J. A16027/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

RAYMOND SOSA,                            :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                        Appellant        :
                                         :
                   v.                    :
                                         :         No. 3953 EDA 2017
SEBASTIAN RODRIGUEZ &                    :
THE IBS GROUP, LLC                       :


          Appeal from the Judgment Entered November 20, 2017,
           in the Court of Common Pleas of Philadelphia County
                      Civil Division at No. 151105717


BEFORE: BENDER, P.J.E., LAZARUS, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED AUGUST 07, 2019

      Raymond Sosa appeals the November 20, 2017 judgment entered in the

Court of Common Pleas of Philadelphia County after a jury returned a verdict

against appellant and in favor of Sebastian Rodriguez (“Rodriguez”) and

IBS Group, LLC (“IBS”) (collectively, “appellees”).1 After careful review, we

affirm.

      The record reflects that appellant initiated a personal-injury action

against appellees for alleged injuries suffered in a June 8, 2014 motor vehicle

accident. On that date, appellant’s vehicle was stopped at a traffic light. A




1 The caption initially stated that the appeal was taken from the November 8,
2017 order that denied appellant’s post-trial motions. Because the appeal is
properly taken from the November 20, 2017 entry of judgment, we corrected
the caption.
J. A16027/18

vehicle operated by Lavette Carson (“Carson”)2 was stopped behind

appellant’s vehicle. Rodriguez, who was operating a motor vehicle owned by

his employer, IBS, struck Carson’s vehicle from behind which caused Carson’s

vehicle to rear-end appellant’s vehicle.       Appellant alleged that he suffered

various injuries, including lumbar disc herniations, lumbar sprains and strains,

thoracic sprains and strains, and cervical sprains and strains.          (See third

amended complaint in personal injury, 3/14/16 at 2-9; see also notes of

testimony, 10/11/17 at 29-30.)

        The record further reflects that during pre-trial motions, appellant’s

counsel, Mark F. Greenfield, and appellee’s counsel, Lauren Glynn, had a

dispute over a stipulation. Attorney Greenfield claimed that the parties had

stipulated that Rodriguez was 100 percent liable and that the only issue for

the jury’s consideration was damages. (Notes of testimony, 10/11/17 at 6-7.)

Attorney Glynn disagreed, contending that she stipulated to Rodriguez’s

liability only insofar as he caused the accident, but not that the accident

caused appellant’s injuries.       (Id. at 10.)       The trial court ruled that the

stipulation only included liability for negligence in causing the accident, and

not that the accident caused appellant’s injuries.3 (Id. at 13.)


2   Carson is no longer a party to this litigation.

3 We note that appellant claims that “the trial court had determined that it
was going to let counsel for [a]ppellee change her mind regarding the
stipulation” based on the trial court’s statement that Attorney Glynn “is
changing her mind.” (Appellant’s brief at 9; see also notes of testimony,
10/11/17 at 11.) Appellant fails to include Attorney Glynn’s statement that


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      At trial, appellant testified and both sides presented medical testimony.

During appellant’s cross-examination, Attorney Glynn utilized appellant’s

medical records to impeach his direct testimony. Attorney Greenfield objected

to the use of the records.     The trial court overruled the objections.      On

October 12, 2017, the jury returned a verdict in favor of appellees, finding

that Rodriguez’s negligence was not a factual cause of appellant’s injuries.

(Notes of testimony, 10/12/17 at 63.)

      On October 13, 2017, appellant filed a motion for post-trial relief and

sought a new jury trial limited to the issue of damages because the “[v]erdict

[s]heet improperly included a question of whether [Rodriguez’s] negligence

was a factual cause in bringing about [appellant’s] harm, despite the fact that

[Rodriguez] had long since stipulated to 100 [percent] liability in this

matter.” (Plaintiff’s motion for post-trial relief, 10/13/17 at 3, ¶ 14 (emphasis

in original).) On November 8, 2017, the trial court denied appellant’s post-

trial motion. On November 20, 2017, judgment was entered on the verdict.

On the same day, appellant filed a notice of appeal to this court. The trial

court then ordered appellant to file a concise statement of errors complained

of on appeal, pursuant to Pa.R.A.P. 1925(b).        Appellant timely complied.

Thereafter, the trial court filed its Rule 1925(a) opinion.



she “can certainly represent to [the trial court] that [she was] not changing
[her] mind.” (Notes of testimony, 10/11/17 at 13.) Attorney Glynn claimed
that she had “extensive conversations” with Attorney Greenfield’s associate
during which she “repeatedly” stated that she would not stipulate that the
accident caused the injuries. (Id.)


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J. A16027/18

      Appellant raises the following issues for our review:

            1.     Did the trial court err in permitting [a]ppellee[s]
                   to change a stipulation of liability on the first
                   day of trial?

            2.     Did the trial court err in including a question on
                   the verdict slip, asking the jury whether
                   [a]ppellee[s’] negligence was a factual cause of
                   [a]ppellant’s injuries?

            3.     Did the trial court err in permitting evidence to
                   be read to the jury without being authenticated
                   first?

            4.     Did the trial court err in permitting hearsay
                   evidence, offered for the truth of the matter
                   asserted, to be read to the jury?

Appellant’s brief at 4.

      Appellant’s first and second issues are interrelated.       In those issues,

appellant contends that the trial court erred in denying his motion for a new

trial because it disregarded the parties’ stipulation as to liability, an error that

caused the jury to improperly consider whether Rodriguez’s negligence caused

appellant’s injuries.

      “[W]hen reviewing the denial of a motion for new trial, we must

determine if the trial court committed an abuse of discretion or error of law

that controlled the outcome of the case.”           Estate of Hicks v. Dana

Companies, LLC, 984 A.2d 943, 951 (Pa.Super. 2009) (en banc), appeal

denied, 19 A.3d 1051 (Pa. 2011) (citations omitted).

            The Pennsylvania rule on stipulations is long-settled:
            parties may bind themselves, even by a statement
            made in court, on matters relating to individual rights


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              and obligations, so long as their stipulations do not
              affect the court’s jurisdiction or due order of
              business. . . .

              The courts employ a contracts-law analysis to
              interpret stipulations, so that the intent of the parties
              is controlling.

Tindall v. Friedman, 970 A.2d 1159, 1165 (Pa.Super. 2009), quoting Tyler

v. King, 496 A.2d 16, 21 (Pa.Super. 1985).

      Pennsylvania Rule of Civil Procedure 201 provides that “[a]greements

of attorneys relating to the business of the court shall be in writing, except

such agreements at bar as are noted by the prothonotary upon the minutes

or by the stenographer on the stenographer’s notes.”              Pa.R.Civ.P. 201.

Philadelphia Local Civil Rule of Court 201 provides that “[s]tipulations not

requiring judicial approval[4] shall be filed with the Office of Judicial Records”

and “[s]ervice shall be made upon all counsel and unrepresented parties.”

Pa.Phila.Civ.R. 201(B).

      Here,     the    record    reflects   that    during    pre-trial   motions,

Attorney Greenfield claimed that the parties stipulated that Rodriguez was

100 percent liable and that the only issue for the jury’s consideration was

damages. The record further reflects that although Attorney Greenfield stated

that he had a “document that clearly indicates” that “it’s [100] percent liability,

which is taken to mean liability, negligence and factual cause,”




4  Local Rule 201(A)(1)-(5), which is not applicable here, sets forth the
stipulations that require court approval.


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Attorney Greenfield did not present the alleged “document” to the trial court.5

(Notes of testimony, 10/11/17 at 11 (emphasis added).)                Conversely,

Attorney Glynn contended that the parties stipulated that Rodriguez caused

the accident, but that the parties did not stipulate that the accident caused

appellant’s injuries.   (Id. at 10, 13.)     Attorney Glynn further stated that

although she did “have it in a letter,” she “didn’t have the letter with [her]”

but could bring it to the trial court.6 (Id. at 13.) On the basis of this pre-trial

argument, the trial court determined that the stipulation was limited to

Rodriguez’s assuming 100 percent liability for causing the accident, which is

what the parties agreed to on the record. In its Rule 1925(a) opinion, the trial

court further explained its determination as to the scope of the stipulation as

follows:

            No writing was presented to the court. At trial, there
            was no agreement about what were or would have
            been its purported terms. Under these circumstances,
            the court was constrained to limit the parties’
            stipulation to that upon which they did agree namely

5 We note that appellant attached to his post-trial motion copies of email
exchanges between his firm and counsel for appellees wherein Attorney Glynn
wrote that her clients stipulate, among other things, that “[l]iability is
100 [percent] on Defendant, Sebastian Rodriguez.” (Plaintiff’s motion for
post-trial relief, 10/13/17 at Exhibit A.) Even if appellant had presented this
email to the trial court during pre-trial motions, the email would not have
resolved the parties’ dispute as to the meaning of “100 [percent] liability.”

6 The record is unclear as to what “letter” Attorney Glynn was referring to.
We note, however, that the record does contain a letter dated June 9, 2017
from Attorney Neil R. Gallagher of Attorney Greenfield’s office that confirms
that Rodriguez “accepts full liability for causing the entirety of the three car
accident.” (Defendant’s reply to plaintiff’s post-trial motion, 10/17/17 at
Exhibit H.)


                                       -6-
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            that [Rodriguez] was negligent. The appeal on this
            ground is baseless.[Footnote 4]

                  [Footnote 4] [Appellant] also argues that
                  since      [Rodriguez]         agreed     to
                  “100 [percent]     liability”    and   since
                  stipulations are subject to contract
                  interpretation, the law requires that
                  “100 [percent]      liability”    must    be
                  construed to mean that [Rodriguez]
                  agreed that his negligence caused
                  [appellant’s] injuries. In this respect, it
                  appears that [appellant] sought to prove
                  an oral contract, the terms of which were
                  contained in written correspondence and
                  verbal discussion. There was no evidence
                  adduced on the existence of a contract,
                  other than the oral representations of
                  [appellant’s] counsel. Accordingly, the
                  court was guided by the requirement
                  under Pa.R.C.P. No. 201 that a stipulation
                  must be in writing and finding no writing,
                  did not reach any questions of “contract
                  interpretation.”

Trial court opinion, 2/6/18 at 5-6 (citation omitted).

      Our review of the record reveals that the trial court did not commit an

error of law or abuse its discretion when it limited the parties’ stipulation to

the terms the parties agreed to on the record.             The record clearly

demonstrates that during pre-trial motions, the parties disputed the meaning

of “100 percent liability.”   Based upon those arguments, the trial court

determined that the parties only agreed that Rodriguez caused the accident,

but that they did not agree that the accident caused appellant’s alleged

injuries. As such, the trial court limited the scope of the stipulation to what

the parties agreed to on the record, which was that Rodriguez caused the


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accident.   We further note that there is no written stipulation between

Attorney Greenfield and Attorney Glynn demonstrating that they agreed that

Rodriguez caused the accident and that the accident caused appellant’s

injuries. Accordingly, we discern no error or abuse of discretion.

      Appellant’s third and fourth issues are also interrelated.       Appellant

claims that the trial court erred in permitting Attorney Glynn to use appellant’s

medical records to cross-examine appellant because the records were not

authenticated and they constituted inadmissible hearsay.

            Admission of evidence is within the sound discretion
            of the trial court and we review the trial court’s
            determinations regarding the admissibility of evidence
            for an abuse of discretion. To constitute reversible
            error, an evidentiary ruling must not only be
            erroneous, but also harmful or prejudicial to the
            complaining party.

Estate of Hicks v. Dana Companies, LLC, 984 A.2d 943, 961 (Pa.Super.

2009) (en banc), appeal denied, 19 A.3d 1051 (Pa. 2011) (citations

omitted).

      “‘Hearsay' is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the

matter asserted.”     Pa.R.E. 801.      Extrinsic evidence is admissible for

impeachment purposes pursuant to Pa.R.E. 613(b) which provides:

            (b)   Extrinsic evidence       of prior inconsistent
                  statement of witness. Unless the interests of
                  justice otherwise require, extrinsic evidence of
                  a prior inconsistent statement by a witness is
                  admissible only if, during the examination of the
                  witness,


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                   (1)   the statement, if written, is shown
                         to, or if not written, its contents are
                         disclosed to, the witness;

                   (2)   the witness is given an opportunity
                         to explain or deny the making of the
                         statement; and

                   (3)   the opposing party is given an
                         opportunity to question the witness.

Pa.R.E. 613(b).

      Here, Attorney Glynn used certain of appellant’s medical records which

were provided by appellant during discovery in order to impeach appellant’s

direct-examination testimony. Prior to questioning appellant on statements

he   made   to    medical   professionals   that   were   inconsistent     with   his

direct-examination testimony, Attorney Glynn disclosed to appellant the

contents of each record. (Notes of testimony, 10/11/7 at 83-112.) Therefore,

Attorney Glynn complied with Subsection 1 of Pa.R.E. 613(b). Attorney Glynn

also complied with Subsection 2 of Rule 613(b) because she gave appellant

the opportunity to explain or deny the statements.                 (Id.)    Finally,

Attorney Glynn complied with Subsection 3 because Attorney Greenfield was

given an opportunity to question appellant about the inconsistent statements

on redirect examination. (Id. at 121-127.) Therefore, appellant’s testimony,

in which he denied making prior inconsistent statements, was properly

admitted for purposes of impeachment pursuant to Rule 613(b).




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     Finally, we note that with respect to appellant’s claim that authentication

of appellant’s medical records was required, appellant’s medical records were

not admitted into evidence under Pa.R.E. 803(6), which is the business

records exception to the rule against hearsay. Notwithstanding the fact that

the medical records were properly used to impeach appellant’s direct

testimony under Rule 613(b), we note that “a party may introduce medical

records as evidence of facts contained therein without producing the person

who made the notation in the record or the records custodian.” Folger v.

Dugan, 876 A.2d 1049, 1056 (Pa.Super. 2005) (en banc).

     Judgment affirmed.



     Bender, P.J.E. joins this Memorandum.

     Lazarus, J. files a Concurring Statement.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 8/7/19




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