J-A03039-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 KAIFENG CHEN                              :     IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 QIONG CHEN AND QIN LIANG CHEN             :
                                           :
                    Appellants             :     No. 1203 MDA 2019

           Appeal from the Judgment Entered September 25, 2019
    In the Court of Common Pleas of Lackawanna County Civil Division at
                           No(s): 2015-CV-5089


BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.

MEMORANDUM BY DUBOW, J.:                       FILED: JUNE 1, 2020

      Appellants, Qiong Chen and Qin Liang Chen, appeal from the Judgment

entered September 25, 2019, following a jury verdict that awarded Appellee,

Kaifeng Chen, $92,000 in compensatory damages and $200,000 in punitive

damages in his claim of malicious prosecution. We discern neither prejudicial

error nor abuse of discretion by the court in the trial proceedings. Accordingly,

we affirm.

                                 BACKGROUND

      In April 2012, Appellee Chen worked as a sushi chef in one of Appellants’

restaurants on a trial basis. Following the trial period, Appellant Mrs. Chen

fired Appellee and paid him wages in cash. A dispute arose concerning the

form of payment, whether taxes were withheld, and whether Appellants would

provide bus fare (per prior agreement) back to New York City.           Trial Ct.

Pa.R.A.P. 1925(a) Op., 9/10/19, at 1-2.
J-A03039-20



      The dispute intensified, with Appellee threatening to report Appellants

to authorities. Appellant Mrs. Chen assaulted Appellee, throwing two pots and

a ladle of hot oil at him; Appellee called the police. Appellant Mr. Chen arrived

at the restaurant, and he too assaulted Appellee, hitting him and knocking

him to the ground. Id. at 2-3.

      When the police arrived, however, Appellants claimed that Appellee had

assaulted them. Believing Appellants, the police took Appellee into custody

at gunpoint and charged him pursuant to Appellants’ claims. Id. at 3. The

criminal matter proceeded to trial. In October 2014, a jury acquitted Appellee

of all charges. Id. at 3-4.

      In August 2015, Appellee filed a Complaint, asserting that Appellants

had instituted criminal proceedings against him maliciously.         Complaint,

8/24/15. A jury trial commenced in June 2019.

      At trial, Appellee established expenses he incurred to defend against the

criminal proceedings, as well as lost wages and other expenses, and he

testified to the emotional trauma he suffered. Trial Ct. Pa.R.A.P. 1925(a) Op.

at 3-4.    Following deliberations, a jury awarded Appellee $92,000 in

compensatory damages and $200,000 in punitive damages. Id. at 1.




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       Appellants timely filed Post-Trial Motions, which the trial court denied.

Appellants timely appealed1 and filed a court-ordered Pa.R.A.P. 1925(b)

Statement. The trial court issued a responsive Opinion.

                                         ISSUES

       Despite purporting to raise thirteen distinct issues on appeal, see

Appellants’ Br. at 6-9, Appellants have organized their argument into four

sections. See Appellants’ Br. at i-ii, 18, 28, 40, 48. Within these four sections,

Appellants assert several claims—some overlapping, some distinct. See id.

at 18-52. We are able to discern the following issues for our review:

       1. Whether the trial court erred or abused its discretion in denying
          Appellants judgment notwithstanding the verdict [“JNOV”] on
          the claim of malicious prosecution, where Appellee failed to
          establish that:

              a. Appellants instituted proceedings       against   Appellee
                 without probable cause and

              b. Appellants acted with malice; and

       2. Whether the trial court abused its discretion when it failed to
          grant Appellants a new trial, where:

              a. The jury award for both compensatory and punitive
                 damages was against the weight of the evidence;

              b. The trial court failed to ensure a fair and impartial jury,
                 permitted improper contact between a juror and a

____________________________________________


1 Following the denial of their Post-Trial Motions, Appellants did not praecipe
the lower court to enter Judgment prior to filing their appeal. This Court
directed Appellants to do so; they complied; and therefore, this appeal is
properly before us. See Pa.R.A.P. 905(a)(5).




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J-A03039-20


                 witness, and condoned misconduct            by   the   court-
                 appointed interpreter; and

              c. The trial court abused its discretion by admitting
                 Appellants’ tax records, where such evidence was
                 unfairly prejudicial.

See id.2

                                          JNOV

       In their first issue, Appellants assert that the trial court erred or abused

its discretion in denying their Post-trial Motion seeking JNOV. Appellants’ Br.

at 18.     According to Appellants, Appellee failed to establish either that

Appellants instituted criminal proceedings against him without probable cause

or that Appellants acted with malice. Id. This claim is without merit.

       We review the denial of a request for JNOV for an error of law that

controlled the outcome of the case or an abuse of discretion. Hutchinson v.

Penske Truck Leasing Co., 876 A.2d 978, 984 (Pa. Super. 2005). In this

context, an “[a]buse of discretion occurs if the trial court renders a judgment

that is manifestly unreasonable, arbitrary or capricious; that fails to apply the

law; or that is motivated by partiality, prejudice, bias or [ill will].” Id. (citation

omitted).

       When reviewing the denial of a request for JNOV, the appellate court

examines the evidence in the light most favorable to the verdict winner.


____________________________________________


2 Appellants’ presentation of the issues has somewhat hindered our review.
We therefore admonish Appellants to conform to our Rules of Appellate
Procedure in the future. Pa.R.A.P. 2101, 2116, 2119.


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J-A03039-20



Thomas Jefferson Univ. v. Wapner, 903 A.2d 565, 569 (Pa. Super. 2006)

(citation omitted). Thus, “the grant of [JNOV] should only be entered in a

clear case[.]” Id. (citation omitted).

      There are two bases upon which a movant is entitled to JNOV: “one, the

movant is entitled to judgment as a matter of law, and/or two, the evidence

was such that no two reasonable minds could disagree that the outcome

should have been rendered in favor of the movant.” Rohm and Haas Co. v.

Continental Cas. Co., 781 A.2d 1172, 1176 (Pa. 2001) (citation omitted).

When an appellant challenges a jury’s verdict on this latter basis, we will grant

relief only “when the jury’s verdict is so contrary to the evidence as to shock

one’s sense of justice.” Sears, Roebuck & Co. v. 69th St. Retail Mall, L.P.,

126 A.3d 959, 967 (Pa. Super. 2015) (internal citation omitted).

      In this case, Appellants suggest that the jury’s verdict “is not consistent

with the evidence[.]”   Appellants’ Br. at 28.    According to Appellants, the

verdict “baffles the mind”, and “[t]here is no logical basis for reconciling the

evidence presented at trial and the jury’s verdict.” Id. Thus, Appellants seek

JNOV on the latter basis. See Rohm and Haas Co., 781 A.2d at 1176.

      To establish a claim for malicious prosecution, a plaintiff must establish

that the defendants initiated proceedings against the plaintiff (1) without

probable cause, (2) with malice, and (3) that the proceedings terminated in

plaintiff’s favor. Bradley v. Gen. Accident Ins. Co., 778 A.2d 707, 710 (Pa.

Super. 2001). The fact-finder may infer malice from the absence of probable

cause. Kelley v. Gen. Teamsters, Chauffeurs & Helpers, Local Union

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249, 544 A.2d 940, 941 (Pa. Super. 1988). In this case, there is no dispute

regarding the third element because a jury acquitted Appellee of all criminal

charges. Thus, only the first element is truly at issue in this case.

      “Probable cause is defined as a reasonable ground of suspicion

supported by circumstances sufficient to warrant an ordinary prudent man in

the same situation in believing that the party is guilty of the offense.” Id. at

942 (citation and quotation marks omitted).         When a private individual

instigates a criminal proceeding against another with fabricated claims,

there is not a reasonable basis for suspicion—there is not probable cause. See

generally Bradley, 778 A.2d at 710-11 (reasoning, based on Restatement

(Second) of Torts § 653, that a private individual who instigates a criminal

proceeding with information known to be false undermines a police officer’s

discretion); see also Wainauskis v. Howard Johnson Co., 488 A.2d 1117,

1123 (Pa. Super. 1985) (affirming the jury finding absence of probable cause

where allegations were premised upon hasty and incomplete investigation).

      The existence or absence of probable cause is determined by the court

when there are no material conflicts in the evidence. Wainauskis, 488 A.2d

at 1122. However, where material facts are in controversy, it is the duty of

the jury to determine whether the malicious prosecution plaintiff has shown

want of probable cause. Id. As fact-finder, the jury may believe all, part, or

none of the evidence, resolve conflicts in the evidence, and make credibility

determinations. Mader v. Duquesne Light Co., 199 A.3d 1258, 1266 (Pa.

Super. 2018).

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J-A03039-20



      Appellants suggest there was probable cause supporting the criminal

proceedings against Appellee.    In support of their claim, Appellants recite

evidence favorable to them. See, e.g., Appellants’ Br. at 20-26 (recounting

testimony by local police, who charged Appellee based on Appellants’

accusations).   In addition, Appellants observe that the police executed an

affidavit of probable cause, the district attorney’s office determined to

prosecute Appellee, and a district judge held the charges over for trial. Id. at

25.   However, Appellants ignore the substantial, countervailing evidence

adduced by Appellee. See Appellee’s Br. at 4-11 (cataloguing trial testimony

describing Appellants’ assault on Appellee, Appellee’s threat to report

Appellants to authorities, inconsistencies in Appellants’ testimonies, and

testimony from local police that charges were filed based solely on Appellants’

allegations).

      Our review of the record reveals that there was conflicting testimony

surrounding the circumstances that led to Appellee’s arrest and criminal

prosecution. As the trier of fact, the jury credited Appellee’s version of these

circumstances. Viewing this evidence in the light most favorable to Appellee,

the jury was entitled to conclude that Appellants fabricated allegations and

procured criminal proceedings against Appellee without probable cause.

Bradley, supra; Wainauskis, supra.          Moreover, based on the lack of

probable cause and, specifically, evidence that Appellants fabricated claims

against Appellee, the jury was free to infer that Appellants acted with malice.

Bradley, supra; Kelley, supra.

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J-A03039-20



       As there was ample evidence to support the jury’s verdict, it does not

shock one’s sense of justice. See Sears, Roebuck & Co., 126 A.3d at 967.

Thus, we discern no abuse of the trial court’s discretion in denying Appellants’

request for JNOV. See Hutchinson, 876 A.2d at 984.3

____________________________________________


3 Additionally, we note that Appellants suggest in passing that they are entitled
to JNOV as a matter of law because they did not initiate proceedings against
Appellee; rather, Appellee did when he first called the police. See Appellants’
Br. at 19. They do not support this assertion with precedent, nor does it
accurately reflect the law of this Commonwealth. See Bradley, 778 A.2d
707, 710 (Pa. Super. 2001) (citation omitted) (noting that an individual may
be liable for malicious prosecution if he “initiates or procures the institution
of criminal proceedings without probable cause”) (citation omitted; emphasis
added). Here, it is beyond dispute that police charged Appellee based solely
on Appellants’ claims.      Thus, they procured the institution of criminal
proceedings.

Appellants also suggest they are entitled to a new trial based on the weight of
the evidence supporting Appellee’s claim for malicious prosecution.
Appellants’ Br. at 18, 28. Appellants did not preserve this claim in their Post-
Trial Motion. See Post-Trial Motion, 6/24/19 (seeking JNOV based on the
weight of the evidence but not a new trial). Thus, we decline to consider it.
See Pa.R.C.P. 227.1(b)(2) (grounds not specified in post-trial motions are
waived).

Finally, Appellants suggest they are entitled to JNOV because the jury award
of damages was excessive. See Appellants’ Br. at 28. According to
Appellants, Appellee did not establish an evidentiary basis to support the jury’s
compensatory damages award. See id. at 30-34. The record does not
support this assertion. See N.T. Trial, 6/12/19, at 82-100; N.T. Trial, 6/13/19
a.m., at 48-52. Also, according to Appellants, Appellee did not establish an
evidentiary basis for punitive damages because there was no evidence that
Appellants acted with malice. See Appellants’ Br. at 38. We reject this
assertion. As noted above, the evidence at trial established that Appellants
fabricated claims that resulted in the criminal prosecution of Appellee. Based
on this outrageous conduct, the jury was free to infer that Appellants acted
with malice, thus providing an evidentiary basis for punitive damages.
Bradley, supra; Wainauskis, supra.


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J-A03039-20



                                  NEW TRIAL

      In their second issue, Appellants assert that several errors by the trial

court entitle them to a new trial. See Appellants’ Br. at 28, 40, 48. We will

address Appellants’ claims as presented in their appellate Brief, i.e., as three

broad allegations of error, containing several sub-parts. See id.

      “Trial courts have broad discretion to grant or deny a new trial.”

Harman ex rel. Harman v. Borah, 756 A.2d 1116, 1121 (Pa. 2000)

(citations omitted). We review trial court’s decision for an abuse of discretion

or error of law. Id. at 1122-23. If we agree that certain errors occurred

during trial, we must consider the impact of those errors on the outcome of

the case.   “Consideration of all new trial claims is grounded firmly in the

harmless error doctrine.”       Bennett v. A.T. Masterpiece Homes at

Broadsprings, LLC, 40 A.3d 145, 149 (Pa. Super. 2012) (citation omitted).

“[A] litigant is entitled only to a fair trial and not a perfect trial.” Lockley v.

CSX Transp., 5 A.3d 383, 392 (Pa. Super. 2010) (citation omitted). Unless

an error occurred that controlled the outcome of a case, we will not reverse a

trial court’s decision denying a new trial. Id. at 388. Thus, it is not sufficient

for an appellant to establish that “some irregularity occurred during the trial.”

Bennett, 40 A.3d at 149-50.          Rather, the appellant must demonstrate

prejudice. Id. at 150.

                                   Damages

      In their first allegation of error, Appellants assert that they are entitled

to a new trial or remittitur because the compensatory and punitive damages

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J-A03039-20



awarded by the jury were excessive. Appellants’ Br. at 28. The decision to

grant a new trial limited to damages or a remittitur is within the trial court’s

discretion. Tong-Summerford v. Abington Mem’l Hosp., 190 A.3d 631,

653-54 (Pa. Super. 2018). An appellate court will not find a verdict excessive

unless it is so grossly excessive as to shock the court’s sense of justice.

Whitaker v. Frankford Hosp. of City of Philadelphia, 984 A.2d 512, 523

(Pa. Super. 2009) (citation omitted).

      1. Compensatory Damages

      Regarding compensatory damages, Appellants contend that the jury

award was excessive primarily because Appellee was unable to provide specific

evidence of his lost wages. Appellants’ Br. at 28. However, “[i]n an action

for malicious prosecution, compensatory damages may include all of the

plaintiff’s actual expenses in defending himself, compensation for loss of

liberty or time, harm to reputation, physical discomfort, interruption of

business, mental anguish, humiliation, and injury to feelings.” Shelton v.

Evans, 437 A.2d 18, 21 (Pa. Super. 1981) (citation omitted).              Thus, a

plaintiff’s damages in a case such as this are not limited to proof of lost wages.

      Appellee quantified his actual expenses in defending himself, catalogued

his employment history, as well as the disruption to his employment caused

by his efforts to defend himself, and testified to the emotional distress inflicted

when he was arrested at gunpoint and placed in jail for more than a week

before he was able to secure bail. See N.T. Trial, 6/12/19, at 82-100; N.T.




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J-A03039-20



Trial, 6/13/19 a.m., at 48-52. In addition, Appellee testified that it took years

“to get [his] personal dignity back.” N.T. Trial, 6/12/19, at 99.

       As we stated in Shelton, in awarding compensatory damages, “the jury

expressed its opinion of what represented fair compensation for the [tangible

and] intangible injuries . . . suffered.” Shelton, 437 A.2d at 21. Similarly,

here, the jury considered Appellee’s testimony, found it to be credible, and

calculated a reasonable value for his damages. It does not shock this Court’s

sense of justice.      Whitaker, supra. Therefore, we discern no abuse of

discretion in the trial court’s denial of a new trial for damages or remittitur.

Tong-Summerford, supra.

       2. Punitive Damages

       Appellants also assert that the punitive damages awarded were grossly

excessive because Appellee threatened them with knives, slapped Appellant

Mrs. Chen in the face, and threatened to kill Appellants, and the

Commonwealth found these allegations sufficiently credible to pursue criminal

charges against him.        See Appellants’ Br. at 39.   We categorically reject

Appellants’ argument. To be clear, the jury did not credit this self-serving

version of the circumstances surrounding Appellee’s arrest.4

       A jury may award punitive damages in a malicious prosecution case to

punish a defendant for his outrageous conduct. See Shelton, 437 A.2d at
____________________________________________


4 Similarly, we reject Appellants’ suggestion that Appellee suffered “strictly
economic harm.” Appellants’ Br. at 35. This Court has identified a broad
range of compensable harm. See Shelton, 437 A.2d at 21.


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J-A03039-20



22. In assessing punitive damages, the jury may consider the nature of the

defendant’s conduct, the extent of the harm caused, whether the defendant

caused or intended to cause harm to the plaintiff, and the wealth of the

defendant. Id.; see also RESTATEMENT (SECOND) OF TORTS § 908(2) (1979).

      We evaluate a jury’s punitive damages award mindful that the size of

the award “must be reasonably related to the State’s interest in punishing and

deterring the particular behavior of the defendant and not the product of

arbitrariness or unfettered discretion.”      Empire Trucking Co., Inc. v.

Reading Anthracite Coal Co., 71 A.3d 923, 938 (Pa. Super. 2013) (citation

omitted). In Empire Trucking, we approved punitive damages more than

five times the amount of the compensatory damages awarded. Id. at 938-

39. Considering the defendant’s acts of deception, the harm to the plaintiff’s

reputation, and the financial distress caused, we concluded that the punitive

damages awarded were not grossly disproportionate to the compensatory

damages. Id. at 939. Thus, we discerned neither error of law nor abuse of

the trial court’s discretion in refusing to set aside the jury award. Id.

      In this case, the jury’s punitive damages award of $200,000 is slightly

more than twice its compensatory damages award of $92,000—significantly

lower than the ratio we approved in Empire Trucking. Moreover, Appellants’

intentional and outrageous conduct inflicted serious harm on Appellee.

Appellee was arrested by police at gunpoint, based solely on Appellants’

fabricated claims; he was deprived of his liberty; and he incurred unnecessary

legal, transportation, and lodging fees as he strove to defend himself against

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J-A03039-20



Appellants’ accusations. In turn, these events hindered his employment

opportunities and inflicted serious emotional distress. The jury’s award does

not shock the conscience of this Court. Whitaker, supra. Thus, we discern

no abuse of the trial court’s discretion in denying Appellants a new trial or

remittitur. Tong-Summerford, supra.

                                 Trial Court Conduct

       In their second allegation of error in support of their request for a new

trial, Appellants present a series of claims targeting the manner in which the

trial court conducted this trial. See Appellants’ Br. at 40-48. “It is axiomatic

that the conduct of a trial is the province of the judge. [Her] discretion,

exercised without abuse, must control.” DeFulvio v. Holst, 362 A.2d 1098,

1099 (Pa. Super. 1976). None of Appellants’ claims provides any basis for a

new trial.

       1. Acquaintance misconduct

       For example, Appellants assert the trial court abused its discretion when

it failed to remove Appellee’s acquaintance from the courtroom even though

she appeared to be coaching Appellee during his testimony. Appellants’ Br.

at 41-43. Appellants did not preserve this claim in their Pa.R.A.P. 1925(b)

Statement. Accordingly, we deem it waived. Pa.R.A.P. 1925(b)(4)(vii). 5

____________________________________________


5 We note, however, that Appellants raised this concern with the court during
a break in testimony. N.T. Chambers, 6/13/19, at 3-5, 8, 17-18. The court
acknowledged that the acquaintance’s behavior was unacceptable, indicated
that it would direct her to sit in the back of the courtroom, and suggested that



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J-A03039-20



       2. Juror misconduct

       Next, Appellants assert the court abused its discretion when it failed to

replace a juror with an alternate after the juror allegedly engaged in

inappropriate     ex   parte    communications       with   Appellee’s   acquaintance.

Appellants’ Br. at 43-47. “The discharge of a juror is within the discretion of

the trial court.” Commonwealth v. Treiber, 874 A.2d 26, 31 (Pa. Super.

2005) (citation omitted).

       At Appellants’ request, the court interviewed a witness to this alleged

conversation, as well as the juror allegedly involved.               N.T. Chambers,

6/13/19, at 7-11, 14-17.          The witness told the judge that he heard the

acquaintance say “yes” to the juror.              Id. at 10.   The juror denied any

conversation took place but indicated that he observed that the acquaintance

“was laughing a lot.”        Id. at 16.        The court found no evidence of juror

misconduct.     Trial Ct. Pa.R.A.P. 1925(a) Op. at 12.          Based on the court’s

finding, we discern no abuse of discretion in the court’s refusal to replace the

juror. Treiber, 874 A.2d at 31.

       3. Interpreter misconduct

       Appellants also assert that the court-appointed interpreter “enjoyed a

relationship” with Appellee. Appellants’ Br. at 47-48. Briefly, we note the

following.

____________________________________________


any further interference would result in her expulsion from the courtroom. Id.
Appellants do not suggest any further coaching or interference occurred.


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       During a break in testimony, Appellants brought to the court’s attention

that the court-appointed interpreter had a conversation with Appellee. N.T.

Chambers, 6/13/19, at 3. The court interviewed the interpreter, who admitted

having a short conversation unrelated to the trial proceedings.       The court

admonished the interpreter to avoid the appearance of any impropriety, and

the interpreter agreed to refrain from any further conversations with Appellee.

Id. at 12-14. In our view, the trial court handled this situation appropriately.6

       Based on our review of the record, these discrete claims of error

challenging the manner in which the court conducted the trial are waived or

otherwise devoid of merit and, thus, provide no basis upon which to grant a

new trial. DeFulvio, 362 A.2d at 1099.

                                 Evidentiary Ruling

       In their third allegation of error, Appellants challenge an evidentiary

decision of the trial court. See Appellants’ Br. at 48. They contend that the

court improperly admitted their corporate tax return from fiscal year 2012,

suggesting this evidence was unfairly prejudicial to them. See Appellants’ Br.

at 48. In addition, Appellants suggest the court erred in failing to instruct the

jury of the limited purpose of this evidence. Id. at 49-50.




____________________________________________


6 Apparently, following trial, a contentious incident occurred between
Appellants and the court-appointed interpreter.      Appellants’ Br. at 47.
Appellants baldly suggest that this is evidence that the interpreter and the
jury foreperson “in some way influenced the outcome of the trial.” Id. at 48.
Appellants’ frivolous claim merits no discussion.

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      The “[a]dmission 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.” Czimmer v. Janssen Pharmas.,

Inc., 122 A.3d 1043, 1058 (Pa. Super. 2015) (citation omitted). To preserve

an evidentiary claim of error on appeal, an appellant must timely object to a

trial court’s evidentiary determination.      Pa.R.C.P. 227.1(b) cmt. (“If no

objection is made, error which could have been corrected in pre-trial

proceedings or during trial by timely objection may not constitute a ground

for post-trial relief.”).

      Appellants’ claim is waived. Although there was some dispute about the

tax return before and during trial, prior to closing arguments, the parties

settled the issue.     Specifically, Appellants withdrew any challenge to the

admissibility of the first page of the tax return and further acquiesced in the

admissibility of another page, comprising Form 941, Employer’s Quarterly

Federal Tax Return, denoting the number of persons employed by Appellants

at the restaurant. N.T. Trial, 6/14/19, at 21-23. Further, Appellants did not

request a limiting instruction from the court.     Id.   Thus, with Appellants’

acquiescence, the trial court admitted these two pages of Appellants’ 2012 tax

return. Id. The trial court admitted no other pages of Appellants’ tax return.

Because Appellants withdrew their objections, this issue is waived. Pa.R.C.P.

227.1(b).

                                  Conclusion




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      Following our review Appellants’ claims, we discern no errors that

controlled the outcome of this case. Appellants received a fair, if not perfect,

trial and suffered no prejudice. See Lockley, 5 A.3d at 392; Bennett, 40

A.3d at 149. Accordingly, we discern no abuse of discretion in the trial court’s

denial of Appellants’ request for a new trial. Harman, 756 A.2d at 1121.

      Judgment affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date:06/01/2020




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