J-A11037-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JENNA MARIE SCOTT, A MINOR BY AND            IN THE SUPERIOR COURT OF
THROUGH HER GUARDIAN AD LITEM,                     PENNSYLVANIA
JUDITH ALGEO, ESQUIRE

                  v.

LOWER BUCKS HOSPITAL, AMY L.
HARVEY, M.D., MARK D. KUHN, M.D.,
LAURA CASTNER, RN, JO ANN BUTRICA,
RN, AND MARY (BOYLE) ROMOLINI, RN

APPEAL OF: AMY L. HARVEY, M.D., AND
MARK D. KUHN, M.D.
                                                 No. 1140 EDA 2015


               Appeal from the Order Entered April 10, 2015
       in the Court of Common Pleas of Bucks County Civil Division
                          at No(s): 2010-01193

JENNA MARIE SCOTT, A MINOR BY AND            IN THE SUPERIOR COURT OF
THROUGH HER GUARDIAN AD LITEM,                     PENNSYLVANIA
JUDITH ALGEO, ESQUIRE

                  v.

LOWER BUCKS HOSPITAL, AMY L.
HARVEY, M.D., MARK D. KUHN, M.D.,
LAURA CASTNER, RN, JO ANN BUTRICA,
RN, AND MARY (BOYLE) ROMOLINI, RN

APPEAL OF: LOWER BUCKS HOSPITAL,
LAURA CASTNER, RN, JO ANN BUTRICA,
RN AND MARY (BOYLE) ROMOLINI, RN
                                                 No. 1306 EDA 2015


               Appeal from the Order Entered April 10, 2015
       in the Court of Common Pleas of Bucks County Civil Division
                          at No(s): 2010-01193
J-A11037-16


BEFORE: SHOGAN, MUNDY, and FITZGERALD,* JJ.

CONCURRING AND DISSENTING STATEMENT BY FITZGERALD, J.:FILED JULY 21, 2016

        I respectfully concur in part and dissent in part for two reasons. First,

Appellee’s counsel did not move for a mistrial in response to the sustained

objections to Appellants’ counsel’s improper questioning. The jury, however,

found in favor of Appellants. The majority awards Appellee with a new trial

despite her counsel’s failure to request a mistrial until after the jury reached

its verdict. This is too late.

        Rather, it is incumbent upon the movant to timely move for a mistrial.

McMillen v. 84 Lumber, Inc., 649 A.2d 932, 934 (Pa. 1994).                     In

McMillen, the trial court granted the plaintiffs’ motion in limine barring the

defendant from referencing certain testimony.          Id. at 933.     “In direct

defiance of the trial court’s explicit instructions,” defendant’s counsel elicited

the precluded testimony. Id.

           [Plaintiffs’] counsel interposed an objection that the trial
           court sustained. At this point, the proverbial cat was out
           of the bag, but [the plaintiffs’] counsel did not ask for a
           mistrial to which they were surely entitled. [The plaintiffs’]
           counsel apparently gambled that they could still win before
           the jury already empaneled as opposed to incurring the
           expenditure of time and money that would necessarily
           occur if a mistrial were granted and a new trial ordered.
           They lost.

Id.


*
    Former Justice specially assigned to the Superior Court.




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J-A11037-16


      In their post-trial motion, the plaintiffs requested a new trial for the

first time based upon the defendant’s violation of the court’s pretrial order.

Id. at 934. The trial court, sitting en banc, denied “the request for a new

trial on the grounds that the right to a new trial had been waived because

[the plaintiffs] had not made a timely request for the declaration of a

mistrial.” Id. The plaintiffs appealed to the Superior Court, which reversed,

reasoning “a strong public interest appeared to outweigh the ordinary need

to protect the judicial system from improperly preserved issues.” Id.

      The Pennsylvania Supreme Court held the Superior Court misconstrued

the law, reversed the Superior Court, and affirmed the trial court’s denial of

a new trial. Id.   The McMillen Court commanded that a party cannot wait

until an adverse jury verdict before requesting a mistrial:

         Aside from capital cases in the domain of criminal law-
         where a human life is at stake, no fact situations have
         been presented to us, and none readily comes to mind,
         where this narrow public interest exception would justify
         departure from the waiver rule. This is a fairly routine civil
         case. However difficult some strategic decisions are to
         trial counsel, a party is bound by his or her counsel’s
         actions and if an issue is waived on strategic grounds or by
         inadvertence, it is waived. The rule may be harsh at
         times, but litigation must eventually come to an end. . . .
         To adopt the Superior Court’s approach would substantially
         eviscerate the waiver principle and, taken to its logical
         conclusion, would result in endless retrials and endless
         appeals. That is contrary to sound principles of judicial
         administration and to prior decisions of this Court.

Id.




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J-A11037-16


      The precept that a party shall timely request a mistrial and not raise it

for the first time in a post-trial motion is illustrated in Poust v. Hylton, 940

A.2d 380 (Pa. Super. 2007).       In Poust, the trial court precluded defense

counsel from using the word “cocaine” with respect to the deceased victim.

Id. at 381.     During cross-examination of the plaintiff’s expert, defense

counsel asked about the presence of a cocaine metabolite in the victim. Id.

at 383.   Plaintiff’s counsel objected, the court sustained the objection, and

after the jury left the courtroom, the plaintiff moved for a mistrial. Id. The

court denied plaintiff’s motion for a mistrial and declined to give a curative

instruction.   Id. at 384.   The plaintiff ultimately appealed, and this Court

reversed, as “[u]nder Pennsylvania law, [the plaintiff] was entitled to the

declaration of a mistrial, ipso facto, immediately upon [defense] counsel's

flagrant and intentional use of this obviously prejudicial word ‘cocaine’, in

violation of the prior pre-trial preclusion order of the trial court.” Id. at 385.

      For the instant case, I distinguish a party’s timely request for a mistrial

from the trial court’s inherent authority to award a new trial sua sponte.

See Majority Slip Op. at 6-7 (citing caselaw for proposition that court can

sua sponte grant a new trial). The trial court did not grant a new trial sua

sponte. The trial court granted a new trial in response to Appellee’s post-

trial motion for a new trial. I thus suggest we are bound by our Supreme

Court’s reasoning in McMillen. See McMillen, 649 A.2d at 934.




                                      -4-
J-A11037-16


      Second, I discern no basis for us to exercise appellate jurisdiction over

the Hospital’s appeal of its post-trial motion for judgment notwithstanding

the verdict. The trial court granted Appellee’s motion for a new trial after an

adverse jury verdict. The verdict no longer exists. Thus, I question whether

the trial court could even resolve—let alone grant—the Hospital’s motion for

judgment notwithstanding the (non-existent) verdict—a verdict that was in

Hospital’s favor.1 Regardless, the court never ruled on Hospital’s post-trial

motion.    The Hospital did not praecipe for judgment.             Nothing in

Pennsylvania Rule of Civil Procedure 227.4 permits us to review a non-

existent order.   And the Hospital appealed only from the court’s grant of

Appellee’s motion for a new trial. Notice of Appeal, 4/28/15. I otherwise

concur in the majority’s disposition of the guardian ad litem fees.

Accordingly, I concur in part and dissent in part.




1
 This is not a situation where one party files both a motion for a new trial
and a motion for judgment notwithstanding the verdict, but the trial court
only rules on one.



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