                             [J-21-2018] [MO: Mundy, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                WESTERN DISTRICT


 JOHN STAPAS,                                  :   No. 44 WAP 2017
                                               :
                      Appellant                :   Appeal from the Order of the Superior
                                               :   Court entered December 23, 2016 at
                                               :   No. 1287 WDA 2015, vacating the
               v.                              :   Judgment of the Court of Common
                                               :   Pleas of Allegheny County entered
                                               :   July 24, 2015 at No. GD09-012965
 GIANT EAGLE, INC., A PENNSYLVANIA             :   and remanding.
 ENTITY; GIANT EAGLE, INC., T/D/B/A            :
 GETGO FROM GIANT EAGLE, A                     :   ARGUED: April 10, 2018
 PENNSYLVANIA ENTITY; GIANT EAGLE              :
 INC., T/D/B/A SOUTHSIDE GETGO, A              :
 PENNSYLVANIA ENTITY; NADEEN                   :
 MCSHANE, AN INDIVIDUAL; GETGO                 :
 PARTNERS SOUTH, A PENNSYLVANIA                :
 ENTITY; GETGO PARTNERS SOUTH-                 :
 MARYLAND, LLC, A PENNSYLVANIA                 :
 ENTITY; AND GETGO HOLDINGS, LLP,              :
 A PENNSYLVANIA ENTITY,                        :
                                               :
                      Appellees                :


                                  DISSENTING OPINION


JUSTICE DOUGHERTY                                  DECIDED: NOVEMBER 21, 2018
       The majority concludes a post-verdict objection prior to the discharge of the jury

was required to preserve a challenge to an award that had no relation to the evidence

presented during trial, and which included amounts not specified on the approved verdict

slip. Under the particular circumstances of this case, where the jury acted unpredictably

and against the direction of the trial court and all counsel, I discern no reason to require

such an objection prior to and in addition to the filing of post-trial motions. Accordingly,

I dissent.
       The discrete issue before this Court is whether Giant Eagle waived its challenge

to the verdict by challenging it for the first time in post-trial motions, and not via an

objection before the jury was discharged. This Court has clearly articulated when an

objection is required to preserve an issue for appeal. See, e.g., Criswell v. King, 834 A.2d

505 (Pa. 2003); Dilliplaine v. Lehigh Valley Trust Co., 322 A.2d 114 (Pa. 1974). Under

this well-established jurisprudence, if Giant Eagle’s challenge to the verdict was grounded

in trial error, Dilliplaine controls and a “contemporaneous objection” was required to

preserve the issue for appeal. Conversely, if the challenge to the verdict is based on its

being contrary to the weight of the evidence, Criswell applies and the claim may be raised

for the first time in post-trial motions.

       In my view, the Superior Court correctly assessed Giant Eagle’s challenge to the

jury’s verdict as one based on the weight of the evidence, which was therefore correctly

preserved through the timely filing of post-trial motions. A claim challenging the weight

of the evidence “is not premised upon trial court error or some discrete and correctable

event at trial, but instead ripens only after, and because of, the jury’s ultimate verdict in

the case.” Criswell, 834 A.2d at 512. A new trial under such circumstances is warranted

only “when the jury’s verdict is so contrary to the evidence as to shock one’s sense of

justice and the award of a new trial is imperative so that right may be given another

opportunity to prevail.” Armbruster v. Horowitz, 813 A.2d 698, 703 (Pa. 2002) (emphasis

in original), quoting Commonwealth v. Brown, 648 A.2d 1177, 1189 (Pa. 1994) (additional

citations omitted). “A trial judge cannot grant a new trial ‘because of a mere conflict in

testimony or because the trial judge on the same facts would have arrived at a different

conclusion.’” Id., quoting Brown, 648 A.2d at 1189 (additional citations omitted). This

case presents the requisite extraordinary circumstances because the jury undoubtedly

disregarded the facts presented by the witnesses, the arguments of counsel, and the




                               [J-21-2018] [MO: Mundy, J.] - 2
unambiguous verdict slip when it awarded the largest percentage of damages for future

lost wages — a category of damages specifically excluded by both parties and completely

absent from the verdict slip.

       This was not a case of mere conflict in testimony which the jury resolved based on

credibility; rather the jury’s award was so completely unmoored to the evidence it was the

rare verdict that actually “shocks the conscience.” Moreover, I cannot detect any trial

court error which might have been cured by contemporaneous objection. The majority

suggests Giant Eagle should have: 1) objected because the jury’s verdict did not conform

to the trial court’s instructions regarding a lump sum of damages; 2) submitted a point for

charge on wage loss; 3) objected to the trial court’s instruction on wage loss; 4) objected

to the verdict slip because it did not differentiate between past and future wage loss.

       First, although a contemporaneous objection may in theory allow a jury to adjust

the amounts it awarded for certain categories of loss, it is implausible that further

deliberation by this particular jury — which disregarded the evidence and arguments

presented, as well as the plain language on the verdict slip — would have altered the total

amount of the verdict. In fact, in such circumstances, it is not proper to “issue a corrective

instruction to the jury suggesting that the weight of the evidence does not support its

verdict without invading the province of the jury by essentially directing a verdict.”

Criswell, 834 A.2d at 512 (citations omitted).

       The majority’s suggestion Giant Eagle should have objected to the jury instructions

or verdict slip is also unavailing. The verdict slip presented the categories of damages as

follows: “(a) Scarring; (b) Wage loss; (c) Past and future medical expenses; (d) Past,

present and future pain and suffering; (e) Loss of life’s pleasures.” Majority Op., slip.

op. at 4, quoting Verdict Slip, 11/17/14 (emphasis added). The verdict slip unquestionably

delineated what categories of damages included future calculations — medical expenses




                                [J-21-2018] [MO: Mundy, J.] - 3
and pain and suffering. The plain language of the verdict slip together with the evidence

presented by Stapas made it clear the case for damages was limited to past lost wages;

there simply was no evidence of future wage loss.1 Stapas’s counsel himself conceded

this point during closing argument when he stated they were seeking only “past and

present wage loss” which was a small amount for “six weeks of [work at] eight or nine

dollars an hour[.]” Id. at 3, quoting N.T. 11/17/14 at 836. Further, Giant Eagle’s counsel

“estimated Stapas’s wage loss at $2,000 to $3,000.” Id., citing N.T. 11/17/14 at 804.

Nevertheless, despite this clear limitation in the evidence which was properly spelled out

on the verdict slip, the jury “went rogue” and awarded $1,300,000 for lost future wages.

Counsel could not have foreseen this turn of events, and therefore Giant Eagle should

not be penalized for failing to anticipate and preemptively object to the verdict slip or

instructions on this basis.2

1 The majority notes the jury was not instructed it could not award damages for future
wage loss and the jury was unaware its award should be limited to past lost earnings
because the verdict slip merely listed “wage loss” as a category of damages. See Majority
Op., slip op. at 15, n.1 (emphasis added). When fairly examining the verdict slip as a
whole, however, it is clear the categories which permitted a calculation for future damages
were strictly delineated. The jury here went outside the express categories provided on
the verdict sheet and wrote in the word “future” next to the “wage loss” category. Id. at 4,
quoting Verdict Slip, 11/17/14, Question 6. This handwritten addendum indicates the jury
recognized it was acting outside the directives of the court and the parties. Today the
majority apparently holds a trial court’s failure to instruct on a particular category of
damages, which are also specifically excluded from a verdict slip, properly provides the
jury with the authority to award such damages. This counterintuitive ruling imposes a
new (and untenable) burden on parties and the trial court to specifically instruct juries not
to award damages which were never at issue.
2 The unusual fact scenario presented here includes the confusing manner in which the
verdict was read into the record. Although the trial judge requested the tipstaff to read
just the lump sum amount of damages into the record, the tipstaff nevertheless began
reading the itemized damages into the record. The trial judge twice interrupted the tipstaff
and requested the total lump sum only. In response to the trial judge’s correction, the
tipstaff read the lump sum amount of damages, but not before he also read a portion of
the itemized list of damages. N.T. 11/17/14 at 862-63. This unpredictable sequence of
events not only creates additional questions as to what objection trial counsel could have



                               [J-21-2018] [MO: Mundy, J.] - 4
       In any event, I question whether we properly granted review in this matter. We

have “consistently recognized that, while an appellate court may review whether the trial

court abused its discretion in deciding a weight claim, its role is not to consider the

underlying question in the first instance.” Armbruster, 813 A.2d at 703, quoting Brown,

648 A.2d at 1191. Couching the issue before the Court as a legal question regarding

waiver principles, the majority employs a de novo standard of review, and considers the

underlying factual question based on the cold record.          The majority’s analysis is

tantamount to error review in a unique and fact-bound matter where the decision will likely

muddy the waters and engender confusion in what was heretofore a clearly established

area of law.

       Chief Justice Saylor joins this dissenting opinion.




made on an incomplete and chaotic verdict reading, but also demonstrates the unique
nature of this case. As a result, the Court’s decision turns on error review and is unlikely
to provide any guidance to the bench or bar regarding when post-trial motions alone may
preserve issues for review.


                             [J-21-2018] [MO: Mundy, J.] - 5
