
                                     :        PENNSYLVANIA
                                     :
              v.                     :
                                     :
                                     :
 CONEX FREIGHT, INC. AND RODNEY      :
 BEGGS AND JAMES D. MORRISSEY,       :
 INC., ESTABLISHED TRAFFIC           :   No. 664 EDA 2018
 CONTROL, INC.; ARMOUR & SONS        :
 ELECTRIC CO.                        :
                                     :
                                     :
 APPEAL OF: ARMOUR & SONS            :
 ELECTRIC CO.                        :

            Appeal from the Order Entered January 23, 2018
          In the Court of Common Pleas of Philadelphia County
           Civil Division at No(s): July Term, 2015 No.: 2642
J-A10016-19


    CAROLINE KUSHNER                             :   IN THE SUPERIOR COURT OF
                                                 :        PENNSYLVANIA
                       Appellant                 :
                                                 :
                                                 :
                v.                               :
                                                 :
                                                 :
    CONEX FREIGHT, INC. AND RODNEY               :   No. 678 EDA 2018
    BEGGS, JAMES D. MORRISSEY, INC.              :
              v.                                 :
                                                 :
                                                 :
    ESTABLISHED TRAFFIC CONTROL,                 :
    INC. AND ARMOUR & SONS                       :
    ELECTRIC CO.                                 :

                Appeal from the Order Entered January 23, 2018
              In the Court of Common Pleas of Philadelphia County
                  Civil Division at No(s): 2642 July Term, 2015


BEFORE: GANTMAN, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY OTT, J.:                                   FILED AUGUST 19, 2019

       Caroline Kushner appeals from the Order entered on January 23, 2018,

in the Court of Common Pleas of Philadelphia County denying her Post-Trial

Motion for Relief and finalizing the judgment.1 Defendants Armour & Sons

Electric (Armour) and James D. Morrissey, Inc. (Morrissey), have filed cross-

appeals. After a thorough review of the submissions by the parties, relevant

law, and the certified record, we affirm in part, vacate in part, and remand for

an order in conformance with this decision.
____________________________________________


1 Technically, the appeal lies from the entry of judgment upon the resolution
of the post-trial motions. The verdict of $150,000.00 was reduced to
$75,000.00 pursuant to comparative negligence. Armour was ordered to
indemnify Morrissey for the $22,500.00 that represented its portion of the
damages.

                                           -2-
J-A10016-19



       We relate the factual and procedural history of this matter as stated in

the trial court’s October 31, 2018, Pa.R.A.P. 1925(a) opinion.

       On July 23, 2015, Plaintiff Caroline Kushner filed a complaint
       against Defendant James D. Morrissey, Inc. (“Morrissey”),
       Defendant Rodney Beggs (“Beggs”), and Defendant Conex
       Freight, Inc. (“Conex”).[2] [Kushner] claimed injuries from a
       motor vehicle incident on July 30, 2014. [Kushner] alleged that a
       semi-trailer truck operated by [] Beggs, during the course of his
       employment for [Conex], rear-ended [Kushner’s] motor vehicle at
       the intersection of Route 13 and Beaver Street (the “Intersection”)
       in Bristol Township, Montgomery County, Pennsylvania.
       [Kushner] alleged that [] Beggs was liable for negligent operation
       of the semi-trailer truck and that his employer, Conex, was
       vicariously liable. At the time of the motor vehicle incident, []
       Morrissey was performing construction and renovation work at the
       Intersection. [Kushner] alleged that Morrissey was negligent in
       this construction and renovation work, that this negligence led to
       the intersection’s inherent danger and contributed to the motor
       vehicle incident, and therefore, that Morrissey was additionally
       liable to [Kushner] for damages.

       On May 3, 2016, Morrissey filed a Motion to Join Additional
       Defendant Armour & Sons Electric, Co. (“Armour”) alleging that
       Morrissey had sub-contracted with Armour to install traffic signals
       at the Intersection in order to redirect new traffic patterns. On
       June 27, 2016, the Honorable John M. Younge granted Morrissey’s
       Motion and on June 30, 2016, Morrissey filed a joinder complaint
       against Armour alleging contractual indemnification for damages
       and costs arising out of [Kushner’s] complaint.

       Jury trial was held from December 10, 2017 to December 15,
       2017, whereupon the jury returned a verdict for [Kushner]. The
       jury awarded [Kushner] $150,000.00 in damages, but reduced the
       actual compensation to $75,000.00 due to [Kushner’s]
       comparative negligence.     The jury found [Kushner] 50%
____________________________________________


2 Throughout the certified record this defendant, not a part of this appeal, is
referred to as Conex Freight and Canex Freight. Both appear to be names of
trucking companies. We will use Conex as that is the name found in the official
docket of the First Judicial District as well as the name used in the complaint.

                                           -3-
J-A10016-19


     comparatively negligent, [] Beggs and Conex 35% jointly
     negligent, [] Morrissey 15% negligent, and [] Armour 0%
     negligent.

     Morrissey filed a Motion for Post Trial Relief on December 28,
     2017, seeking to compel Armour’s indemnification in the amount
     of $22,500.00 for the verdict, and $99,468.75 for attorney’s fees
     and costs. On January 22, 2018, Armour filed a response alleging
     indemnification improper because Armour was not found
     negligent. On January 18, 2018 (docketed January 23), this Court
     granted Morrissey’s motion in part, compelling Armour to pay
     Morrissey $22,500.00 for the verdict, but denied the $99,468.75
     amount for attorney’s fees and costs.

     On January 8, 2018, [Kushner] filed a Motion for Judgment
     Notwithstanding the Verdict arguing for a new trial as to liability
     and damages against Morrissey only. On January 18, 2018, this
     Court denied [Kushner’s] motion.

     On February 20, 2018, [Kushner] appealed this Court’s Order
     dated January 18, 2018, to the Superior Court of Pennsylvania,
     and on February 27, 2018, this Court ordered [Kushner] to file a
     Concise Statement of Matters Complained of on Appeal pursuant
     to Pa.R.A.P.1925(b). [Kushner] filed a timely Statement of
     Matters Complained of on March 21, 2018.

     On February 15, 2018, Morrissey appealed this Court’s Order
     dated January 18, 2018 (docketed January 23), to the Superior
     Court of Pennsylvania, and on February 27, 2018, this Court
     ordered Morrissey to file a Concise Statement of Matters
     Complained of on Appeal pursuant to Pa.R.A.P. 1925(b).
     Morrissey filed a timely Statement of Matters Complained of on
     March 20, 2018.

     On February 20, 2018, Armour appealed this Court’s Order dated
     January 18, 2018 (docketed January 23), to the Superior Court of
     Pennsylvania, and on February 27, 2018 this Court ordered
     Armour to file a Concise Statement of Matters Complained of on
     Appeal pursuant to Pa.R.A.P. 1925(b). [Armour] filed a timely
     Statement of Matters Complained of on March 14, 2018.

Trial Court Opinion, October 31, 3018, at 1-3.




                                    -4-
J-A10016-19



      Our review of the record indicates that Kushner was stopped at a red

light, behind a truck. The Conex truck was stopped behind Kushner. The light

changed to green, the first truck went through the intersection, Kushner

started to move into the intersection but then stopped.      The Conex truck

started to move into the intersection and struck the rear of the Kushner

vehicle. See N.T. Trial, Testimony of Caroline Kushner and Rodney Beggs;

video of accident.

      Kushner now raises four issues for our review. She claims the trial court

erred: (1) in precluding expert testimony of neuropsychologist Dr. Biester; (2)

by overruling the objection made during closing arguments when counsel for

Morrissey informed the jury Kushner had settled her claim against Beggs and

Conex; (3) in giving an impermissible charge regarding Kushner’s failure to

mitigate her damages; and (4) in denying Kushner’s motion for JNOV despite

the dashcam video showing the semi-truck rear-ending Kushner’s vehicle.

      In its cross-appeal, Morrissey raises a single claim; it argues the trial

court erred in failing to award it attorney’s fees and costs from Armour, in

addition to the award of indemnification for damages.

      In its cross appeal, Armour raises a claim that is essentially the mirror

of Morrissey’s claim.     Armour argues the trial court erred in awarding

Morrissey indemnification for damages where the jury determined it had

committed no negligent acts.

      We will address the Morrissey/Armour issues first. Morrissey offers two

contractual rationales for its claim.

                                        -5-
J-A10016-19



      Our standard of review for these issues is as follows:

      “[T]he interpretation of the terms of a contract is a question of
      law for which our standard of review is de novo, and our scope of
      review is plenary.” McMullen v. Kutz, 603 Pa. 602, 985 A.2d 769,
      773 (2009) (citation omitted). Furthermore, it is well established
      that:

         [w]hen the parties have reduced their agreement to
         writing, the writing is to be taken to be the final expression
         of their intention. Where the contract evidences care in its
         preparation, it will be presumed that its words were
         employed deliberately and with intention. In determining
         what the parties intended by their contract, the law must
         look to what they clearly expressed. Courts in interpreting
         a contract do not assume that its language was chosen
         carelessly. Neither can it be assumed that the parties were
         ignorant of the meaning of the language employed.
      Steuert v. McChesney, 498 Pa. 45, 444 A.2d 659, 662
      (1982) (citations and quotation marks omitted).

Andrews v. Cross Atlantic Capital Partners, Inc., 158 A.3d 123, 131 (Pa.

Super. 2017).

      First, Morrissey argues that its contract with Armour required Armour to

provide primary insurance coverage for any claims arising from the

subcontract. In support of its argument, Morrissey points to this clause in the

addendum to the sub-contract:

      E: The Sub-Contractor further covenants and agrees to provide
      adequate insurance coverage for all liability which may arise from
      this Subcontract and to indemnify and save harmless the
      Contractor, its officers, agents, servants and workmen from the
      aforesaid liability, including workman’s compensation claims; it
      being understood that the insurance certificate evidencing such
      coverage are attached hereto and made part thereof.

Morrissey Motion for Post Trial Relief, Exhibit A, Addendum, ¶ E.



                                     -6-
J-A10016-19



        The addendum does not require Armour provide a defense to Morrissey;

it requires Armour to provide adequate liability insurance.             However, no

insurance certificate was attached. Further, no specific detail or clauses from

an insurance policy have been referred to by Morrissey nor has the insurance

policy been entered into evidence.             While Morrissey claims the requirement

to provide a defense is greater than the requirement to indemnify against

damages, that requirement depends upon the language of the policy, which is

not in evidence.      The addendum clause provides no reference, much less

requirement, to provide a primary defense to Morrissey for any claims of

negligence levied against Morrissey.             Indeed, Morrissey does not claim it

tendered its defense to Armour and was refused.3 Moreover, this aspect of

Morrissey’s argument is not developed in the motion for post trial relief, which

contains only a passing reference to Armour’s insurance policy. 4           As such,

undeveloped arguments are generally considered waived.5                 Because the

clause does not make reference to providing Morrissey a defense, and no

insurance policy is in evidence requiring Armour to provide Morrissey a

____________________________________________


3 The joinder complaint filed by Morrissey’s counsel demanded “full              and
immediate defense and indemnification including attorney’s fees.”                See
Complaint, Count IV, ¶ 28.     We assume Morrissey’s counsel was                  not
demanding to be replaced by Armour’s counsel of choice, but rather               was
seeking to be paid by Armour.

4   See Paragraph 12, Morrissey’s Motion for Post Trial Relief.

5 The trial court opinion does not address this aspect of Morrissey’s claim,
presumably because it was not properly developed and presented to the trial
court.

                                           -7-
J-A10016-19



defense, or reimbursement for defense costs, this aspect of Morrissey’s

argument must fail.

      The second aspect of Morrissey’s argument involves the “Hold Harmless

Agreement” found in the subcontract between Morrissey and Armour.

Specifically, Morrissey refers to the introductory paragraph which states:

      To the fullest extent permitted by law, the Subcontractor shall
      indemnify and hold harmless and defend James D. Morrissey, Inc.
      and their agents and employees against all claims, damages,
      losses and expenses, including but not limited to attorney’s fees,
      arising out of or resulting from the performance of the Work,
      provided that any such claim, damage, loss or expense (1) is
      attributable to bodily injury, sickness, disease or death, or to
      injury to or destruction of tangible property, including the loss of
      use resulting therefrom, and (2) is caused in whole or in part by
      any negligent act or omission of the Subcontractor, or anyone
      directly or indirectly employed by any of them or anyone for whose
      acts any of them may be liable, regardless of whether or not it is
      caused by James D. Morrissey, Inc.

Morrissey Motion for Post Trial Relief, Exhibit A.

      Here, Morrissey argues the trial evidence showed that Armour hung the

left turn signal sign and Kushner claimed that was a negligent act.

Accordingly, Morrissey contends the conditions of the Hold Harmless

Agreement have been met, and the agreement requires Armour pay

Morrissey’s attorney fees when the injury suffered was caused in any part by

Armour’s negligence.

      The fatal flaw in this argument is that the jury did not accept Kushner’s

and Morrissey’s proposition that Armour acted negligently.            The jury

determined that Armour was free from negligence.        The second numbered



                                      -8-
J-A10016-19



condition of the Hold Harmless Agreement requires a negligent act or omission

from the subcontractor before indemnification is triggered. When the jury

determined no such act or omission occurred, it also negated the second

numbered condition.     Accordingly, Armour is not required to reimburse

Morrissey for their attorneys’ fees and costs.

      We next address Armour’s argument that the trial court erred in

requiring it to indemnify Morrissey $22,500.00 for the damage award against

it. As discussed above, the Hold Harmless Agreement requires indemnity from

the subcontractor, Armour, in the event that the damages are caused, in

whole or in part, by any negligent act or omission committed by Armour.

When the jury determined Armour was not negligent, it absolved Armour from

any requirement to indemnify Morrissey.          Because the Hold Harmless

Agreement, presumably drafted by Morrissey, required a negligent act or

omission by Armour to trigger its implementation, and no such act or omission

took place, it was error for the trial court to impose indemnity upon Armour.

Accordingly, we vacate the $22,500.00 award from Armour to Morrissey.

      We now look to Kushner’s arguments.

      Kushner’s first claim is the trial court erred in precluding the expert

testimony of neuropsychologist Dr. Rosette Biester, Ph.D. Immediately prior

to trial, the defense sought to preclude Dr. Biester’s testimony because it was

based, in part, on psychological records that had been requested by the




                                     -9-
J-A10016-19



defense, but never delivered to them.6                 The defense claimed their

neuropsychological experts had been denied access to the documents and,

therefore, were placed at a disadvantage and would be unable to respond to

Kushner’s proposed expert testimony.               The trial court agreed with the

defenses’ argument and precluded Dr. Biester’s testimony.

       Our standard of review for an evidentiary issue is well settled:

       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. Thus our standard of review is very narrow.... To
       constitute reversible error, an evidentiary ruling must not only be
       erroneous, but also harmful or prejudicial to the complaining
       party.

Croyle v. Smith, 918 A.2d 142, 147 (Pa. Super. 2007) (citation omitted).

       In arguing for preclusion, counsel for Morrissey posited the following:

       Your Honor, the motion we filed was a motion to preclude both
       Biester and Cohen primarily for the same reasons, but to
       piggyback on what Mr. Schaefer [counsel for Conex] was saying,
       it’s not just the prejudice of our expert not being permitted to
       review the records that were relied upon by plaintiff’s experts. In
       this case, it’s not – that wasn’t the limitation of the prejudice.

       Not only was our neuropsychologist, Dr. Minniti, not only was she
       precluded from reviewing the records that were relied upon by
       plaintiff’s expert, but she was denied an interview into those areas
       of inquiry to which the plaintiff’s expert was able to inquire.
____________________________________________


6 Kushner had originally claimed to have suffered post traumatic stress from
the accident. However, when psychological records were not turned over to
the defense, on May 4, 2016, Judge John M. Younge entered an order
precluding Kushner from seeking psychological damages. Apparently, as part
of this order, the defense agreed not to seek the records. Dr. Biester’s report
was not produced to defendants until after the May 4, 2016 order.

                                          - 10 -
J-A10016-19



        The plaintiff’s expert was able to review the records. The plaintiff’s
        expert, actually, Dr. Biester in a list of items that she reviewed for
        purposes of preparing her report, No. 10 was the records of Dr.
        Biju Basil. That’s listed as one of the records that Dr. Biester relied
        upon. Not just reviewed, but relied upon.

        Now the case law is very, very clear. Expert opinions are not
        permitted when they rely on facts that are not of record.

        On three separate occasions, the defendants tried to obtain the
        records of Dr. Basil, three times. They were precluded three times
        based on, relying on the May 4th, 2016 order.

        It was the reliance on that that precluded us from getting the
        records. But plaintiff’s expert not only got them, but relied on
        them.

N.T. Trial, 12/11/2017, at 133-134.

        In her 1925(a) opinion, the trial judge wrote:

        Admitting the testimony [of Dr. Biester] would have unfairly
        prejudiced Defendants because none of the psychologist’s records
        relied upon by Dr. Biester were disclosed during discovery. Thus,
        Defendants’ experts were not able to review any of these
        documents when forming their opinions or drafting their reports.
        Further, by Plaintiff’s own admission her psychological conditions
        were not relevant at trial.

Pa.R.A.P. 1925(a) Opinion, 10/31/2018, at 10.

        Our review of Dr. Biester’s report7 shows Dr. Biester did list the records

of Dr. Basil as having been reviewed. The substance of the report makes only

passing reference to Dr. Basil’s treatment.           However, two of the four

recommendations that conclude Dr. Biester’s report address the need for

ongoing     psychiatric    treatment     and   psychotherapy.      Both    of     these

____________________________________________


7   See Morrissey’s Motion in Limine, Exhibit “G”.

                                          - 11 -
J-A10016-19



recommendations address subjects that were precluded and apparently are

derived from the review of documents the defense was not allowed to see. It

is unclear, based on our review of the certified record, if or how Dr. Biester

could parse her conclusions from those areas which had not been made

available to the defense. Accordingly, we cannot conclude that the trial court

erred in precluding the testimony of Dr. Biester. Kushner is not entitled to

relief on this issue.

        Next, Kushner claims the trial court erred in overruling the objection

raised    in   closing   argument     when     counsel   for   Morrissey   “improperly

communicated and inferred”8 that Kushner had settled her claim against

Conex and Beggs.

        Counsel for Morrissey was the second defendant to present closing

argument.9 Counsel’s first remarks were:

        . . . I don’t know what’s changed in this case. I heard on Monday
        like you all did that the plaintiff [sic], Mr. Beggs, was recklessly in
        disregard of the law, recklessly in disregard of the law. I heard it
        two or three times, these horrible things. And now I’m going to
        ask you to do the same thing I asked you on Monday and apply
        your common sense to all those things plaintiff just argued. Why
        did things change? Why is Mr. Beggs just maybe negligent in the
        case and James D. Morrissey is to blame for everything? Use your
        common sense and I think you will get to the right answer.

N.T. Trial, 12/15/2017, at 115.
____________________________________________


8   See Kushner’s brief at 31.

9 Counsel for Conex/Beggs was the first defendant to present closing
argument.



                                          - 12 -
J-A10016-19



        Kushner argues the reference to the change in tactics was a “winking”10

reference to the settlement of her claim against Conex and Beggs. Further,

Kushner asserts that such reference to a settlement is a violation of 42 Pa.C.S.

§ 6141, which rules settlement of a personal injury claim “shall not be

admissible in evidence on the trial of any matter.” 42 Pa.C.S. § 6141(c).11

        This issue has been waived for failure to raise a timely objection at trial.

No objection to this comment was raised when the comment was made.12

Rather, Kushner waited until all closing arguments had been made and then,

additionally waited until the jury had been charged and had retired to begin

deliberations.     Only then did Kushner’s counsel mention the perceived

transgression. Counsel said:

        . . . The other point, Your Honor, is just to state for the record,
        what Mr. Donovan did in his closing is very, very improper. He
        did a few things. The first thing he did was he insinuated to this
        jury that there was a settlement between the plaintiff and Canex
        [sic] and Rodney Beggs. And I can get the transcript and point to
        it, Your Honor. That is incredibly improper and we object to it.

N.T. Trial, 12/15/2017, at 178.




____________________________________________


10   See Kushner’s Brief at 33.

11Technically, section 6141(c) would not apply because closing argument by
counsel is not evidence.

12 Kushner did immediately object to another comment made during
Morrissey’s closing argument. See N.T. Trial, 12/15/2017, at 117.



                                          - 13 -
J-A10016-19



       This comment, made 63 pages of transcript after the allegedly offending

argument and after the jury had retired to deliberate, cannot be considered a

timely objection. Accordingly, this argument has been waived.13

       Kushner’s next claims the trial court erred in charging the jury regarding

mitigation of damages. Kushner argues the defense withdrew its request for

the charge yet the trial court still gave the charge, and also argues a timely

objection was raised to the charge. Both arguments are a misrepresentation

of the record. We quote the relevant portion of the charging conference:

       The Court: Okay. 7.10, any objection to Mitigation of Damages?

       Mr. Pansini [Plaintiff’s Counsel]: I can’t even find where we are.

       The Court: 7.10, Number 15 on the Defense C[o]nex.


____________________________________________


13 We also note the trial court did not even address this issue in its Pa.R.A.P.
1925(a) opinion. Further, Kushner has not attempted to explain the delay in
raising the objection.

See Commonwealth v. Gilman, 368 A.2d 253, 256 (Pa. 1977) (untimely
objection to closing argument waives objection). The latest objection we have
found that was considered timely was immediately after the closing argument
in question. Morrissey cited Commonwealth v. Myrick, 118 A.3d 449 (Pa.
Super. 2015) to support this point. See Morrissey Appellee Brief at 40.
Myrick is an unpublished memorandum decision that cites Gilman. Counsel
for Morrissey failed to note they were relying upon a non-precedential
decision. (A May 1, 2019, amendment to Pa.R.A.P. 126 allows a party to cite
to unpublished memorandum for persuasive value, but only if said decision
was issued after May 1, 2019. Morrissey’s brief was filed on December 10,
2018, more than five months prior to the rule change. Myrick was decided
in 2015, approximately 4 years prior to the rule change. Accordingly, the
citation to Myrick is improper for multiple reasons.)



                                          - 14 -
J-A10016-19


     Mr. Pansini: Which one of the two are we, first alternative or
     second alternative?

     The Court: Which one do you want me to use, first or second
     alternative?

     Mr. Schaefer [Counsel for Conex]: I’ll withdraw the whole charge.

     The Court: Withdrawn.

N.T. Trial 12/15/2017, at 25.

     Approximately 20 lines of transcription later, the following exchange

took place:

     Mr. Schaefer: Judge, I apologize, I did misspeak, and I would hate
     to bring us back to 7.1.

     The Court: 7.1

     Mr. Schaefer: When I read it I read the bottom which is surgery,
     but we do need the second alternative, which is the standard
     charge 7.1

     The Court: Number 15?

     Mr. Pansini: Number 15?

     Mr. Schaefer: Number 15, Your Honor.

     The Court: Okay, the second alternative, okay.

Id. at 26-27.

     This exchange clearly demonstrates that counsel for Conex did not

actually withdraw the standard charge for mitigation of damages and that

Kushner’s counsel acknowledged that fact and did not object.

     On page 152 of the notes of testimony, the trial judge charged the jury

regarding mitigation of damages. As noted above, on page 176, the trial judge


                                   - 15 -
J-A10016-19



sent the jury to deliberate. On page 177, after the jury left the courtroom to

begin deliberation, Kushner’s counsel objected to the mitigation of damages

charge. Just as with the prior claim, this delayed objection is not timely.14

Therefore, Kushner is not entitled to relief on this claim.

       Kushner’s final argument is that the trial court erred in failing to grant

JNOV against Morrissey where the dashcam video of the accident clearly

shows the semi-truck rear-ending the Kushner car. Kushner argues that the

nature of the accident represents negligence per se and so the jury’s

apportionment of negligence was inappropriate. Specifically, Kushner argues,

“Indeed, we have the benefit of a video depicting the entire incident and there

is no doubt that the negligence of C[o]nex Freight’s tractor trailer operator far

outweighs that of Ms. Kushner and that a judgment finding Caroline Kushner

more negligent that C[o]nex and Co-defendant James D. Morrissey, Inc.

cannot be reasonably explained.” Appellant’s Brief at 43-44.

       Our standard of review for the denial of a motion for JNOV is as follows:

       We will reverse a trial court's grant or denial of a [JNOV] only
       when we find an abuse of discretion or an error of law that
       controlled the outcome of the case. Further, the standard of
       review for an appellate court is the same as that for a trial court.

           There are two bases upon which a [JNOV] can be entered;
           one, the movant is entitled to judgment as a matter of law
           and/or two, the evidence is such that no two reasonable
           minds could disagree that the outcome should have been
           rendered in favor of the movant. With the first, the court
           reviews the record and concludes that, even with all factual
____________________________________________


14See Pa.R.C.P. 227(b) – “Unless specially allowed by the court, all exceptions
to the charge to the jury shall be taken before the jury retires.”

                                          - 16 -
J-A10016-19


          inferences decided adverse to the movant, the law
          nonetheless requires a verdict in his favor. Whereas with
          the second, the court reviews the evidentiary record and
          concludes that the evidence was such that a verdict for the
          movant was beyond peradventure.

      United Envtl. Grp., Inc. v. GKK McKnight, 176 A.3d 946, 959
      (Pa. Super. 2017) (quotation omitted). Furthermore, we note:

          The proper standard of review for an appellate court when
          examining the lower court's refusal to grant a [JNOV] is
          whether, when reading the record in the light most
          favorable to the verdict winner and granting that party
          every favorable inference therefrom, there was sufficient
          competent evidence to sustain the verdict. Questions of
          credibility and conflicts in the evidence are for the trial
          court to resolve and the reviewing court should not reweigh
          the evidence.
      Shamnoski v. PG Energy, Div. of S. Union Co., 579 Pa. 652,
      858 A.2d 589, 593 (2004) (internal citations omitted).

Greco v. Myers Coach Lines, Inc., 199 A.3d 426, 430 (Pa. Super. 2018).

      After a thorough review of the certified record, we agree with the trial

court’s analysis.

      […] [Kushner’s] motion for JNOV was without merit because the
      jury actually returned a favorable verdict [to Kushner].

      In her January 8th, 2018, post-trial motion for JNOV, [Kushner]
      alleged:

          “26. As the crash at issue is memorialized by a dashcam
          video which shows [Kushner] slowing down and stopping
          and then being forcefully rear-ended by a tractor[-]trailer
          who was accelerating at the point of impact, [Kushner] files
          for judgment notwithstanding the verdict and asks for a
          new trial with respect to liability and damages as against
          Defendant, James D. Morrissey, Inc.”

      [Kushner] further alleged:



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         “28. [Kushner] asserts that, pursuant to Pa.R.C.P. 227.1,
         in this rear-end accident, [Kushner] was entitled to
         judgment on liability as a matter of law and/or the
         evidence was such that no two reasonable minds files [sic]
         for judgment notwithstanding the verdict and asks for a
         new trial with respect to liability and damages as against
         Defendant, James D. Morrissey, Inc.”

     In this case, the facts were not so obvious that no two minds could
     disagree as to Morrissey’s negligence. While the dashcam video
     footage from Beggs’ semi-trial tuck did record the motor vehicle
     incident, the footage could not have conclusively apportioned out
     negligence among the Defendants; thus, the jury acted as fact
     finder and deliberated. In fact, [Kushner] received a favorable
     verdict as the jury found Morrissey 15% negligent. Therefore,
     [Kushner’s] argument in favor of JNOV is unclear. Further,
     [Kushner] does not cite to any evidence or conduct [on the part
     of Morrissey] that would warrant entry of JNOV. Accordingly,
     denial of [Kushner’s] request for JNOV against Morrissey was not
     an abuse of discretion or error of law because [Kushner] actually
     prevailed against Morrissey.

     Assuming, arguendo, that [Kushner] contends JNOV would have
     been entered because Morrissey should have been found more
     than 15% negligent, denial was still proper. JNOV would not have
     been proper simply because [Kushner] did not recover what she
     believed to be appropriate compensation. That is not the standard
     for JNOV. Here, there were material issues of fact with respect to
     Morrissey’s negligence that reasonable minds could disagree upon
     and the Court was not entitled to act as a fact finder to apportion
     out negligence and damages. The jury properly deliberated based
     upon the evidence in the record and concluded that Morrissey was
     15% negligent, returning a favorable verdict for [Kushner].
     Therefore, denial was proper and [Kushner’s] claim must fail.

Trial Court Opinion, 10/31/2018, at 14-15.

     The trial court has appropriately noted that Kushner has referenced no

evidence regarding Morrissey’s negligence that supports a claim the jury




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improperly apportioned liability against Morrissey.15 We agree with Morrissey

that Kushner did not object to the comparative negligence charge being given

to the jury and so agreed that the issue was to be decided by the jury.

Accordingly, we find no abuse of discretion or error of law by the trial court’s

denial of JNOV. Kushner is not entitled to relief on this issue.16

       In light of the foregoing, we vacate that portion of the judgment

awarding indemnity to Morrissey from Armour, and affirm the judgment in all

other regards. We remand this matter to the trial court for entry of judgment

in conformity with this decision. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/19/19


____________________________________________


15 Relevant to this, Paragraph 27 of Kushner’s motion for post-trial relief
states, in toto, “Notwithstanding this, the jury asserted [Kushner], was
stopped at a red light when she was rear-ended, with 50% liability.” Kushner’s
Post-Trial Motion for Relief, at 5, ¶ 27. However, the evidence showed
Kushner was not actually stopped at a red light, the light was green, the truck
in front of her had moved through the intersection, and she stopped in the
mistaken belief her light was red. In any event, paragraph 27 clearly
references the prior paragraph that detailed only Beggs’ and Conex’s
negligence.

16 We have already determined that the evidentiary issues raised by Kushner
were without merit. These claims were the basis of a request for a new trial
regarding damages. Therefore, even if a new trial had been warranted on
liability, damages would not be at issue.

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