J-A11019-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    LINDA KNIGHT                               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    J.B. HUNT TRANSPORT, INC., AND             :   No. 1447 MDA 2017
    ANTHONY T. MCBETH, ESQUIRE,                :
    ADMINISTRATOR OF THE ESTATE OF             :
    MICHAEL R. BRYERTON                        :

            Appeal from the Judgment Entered September 15, 2017
    In the Court of Common Pleas of Dauphin County Civil Division at No(s):
                                2015-CV-5506

BEFORE: STABILE, J., NICHOLS, J., and PLATT, J.*

MEMORANDUM BY NICHOLS, J.:                                FILED JULY 18, 2018

        Appellant Linda Knight (Knight) appeals from the judgment in favor of

Appellees J.B. Hunt Transport, Inc. (Hunt) and Anthony T. McBeth, Esq.,

administrator of the estate of Michael R. Bryerton (Bryerton) (collectively,

Defendants), entered following a bench trial on Knight’s claim for negligence

against Bryerton. Knight claims that the trial court erred in denying her post-

trial motion seeking a new trial against Bryerton. Knight also challenges the

court’s grant of summary judgment on her claims of fraudulent and negligent

misrepresentation against Hunt. We affirm.




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*   Retired Senior Judge assigned to the Superior Court.
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       Initially, we state the facts as set forth by the trial court in its decision

granting summary judgment:

       [On January 13, 2014,] Hunt’s employee, . . . Bryerton, was
       driving a tractor trailer . . . when he lost control of the vehicle and
       collided with [Knight’s] residence. According to [Knight], on the
       day of the accident, Hunt’s representative, Tony Hardin, provided
       her with his business card and informed her he would report the
       incident to the home office. [Knight] also claims, two days after
       the accident, she met with Hardin and another Hunt associate,
       Wesley Griffin, . . . told her “we’ll do right by you,” which she
       understood to mean Hunt would cover any damages to her home
       not covered by her homeowner’s policy.1

          1 At the time of the accident, [Knight] had a homeowner’s
          insurance policy in the amount of $138,000.

       After collecting first-party homeowner’s insurance proceeds,
       [Knight] contacted Service 1st to help clean up the property and
       reconstruct her home. In February 2014, she informed Hunt she
       was signing a contract to begin demolition and wanted
       confirmation that payment would be made from Hunt to Service
       1st for demolition and clean up. Hunt agreed to pay the cost of
       demolition in an agreement dated February 26, 2014, and
       [Knight] signed a contract with Service 1st for demolition and
       clean up only; the total cost of which was $31,533.26. Hunt was
       to make payment upon the execution of a release agreement with
       [Knight]. Defendants allege [Knight] “expressed concern” with
       the release, and Hunt informed her she would “sign another
       release once the rebuild process began.” [Knight] signed the first
       release and, on April 24, 2014, Hunt paid the cost of demolition
       and clean up, totaling $31,642.46.

       In May 2014, [Knight] began discussions with Service 1st about
       the rebuild and received an estimate of $166,835.93. She
       contacted Hunt and requested they pay the difference between
       the estimate and the $138,000 she had received through her
       insurance.[1] On June 2, 2014, [Knight] received a letter from
____________________________________________


1 As explained later at trial, the difference between the policy amount and the
reconstruction estimate was due to, among other things, construction



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        Hunt’s attorney informing her Hunt “would not be making any
        voluntary payments as a result of this situation because it resulted
        from an unforeseen, emergency medical situation to” Bryerton.
        This letter was issued after Hunt received a copy of the Coroner’s
        Comprehensive Report of Bryerton’s death investigation and
        learned he died of a sudden and unforeseen cardiac issue, which
        Defendants contend would negate any negligence.

Trial Ct. Op., 1/11/17, at 1-2. Two months later, Knight executed the contract

to rebuild the home on August 21, 2014. R.R. at 372a.2

        Knight sued Defendants, raising claims of fraudulent misrepresentation

against Hunt, negligent misrepresentation against Hunt, and negligence

against Bryerton. Defendants filed a motion for partial summary judgment on

Knight’s claims of fraudulent and negligent misrepresentation.         The court

granted the motion, and the case proceeded to a bench trial on Knight’s

outstanding negligence claim.3

        Subsequently, the court found in favor of Defendants on March 30,

2017. Knight filed a timely post-trial motion, which the court denied on August




____________________________________________


regulations promulgated after the original home was built. The original home,
which was located in a flood plain, had living space in the basement. N.T.
Trial, 1/19/17, at 18. But due to new regulations, Knight could no longer use
the basement for living quarters and, as a result, she requested construction
of a second floor/loft area as compensation. Id. at 15-16. Knight testified
that the livable square footage in the new home was “about the same” as the
footage in the old home. Id. at 32.
2   We cite to the reproduced record for the parties’ convenience.
3   We discuss the trial testimony, infra.


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22, 2017. The court entered judgment, and Knight timely appealed and timely

filed a court-ordered Pa.R.A.P. 1925(b) statement.

      Knight raises the following issues:

      Did the [trial] court err in granting partial summary judgment to
      the   Defendants       on    [Knight’s]    claims  for   negligent
      misrepresentation and fraudulent misrepresentation?

      Did the [trial] court err in holding that the Defendants sustained
      their burden of proving that . . . Bryerton’s heart attack was not
      foreseeable.

Knight’s Brief at 4.

      Knight’s Challenge to Grant of Partial Summary Judgment

      In support of her first issue, Knight reiterates the facts alleged in her

complaint and summarizes the trial court’s reasoning in granting summary

judgment.    Id. at 10-11.   In relevant part, Knight claims the first alleged

misrepresentation occurred when, shortly after the accident, Hunt informed

her that “we’ll do right by you.” Id. at 10; accord Defendants’ Brief at 17.

      According to Knight, Hunt’s second alleged misrepresentation occurred

six days after the coroner’s report on Bryerton’s cause of death. On March

11, 2014, Hunt emailed Knight stating that the “release would only pertain to

this portion of the clean up. [Knight] will sign another release once the rebuild

process begins.” Knight’s Brief at 10; R.R. at 298a; accord Defendants’ Brief

at 17. In Knight’s view, “the only reasonable interpretation of that e-mail is

that . . . Hunt was going to be paying not only for the cleanup but also for the

reconstruction.” Knight’s Brief at 11. Knight construed both statements as


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Hunt accepting responsibility for her damages and thus, she executed the

contracts to clean up and reconstruct her home.4

        Knight contends that two aspects of the court’s reasoning for granting

summary judgment on the negligent misrepresentation claim are erroneous.

First, Knight challenges the court’s statement that “at the time Hunt made the

statements that [Knight] now complains of, they were unaware of the

underlying cause of the accident.” Id. at 11 (quoting Trial Ct. Op., 1/11/17,

at 5).5 Second, Knight challenges the court’s alternative reasoning as follows:

        [Knight] is unable to show she justifiably relied on Hunt’s
        statements. When [Knight] approached Hunt about the possibility
        of paying the difference between the rebuild estimate and the
        insurance proceeds, she was informed Hunt would not cover any
        costs related to the rebuild due to the fact they had learned the
        accident was caused by Bryerton’s sudden medical emergency.
        Nonetheless, [Knight] subsequently entered into the rebuild
        contract with Services 1st, and did so with the knowledge Hunt
        would not be paying the bill. Therefore, [Knight’s] claim fails and
        Defendants are entitled to summary judgment with respect to
        [negligent misrepresentation].

Id. (quoting Trial Ct. Op., 1/11/17, at 5).




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4 As noted above, the record reflects that Knight signed the clean-up contract
on February 26, 2014 (before the March 11, 2014 email). R.R. at 37a. Knight
signed the reconstruction contract on August 21, 2014 (after Hunt advised her
in a letter dated May 30, 2014, and received by her on June 2, 2014, that it
would not pay for construction). Id. at 307a, 372a-73a.
5   We note that Knight’s brief omitted citations to the trial court’s opinion.




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       Knight contends the court’s reasoning was faulty. Specifically, Knight

maintains that Hunt notified her it would not cover rebuild costs in a letter

received on June 2, 2014. Id.6 Knight, however, points out that she had

already executed a contract to rebuild her home and the contractor’s first

invoice was dated May 6, 2014, for $47,164.08, which Knight paid via check

dated May 7, 2014. Id.7 In Knight’s view, this established her reliance on

Hunt’s representation.       Id. at 12.        Notably, although she challenged the

court’s disposition of her fraudulent misrepresentation claim in her statement

of issues presented, Knight’s brief omits any argument in support.8

       Defendants counter with four arguments, of which we summarize three.

First, Knight failed to identify any material issues of fact that Hunt intended

to deceive her. Defendants’ Brief at 18. Defendants acknowledge that at the

time Hunt agreed to pay for demolition and clean-up costs, it had no

knowledge of the cause of the accident. Id. Upon learning that Bryerton’s


____________________________________________


6Knight’s brief stated that the letter was dated June 2, 2014, but there is no
such letter.
7 Knight did not cite where in the record this was established. We note that
the record reflects only two contracts: (1) the demolition contract executed
on February 26, 2014, for $31,533.26; and (2) the reconstruction contract
executed on August 21, 2014, for $172,044.92. R.R. at 37a, 39a.
8 We acknowledge that Knight included a lengthy block quote from Bortz v.
Noon, 729 A.2d 555, 560 (Pa. 1999), regarding fraudulent misrepresentation,
for the proposition that “a misrepresentation can take many forms.” Knight’s
Brief at 12. But Knight did not articulate how, based on the Bortz Court’s
discussion, the trial court erred.


                                           -6-
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medical emergency led to the accident, Hunt declined future payment. Id.

Defendants maintain that there is no evidence that Hunt made any

misrepresentations to Knight. Id. Absent evidence of scienter, Defendants

argue Knight cannot establish Hunt’s intent to deceive. Id.

        Second, Defendants assert that Knight failed to adduce any evidence

that she justifiably relied on any of Hunt’s representations. Id. Defendants

point out that Knight emailed Hunt on May 21, 2014, about whether Hunt

would pay the additional reconstruction costs. Id. Hunt responded in a letter

received by Knight on June 2, 2014, that it would not pay the additional costs.

Nonetheless, Defendants claim, Knight continued to revise the blueprints for

her home and ultimately signed a home reconstruction contract with Services

1st on August 21, 2014. Id. at 19.

        Lastly, Defendants emphasize that Knight failed to argue how the trial

court    erred    in    granting     summary     judgment   on   the   fraudulent

misrepresentation claim. Id. at 20.9

        In a footnote, Defendants also challenge Knight’s rendition of the facts.

Id. at 19 n.1 (referencing Knight’s Brief at 11). Defendants note that Knight



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9 Defendants alternatively argue that Hunt’s statement that it would “do right
by her” should be construed as “a promise to do something in the future.” Id.
at 20. Under Pennsylvania law, Defendants assert, such a promise is not
fraud. Id. (citing cases). Defendants thus reason that even if Hunt implicitly
promised to pay for Knight’s reconstruction costs, Knight’s claim for fraudulent
misrepresentation still fails. Id.


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cited nothing in the record establishing that the first invoice was dated May 6,

2014, and paid on May 7, 2014. Id. According to Defendants, Knight testified

that no reconstruction work was performed and she incurred no reconstruction

costs before the end of May 2014. Id. (citing deposition testimony). Indeed,

per Defendants, Knight testified that construction did not begin until July or

August 2014. Id. (citing record).

      The standard of review is well-settled:

      When a party seeks summary judgment, a court shall enter
      judgment whenever there is no genuine issue of any material fact
      as to a necessary element of the cause of action or defense that
      could be established by additional discovery. A motion for
      summary judgment is based on an evidentiary record that entitles
      the moving party to a judgment as a matter of law. In considering
      the merits of a motion for summary judgment, a court views the
      record in the light most favorable to the nonmoving party, and all
      doubts as to the existence of a genuine issue of material fact must
      be resolved against the moving party. Finally, the court may grant
      summary judgment only when the right to such a judgment is
      clear and free from doubt. An appellate court may reverse the
      granting of a motion for summary judgment if there has been an
      error of law or an abuse of discretion.

Erie Ins. Exch. v. Moore, 175 A.3d 999, 1008 (Pa. Super. 2017) (citation

omitted).

              Knight’s Negligent Misrepresentation Claim

      The tort of negligent misrepresentation has four elements: “(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,

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561 (Pa. 1999) (citation omitted).             The Bortz Court further explained as

follows:

        The elements of negligent misrepresentation differ from
        intentional misrepresentation in that the misrepresentation must
        concern a material fact and the speaker need not know his or her
        words are untrue, but must have failed to make a reasonable
        investigation of the truth of these words. Moreover, like any
        action in negligence, there must be an existence of a duty owed
        by one party to another.

Id. (citations omitted).10

        Turning to Knight’s arguments, we agree with Defendants: Knight did

not identify any material issues of fact that either statement was made under

circumstances in which Hunt should have known it was false and was made

with an intent to induce Knight to act on them. See id. We note the difficulty

of ascertaining whether the statement of “we’ll do right by you” or Hunt’s

March 11, 2014 email was false, i.e., misrepresented any material facts. See

id. The former statement was capable of multiple interpretations, and the

latter statement explicitly stated that the release was for clean up only and

advised Knight she would have to sign another release once reconstruction

began.

        But even assuming that the statements could be construed as

misrepresentations, Knight did not identify any material issues of fact that

Hunt ought to have known the statements were false and made such false


____________________________________________


10   No party has addressed whether Hunt owed a duty to Knight.


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statements with an intent to induce her to rely on them. See Bortz, 729 A.2d

at 561. Absent any material issues of fact regarding Hunt’s intent to deceive,

Knight cannot establish the trial court erred as a matter of law or abused its

discretion in granting summary judgment. See Moore, 175 A.3d at 1008.

Under these facts, the validity of Knight’s interpretation of such statements is

an inquiry distinct from identifying material issues of fact regarding Hunt’s

intent. See Bortz, 729 A.2d at 561. And, as Defendants correctly observe,

she did not identify material issues of fact regarding her justified reliance on

the alleged misrepresentations—particularly given that Knight signed the

reconstruction contract two months after Hunt advised her it would not pay

for reconstruction. See R.R. at 372a.

       Knight also asserts that she executed a contract to rebuild her home

prior to her first invoice, dated May 6, 2014, which she paid the next day.

Knight’s Brief at 11.      But Knight did not identify where in the record this

contract or invoice could be located. Our review of the record reveals only

two contracts, neither of which was a reconstruction contract executed prior

to receipt of the June letter. See R.R. at 37a, 39a.11




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11  We need not address Knight’s contention regarding the court’s
unsubstantiated assertion that Hunt was unaware of the cause of the accident,
see Knight’s Brief at 11, because that contention does not address material
issues of fact regarding Hunt’s alleged negligent misrepresentations.


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              Knight’s Fraudulent Misrepresentation Claim

      As noted above, Knight failed to argue how the trial court erred by

granting summary judgment on her claim for fraudulent misrepresentation.

Thus, she has waived it on appeal. See Gateway Towers Condo. Ass’n v.

Krohn, 845 A.2d 855, 861 (Pa. Super. 2004).         But even if we construed

Knight’s block quote from Bortz on fraudulent misrepresentation as an

“argument,” she has not demonstrated entitlement to relief.

      The tort of fraudulent misrepresentation has five elements:

      (1) A representation;

      (2) which is material to the transaction at hand;

      (3) made falsely, with knowledge of its falsity or recklessness as
      to whether it is true or false;

      (4) with the intent of misleading another into relying on it;

      (5) justifiable reliance on the misrepresentation; and,

      (6) the resulting injury was proximately caused by the reliance.

Bortz, 729 A.2d at 560 (citation omitted).

      In David Pflumm Paving & Excavating, Inc. v. Found. Servs. Co.,

816 A.2d 1164 (Pa. Super. 2003) (Pflumm), this Court addressed whether

the trial court erred by granting summary judgment on the plaintiff’s

fraudulent misrepresentation claim.      Id. at 1171.     This Court affirmed

because, among other reasons, the plaintiff failed to identify any evidence of

the defendant’s intent to mislead. Id.




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        Here, Knight has not identified any material issues of fact regarding

whether either statement was false or was made with the intent to mislead

her—similar to her arguments regarding negligent misrepresentation.            See

Bortz, 729 A.2d at 560; Pflumm, 816 A.2d at 1171. Absent material issues

of fact, Knight cannot establish reversible error.     See Moore, 175 A.3d at

1008.

          Knight’s Challenge to Denial of Motion for a New Trial

        Knight, for her last claim, asserts that the trial court erred in denying

her post-trial motion for a new trial. By way of background, at the bench trial,

the following facts were stipulated to, elicited, or established from trial

depositions.

        Mr. Bryerton was declared dead at the scene of the accident by
        the Dauphin County Deputy Coroner. Subsequently, the cause of
        death was determined to be complications from coronary artery
        disease. [Knight] conceded at trial that [she does not] necessarily
        dispute that Mr. Bryerton had a sudden medical emergency that
        caused him to lose control of the tractor trailer, instead, [Knight]
        argued that the medical emergency was foreseeable.

        [Knight] submitted the deposition testimony of Joseph Cincotta,
        M.D., Mr. Bryerton’s family physician attempting to show that
        cause of death was foreseeable and that Mr. Bryerton should not
        have been operating a tractor trailer/commercial vehicle at the
        time of this accident. The testimony from Dr. Cincotta concerned
        office visits in August of 2010, July 2011, August 2012 and his last
        visit prior to the accident on February 2013.         These visits
        established Mr. Bryerton was obese, had type II diabetes and
        elevated LDL cholesterol which is an indication of an increase risk
        of vascular disease, heart attack and stroke. His family physician
        suggested that Mr. Bryerton take a drug called “statin” which
        lowers the LDL cholesterol. The office visits suggest the patient




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       declined that recommendation.[12] Mr. Bryerton’s last office visit,
       as referenced above, was in February 2013, with similar findings
       and he was referred for a CT scan later performed in July 2013
       showing evidence of calcification of the left carotid artery.[13] It
       was also established during Dr. Cincotta’s testimony that there
       are side effects of taking the drug statin and while it may lower
       the risk of heart attack and stroke, it does not eliminate it. In
       addition, Dr. Cincotta never determined it was necessary to
       contact PennDOT to advise them that Mr. Bryerton should not be
       driving a motor vehicle.

       [Knight] also submitted the deposition testimony of Daniel Steven
       lsenschmid, Ph.D. Dr. lsenschmid is employed as a forensic
       toxicologist and reviewed the toxicology report on Mr. Bryerton
       which showed an elevation of concentration of carbon monoxide
       in the blood at 12% saturation. Toxic symptoms of carbon
       monoxide are noted at levels greater than 10%. The Plaintiff
       presented his testimony in an attempt to show that perhaps Mr.
       Bryerton was not incapacitated and in a medical emergency at the
       time the fire consumed the house and truck cabin. Dr. lsenschmid
       testified, however, that someone in a fire could have increased
       carbon monoxide in their lungs while unconscious but breathing.

                                       *       *    *

       [Defendants] also called Wayne Ross, M.D., a forensic pathologist.
       . . . Dr. Ross had worked with the Dauphin County Coroner’s
       Office in examining Mr. Bryerton’s body to determine the cause of
       death shortly after the accident. Dr. Ross indicated that the
       thermal levels indicated that when the tractor trailer left the
       roadway and collided with the home it burst into flames resulting
       in thermal damage to the interior occupant and capsule. Mr.
       Bryerton was found in the driver seat. Dr. Ross examined Mr.
       Bryerton’s heart which showed coronary artery disease and that
       this was the cause of death. Dr. Ross also commented on the
       toxicology studies indicating that carbon monoxide level at 12%
       was compromised because it was drawn from tissue of the charred
____________________________________________


12We note that Dr. Cincotta testified Bryerton affirmatively declined. N.T.
Dep., 11/14/16, at 8.
13 Dr. Cincotta explained that calcification is commonly referred to as
“hardening of the artery.” N.T. Dep., 11/14/16, at 12.


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       remains and potentially represented a false elevation. Dr. Ross
       concluded that the accident was caused by a sudden medical
       event. Dr. Ross further opined that elevated carbon monoxide at
       12% was a false elevation due to compromised blood from charred
       remains. Dr. Ross further opined that this carbonaceous material
       in the blood would cause a false elevation in the results and should
       not interpreted as a sign of life at the time of the fire.

Trial Ct. Op., 3/30/17, at 2-4.         Dr. Ross testified that after speaking with

Bryerton’s family, Bryerton was unaware he suffered from severe coronary

artery disease. N.T. Trial, 1/16/17, at 82. We add that the record also reflects

that Dr. Lacreasia K. Wheat, after a medical examination, certified Bryerton

as fit to drive on September 10, 2013—a few months prior to the accident.

Defs.’ Ex. 4.

       Knight argues that the record established Bryerton’s heart attack was

foreseeable. Knight’s Brief at 13. Knight extensively cites to trial testimony

and analogizes them to the facts in Feagle v. Purvis, 891 So.2d 1096 (Fla.

Dist. Ct. App. 2004),14 a decision from a Florida intermediate appellate court.

According to Knight, the Feagle Court held that it was foreseeable that the

decedent could have suffered a heart attack. Knight’s Brief at 15. In Knight’s


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14 We acknowledge that “it is well-settled that this Court is not bound by the
decisions of federal courts, other than the United States Supreme Court, or
the decisions of other states’ courts.” Phelps v. Caperoon, ___ A.3d ___,
___ n.18, 2018 WL 3016477 at *8 n.18 (Pa. Super. 2018) (citation omitted).
“[O]ur Courts recognize that we are not bound by these cases; however, we
may use them for guidance to the degree we find them useful and not
incompatible with Pennsylvania law.” Id. (citation omitted). Although Knight
has not cited any Pennsylvania caselaw in support of this particular argument,
we decline to find waiver. See generally Pa.R.A.P. 2119(a).


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view, the evidence in this case clearly established that Bryerton knew if he did

not take the statin, he had an increased risk of a heart attack and “it was

foreseeable that such an event would occur.” Id. Moreover, Knight contends,

Defendants’ only evidence that the heart attack was not foreseeable was Dr.

Cincotta’s testimony that he did not contact the Pennsylvania Department of

Transportation to advise it that Bryerton should not be operating a motor

vehicle. Id.

      The standard of review follows:

      Our appellate role in cases arising from non-jury trial verdicts is
      to determine whether the findings of the trial court are supported
      by competent evidence and whether the trial court committed
      error in any application of the law. The findings of fact of the trial
      judge must be given the same weight and effect on appeal as the
      verdict of a jury. We consider the evidence in a light most
      favorable to the verdict winner. We will reverse the trial court
      only if its findings of fact are not supported by competent evidence
      in the record or if its findings are premised on an error of law.

Amerikohl Mining Co. v. Peoples Natural Gas Co., 860 A.2d 547, 549–50

(Pa. Super. 2004) (internal quotation marks and citations omitted).

      In reviewing a trial court’s denial of a motion for a new trial, the
      standard of review for an appellate court is as follows:

      It is well-established law that, absent a clear abuse of discretion
      by the trial court, appellate courts must not interfere with the trial
      court’s authority to grant or deny a new trial.

      Thus, when analyzing a decision by a trial court to grant or deny
      a new trial, the proper standard of review, ultimately, is whether
      the trial court abused its discretion.

      Moreover, our review must be tailored to a well-settled, two-part
      analysis:


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      We must review the court’s alleged mistake and determine
      whether the court erred and, if so, whether the error resulted in
      prejudice necessitating a new trial.      If the alleged mistake
      concerned an error of law, we will scrutinize for legal error. Once
      we determine whether an error occurred, we must then determine
      whether the trial court abused its discretion in ruling on the
      request for a new trial.

Gurley v. Janssen Pharms., Inc., 113 A.3d 283, 288-89 (Pa. Super. 2015)

(formatting, internal alterations, brackets, and citations omitted).

      In Shiner v. Ralston, 64 A.3d 1 (Pa. Super. 2013) (per curiam), this

Court summarized the affirmative defense of a sudden medical emergency:

      the sudden medical emergency defense is an affirmative defense
      often pled as sudden loss of consciousness or incapacitation.
      Since the defense avoids negligence, it must be pled as new
      matter and proven by the defendant. Pa.R.C.P. 1030. Research
      failed to yield any Pennsylvania appellate decisions officially
      recognizing the defense, although our Supreme Court, in Bass v.
      Commonwealth, 485 Pa. 256, 401 A.2d 1133, 1135-1136
      (1979), acknowledged that ordinarily, where non-negligent
      conduct results in injury to another, it is not actionable. The Court
      illustrated that principle with a hypothetical involving an attorney
      on his way to the Prothonotary’s Office to file an appeal who
      suffered an unexpected heart attack, lost control of his vehicle,
      and injured a bystander. The Court concluded that the attorney
      would not be held liable to the bystander, the implication being
      that the heart attack precluded a finding of negligence.

      Federal courts applying Pennsylvania law have recognized and
      applied unconsciousness as a defense.          See Freifield v.
      Hennessy, 353 F.2d 97 (3d Cir. 1965) (under Pennsylvania law,
      an automobile operator who, while driving, is suddenly stricken by
      an unforeseeable loss of consciousness is not chargeable with
      negligence); see also Pagano v. Magic Chef, Inc., 181 F. Supp.
      146 (E.D. Pa. 1960). Numerous jurisdictions recognize a similar
      defense. See Annotation: 93 A.L.R.3d 326; 2 Harper and James,
      Law of Torts, pp. 920, 921 § 16.7. The assumption is that when
      a person is unconscious and unable to act, he is incapable of
      negligence. Unforeseeable loss of consciousness, if proven, is a


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       complete defense to negligence, and the defendant bears the
       burden of establishing the defense.

Id. at 4-5.15

       In Feagle, the case cited by Knight, the victim was on a lakeshore

watching an informal boat race. Feagle, 891 So.2d at 1098. The decedent

was racing a boat when he suffered a fatal heart attack, causing the boat to

strike the victim. Id. The victim sued the decedent’s estate, which raised the

sudden medical emergency doctrine as an affirmative defense. Id. The estate

moved for summary judgment, which the trial court granted; the victim

appealed to the intermediate appellate court. Id.

       Construing Florida law, the Feagle Court explained as follows:

       Whether the defense of sudden and unexpected loss of capacity
       or consciousness is available, generally boils down to a question
       of foreseeability. Foreseeability, however, relates to both the
       negligence elements of duty and proximate causation, but does so
       in different ways. As the Florida Supreme Court noted in McCain
       v. Florida Power Corp., 593 So.2d 500 (Fla. 1992), the duty
       element focuses on whether the conduct of the defendant
       foreseeably created a broader “zone of risk” that posed a general
       threat of harm to others, while the proximate causation element
       concerns whether and to what extent that conduct foreseeably
       and substantially caused the specific injury to the plaintiff. The
       court said further:

          [Duty] is a minimal threshold legal requirement for opening
          the courthouse doors, whereas [proximate causation] is part
          of the much more specific factual requirement that must be
          proved to win the case once the courthouse doors are open.

____________________________________________


15The Shiner Court reversed the trial court’s grant of summary judgment
because there were material issues of fact as to whether the decedent’s
medical emergency was unforeseen. Shiner, 64 A.3d at 7.


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      Id. at 502. The duty of care is generally a question of law. Cases
      involving sudden and unexpected loss of capacity, however, most
      often concern the foreseeability associated with proximate
      causation, and causation is generally a question of fact.

Id. at 1099 (some citations omitted). After summarizing the factual record,

the Feagle Court identified material issues of fact as to whether the decedent

should have foreseen his medical incapacity, and thus reversed the trial

court’s grant of summary judgment. Id. at 1102.

      Initially, as Defendants accurately point out, Defendants’ Brief at 25-28,

Knight’s reliance on Feagle is inapt, as Feagle involved an appeal from

summary judgment, and Knight’s negligence claim went to trial, where the

court heard and weighed the evidence for both sides. See id. In any event,

Knight’s argument is essentially a challenge to the weight of the evidence.

Although Knight argued the record established that it was foreseeable

Bryerton would suffer a heart attack, the record also establishes Bryerton did

not know he was suffering from heart disease, and thus could not have

foreseen a heart attack. See N.T. Trial, 1/16/17, at 82; see also Defs.’ Ex.

4 (certifying, after a medical exam, Bryerton was fit to drive). Viewing, as we

must, the record in Defendants’ favor, see Amerikohl Mining Co., 860 A.2d

at 549-50, we cannot perceive any abuse of discretion by the trial court in

denying Knight’s post-trial motion. See Gurley, 113 A.3d at 288-89.

      Judgment affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/18/2018




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