J-A09008-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BRADFORD LARKIN,                             IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                        Appellee

                   v.

NEW JERSEY TRANSIT RAIL
OPERATIONS, INC., (NJT)

                        Appellant                 No. 3409 EDA 2013


            Appeal from the Judgment Entered January 3, 2014
           In the Court of Common Pleas of Philadelphia County
              Civil Division at No(s): 2670 August Term, 2011


BRADFORD LARKIN,                             IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                        Appellee

                   v.

NEW JERSEY TRANSIT RAIL
OPERATIONS, INC., (NJT)

                        Appellant                 No. 3410 EDA 2013


            Appeal from the Judgment Entered January 3, 2014
           In the Court of Common Pleas of Philadelphia County
              Civil Division at No(s): 2670 August Term, 2011


BEFORE: BOWES, DONOHUE, AND STABILE, JJ.

MEMORANDUM BY BOWES, J.:                    FILED SEPTEMBER 16, 2015

     New Jersey Transit Rail Operations, Inc. (“New Jersey Transit” or

“railroad”) appeals from the judgment entered on a jury verdict and award

of attorney’s fees and costs in favor of its employee, Bradford Larkin. Mr.
J-A09008-15




Larkin commenced the action against his employer pursuant to the Federal

Employers’ Liability Act (“FELA”), for injuries he sustained when the train

that he was operating collided with an abandoned vehicle on the tracks.1

After careful review, we affirm in part and reverse in part.
      On July 1, 2010, Mr. Larkin was the engineer on a New Jersey Transit

train traveling eastbound on the northeast corridor from Trenton, New

Jersey, and approaching the Hamilton, New Jersey station. Upon seeing a

vehicle on the tracks, he pulled the emergency brake to stop the train, a

procedure known as dumping.             Nonetheless, the train struck the vehicle,

which was later revealed to be stolen and abandoned. Mr. Larkin sustained

injuries to his neck, shoulder, wrist, and elbow in the incident.

       Mr. Larkin filed this FELA action, alleging, inter alia, that New Jersey

Transit was negligent in failing to secure the tracks in the area of the

collision and/or warn its employees to reduce speed due to the presence of a

crossing and frequent trespassers in that area. The case was consolidated

with the FELA action filed by Claressa Ferguson, the assistant conductor on

the train.




____________________________________________


1
  The underlying case was consolidated for discovery and trial with a similar
action filed by the train’s assistant conductor, Claressa Ferguson. New
Jersey Transit filed an appeal in that case at No. 3369 EDA 2013, which also
has been assigned to this panel. Two of the three issues are identical.



                                           -2-
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      A jury trial commenced on June 10, 2013. During opening statements,

counsel for New Jersey Transit told the jury that, “Mr. Larkin’s own expert

will say the reason he’s not looking for work is because he’s receiving

disability.” N.T. Trial Vol I., 6/10/13, at 57. Counsel for co-plaintiff Claressa

Ferguson promptly objected to the reference to disability and the trial court

sustained the objection and ordered the comment stricken. Id. at 57-8. No

request for curative instruction or motion for mistrial was made.

      Mr. Larkin was the first witness for the plaintiffs. At 4:02 p.m., after

considerable direct examination, the court took a short break and excused

the jury. At that time, counsel for Mr. Larkin objected to defense counsel’s

earlier reference to Mr. Larkin receiving disability benefits and pointed out

that this was the subject of an unresolved motion in limine. He argued that

counsel’s reference to this collateral source was so prejudicial as to be

incurable, and requested a mistrial. The court declined to grant a mistrial.

Instead, it prohibited any further reference to disability benefits and advised

the parties that it would give very explicit instructions to the jury not to

consider “any kind of collateral source of benefit” at the close of the case.

Id. at 105. While acknowledging the reference was improper, the trial court

stated that it intended to cure it.

      Defense counsel’s improper reference was revisited on June 13, 2013,

in light of a report that a male juror was overheard commenting to fellow

jurors on June 11th that, “he’s on worker’s compensation.”           N.T. Trial,

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6/13/13, at 9. Shortly thereafter, counsel for Mr. Larkin renewed his earlier

motion for a mistrial premised on the assumption that this was a reference

to Mr. Larkin and involved collateral source benefits. The trial court deferred

its ruling and permitted two of plaintiffs’ expert witnesses to testify. At the

hearing on the motion for mistrial, witnesses confirmed that a juror was

discussing worker’s compensation during Mr. Larkin’s testimony and that the

jurors had disregarded the trial court’s instruction not to discuss the case

until deliberations. The trial court declared a mistrial and held the plaintiffs’

request for costs and fees in abeyance.

       A new trial commenced on July 1, 2013.         The plaintiffs mounted a

double-pronged offensive. They maintained that the railroad was negligent

in failing to secure the area of the collision or warn the engineers of the

danger presented by trespassers who frequented that crossing.                 The

plaintiffs also alleged that the railroad’s practice of requiring its engineers to

multitask, i.e., refer to special bulletins, timetables and other paperwork

while operating the train, violated Northeast Operating Rules Advisory

Committee (“NORAC”) Rule 958, which required engineers to keep a

constant lookout ahead and to regulate the speed of the train if distracted.

Plaintiffs’ expert, railroad safety consultant Paul Byrnes, testified that New

Jersey Transit was not teaching compliance with or enforcing NORAC Rule

958.




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J-A09008-15



      The following events at the second trial are important to our resolution

of the issues on appeal.    New Jersey Transit sought to cross-examine Dr.

Robert Wolf, Mr. Larkin’s economic expert, regarding Mr. Larkin’s statement

to him that he did not seek employment because he did not wish to lose

entitlement to disability benefits.    The plaintiffs objected based on the

collateral source rule.   The railroad maintained that it was admissible to

show Mr. Larkin’s failure to mitigate his damages, but the trial court

disagreed and sustained the objection.

      At the charging conference on July 11, 2013, the court advised of its

intention to instruct the jury in accordance with the standard Modern Federal

Jury Instruction 89-18, which provided that the jury could find the defendant

railroad negligent if “it instructed its employees to perform tasks or

procedures or methods which it knew in the exercise of reasonable care

should have known would result in injuries.” N.T. Trial, 7/11/2013, at 53.

That charge led into plaintiffs’ proposed charge regarding NORAC 958 and

the duty of the railroad to enforce its own operating rules.      New Jersey

Transit duly noted an exception to both instructions.    The court expressly

declined to give a binding instruction on negligence per se, finding that the

testimony created a jury issue on NORAC Rule 958. It did, however, advise

of its intention to instruct the jury that if it found that New Jersey Transit

violated NORAC Rule 958, it must determine that the railroad was negligent

per se.

                                      -5-
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      The jury subsequently returned with a verdict. As the jury foreperson

read the amount of the award for Ms. Ferguson, Mr. Larkin’s co-plaintiff,

there was a reaction from the jury. Counsel for Ms. Ferguson, realizing that

the amount of the award reflected only the stipulated damages for wage loss

and did not include damages for pain and suffering, suggested to the court

in the presence of the jury that the jury misunderstood the instructions. The

jury foreperson verbally confirmed counsel’s suspicions. Counsel then added

that the jury did not award any damages for pain and suffering. In light of

the confusion, the trial court refused to accept Ms. Ferguson’s verdict; the

verdict as to Mr. Larkin was not revealed. Instead, the court re-instructed

the jury regarding damages and directed it to resume its deliberations. New

Jersey Transit sought a mistrial based on counsel’s remarks.     The mistrial

was denied, and the jury ultimately returned a verdict of $679,334 verdict in

favor of Mr. Larkin and $400,000 for Ms. Ferguson.

      New Jersey Transit filed a post-trial motion seeking a new trial, which

was denied by the court on November 6, 2013. That same day, the court

granted Mr. Larkin’s motion for counsel fees and costs incurred as a result of

the June 17, 2013 mistrial, and ordered defense counsel’s law firm to pay




                                    -6-
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$16,689.45 to the law firm representing Mr. Larkin. Order, 11/6/13, at 1.2

New Jersey Transit appealed, complied with the trial court’s order to file a

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, and

the trial court authored its Rule 1925(a) opinion.        New Jersey Transit

presents three issues for our review:

       1. Whether the trial court erred in refusing to permit counsel for
          New Jersey Transit Rail Operations, Inc., to cross-examine
          Plaintiff’s vocational–economic expert regarding the failure of
          Plaintiff to mitigate his damages.

       2. Whether the trial court erred in charging the jury that New
          Jersey Transit Rail Operation, Inc., was negligent per se for
          failing to train/enforce NORAC Operating Rule 958 under the
          Code of Federal Regulations because such claim is precluded
          by the Federal Railroad Safety Act.

       3. Whether the trial court erred in awarding costs and attorney’s
          fees to Larkin after declaring a mistrial.

Appellant’s brief at 4.

       Mr. Larkin’s first issue herein is whether a new trial is warranted as a

result of the trial court’s ruling precluding New Jersey Transit from cross-

examining Dr. Robert Wolf about Mr. Larkin’s statement to him regarding

disability benefits. In reviewing such a ruling,

       Our Court will not reverse an order granting or denying a motion
       for a new trial absent a gross abuse of discretion or error of law
       by the trial court. Indeed, if there is any support in the record
____________________________________________


2
   A similar order was entered that same day ordering counsel for New
Jersey Transit to pay counsel for Ms. Ferguson’s attorney’s fees and costs in
the amount of $25,961.32.



                                           -7-
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      for a trial court's decision to deny the motion, we must affirm. In
      addition, this Court may affirm on any basis and need not rely
      upon the reasoning supplied by the trial court.

Simmons v. Cobb, 906 A.2d 582, 584 (Pa.Super. 2006) (internal citations

omitted). Where the issue involves the admission or exclusion of evidence,

“we must acknowledge that decisions on admissibility are within the sound

discretion of the trial court and will not be overturned absent an abuse of

discretion or misapplication of law. “ Id.; see also Jacobs v. Chatwani,

922 A.2d 950, 965 (Pa.Super. 2007) (scope of cross-examination is within

sound discretion of trial court).   In addition, for a ruling on evidence to

constitute reversible error, it must have been harmful or prejudicial to the

complaining party.” Simmons, supra at 584-85.

      The deposition of Robert Wolf was taken for use at trial. Dr. Wolf had

prepared an expert report, a copy of which had been provided to the

defense, in which the expert mentioned that Mr. Larkin said he did not want

to look for work because he would lose certain disability benefits he was

receiving. On cross-examination, counsel for New Jersey Transit asked Dr.

Wolf to confirm that Mr. Larkin had made such a statement. Counsel for Mr.

Larkin objected to this line of inquiry based on the collateral source rule.

The witness, who was permitted to answer, confirmed that conversation.

Deposition, Robert Wolf, Ed.D., 6/3/13, at 55. The trial court subsequently

sustained Mr. Larkin’s objection to this line of inquiry and that testimony was

not placed before the jury.

                                     -8-
J-A09008-15



       On appeal, New Jersey Transit contends that this cross-examination

did not violate the collateral source rule and that its exclusion was reversible

error. It claims that Mr. Larkin’s testimony that he had to work to support

his family and that he was unable to continue working for New Jersey

Transit, as well as Dr. Wolf’s testimony on direct examination, opened the

door to cross-examination about Mr. Larkin’s failure to mitigate damages

because he was receiving disability. New Jersey Transit cites Santa Maria

v. Metro-North Commuter R.R., 81 F.3d 265, 273 (2d Cir. 1996), for the

proposition that evidence of collateral sources is admissible if the plaintiff

puts his financial status at issue.            Furthermore, it alleges that the trial

court’s ruling precluded the jury from learning that Dr. Wolf’s damage

estimate rested on a faulty premise.3 Appellant’s brief at 22.

       Mr. Larkin counters that Griesser v. National Railroad Passenger

Corp., 761 A.2d 606 (Pa.Super. 2000), and Eichel v. New York Central

Railroad, 375 U.S. 253 (1963) inform our review. In Griesser, this Court

acknowledged that a state court handling a FELA claim applies federal

substantive law and that the collateral source rule is a "substantive precept

of federal common law," and not a rule of evidence. Id. at 609. Mr. Larkin



____________________________________________


3
  New Jersey Transit failed to develop any argument in support of this
averment.



                                           -9-
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relies upon this language in Griesser in urging us to review the trial court's

decision for an error of law and not for an abuse of discretion.

       Eichel was a FELA action by a railroad employee against his employer.

The employer contended that the trial court erroneously excluded evidence

of the employee’s receipt of disability pension benefits under the Railroad

Retirement Act of 1937, maintaining that such evidence was relevant for the

express "purpose of impeaching the testimony of [the employee] as to his

motive for not returning to work and as to the permanency of his injuries."

Eichel, supra at 254.         In upholding the exclusion of such evidence, the

United States Supreme Court noted that, in the context of FELA, evidence of

receipt of collateral source benefits involves “a substantial likelihood of

prejudicial impact.” Id. at 255. Furthermore, it found that the potential for

misuse by a jury “clearly outweighs the value of this evidence.”      Id. The

Court added, “it would violate the spirit of the federal statutes if the receipt

of disability benefits under the . . . Act . . . were considered as evidence of

malingering by an employee asserting a claim under the Federal Employers'

Liability Act.” Id. Mr. Larkin cites Eichel for the proposition that evidence

of collateral source benefits is not admissible to show failure to mitigate. 4

____________________________________________


4
  In Quintero v. United States, 2010 U.S. Dist. LEXIS 128874, 14-15 n.3
(E.D. Cal. 2010), the district court noted that Eichel involved case-specific
risk versus probative value analysis and that the case predated the Federal
Rules of Evidence. Thus, it concluded that Eichel did not prohibit collateral
(Footnote Continued Next Page)


                                          - 10 -
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See also Lee v. Consolidated Rail Corp., 1995 U.S.Dist. LEXIS 18199

(E.D. Pa. 1995) (excluding evidence that plaintiff had incentive to retire

early even if he had not been injured).

      Mr. Larkin also rejects New Jersey Transit’s contention that evidence of

his economic status opened the door to such evidence.             He relies upon

Finley v. National Railroad Passenger Corp., 1 F.Supp. 2d 440 (E.D. Pa.

1998), for the proposition that to “open the door,” a plaintiff must introduce

the subject of collateral source benefits. Neither Mr. Larkin’s testimony that

he was unable to work as an engineer and that he had five children to

support nor Dr. Wolf’s testimony on direct examination implicated benefits

from collateral sources.        Moreover, Mr. Larkin maintains that the fact that

the statement was contained in the expert’s report does not open the door.

      The trial court herein relied heavily upon Eichel, Finley, and Griesser

in concluding that introduction of disability benefits in order to prove a

failure to mitigate damages constituted error where, as here, Mr. Larkin did

not open the door to such testimony. We agree. The collateral source rule

is intended to protect tort victims by providing that “payments from a

collateral source shall not diminish the damages otherwise recoverable from

the wrongdoer.”        Simmons, supra at 585.        Thus, “the rule prohibits a
                       _______________________
(Footnote Continued)

source evidence in every instance. Accord McGrath v. Consolidated Rail
Corp. 136 F.3d 838, 841 (1st Cir. 1998) ("We do not read Eichel as
requiring the per se exclusion of collateral source evidence in FELA cases").



                                           - 11 -
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defendant in a personal injury action from introducing evidence of the

plaintiff’s receipt of benefits from a collateral source for the same injuries

which are alleged to have been caused by the defendant.”         Id. (quoting

Collins v. Cement Express, Inc., 447 A.2d 987, 988 (Pa.Super. 1982)). It

is only where a plaintiff offers such evidence that cross-examination

regarding the collateral source is proper.

      Mr. Larkin did not offer any evidence of receipt of disability benefits

and, thus, he did not open the door to collateral source evidence.       New

Jersey Transit’s citation to Santa Maria, supra, for the proposition that the

door is opened when a plaintiff merely introduces evidence of his economic

status is a blatant misrepresentation of that holding. Santa Maria argued on

appeal that the trial court erroneously denied him a new trial where it had

permitted opposing counsel to inquire regarding his receipt of benefits under

the Railroad Retirement Act. The court of appeals did not reach the issue

since it awarded a new trial to Santa Maria on other grounds.

      We agree with the trial court that Finley is particularly instructive.

Finley sued his employer seeking damages for injuries that allegedly

included mental impairment.      Defense counsel told the jury in opening

statements that Finley informed an examining psychologist that he intended

to apply for a disability pension. Counsel pointed out that Finley had retired

and was receiving a disability pension, the implication being that the pension

was Finley’s motivation for establishing the disability for which he was

                                    - 12 -
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seeking compensation against his employer.          Finley’s statement was

contained in the psychologist’s report that the railroad sought to introduce.

When Finley moved for a mistrial based on counsel’s comments, the defense

maintained that the reference to Finley’s statement was not offered as proof

of failure to mitigate damages or malingering, but as an admission of

Finley’s state of mind in making a claim of mental impairment.      The trial

court disagreed and granted the mistrial, relying upon Eichel, Tipton v.

Socony Mobil Oil Co., 375 U.S. 34, 37 (1963), and Lee v. Consolidated

Rail Corporation, 1995 U.S. Dist. LEXIS 18199 (E.D.Pa. 1995).

     In Griesser, supra, this Court found persuasive the reasoning of

Eichel, Finley, Lee, Tipton, and language in Mahon v. Reading Co., 367

F.2d 25, 30 (3rd Cir. 1966) ("any benefits paid by the Railroad Retirement

Board . . . cannot be taken advantage of by defendant to mitigate the

damage or otherwise"), for the exclusion of collateral source evidence. We

find no abuse of discretion in the trial court’s ruling precluding the cross-

examination.

     Next, New Jersey Transit objects to the court’s charge that it “was

negligent per se for failing to train/enforce NORAC Operating Rule 958 under

the Code of Federal Regulations because such claim is precluded by the

Federal Railroad Safety Act.”    Appellant’s brief at 4 (italics added).   In

essence, New Jersey Transit is asserting that the Federal Railroad Safety Act

(“FRSA”) preempted Mr. Larkin’s claim.

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       Preliminarily, we note that the trial court did not give a binding

instruction regarding negligence per se. The court charged the jury that if it

found that New Jersey Transit failed to train its engineers in NORAC Rule

958, it must find New Jersey Transit negligent per se. N.T. Trial, 7/12/13, at

56 (emphasis added).             This instruction was consistent with federal

substantive law. See CSX Transp., Inc. v. McBride, 131 S. Ct. 2630 n.12

(U.S. 2011) (“A railroad's violation of a safety statute, however, is

negligence per se”) (citing Kernan v. American Dredging Co., 355 U.S.

426, 438 (1958)). Thus, the issue of whether New Jersey Transit failed to

train its engineers was placed squarely before the factfinder.

       Secondly, as Mr. Larkin correctly observes, New Jersey Transit did not

raise the issue of preemption by the FRSA in its post-trial motions.     See

Pa.R.C.P. 227.1(b)(2) (“post-trial relief may not be granted unless the

grounds therefor. . . are specified in the motion.”). Nor did it identify this

issue in its Pa.R.A.P. 1925(b) concise statement of issues complained of on

appeal, and consequently, the trial court did not address this issue in its

Pa.R.A.P. 1925(a) opinion. The issue is waived.5

       In somewhat of a non-sequitur, New Jersey Transit suggests that, if

this Court rejects its preemption argument, then the trial court abused its

____________________________________________


5
 As Ms. Ferguson pointed out, neither the FRSA nor preemption was ever
mentioned in the trial court.



                                          - 14 -
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discretion in refusing to permit Al Zahn to testify that New Jersey Transit

enforced NORAC Rule 958 and to interpret the black box data from the

accident. Mr. Larkin counters that this issue also is waived since it was not

explicitly raised in the railroad’s statement of questions. While there is merit

in Mr. Larkin’s contention that this argument is not suggested by the

statement of the issue nor reasonably contemplated within it, we will

address it. See Pa.R.A.P. 2116(a). Nonetheless, no relief is due.

       This issue implicates an evidentiary ruling.            “The admissibility of

evidence is a matter addressed to the discretion of the trial court and may

be reversed on appeal only upon a showing that the court abused its

discretion.”   Buchhalter v. Buchhalter, 959 A.2d 1260, 1262 (Pa.Super.

2008). In addition, for a ruling on evidence to constitute reversible error, it

must    have    been   harmful   or   prejudicial   to   the   complaining   party.”

Simmons, supra at 584-85.

       New Jersey Transit called Al Zahn, its chief road foreman, to testify.

In response to plaintiffs’ request for an offer of proof, the railroad proffered

as follows.    Mr. Zahn would testify “about the duties of an engineer while

operating the train” and the Major Incident Event Recorder, the so-called

“black box” data regarding this incident.           N.T. Trial, 7/10/13, at 18.

Additionally, he would discuss the information contained on the data

recorder, namely speeds and braking, for the last thirty seconds prior to the

stopping of the train.   He would also testify regarding the enforcement of

                                       - 15 -
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NORAC rules generally, and in particular, as to Mr. Larkin during the relevant

time period.

       Contrary to New Jersey Transit’s representation, the court permitted

Mr. Zahn to testify that he reviewed data from the black box to “monitor

engineers for compliance [with] all kinds of NORAC rules,” from 2005 until

2011. Id. at 11. Mr. Zahn testified further that New Jersey Transit enforces

NORAC rules and trains its engineers to comply with those rules.             He

testified that he personally observed train operations to ensure that the rules

were followed and would reprimand engineers who took their eyes off the

track to read bulletins or timetables.         Mr. Zahn also took issue with Mr.

Byrnes’ conclusion that an engineer briefly looking down and reading

bulletins constituted multitasking or that it was conduct violative of NORAC

rules. Although Mr. Zahn did not specifically reference NORAC Rule 958, the

trial court did not preclude him from doing so.6 Hence, the record does not

provide factual support for this assignment of error.

       Next, the railroad alleges that the court committed reversible error in

precluding Mr. Zahn from interpreting data from the black box and providing

a second-by-second account of the speed of the train for the thirty-two
____________________________________________


6
  Mr. Zahn was not permitted to testify that he reprimanded Mr. Larkin on
two prior occasions for distractions while driving the train. The court found
such evidence to be unfairly prejudicial in light of New Jersey Transit’s
position that Mr. Larkin was in compliance with all operating rules on the day
in question. New Jersey Transit does not challenge that ruling on appeal.



                                          - 16 -
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seconds prior to the collision based on the absence of an expert report. See

Pa.R.C.P. 4003.5(b).      It contends that the plaintiffs cannot claim unfair

surprise or lack of notice since they had the data and provided Mr. Byrnes

with a copy of the download for his review. Appellee’s brief at 34.

      We find no merit in the railroad’s position. Absent an expert report,

the plaintiffs were not apprised of the scope of Mr. Zahn’s testimony and the

need for their own expert.       While Mr. Byrnes was given a copy of the

download, there is nothing in the record to suggest that his expertise

extended to black box data interpretation.         Additionally, the plaintiffs

objected at trial that the proffered testimony was irrelevant and cumulative.

Although the trial court did not exclude it on that basis, our review of the

record and briefs reveals that the railroad has yet to explain the significance

of the proffered data interpretation to its case. Failing that, we find no basis

for concluding that its exclusion constituted reversible error that warrants a

new trial.

      New Jersey Transit’s final challenge is to the trial court’s November 6,

2013 award of $16,689.45 in costs and attorney’s fees to Mr. Larkin. The

law is well settled that, “[t]he trial court has great latitude and discretion

with respect to an award of attorney's fees pursuant to a statute.” Scalia v.

Erie Ins. Exchange, 878 A.2d 114, 116-117 (Pa.Super. 2005) (citing

Cummins v. Atlas R.R. Construction Co., 814 A.2d 742, 746 (Pa.Super.

2002)).      Our review of a trial court's order awarding attorney's fees to a

                                      - 17 -
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litigant is limited solely to determining whether the trial court palpably

abused its discretion in making a fee award. Lucchino v. Commonwealth,

809 A.2d 264 (Pa. 2002); Miller v. Nelson, 768 A.2d 858 (Pa.Super. 2001).

If the record supports a trial court's finding of fact that a litigant violated the

conduct provisions of the relevant statute providing for the award of

attorney's fees, such award should not be disturbed on appeal. Thunberg

v. Strause, 682 A.2d 295, 299-300 (Pa. 1996).

        We examine in detail the events at the first trial that culminated in the

mistrial and the subsequent award of counsel fees and costs. On June 10,

2013, the trial court met with counsel to resolve some of the motions in

limine that would likely be implicated in counsel’s opening statements in the

case.     Defense counsel took the lead in identifying those motions that

required immediate rulings. He did not mention a motion in limine filed by

Mr. Larkin seeking to preclude the defense from referencing the fact that Mr.

Larkin was on disability or a similar motion by Ms. Ferguson to preclude

reference to her prior claims.

        Nonetheless, during New Jersey Transit’s opening statement, counsel

told the jury that although Mr. Larkin’s counsel provided a “big number” for

his client’s wage loss, “Mr. Larkin’s own expert will say the reason he’s not

looking for work is because he’s receiving disability.”        N.T. Trial Vol I.,

6/10/13, at 57.       Counsel for Ms. Ferguson promptly objected to the

reference to disability and the trial court sustained the objection and ordered

                                      - 18 -
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the comment stricken. She did not request a curative instruction or seek a

mistrial. Mr. Larkin did not object.

      A moment later, in reference to Ms. Ferguson, defense counsel told the

jury that she complained of pain in the same shoulder in several prior claims

against the railroad.   He added, “In fact her own doctor will look at her

report and say, I wasn’t aware of the fact that her doctor from the last claim

permanently disabled her because of that shoulder.”         Id. at 59.    Ms.

Ferguson’s counsel objected and the trial court cautioned defense counsel

“We’re going to move on, counsel.” Id.

      Mr. Larkin was the first witness called to testify by the plaintiffs. At

4:02 p.m., after considerable direct examination, the court advised the jury

that there would be a short break and the jury was excused. Ms. Ferguson’s

counsel placed on the record an objection to defense counsel’s reference to

prior claims and asked the court to rule on her outstanding motion in limine.

At this point, counsel for Mr. Larkin registered an objection to defense

counsel’s reference in opening statement to Mr. Larkin’s receipt of disability

benefits and pointed out that this, too, was the subject of a motion in limine

that had not been ruled upon. Counsel for Mr. Larkin argued that defense

counsel’s reference to this collateral source was so prejudicial as to be

incurable and only then requested a mistrial.

      The trial court admonished defense counsel for failing to highlight the

motion in limine regarding disability benefits “as one that needed to be

                                       - 19 -
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resolved prior to openings.”    Id. at 106.    The court stated that it would

review the motion in limine and “[f]or now, we’re not going to have any

reference to claims as it relates to the injury.” Id. at 108.

      Defense counsel, in an attempt to justify his reference to disability

benefits, advised the court that he “clearly would never raise that unless I

thought they had opened the door.”       Id. He maintained that Mr. Larkin’s

expert opened the door when he opined in his deposition that it made no

financial sense for Mr. Larkin to find work since he was receiving disability

payments. Id. at 108. The trial court rejected counsel’s excuse, noting that

the door could not have been opened because no evidence had been

presented to the jury, and added that it might preclude the jury from

hearing such testimony.     However, the court declined to grant a mistrial.

Instead, it prohibited any further reference to disability benefits and advised

the parties that it would give very explicit instructions to the jury not to

consider “any kind of collateral source of benefit” at the close of the case.

Id. at 109. The reference was improper, but the trial court stated that it

intended to cure it.

      Trial continued on June 11, 2013, was in recess on June 12, 2013, and

on June 13, 2013, the court entertained additional argument on the

remaining motions in limine. At the conclusion of argument, counsel for Mr.

Larkin introduced the fact that a juror was overheard by Attorney Robert

Goggin making comments about worker’s compensation on June 11, 2013,

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and that Mr. Goggin reported the situation to the court. N.T., 6/13/13, at

38.   Counsel for Mr. Larkin advised the court that he believed defense

counsel’s comment regarding Mr. Larkin’s receipt of disability benefits and

the juror’s reference to worker’s compensation were “tied together,” and

renewed his motion for mistrial.   Id. at 39.   The court announced that it

would entertain the motion for mistrial, but prior to suspending trial, it

permitted plaintiffs’ expert witnesses Dr. Carl Berkowitz and Mr. Paul Byrnes

to present live testimony.

      Both plaintiffs filed motions for mistrial and a hearing on the motions

was held on June 17, 2013.     Attorney Goggin reported the following.    Mr.

Larkin was on the stand. The court and counsel were at sidebar discussing

an objection.   Mr. Goggin, located five to six feet from the jury box, was

leafing through a trial binder to find an exhibit.   From that location, he

“distinctly heard one of the jurors say he’s on worker’s comp, assuming

talking about Mr. Larkin.”   N.T. Mistrial Motion, 6/17/13, at 9.    He was

unable to pinpoint the juror, but identified a male voice.    Id. at 8.   Mr.

Goggin added that, after he sat down, he observed about half of the jurors

turned toward each other engaged in conversation and comparing notes.

Anthony DiGiulio, an associate of counsel for Ms. Ferguson, testified that he

did not hear the substance of any conversation but he did hear talking,

particularly during Mr. Larkin’s direct testimony. Juror No. 6, a male, was




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talking to Jurors Nos. 5 and 7, “showing notes and pretty animated in his

conversation.” Id. at 11.

        Following argument of counsel, the trial court concluded that it would

constitute reversible error to proceed with the trial under the circumstances,

and it granted the motion for mistrial. It stated on the record that “mere

mention” of collateral sources is “a fatal blow to the trial.” Id. at 28. That,

coupled with the fact that the juror’s discussion was a violation of the court’s

prohibition against sharing thought processes prior to deliberation, led to the

court’s conclusion that “to go further with this case would amount to

reversible error.”     Id. at 29.      The trial court held under advisement the

matter of plaintiffs’ costs and attorney’s fees. It later awarded counsel fees

and costs pursuant to 42 Pa.C.S. § 2503(7), which permits such an award if

a participant’s conduct during the pendency of the matter is “dilatory,

obdurate or vexatious,”7 and its own inherent power to control the

proceedings.

____________________________________________


7
    That statute provides in pertinent part:

        The following participants shall be entitled to a reasonable
        counsel fee as part of the taxable costs of the matter:

        (7) Any participant who is awarded counsel fees as a sanction
        against another participant for dilatory, obdurate or vexatious
        conduct during the pendency of a matter.

42 Pa.C.S. § 2503.



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      New Jersey Transit contends first that the trial court did not make the

requisite finding that its counsel’s conduct was “obdurate, vexatious or

acting in bad faith” to support an award of attorney’s fees under § 2503(7).

It maintains that the trial court merely characterized counsel’s reference to

Mr. Larkin’s receipt of disability benefits as error.

      The court first noted that “[i]t is well-settled law that collateral source

benefits should not be introduced absent a plaintiff offering information on

such a subject[.]” Trial Court Opinion, 6/17/14, at 8. Despite that fact, and

although a motion in limine had been filed to preclude reference to collateral

source benefits, defense counsel “told the jury that ‘Mr. Larkin’s own expert

will say the reason he’s not looking for work is because he’s receiving

disability.’” Id. at 9 (quoting N.T. Trial Vol I, 6/10/13, at 57) (emphasis in

original).   The court went on to find that “the grant of a mistrial was

warranted when counsel for Appellee overheard the jury speaking about

worker’s compensation.”      Id.   Since the mistrial “was granted as a direct

result of the remarks of Appellant’s counsel, the court held it was clearly

proper” to award attorney’s fees and costs. Id. at 10.

      We find support for New Jersey Transit’s position that an award of

counsel fees pursuant to 42 Pa.C.S. § 2503(7) must be based on a specific

finding by the trial court that the conduct is vexatious, obdurate, or dilatory.

Township of South Strabane v. Piecknick, 686 A.2d 1297, 1299 (Pa.

1996); Kulp v. Hrivnak, 765 A.2d 796 (Pa.Super. 2000). Dilatory conduct

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occurs "where the record demonstrates that counsel displayed a lack of

diligence that delayed proceedings unnecessarily and caused additional legal

work."   In re Estate of Burger, 852 A.2d 385, 391 (Pa.Super. 2004).

Arguably, causing a mistrial and the delay associated with a new trial may

be considered dilatory conduct.

      The trial court also predicated its award on “its inherent power to

conduct its business . . . in an orderly manner, taking such action against

an Attorney, who after all is an officer of the court, as may be reasonably

necessary[.]”   Trial Court Opinion, 6/17/14, at 11 (citing Coburn v.

Domanosky, 390 A.2d 1335, 1338 (Pa.Super. 1978)).             In Coburn, we

vacated a compulsory nonsuit against a party, reasoning that if unnecessary

expenses were incurred due to counsel’s scheduling conflict, perhaps costs

should be assessed against counsel instead.

      We are troubled by the sequence of events leading up to the

declaration of the mistrial.   We observe that a mistrial would likely have

been avoided if the trial court had ruled on all of the motions in limine prior

to trial. That said, defense counsel’s reference in opening statement to Mr.

Larkin’s receipt of disability benefits was undoubtedly improper and so

prejudicial as to warrant a mistrial at that time. However, no one moved for




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a mistrial at the time.8 Ms. Ferguson objected but apparently acquiesced in

the court’s decision to sustain her objection and strike the comment. She

did not request a curative instruction; Mr. Larkin did not even object. We

find incongruous Mr. Larkin’s subsequent argument that the damage was

incurable and that a mistrial was necessary when he did not even timely

object.    Furthermore, given the plaintiffs’ apparent lack of concern over

defense counsel’s improper comment, one can hardly fault the trial court for

believing that it could cure any prejudice.

       Trial continued.     Additional attorney’s fees were incurred, as well as

substantial expenses attendant to two expert witnesses.        Neither the trial

court nor the plaintiffs point to any further objectionable conduct on the part

of defense counsel.         However, upon substantiating that a male juror

referenced worker’s compensation, the trial court declared a mistrial. Later,

counsel fees and costs were assessed against defense counsel based on the

court’s apparent finding that the juror’s reference to worker’s compensation



____________________________________________


8
   The railroad contends that Ms. Ferguson did not have standing to object
and move for a mistrial as the reference pertained only to Mr. Larkin
although it cites no authority in support of that position. Actually, neither
plaintiff sought a mistrial immediately after defense counsel’s objectionable
comments. It was only later, well into Mr. Larkin’s direct testimony, that Mr.
Larkin objected and sought a mistrial. The court denied the motion due to
its belief that it could cure any prejudice with a proper jury instruction. N.T.
Trial, 6/10/13, at 110.



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was triggered by counsel’s reference to disability benefits in his opening

statement.

      We cannot discern from the record whether the male juror’s remark

about worker’s compensation was made in reference to Mr. Larkin or

whether it was connected in any way with defense counsel’s objectionable

reference to disability benefits.    The trial court held a hearing but did not

question any of the jurors.         Additionally, we note that the trial court

expressed frustration at the jurors’ disregard of its instruction not to discuss

the case or share notes and this conduct seemed to factor heavily into its

decision to grant the mistrial.       Thus, we find no basis for the court’s

conclusion that Mr. Larkin “incurred costs associated with litigating a case

that had to be cut short due solely to error attributable to Appellant’s

counsel[.]” Trial Court Opinion, 6/17/14, at 10. Counsel’s conduct was not

dilatory within the meaning of § 2503(7), nor did it interfere with the trial

court’s inherent power to conduct its business in an orderly manner.        For

that reason, we vacate the order awarding attorney’s fees and costs.

      In light of the foregoing, we affirm the liability and damage award in

favor of Mr. Larkin and vacate the award of attorney’s fees and costs.

      Judgment affirmed in part and reversed in part.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/16/2015




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