         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Joseph Hall and Rosemarie Hall,          :
his Wife,                                :
                 Appellants              :
                                         :
            v.                           :
                                         :
Ryan Morris, Holly Sue Morris,           :
Shickshinny Volunteer Fire               :
Company, Inc.                            :
                                         :
            v.                           :
                                         :   No. 220 C.D. 2019
Rosemarie Hall                           :   Argued: December 10, 2019



BEFORE:     HONORABLE MICHAEL H. WOJCIK, Judge
            HONORABLE CHRISTINE FIZZANO CANNON, Judge
            HONORABLE ELLEN CEISLER, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON                      FILED: January 6, 2020


            Joseph and Rosemarie Hall (Appellants) appeal from the August 30,
2018 order of the Court of Common Pleas of Luzerne County (trial court) that denied
Appellants’ motion for post-trial relief. Upon review, we affirm.
            This matter involves a civil suit for personal injuries arising out of a
motor vehicle accident. Following trial, a jury determined Appellants were acting
in the course and scope of their employment at the time of the accident, thereby
precluding Appellants’ civil claims pursuant to immunities provided by
Pennsylvania’s Workers’ Compensation Act (Act).1 We summarize the pertinent
facts underlying this matter as follows.
                   On the evening of May 12, 2006, Appellants, who were members of the
Shickshinny Volunteer Fire Company, Inc. (the Fire Company), learned of and
responded to an emergency call from the Fire Company regarding an accident that
had occurred at Mocanaqua Bridge in the Borough of Shickshinny (the Mocanaqua
Bridge accident). While responding to the Mocanaqua Bridge accident, Appellants
themselves were involved in a motor vehicle accident with Ryan Morris (the
accident), who was coincidentally also a volunteer with the Fire Company and was
responding to the Mocanaqua Bridge accident at the time.
                   On November 17, 2006, Appellants filed a Complaint against Ryan
Morris, Holly Sue Morris, the owner of the vehicle operated by Ryan Morris, and
the Fire Company (collectively, Appellees) as defendants.2 After a lengthy period
of discovery, the matter proceeded to a jury trial in January 2018.
                   The jury heard testimony from multiple witnesses at trial. See generally
Notes of Trial Testimony Commencing January 9, 2018 (N.T.).                           Relevantly,
Rosemarie Hall testified that, out of a desire to help the community, she applied to
join the Fire Company to help with fundraisers and similar activities. See N.T. at
250. Ms. Hall testified that she and her husband Joseph Hall were ultimately
approved and joined the Fire Company. Id. at 251. Ms. Hall testified that she never
fought fires, but that she instead did some fundraisers and assisted and directed
traffic at accident scenes. Id. at 251 & 334. She testified that the Fire Company
issued her a coat, helmet, and a pager on which she would receive calls from the

          1
              Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
          2
              Appellant Rosemarie Hall was a plaintiff and an additional defendant in the underlying
matter.
                                                   2
Luzerne County 911 and the Fire Company. Id. at 334-35. Ms. Hall testified that
she and her husband both had their Fire Company pagers on them on the day of the
accident. Id. at 254 & 339.
             Ms. Hall also testified that on May 11, 2000, she received a certified
letter from the Fire Company that explained that she could no longer be a member
of the Fire Company until the Fire Company received a doctor’s note stating that she
was capable of being a firefighter. See N.T. at 252. Ms. Hall further testified that,
although she did not obtain such a doctor’s note and was not allowed to participate
as a firefighter prior to the accident, she was still able to participate in the Fire
Company’s community activities such as fundraisers. Id. at 253.
             Ms. Hall further testified that, on the date of the accident, she and
Joseph Hall had intended to go from their apartment to their new house to inspect an
apple tree and otherwise look the property over in preparation to move into the new
house. N.T. at 256. She explained that, while waiting in her car for Joseph Hall to
emerge from their apartment, the Fire Company’s pager, which was with her in the
car, went off and indicated an accident had occurred at the Mocanaqua Bridge. Id.
at 259. Ms. Hall testified that thereafter Joseph Hall entered the vehicle, they pulled
away from the apartment, and were then involved in the accident with Ryan Morris.
Id. Ms. Hall confirmed that she signed a document in the hospital indicating that
she was a co-employee acting as a member of the Fire Company at the time of the
accident. Id. at 352.
             Joseph Hall also testified at the trial of this matter. See N.T. at 384-430
& 779-80. Mr. Hall explained that he served as “fire police” for the Fire Company.
Id. at 393. Mr. Hall testified that he would respond as part of the Fire Company to
small fires and automobile accidents approximately 10 times a week. Id. at 400.


                                           3
Like Rosemarie Hall, Mr. Hall testified to receiving a certified letter from the Fire
Company that informed him that he could not participate in duties as a volunteer
firefighter absent a doctor’s letter stating he was able to do so. Id. at 394. Mr. Hall
further testified that, on the date of the accident, he had his Fire Company pager with
him, it was turned on, and he received two calls about the Mocanaqua Bridge
accident. Id. at 397.
             Beverly Ann Moore, a registered nurse and a member of the Fire
Company, testified that she was among the first medical responders on the scene of
the accident. N.T. at 444-48. Ms. Moore testified that she examined Joseph Hall at
the scene and that he told her that, at the time of the accident, he and Rosemarie Hall
had been responding to the Mocanaqua Bridge accident. Id. at 451. Ms. Moore
testified that Rosemarie Hall also told her that she and Joseph Hall were responding
to the Mocanaqua Bridge accident at the time the accident occurred. Id. at 452.
             Fire Company volunteer firefighter Kevin McDaniels also testified.
See N.T. at 471-81. Mr. McDaniels testified that he responded to the accident scene
as well. Id. at 472-74. He testified that he heard Ms. Moore’s conversation with
Joseph Hall during which Mr. Hall explained that he and Rosemarie Hall had been
responding to the Mocanaqua Bridge accident at the time of the accident. Id. at 476.
             Debra McDaniels also testified that she responded to the accident. See
N.T. at 482-94.    Ms. McDaniels is an Emergency Medical Technician and a
volunteer for the Fire Company. Id. at 482. Ms. McDaniels testified that she
examined Mr. Hall, who explained to her that he and Rosemarie Hall were
responding to the Mocanaqua Bridge accident at the time the accident occurred. Id.
at 488-89.




                                          4
                Holly Sue Morris, the Fire Company’s President, also testified. See
N.T. at 602-42. Ms. Morris confirmed that, due to Rosemarie Hall’s physical
limitations, the Fire Company had asked Ms. Hall to obtain a doctor’s note stating
that she was capable of continuing as a firefighter. Id. at 612. Ms. Morris testified,
however, that Rosemarie Hall was not precluded from any of her duties at the Fire
Company, and further that neither Rosemarie nor Joseph Hall were ever told that
they could not continue to perform their duties for the Fire Company prior to the
accident. Id. at 612-13. Ms. Morris explained that Appellants were considered
members of the Fire Company and had equipment, turnout gear, and pagers assigned
to them at the time of the accident. Id. at 620. Ms. Morris further testified that she
heard a conversation between Rosemarie and Joseph Hall that occurred in the back
of the ambulance following the accident in which Appellants indicated they had been
en route to the Mocanaqua Bridge accident at the time of the accident. Id. at 614.
                Kevin Morris, the Fire Company’s Fire Chief, also testified. See N.T.
at 646-684. Mr. Morris testified that, at the time of the accident, Appellants were
members of the Fire Company and responded to emergencies. Id. at 648-50. Mr.
Morris testified that he heard Joseph Hall tell a third party that he had been
responding to the Mocanaqua Bridge accident when he was involved in the accident.
Id. at 657.
                After hearing the above testimony and deliberating, the jury answered
two special interrogatories3 regarding whether Appellants were acting within the

      3
          The jury answered the following special interrogatories:

                1. Was Joseph Hall a volunteer fireman acting within the scope and
                course of his duties with the Shickshinny Volunteer Fire Company
                at the time of the automobile accident?



                                                 5
course and scope of their employment as volunteer firepersons with the Fire
Company at the time of the accident in the affirmative. By virtue of the immunities
contained within the Act, the jury’s affirmative answer to the special interrogatories
had the effect of defeating Appellants’ civil claims. As a result, the jury returned a
verdict in favor of Appellees. Appellants filed a post-trial motion seeking a new
trial, which the trial court denied. The instant timely appeal followed.
                 Appellants raise multiple claims on appeal. First, Appellants claim the
trial court erred by allowing the jury to determine issues regarding workers’
compensation, over which the trial court lacked subject matter jurisdiction. See
Appellants’ Brief at 4 & 22-24. Second, Appellants argue that the trial court erred
by failing to properly charge the jury regarding Section 601 of the Act, 77 P.S. §
1031.4 See id. at 4 & 25-29. Next, Appellants allege the trial court erred by not
precluding Appellees from employing an immunity defense based on judicial
estoppel. See id. at 4 & 30-35. Finally, Appellants claim the trial court erred by not


                        _____ Yes                _____ No

                 2. Was Rosemarie Hall a volunteer fireman acting within the scope
                 and course of her duties with the Shickshinny Volunteer Fire
                 Company at the time of the automobile accident?

                        _____ Yes                _____ No

                 If your answer to Questions 1 and 2 is “Yes”, please do not answer
                 any further questions and return to the Courtroom.

                 If your answer to Questions 1 or 2 is “No”, please proceed to
                 question 3.

Reproduced Record at 629-30.
        4
            Section 601 was added to the Act by the Act of December 5, 1974, P.L. 782, 77 P.S. §
1031.

                                                 6
overturning the jury’s verdict and awarding Appellants a new trial because the jury’s
verdict was against the weight of the evidence. See id. at 4 & 35-38.
                              Motions for a New Trial
             Initially, we will discuss our review of the trial court’s denial of
Appellants’ request for a new trial. As our Supreme Court has explained, “[t]rial
courts have broad discretion to grant or deny a new trial.” Harman ex rel. Harman
v. Borah, 756 A.2d 1116, 1121 (Pa. 2000). “[W]hen 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.” Id. at 1122.
             The Supreme Court has explained:

             Each review of a challenge to a new trial order must begin
             with an analysis of the underlying conduct or omission by
             the trial court that formed the basis for the motion. There
             is a two-step process that a trial court must follow when
             responding to a request for new trial. First, the trial court
             must decide whether one or more mistakes occurred at
             trial. These mistakes might involve factual, legal, or
             discretionary matters. Second, if the trial court concludes
             that a mistake (or mistakes) occurred, it must determine
             whether the mistake was a sufficient basis for granting a
             new trial. The harmless error doctrine underlies every
             decision to grant or deny a new trial. A new trial is not
             warranted merely because some irregularity occurred
             during the trial or another trial judge would have ruled
             differently; the moving party must demonstrate to the trial
             court that he or she has suffered prejudice from the
             mistake.

Id. (internal citations omitted). Further:


             To review the two-step process of the trial court for
             granting or denying a new trial, the appellate court must

                                             7
             also undertake a dual-pronged analysis. A review of a
             denial of a new trial requires the same analysis as a review
             of a grant. First, the appellate court must examine the
             decision of the trial court [as to whether] a mistake
             occurred.

             ....

             If the mistake involved a discretionary act, the appellate
             court will review for an abuse of discretion. If the mistake
             concerned an error of law, the court will scrutinize for
             legal error.

Id. at 1122–23 (internal citations, quotation marks, and brackets omitted).
                    Workers’ Compensation Subject Matter Issue
             Appellants first argue that the trial court erred in allowing the jury to
decide whether Appellants were acting within the scope and course of their duties
for the Fire Company as their employer. See Appellants’ Brief at 22-24. Appellants
argue that the jury effectively determined whether Appellants were entitled to
workers’ compensation benefits, a determination reserved exclusively for a
Workers’ Compensation Judge (WCJ), and therefore beyond the subject matter
jurisdiction of a court of common pleas. See id. We disagree.
             Section 303 of the Act provides that the Act is the exclusive remedy of
an injured employee against an employer as follows:

             The liability of an employer under this act shall be
             exclusive and in place of any and all other liability to such
             employes, his legal representative, husband or wife,
             parents, dependents, next of kin or anyone otherwise
             entitled to damages in any action at law or otherwise on
             account of any injury or death . . . or occupational disease
             ....



                                          8
77 P.S. § 481(a) (footnotes omitted). Section 601 of the Act expressly includes
within its definition of “employe” members of volunteer fire companies injured
“while actively engaged as firemen or while going to or returning from a fire which
the fire company or fire department attended including travel from and the direct
return to a fireman’s home, place of business or other place where he shall have been
when he received the call or alarm[.]” 77 P.S. § 1031(a)(1). Further, the Act
provides immunity for the non-intentional negligent acts of co-workers. See 77 P.S.
§ 72.5 Additionally, courts of common pleas retain subject matter jurisdiction to
determine whether the Act bars an action. Bell v. Kater, 943 A.2d 293, 295 (Pa.
Super. 2008).6
                Here, Appellees pled immunity under the Act as an affirmative defense
and alleged that Appellants were employees acting in the scope and course of their
employment with the Fire Company when they were involved in the accident with
their co-worker that caused their injuries. See Answer and New Matter at ¶ 86;
Reproduced Record (R.R.) at 50-51. Whether Appellants (and Ryan Morris) were
acting within the course and scope of their employment was, therefore, essential to
determining the applicability of the Act’s immunity provisions to Appellants’
claims. Appellants’ suggestion that this factual determination amounted to the jury

       5
           Section 205 of the Act provides:

                If disability or death is compensable under this act, a person shall
                not be liable to anyone at common law or otherwise on account of
                such disability or death for any act or omission occurring while such
                person was in the same employ as the person disabled or killed,
                except for intentional wrong.

Section 205 was added to the Act by the Act of August 24, 1963, P.L. 1175, 77 P.S. § 72.
       6
         Although not binding, Superior Court decisions are persuasive authority in this Court.
Lerch v. Unemployment Comp. Bd. of Review, 180 A.3d 545, 550 (Pa. Cmwlth. 2018).

                                                 9
making determinations about Appellants’ rights to workers’ compensation benefits
is incorrect. As the trial court noted:

             The factual issue remaining of whether or not Joseph Hall
             and Rosemarie Hall were acting within the scope and
             course of their duties with the Shickshinny Volunteer Fire
             Company at the time of the accident was properly before
             the jury. The jury heard all of the admissible evidence
             regarding whether or not Joseph Hall and Rosemarie Hall
             were acting within the scope and course of their duties
             with the Shickshinny Volunteer Fire Company at the time
             of the accident. They did not do so for the purpose of
             awarding workers’ compensation benefits, but did so to
             determine if the claim was barred.

Trial Court Opinion dated February 14, 2019 (Trial Court Opinion) at 16. The trial
court had subject matter jurisdiction to entertain evidence that would allow the court
to determine whether the Act’s immunity provisions applied. See Bell. Accordingly,
the trial court did not err in allowing the jury to make these factual determinations.
             Additionally, Appellants’ suggestion that Section 401.1 of the Act,
added by the Act of Feb. 8, 1972, P.L. 25, No. 12, § 3, requires that a WCJ determine
the applicability of the Act’s immunity provisions is likewise incorrect. In pertinent
part, Section 401.1 provides that:

             The department shall also hear and determine all petitions
             by employers or insurers to suspend, terminate, reduce or
             otherwise modify compensation payments, awards, or
             agreements and petitions by employes or their dependents
             to increase, modify or reinstate compensation payments,
             awards, or agreements.

77 P.S. § 710. This section simply does not require that a WCJ determine a party’s
invocation of Act immunities as an affirmative defense, and such an interpretation

                                          10
would be contrary to the ability of courts of common pleas to determine whether the
Act bars actions before such courts. See Bell.
                                     Jury Instruction Claim
                 Appellants next claim that the trial court erred by failing to properly
charge the jury regarding Section 601 of the Act, which concerns the application of
the Act to members of volunteer fire companies.7 See Appellants’ Brief at 25-29.
Appellants have waived this claim.
                 Pennsylvania’s Rules of Appellate Procedure provide that, generally,
“[i]ssues not raised in the lower court are waived and cannot be raised for the first
time on appeal.” Pa.R.A.P. 302. More specifically, pursuant to Pennsylvania Rule
of Appellate Procedure 1925(b)(4)(vii), “[i]ssues not included in the [s]tatement [of
errors complained of on appeal] and/or not raised in accordance with the provisions
of this paragraph (b)(4) are waived.”                  Pa.R.A.P. 1925(b)(4)(vii); see City of
Philadelphia v. Lerner, 151 A.3d 1020, 1024 (Pa. 2016) (reaffirming the “well-


       7
           Section 601 of the Act provides, in pertinent part:

                 (a) In addition to those persons included within the definition of the
                 word “employe” as defined in section 104, “employe” shall also
                 include:

                 (1) members of volunteer fire departments or volunteer fire
                 companies, including any paid fireman who is a member of a
                 volunteer fire company and performs the services of a volunteer
                 fireman during off-duty hours, who shall be entitled to receive
                 compensation in case of injuries received while actively engaged as
                 firemen or while going to or returning from a fire which the fire
                 company or fire department attended including travel from and the
                 direct return to a fireman’s home, place of business or other place
                 where he shall have been when he received the call or alarm[.]

77 P.S. § 1031(a)(1).



                                                  11
settled, bright-line rule” that “issues not raised in a Rule 1925(b) statement will be
deemed waived” and holding that “[b]y failing to comply with Rule 1925(b), [the
appellant] waived the issue that he . . . request[ed] [the] Court to address”).
               The record illustrates that at trial of this matter Appellants neither
requested that the trial court provide a jury instruction regarding Section 601 of the
Act nor objected to the lack of such an instruction in the jury charge given. Further,
Appellants did not raise the issue in their Concise Statement of Errors Complained
of On Appeal. See Supplemental Reproduced Record (S.R.R.) at 76b-92b; 97b-
101b. In fact, this specific argument appears now, for the first time, in Appellants’
Brief. This issue may not be raised for the first time now on appeal. Accordingly,
Appellants waived this jury instruction claim.8
                                    Judicial Estoppel Claim
               Appellants next claim that the trial court should have judicially
estopped Appellees from claiming that Appellants’ injuries occurred within the
scope and course of their employment with the Fire Company. See Appellants’ Brief
at 30-35. Specifically, Appellants claim that Appellees previously denied that
Appellants were acting within the course and scope of their employment with the
Fire Company in workers’ compensation filings and proceedings, and, therefore, the
trial court should have estopped Appellees from arguing the opposite in the instant


       8
         We acknowledge that Appellants allege to have objected at trial to the jury interrogatories
and further claim that they did raise their objection to the text of the special jury interrogatories in
their post-trial motions. We note, however, that an objection to the text of a written special
interrogatory to be sent out with the jury for deliberation – effectively the text of the verdict sheet
– is separate and distinct from a claim regarding instructions on the law to be given during a trial
court’s jury charge prior to deliberation. These distinct objections require separate objections at
different points in the court proceedings. While Appellants may have preserved their special
interrogatory claim by objecting at trial, no party objected to the trial court’s jury instructions.
Therefore, and for the additional reasons stated supra, Appellants waived any jury instruction
claim based on Section 601 of the Act in this matter.
                                                  12
matter. See Appellants’ Brief at 30-35. We do not agree that judicial estoppel
applies to this case.
              “The purpose of judicial estoppel is to ensure the parties do not play
‘fast and loose’ with the facts in order to suit their interests in different actions before
different tribunals.” Marazas v. Workers’ Comp. Appeal Bd. (Vitas Healthcare
Corp.), 97 A.3d 854, 859 (Pa. Cmwlth. 2014); see also Trowbridge v. Scranton
Artificial Limb Co., 747 A.2d 862, 865 (Pa. 2000) (“the purpose of the doctrine is to
uphold the integrity of the courts by preventing parties from abusing the judicial
process by changing positions as the moment requires”) (citations omitted). As this
Court has explained:

              as a general rule, a party to an action is estopped from
              assuming a position inconsistent with his or her assertion
              in a previous action, if his or her contention was
              successfully maintained. Accordingly, judicial estoppel is
              properly applied only if the court concludes the following:
              (1) that the appellant assumed an inconsistent position in
              an earlier action; and (2) that the appellant’s contention
              was “successfully maintained” in that action.

Marazas, 97 A.3d at 859 (brackets omitted). “To estop later inconsistent statements,
the original statements must be verified or sworn.” Id. at 860. Further,

              [f]or judicial estoppel to attach, the position asserted also
              must have been “successfully maintained.” Stated
              differently, the prior inconsistent statement must persuade
              the decision-maker.

              Our courts interpret “successfully maintain” as different
              than litigating to conclusion. Settlement of a claim,
              despite binding the parties and ending an action, does not
              equal “successfully maintain.” Thus, our courts uphold
              the “successfully maintain” element of judicial estoppel

                                            13
             based on the action of a decision-maker, not the actions of
             the parties.

Id. at 860–61 (internal citations omitted).
             Here, the record does not support Appellants’ argument that Appellees
changed their position regarding whether Appellants were acting within the course
and scope of their employment with the Fire Company at the time of the accident.
Initially, Shickshinny Borough and its workers’ compensation insurance carrier, not
Appellees, filed the Notices of Workers’ Compensation Denial relied on by
Appellants. See R.R. at 273 & 275. Additionally, the record clearly illustrates that
Shickshinny Borough’s workers’ compensation insurer issued the June 20, 2006
Notices of Workers’ Compensation Denial in response to a June 9, 2006 letter from
Appellants’ counsel informing the insurance adjuster that Appellants were not acting
in the course of their employment at the time of the accident. See S.R.R. at 46b-47b,
50b-51b & 56b. As a result of Appellants’ counsel’s June 9, 2006 letter, the workers’
compensation insurance carrier closed the file and the matter was not further
contested before any tribunal.
             Based on this evidence, the trial court dismissed Appellants’ judicial
estoppel claim, concluding as follows:

             [Appellants’] attorney authored a letter regarding their
             workers’ compensation claims on June 9, 2006 in which
             their legal counsel stated that they were not in the course
             of their employment as members of the Shickshinny
             Volunteer Fire Company on the date of the accident,
             thereby, ending their Workers’ Compensation claims at
             that time. The matter did not proceed any further to
             adjudication before a [WCJ] to consider, nor did [a WCJ]
             take testimony or render an opinion regarding this matter.
             Thus, [Appellants’] claim fails.


                                          14
Trial Court Opinion at 19.
             We agree with the trial court’s conclusion.          Even assuming the
statements of the Notices of Workers’ Compensation Denial could be imputed to
Appellees, because Appellants’ workers’ compensation ended as a result of
Appellants’ voluntary representation regarding their employment relation to the Fire
Company, no “successful maintenance” of a prior inconsistent position ever
occurred. See Marazas, 97 A.3d at 861 (noting that an employer “cannot be estopped
from taking a position contrary to the one it never established”); see also Ham v.
Gouge, 257 A.2d 650 (Pa. Super. 1969) (finding judicial estoppel improper based
on a defendant’s representation in civil pleadings that was inconsistent with a
defendant’s position in a prior workers’ compensation matter that plaintiff had
voluntarily withdrawn prior to decision by a WCJ).
             Because the record does not illustrate that Appellees successfully
maintained a position contrary to that taken at trial, the trial court properly declined
to apply judicial estoppel to this matter.
                      New Trial/Weight of the Evidence Claim
             Lastly, Appellants claim the trial court erred by not granting their
motion for a new trial because the jury’s verdict was against the weight of the
evidence. See Appellants’ Brief at 35-38. This claim lacks merit.
             As this Court has explained:

             A new trial based on weight of the evidence issues will not
             be granted unless the verdict is so contrary to the evidence
             as to shock one’s sense of justice; a mere conflict in
             testimony will not suffice as grounds for a new trial. Upon
             review, the test is not whether this Court would have
             reached the same result on the evidence presented, but
             rather after due consideration of the evidence found
             credible by the jury, and viewing the evidence in the light
                                             15
             most favorable to the verdict winner, whether the court
             could reasonably have reached its conclusion. It is not the
             role of an appellate court to pass on the credibility of
             witnesses or to act as the trier of fact, and an appellate
             court will not substitute its judgement [sic] for that of the
             fact-finder.

Worley v. Cty. of Delaware, 178 A.3d 213, 237–38 (Pa. Cmwlth. 2017) (internal
citations, quotations, and corrections omitted). Further,


             [a]ppellate review of a weight claim is a review of the [trial
             court’s] exercise of discretion, not of the underlying
             question of whether the verdict is against the weight of the
             evidence. Because the trial judge has had the opportunity
             to hear and see the evidence presented, an appellate court
             will give the gravest consideration to the findings and
             reasons advanced by the trial judge when reviewing a trial
             court’s determination that the verdict is against the weight
             of the evidence. One of the least assailable reasons for
             granting or denying a new trial is the lower court’s
             conviction that the verdict was or was not against the
             weight of the evidence and that a new trial should be
             granted in the interest of justice.

Id. at 238 (citation omitted).
             The trial court assessed Appellants’ weight of the evidence claim as
follows:

                    After having the opportunity to observe the
             witnesses and listen to the testimony, the [c]ourt was
             anything but shocked by the jury’s verdict. As noted
             above, the record through the testimony of witnesses,
             which included the testimony of [Appellants], [] reflected
             that both Rosemarie and Joseph Hall were approved to be
             members of the Shickshinny Volunteer Fire Company.
             Rosemarie Hall received a coat, helmet and a pager that

                                          16
received calls from the Luzerne County 911 Center and
would assist and direct traffic at accident scenes. On the
date of the accident, Rosemarie and Joseph Hall had their
pagers with them. Furthermore, at the hospital, Rosemarie
Hall signed a form indicating that she was a co-employee
acting as a member of the fire department at the time of
the accident. The jury also heard that on the date of the
accident, Joseph Hall had the Shickshinny Volunteer Fire
Company pager turned on and he received two calls for the
Mocanaqua Bridge accident.

       There was minimal inconsistent testimony during
the trial in this matter which goes to credibility and the
[c]ourt is not permitted to substitute its judgment for that
of the jury on issues of credibility. Nothing in the record
leads to the conclusion that the verdict was against the
weight of the evidence. The jury heard from Kevin
McDaniels who testified that he overheard the
conversation between Beverly Ann Moore and Joseph
Hall indicating that Joseph and Rosemarie Hall were going
to the fire call at the time of the accident. Debra
McDaniels testified that during her examination of Joseph
Hall, he indicated that he was sitting outside on a bench on
the side of Wachovia Bank when Rosemarie Hall ran out
of the house and said that the pager went off. Rosemarie
Hall then got into the car and did a U-turn he [sic] got in
the car and they proceeded to travel south on Main Street
toward the accident.

       Holly Sue Morris testified that Rosemarie Hall was
never precluded from doing any of the activities she had
been doing for the fire department. Furthermore,
Rosemarie Hall and Joseph Hall were never told that they
could not continue to perform activities for the fire
company into May of 2006 when the accident occurred.
At the time of the accident, both Rosemarie Hall and
Joseph Hall were still considered to be members of the fire
department and had equipment, turnout gear and a pagers
[sic] assigned to them. Ms. Morris testified that she heard
the conversation between Joseph and Rosemarie Hall
                            17
             while they were in the back of the ambulance indicating
             that they were on their way to the accident. Finally, Kevin
             Morris testified that he heard Joseph Hall telling Beverly
             Moore that he was going to the accident and got into an
             accident on the way to the accident.

                    As the above excerpts of the trial testimony reflect,
             there was an abundance of evidence presented by all
             parties that the jury found credible. Nothing in the record
             leads to the conclusion that the verdict that Joseph and
             Rosemarie Hall were acting within the scope and course
             of their duties with the Shickshinny Volunteer Fire
             Company at the time of the automobile accident was
             against the weight of the evidence or shocked one’s sense
             of justice.

Trial Court Opinion at 20-22 (internal record citations omitted).
             We find no abuse of discretion in the trial court’s assessment of the
evidence presented at trial. Adequate evidence of record existed to allow the jury to
conclude, as it did, that Appellants were acting within the course and scope of their
employment with the Fire Company at the time of the accident. Accordingly, we
find no error in the trial court’s denial of a new trial based upon Appellants’ weight
of the evidence claim.
             For the reasons above, we find no error of law or abuse of discretion in
the trial court’s denial of Appellants’ post-trial motion seeking a new trial.
Accordingly, we affirm the order of the trial court.




                                       __________________________________
                                       CHRISTINE FIZZANO CANNON, Judge




                                         18
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Joseph Hall and Rosemarie Hall,       :
his Wife,                             :
                 Appellants           :
                                      :
            v.                        :
                                      :
Ryan Morris, Holly Sue Morris,        :
Shickshinny Volunteer Fire            :
Company, Inc.                         :
                                      :
            v.                        :
                                      :   No. 220 C.D. 2019
Rosemarie Hall                        :


                                  ORDER


            AND NOW, this 6th day of January, 2020, the August 30, 2018 order
of the Court of Common Pleas of Luzerne County is AFFIRMED.




                                   __________________________________
                                   CHRISTINE FIZZANO CANNON, Judge
