J-A01038-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 JULIEN DEMOINERIE                        :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 EMBALL'ISO, INC.                         :
                                          :
                    Appellant             :   No. 1238 EDA 2018

             Appeal from the Judgment Entered March 28, 2018
    In the Court of Common Pleas of Philadelphia County Civil Division at
                     No(s): April Term, 2016, No. 03190


BEFORE: OTT, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.:                            FILED MAY 14, 2019

      Emball’Iso, Inc., appeals from the judgment entered in favor of Julien

Demoinerie on his negligent misrepresentation claim. Emball’Iso argues the

court erred in denying its motions for summary judgment, a directed verdict,

or judgment notwithstanding the verdict (“JNOV”), in denying its request for

jury instructions, in precluding a witness’s testimony, and in denying its

request for a remittitur of the jury award. We affirm.

      The trial court recounted the facts as follows:

      Plaintiff Julien Demoinerie . . . is a native of France and a French
      Citizen. Defendant Emball’Iso, Inc. . . . is a manufacturing
      company headquartered in France with facilities in many
      countries. [Demoinerie] began working for [Emball’Iso] at its
      Shanghai, China facility in 2010, eventually becoming General
      Manager. While in China, [Demoinerie] married a Chinese citizen
      and the couple had a daughter.

            In May 2014, [Emball’Iso]’s CEO/President, Pierre Casoli
      (“Casoli”) approached [Demoinerie] about moving to the United
      States to work in a new facility in Philadelphia. [Demoinerie]
J-A01038-19


     expressed an interest in serving as Plant Manager. On June 10,
     2014, [Demoinerie] and Casoli executed an agreement
     (“Production Manager Agreement”) under the terms of which
     [Demoinerie] would instead work as the Production Manager of
     the Philadelphia facility, reporting directly to Casoli. Under the
     terms of the Production Manager Agreement, [Demoinerie] would
     receive an annual salary of $100,000. In the event of termination,
     [Demoinerie] would be paid two months’ salary. The effective date
     of the Production Manager Agreement was August 15, 2014. Prior
     to signing the Production Manager Agreement, [Demoinerie] was
     instructed to train a replacement and resign his position in
     Shanghai.

           [Demoinerie] expressed his concern about working with Vice
     President Ronald Stern (“Stern”) in the Philadelphia facility before
     signing the Production Manager Agreement. Casoli assured him
     they would serve as a “duality” with neither being subordinate to
     the other. [Demoinerie] testified that Casoli appealed to his
     commitment to the company and Casoli.

            On August 12, 2014, prior to the effective date of the
     Production Manager Agreement and before [Demoinerie] moved
     to Philadelphia, [Emball’Iso] petitioned the United States
     government for a visa to permit [Demoinerie] to work in the
     United States. On the visa [petition], [Emball’Iso] represented
     that it wished to extend an offer of employment to [Demoinerie]
     as “Plant Manager” of its Philadelphia facility, reporting directly to
     Vice President [Stern]. The visa petition stated [Demoinerie]’s
     intended dates of employment as August 11, 2014 to August 11,
     2017.

            [[Demoinerie] reviewed a draft of the visa [petition] prior to
     its submission and was concerned about the change in reporting
     structure.] [Based on the visa petition, it was [Demoinerie]’s
     understanding that, as Plant Manager, he would have “full
     authority for plant management” and be employed in that position
     for three years.]

           On October 27, 2014, U.S. Citizenship and Immigration
     Services issued an Approval Notice to [Emball’Iso]. On November
     7, 2014, the United States issued an L1-A Visa to [Demoinerie]
     with an expiration date of November 5, 2019. Under the terms of
     the visa, [Demoinerie] could only work in the United States in a
     management position for a company which was at least 50%
     French-owned.


                                     -2-
J-A01038-19


            [Despite [Demoinerie]’s reservations about reporting to
      Stern, he moved to the United States; he had already hired and
      trained his replacement at the China facility.] [Demoinerie]
      arrived in the United States on November 13, 2014 and began
      work at the Philadelphia facility on November 17, 2014. The
      professional relationship between [Demoinerie] and Stern quickly
      became strained. [Demoinerie] testified that Stern raised his voice
      at [Demoinerie] in front of employees and gave instructions to
      employees that contradicted [Demoinerie]. Stern also hired and
      promoted employees without notifying [Demoinerie]. Casoli
      denied [Demoinerie]’s request to change the reporting structure.

            On February 23, 2015, Casoli advised [Demoinerie], in
      person, that he was terminated. [Demoinerie] was presented with
      two termination letters and instructed to choose between them.
      The termination without cause letter, which identified
      [Demoinerie] as Production Manager of the Philadelphia facility,
      included a general release and four months’ severance pay. The
      second letter, which specified [Demoinerie] was being terminated
      as the Production Manager with cause, stated that [Demoinerie],
      committed willful misconduct including sabotage, self-dealing, and
      insubordination. There was no provision for severance pay.
      [Demoinerie] testified that he refused to sign either letter because
      (a) the Production Manager Agreement never went into effect and
      (b) he was not the Production Manager of the Philadelphia Facility.
      [Demoinerie]’s last day of employment was February 26, 2015.

            After his employment terminated, [Demoinerie]’s salary was
      transmitted by wire to his bank account for two months.
      [Demoinerie] testified that he believed that he was being
      compensated as Plant Manager and not pursuant to the Production
      Manager Agreement because he never worked as a Production
      Manager. [Demoinerie] could not find employment that satisfied
      the terms of his visa and returned to France to seek employment.

Trial Court Opinion, filed July 24, 2018, at 1-4 (reordered; citations to notes

of testimony and exhibits omitted).

      Demoinerie filed suit against Emball’Iso. Demoinerie alleged that

Emball’Iso had engaged him in employment as Plant Manager; Emball’Iso

assisted him in securing a visa; Demoinerie left China to begin working in


                                      -3-
J-A01038-19



Philadelphia; and Emball’Iso abruptly terminated Demoinerie’s employment,

leaving him stranded in the United States with limited job prospects. On these

allegations, Demoinerie brought two claims: Breach of Implied Contract, and

Negligent Misrepresentation.

      Following a trial, a jury found (1) the Production Manager Agreement

did not govern Demoinerie’s employment with Emball’Iso, (2) there was no

implied   contract   between      the   parties,   (3)   Emball’Iso   negligently

misrepresented a material fact to Demoinerie, (4) Demoinerie relied on

Emball’Iso’s misrepresentation when deciding to accept the position and move

to the United States, and (5) Demoinerie suffered harm as a result of his

reliance on the misrepresentation. The jury awarded Demoinerie $675,000 on

the negligent misrepresentation claim. Emball’Iso filed a Motion for Post-Trial

Relief, which the court denied.

      Emball’Iso thereafter filed a notice of appeal, and presents the following

issues:

      A. Whether the [t]rial [c]ourt erred in denying Emball’Iso’s Motion
      for Summary Judgment, Motion for Directed Verdict, and Motion
      for Judgment Notwithstanding the Verdict because the
      employment relationship between Demoinerie [a]nd Emball’Iso
      was governed by a written Employment Agreement.

      B. Whether the [t]rial [c]ourt erred in denying Emball’Iso’s Motion
      for Summary Judgment, Motion for Directed Verdict, and Motion
      for Judgment Notwithstanding the Verdict as the negligent
      misrepresentation claim is barred by the [g]ist of the [a]ction
      [d]octrine.

      C. Whether the [t]rial [c]ourt erred in [de]nying Emball’Iso’s
      Motion for Summary Judgement, Motion for a Directed Verdict,
      and Motion for Judgment Notwithstanding the Verdict because the

                                        -4-
J-A01038-19


     [n]egligent [m]isrepresentation claim failed as a matter of law
     where there was no competent evidence of any misrepresentation
     of material fact knowingly made by employer that the employee
     relied upon to his detriment.

     D. Whether the trial court erred in denying Emball’Iso’s Motion for
     Summary Judgment, Motion for Directed Verdict, and Motion for
     Judgment Notwithstanding the Verdict because the [n]egligent
     [m]isrepresentation claim failed as a matter of law where there
     was no competent evidence that [e]mployee suffered any harm
     as a result of the alleged misrepresentation.

     E. Whether the [t]rial [c]ourt erred in denying Emball’Iso’s request
     to instruct the jury on the concept of contract ratification through
     the acceptance of benefits.

     F. Whether the [t]rial [c]ourt abused its discretion in prohibiting
     Emball’Iso from presenting the testimony of Jerry Singleton.

     G. Whether the [t]rial [c]ourt erred in [d]enying [r]emittitur on
     the [j]ury’s [a]ward [as it] was not supported by the evidence and
     substantially deviated from what can be considered reasonable
     compensation.

Emball’Iso’s Br. at 8-9 (responses below omitted)

                 A. The Production Manager Agreement

     Emball’Iso first argues that the court erred in denying its Motion for

Summary Judgment, Motion for Directed Verdict, and Motion for Judgment

Notwithstanding the Verdict (“JNOV”), because, as a matter of law, the

Production   Manager   Agreement    governed    the   terms   of   Demoinerie’s

employment.

     Summary judgment is appropriate when, taking the evidence in the light

most favorable to the non-moving party, there are no genuine issues as to

any material fact and the moving party is entitled to judgment as a matter of

law. Am. S. Ins. Co. v. Halbert, --- A.3d ----, 2019 PA Super 15 (Jan. 17,


                                    -5-
J-A01038-19



2019). “Whether there are no genuine issues as to any material fact presents

a question of law, and therefore, our standard of review is de novo and our

scope of review plenary.” Id. (citation omitted).

      In contrast, entry of a directed verdict or JNOV is appropriate when,

taking the evidence in the light most favorable to the non-moving party, either

the movant is entitled to judgment as a matter of law, or “no two reasonable

minds could disagree that the outcome should have been rendered in favor of

the movant.” Hall v. Episcopal Long Term Care, 54              A.3d 381, 395

(Pa.Super. 2012) (citation omitted). While we exercise de novo review over

questions of law, we will not substitute our judgement for that of the fact-

finder where questions of credibility and weight of the evidence are concerned.

Sutch v. Roxborough Mem’l Hosp., 151 A.3d 241, 250 (Pa.Super. 2016).

      Emball’Iso argues that Demoinerie produced no evidence to establish

that the parties rescinded the Production Manager Agreement. According to

Emball’Iso, although Demoinerie’s job title was changed from Production

Manager to Plant Manager, and the reporting structure changed such that

Demoinerie would report to Stern, these were de minimis modifications to the

terms of the Agreement, and the evidence establishes that the parties

mutually assented to the modifications and reaffirmed the Agreement through

the following actions: Emball’Iso attached the Agreement as an exhibit to the

visa petition, which Demoinerie signed; after he began work, Demoinerie

referred to the Agreement as his “work agreement” in an e-mail to Casoli; and




                                     -6-
J-A01038-19



Demoinerie accepted two months’ pay after he was terminated, as the terms

of the Agreement had provided.

      Parties to a written contract may “show that it was subsequently

abandoned in whole or in part, modified, changed or a new one substituted,

either by writings or by words or by conduct or by all three.” Trustees of

First Presbyterian Church of Pittsburgh v. Oliver-Tyrone Corp., 375

A.2d 193, 196 (Pa.Super. 1977). “Mutual assent to abandon the contract may

be inferred from attending circumstances and the conduct of the parties.”

Wathen v. Brown, 189 A.2d 900, 902 (Pa.Super. 1963). Whether the parties

have agreed to rescind or modify a contract is an issue for the factfinder.

Johnston v. Johnston, 499 A.2d 1074, 1077 (Pa.Super. 1985).

      Here, the parties presented conflicting evidence of whether the

Production Manager Agreement had been modified or abandoned, and

therefore entry of summary judgment or a directed verdict would have been

inappropriate. Entry of JNOV would have likewise been inappropriate, as

Demoinerie presented sufficient evidence for the jury to conclude that the

Production Manger Agreement had been abandoned by the offer of the position

as Plant Manager. Casoli testified that the Plant Manager position differed from

the offer of employment under the Production Manager Agreement;

Demoinerie testified that his business cards and e-mail signature identified

him as the Plant Manager; and Demoinerie testified that he refused to sign

either termination letter because he had never been Production Manager. We




                                     -7-
J-A01038-19



therefore conclude the court did not abuse its discretion in deferring to the

jury’s verdict in favor of Demoinerie.

                    B. The Gist of the Action Doctrine

      Emball’Iso next argues that the court erred in denying its Motion for

Summary Judgment, Motion for Directed Verdict, and Motion for JNOV because

the gist of the action doctrine precluded Demoinerie from recovering under a

theory of negligent misrepresentation. Emball’Iso argues that because

Demoinerie’s employment was controlled by the Production Manager

Agreement, the doctrine barred him from bringing a tort action to seek

recovery outside the provisions of the Agreement.

      “[T]he question of whether the gist of the action doctrine applies is an

issue of law subject to plenary review.” J.J. DeLuca Co. v. Toll Naval

Assocs., 56 A.3d 402, 413 (Pa.Super. 2012). The gist of the action doctrine

“ensure[s] that a party does not bring a tort claim for what is, in actuality, a

claim for a breach of contract.” Bruno v. Erie Ins. Co., 106 A.3d 48, 60 (Pa.

2014). That is, when the parties’ obligations are defined by the terms of the

contract, the doctrine precludes a plaintiff from recasting a contract claim as

a tort claim. Hart v. Arnold, 884 A.2d 316, 339 (Pa.Super. 2005).

      We need not expound upon the doctrine further. The first question posed

to the jury on the verdict sheet was whether the Production Manager

Agreement governed the parties’ relationship, and, as discussed above, the

jury concluded that it did not. As there was no enforceable contract between

the parties, the gist of the action doctrine did not bar Demoinerie’s negligent

                                     -8-
J-A01038-19



misrepresentation claim. Thus, the trial court did not err in denying

Emball’Iso’s motions for summary judgment, directed verdict, and JNOV made

on this basis.

                 C. The Negligent Misrepresentation Claim

      Emball’Iso argues that the court erred in denying its Motion for

Summary Judgment, Motion for Directed Verdict, and Motion for JNOV because

Demoinerie failed to produce competent evidence to support his negligent

misrepresentation claim. Emball’Iso first argues that the allegations in the

Complaint do not establish Emball’Iso misrepresented a material fact that

Demoinerie relied upon to his detriment. Emball’Iso argues that the Complaint

alleged that Emball’Iso made misrepresentations in the visa petition which

Demoinerie relied upon when leaving China. Emball’Iso maintains that

because the visa petition post-dates Demoinerie’s resignation from the China

facility, the statements in the petition could not have caused his resignation.

Emball’Iso further argues that it made no misrepresentations in the visa

petition, as Demoinerie acknowledges that he was employed as Plant

Manager, in accordance with the statements in the petition.

      In addition, Emball’Iso argues the claim Demoinerie presented at trial

to establish his negligent misrepresentation claim did not correspond to the

allegations in the Complaint. In contrast, at trial, according to Emball’Iso,

Demoinerie argued he relied upon misrepresentations Emball’Iso made in the

Production Manager Agreement and suffered harm when he resigned from his

position in China. These allegations of misrepresentations and reliance pre-

                                     -9-
J-A01038-19



date the visa petition, which were the only misstatements referenced in the

Complaint.

      To prevail on claim of negligent misrepresentation, a plaintiff must

prove: “(1) a misrepresentation of a material fact; (2) made under

circumstances in which the misrepresenter ought to have known its falsity;

(3) with an intent to induce another to act on it; and; (4) which results in

injury to a party acting in justifiable reliance on the misrepresentation.” Bortz

v. Noon, 729 A.2d 555, 561 (Pa. 1999).

      Emball’Iso’s argument that the Complaint failed as a matter of law lacks

merit. The Complaint alleges that Emball’Iso misrepresented, in the visa

petition, that Demoinerie would serve as Plant Manager; that he would be

employed     for   three   years;   that      Demoinerie   relied   upon   these

misrepresentations when accepting the position and moving to the United

States; and that he suffered damages thereafter. See Complaint, 4/28/16, at

6, ¶¶ 25-29. These allegations on their face state a claim for negligent

misrepresentation.

      Emball’Iso’s argument that it was entitled to a directed verdict or JNOV

likewise fails, as Demoinerie produced sufficient evidence to verify the

allegations in the Complaint. The testimony established that after Emball’Iso

made representations in the visa petition regarding the position of Plant

Manager, Demoinerie “agreed to the new position [of Plant Manager] because

. . . as Plant Manager, he would have ‘full authority for plant management’

and would be employed in that position for three years.’” Tr. Ct. Op. at 8

                                     - 10 -
J-A01038-19



(quoting N.T.). Demoinerie testified that after he left China and began working

in the Philadelphia facility, he was not given the authority of a Plant Manager

as Emball’Iso had described that position in the visa petition; that he was

terminated when he raised this issue to Casoli; and, as a result, he was not

employed for the time-period Emball’Iso represented in the visa petition.

Furthermore, the evidence established that while Demoinerie had resigned

from his position in China prior to reading the visa petition, he did not move

to the United States, on a restrictive visa, until after his consideration of and

reliance upon the statements in the visa petition. We therefore conclude the

court did not err in denying Emball’Iso’s request to hold that Demoinerie failed

to adduce sufficient evidence to support the allegations of negligent

misrepresentation as pled in the Complaint.

      Emball’Iso’s claim that Demoinerie’s argument at trial varied from the

allegations in the Complaint is also meritless. While Demoinerie argued that

Emball’Iso had initially misrepresented that it would employ Demoinerie as

Production Manager, reporting to Casoli, he did so when arguing that the

Production Manager Agreement had been abandoned and superseded by the

offer of employment as Plant Manager, reporting to Stern. See N.T.,

10/25/27, at 15-16. Specifically, in relation to the negligent misrepresentation

claim, Demoinerie argued to the jury that he had relied upon Emball’Iso’s

statements in the visa petition that Demoinerie would be employed as Plant

Manager reporting to Stern and that Emball’Iso intended to employ him for

three years. Id. at 20-21. No relief is due.

                                     - 11 -
J-A01038-19



D. Proof that Misrepresentations Were Cause of Demoinerie’s Injury

      Emball’Iso argues the court erred in denying its Motion for Summary

Judgment, Motion for Directed Verdict, and Motion for JNOV because

Demoinerie produced insufficient evidence to prove that the harm he

suffered—loss of income—was due to the alleged misrepresentations.

Emball’Iso argues that Demoinerie’s employment in China was subject to

termination at any time. It contends that he therefore could not have relied

upon continuing to earn income in China, and was not harmed by resigning

that position. Emball’Iso also argues that Demoinerie was given 60 days’

notice of termination in Philadelphia, as he had requested when negotiating

the Production Manager Agreement, and that he had acknowledged at trial

that he had been terminated for cause.

      We conclude that Demoinerie produced sufficient evidence to establish

that his reliance upon the statements made by Emball’Iso in the visa petition

injured him. While Demoinerie acknowledged that his employment with

Emball’Iso was at will, and that Emball’Iso terminated him for cause,

Demoinerie argued that he relied upon Emball’Iso’s representations that it

would employ him in accordance with the Plant Manager position, as described

in the visa petition. Demoinerie testified that his employment as Plant

Manager drastically varied from the job description in the visa petition, and

argued that it was these differences that resulted in his swift termination and

loss of income.




                                    - 12 -
J-A01038-19



      Moreover, as discussed above, in connection with the negligent

misrepresentation   claim,   Demoinerie       alleged   his   harm   flowed   from

Emball’Iso’s statements in the visa petition. Thus, his resignation from the

position in China, which had already occurred by that time, was not a direct

cause of harm. However, Demoinerie moved to the United States on a visa

with restrictive job requirements based on the offer of the Plant Manager

position as described in the visa petition and with his understanding that

Emball’Iso intended to employ him in that position for an extended period of

time, as Emball’Iso represented in the visa petition. Demoinerie testified that

he was unable to find employment following his termination that would

comport with the visa requirements. Thus, it was not beyond peradventure for

the jury to conclude that Emball’Iso’s statements inducing him to leave China

contributed to his loss of income.

      Finally, as the jury concluded the Production Manager Agreement did

not govern Demoinerie’s employment, his damages were not limited to 60

days’ compensation, as the Agreement had provided. Emball’Iso’s claim is

without merit, and the trial court did not err in denying its motions for

summary judgment, a directed verdict, or JNOV.

               E. Jury Instruction on Contract Ratification

      Emball’Iso next complains that the court erred in denying its request to

instruct the jury on the concept of contract ratification through the acceptance

of benefits. Emball’Iso maintains that the fact Demoinerie accepted two

months’ income after he was terminated, as was provided for in the Production

                                     - 13 -
J-A01038-19



Manager Agreement, is proof that he assented to the terms of the Production

Manager Agreement. Emball’Iso argues it accordingly requested that the court

instruct the jury that “[a] party who accepts the benefits of a contract is

considered to have accepted the terms of the contract. This means if an

individual accepts the benefits under the terms of a contract, he cannot then

claim he is not bound by the contract.” Emball’Iso’s Br. at 32.

      Our standard of review is well settled:

      Under Pennsylvania law, our standard of review when considering
      the adequacy of jury instructions in a civil case is to determine
      whether the trial court committed a clear abuse of discretion or
      error of law controlling the outcome of the case. It is only when
      the charge as a whole is inadequate or not clear or has a tendency
      to mislead or confuse rather than clarify a material issue that error
      in a charge will be found to be a sufficient basis for the award of
      a new trial.

Lewis v. CRC Indus., Inc., 7 A.3d 841, 844 (Pa.Super. 2010) (quotation

marks and citations omitted).

      None of the authority cited by Emball’Iso persuades us that the trial

court erred by denying the request for the proposed instruction. Demoinerie

testified that he explicitly refused to sign the termination letter that provided

him two month’s salary according to the terms of the Production Manager

Agreement, because that contract had already been abandoned. The proposed

instruction would have misled the jury into thinking Demoinerie’s failure to

return the money, even after he specifically protested receiving it, standing

alone, was dispositive proof that the parties had never abandoned the

Agreement. Rather, the jury was permitted to consider all of the conduct of

                                     - 14 -
J-A01038-19



the parties in determining whether the contract had been modified or

abandoned. Wathen, 189 A.2d at 902.

        Furthermore, when summarizing Emball’Iso’s argument to the jury, the

court specifically instructed the jury to consider that the Agreement required

Emball’Iso to give Demoinerie 60 days’ notice of termination.1 Therefore,

considering the charge as a whole, we conclude that the court did not abuse

its discretion or err in denying Emball’Iso’s request to charge the jury with the

proposed instruction. Lewis, 7 A.3d at 844.

                      F. The Testimony of Jerry Singleton

        Emball’Iso argues the court erred in precluding the testimony of Jerry

Singleton, an Emball’Iso employee who had worked under Demoinerie, who

was offered to testify as to Demoinerie’s poor job performance. According to

Emball’Iso, Singleton’s testimony would have proven Demoinerie caused his

own termination and resulting loss of income.

____________________________________________


1   The court instructed the jury as follows.

        The defendant contends that the parties negotiated a written
        employment agreement. Defendant contends that it made no
        misrepresentation to the plaintiff and the plaintiff was fully
        informed in making his decision to leave China and come to the
        United States and accept employment. Defendant’s position is
        that the parties reached a written agreement that required both
        parties to give 60 days’ notice to terminate the agreement. . . .
        Defendant also contends that it fully performed its obligations
        under the agreement and that the plaintiff received all the benefits
        that were due to the plaintiff under the contract.

N.T., 10/25/17, at 53.


                                          - 15 -
J-A01038-19



          “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.” Keystone Dedicated Logistics, LLC v. JGB

Enterprises, Inc., 77 A.3d 1, 11 (Pa.Super. 2013) (quotations and citations

omitted).

          We conclude the court did not abuse its discretion in precluding the

testimony. Casoli testified that Emball’Iso had terminated Demoinerie’s

employment due to his poor job performance. Thus, Singleton’s testimony

would have been cumulative of that of Casoli, who testified to the actual

reasons he terminated Demoinerie’s employment. See Pa.R.E. 403 (court may

preclude cumulative evidence). Furthermore, Demoinerie testified that his

disagreements with Emball’Iso occurred because his position as Plant Manager

was not as Emball’Iso had described in the visa petition. Therefore, Singleton’s

testimony would not have precluded the jury from finding that despite

Demoinerie’s failures as an employee, his termination was the result of his

reliance on the representations made in the visa petition. Emball’Iso is due no

relief.

                             G. Motion for Remittitur

          In its final argument, Emball’Iso complains the court erred in denying

its motion for a remittitur. Emball’Iso contends the court’s award of $675,000

equated to nearly seven years’ salary, and this amount of damages was not

supported by the evidence. Emball’Iso argues the evidence established that

Demoinerie’s salary was $100,000 per year, plus benefits; the visa petition

                                        - 16 -
J-A01038-19



only contemplated 3 years’ employment; and the issued visa only allowed him

to remain in the country for 5 years.

      “Remittitur is justified only in limited instances . . . where the verdict

plainly is excessive, exorbitant, and beyond what the evidence warrants . . .

or where the verdict resulted from partiality, prejudice, mistake, or

corruption.” McManamon v. Washko, 906 A.2d 1259, 1285 (Pa.Super.

2006) (citations omitted; alterations in original). “On appeal, we review

whether the jury verdict so shocks the sense of justice such that the trial court

should have granted remittitur as a matter of law.” Id.

      The court did not err in denying the motion for remittitur. Demoinerie

testified that his annual salary, including benefits, amounted to $146,182.

N.T., 10/23/17, at 69-70. Therefore, the jury’s award of $675,000 equated to

approximately four and one-half years’ salary, including benefits. Demoinerie

produced evidence that the visa petition contemplated three years of

employment; that Casoli would have employed him longer than three years,

if Demoinerie had been successful at the position; that the issued visa allowed

for five years; and that after his termination, Demoinerie was unable to find

alternative employment in the United States or France because of the

restrictions on his visa and his lack of employment history in France. Thus,

the jury’s award was adequately supported by the evidence of Demoinerie’s

compensation and the amount of harm he sustained, and not so excessive as

to shock the conscience.

      Judgment affirmed.

                                     - 17 -
J-A01038-19


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/14/19




                          - 18 -
