J-A32029-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CHRISTINE ROMANI-RUBY, JESSICA                    IN THE SUPERIOR COURT OF
ROMANI, TRACY ROMANI                                    PENNSYLVANIA



                       v.

DOMENIC ROMANI

                            Appellant                 No. 114 WDA 2015


              Appeal from the Judgment Entered February 3, 2015
                In the Court of Common Pleas of Indiana County
                     Civil Division at No(s): 10769 CD 2012


BEFORE: SHOGAN, J., OTT, J., and STABILE, J.

MEMORANDUM BY OTT, J.:                             FILED JANUARY 06, 2016

       Domenic Romani (Appellant) appeals from the order entered on

December 17, 2014, in the Court of Common Pleas of Indiana County,

denying his post-trial motion for relief.1     In this appeal, Romani presents

three claims, all of which essentially argue the $2,475,000.00 jury award

against him was excessive and unsupported by the evidence.             After a

thorough review of the submissions by the parties, relevant law, and the

certified record, we affirm.



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1
  Technically, this appeal was premature, having been filed prior to entry of
judgment. However, judgment was subsequently entered on February 3,
2015, thereby allowing this panel to proceed. The appeal is properly taken
from the judgment.
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        The underlying facts of this matter are well known to the parties and

need not be recounted here. We simply note that over a period of years,

Appellant engaged in inappropriate physical contact with the three plaintiffs,

all of whom are related. After Appellant pled guilty to a single crime related

to his actions, the plaintiffs filed suit, seeking damages based upon claims of

negligent infliction of emotional distress, intentional infliction of emotional

distress,     battery,   assault      and    false   imprisonment.     See    Complaint,

8/14/2012 at ¶¶ 22, 54, 72; 23, 55, 73; 24, 56, and 74. Appellant failed to

answer the complaint and a default judgment was entered against him.

Subsequently, a jury trial for damages only was held on August 4-5, 2014.

The    jury    awarded     Christine    Romani-Ruby       $475,000,    Jessica   Romani

$1,000,000,       and    Tracy     Romani      $1,000,0002    (collectively   Appellees).

Appellant filed a post-trial motion claiming the awards were unsupported by

evidence and were excessive. In his brief in support of his motion, Appellant

also    stated    the    plaintiffs    had    claimed    emotional   damages     without

demonstrating physical impact or injury, and therefore, any award for such

damages must fail pursuant to Kazatsky v. King David Memorial Park,

Inc., 527 A.2d 988 (Pa. 1987).

        In this appeal, Appellant raises three claims, although all three claims

appear to be included in the first. Specifically, his arguments are:


____________________________________________


2
    The awards included compensatory and punitive damages.



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      I.     Where the jury returned a monetary damages verdict for
      intentional infliction of emotional distress in an aggregate
      amount of $2,475,000.00 in a case in which the plaintiffs’
      testimony demonstrates that the injuries complained of were not
      severe, that the injuries complained of were not permanent in
      nature, that the injuries complained of were unaccompanied by
      any physical impact or injury, that the injuries complained of
      were not manifested by objective physical evidence but were
      instead revealed only by the plaintiffs’ subjective testimony, that
      the injuries complained of do not prevent the plaintiffs from
      continuing with their employment, that the size of the plaintiffs’
      out of pocket expenses are minimal, that the amount of
      compensation demanded in the original complaint was minimal
      in relation to the eventual jury verdict, and that the plaintiffs
      failed to present any expert testimony with regard to their
      injuries, did the [t]rial [c]ourt err in denying Defendant’s Motion
      for Post-Trial Relief which argued that the jury verdict was
      excessive and unsupported by sufficient evidence and which
      sought relief in the form of a new trial on the issue of damages
      or, in the alternative, sought remittitur[?]

      II.   Does each Plaintiff[’s] failure to introduce any type of
      expert medical testimony to prove their claims of emotional
      distress cause their damages claims to fail as matter of law?

      III. Did the trial court commit reversible error in denying
      Appellant’s post-trial motion in the form of remittitur by failing to
      reduce the jury’s verdict due to its excessive nature in general
      and due [to] the fact that each plaintiff wholly failed to introduce
      any expert medical testimony to support their respective claims
      for damages arising out of Appellant’s conduct[?]

See Appellant’s Brief, at 7.

      Our standard of review for the denial of a request for new trial based

upon an excessive verdict is as follows:

      The grant or refusal of a new trial because of the excessiveness
      of the verdict is within the discretion of the trial court. This court
      will not find a verdict excessive unless it is so grossly excessive
      as to shock our sense of justice. We begin with the premise that
      large verdicts are not necessarily excessive verdicts. Each case is
      unique and dependent on its own special circumstances and a

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       court should apply only those factors which it finds to be
       relevant in determining whether or not the verdict is excessive.

Graham v. Compo, 990 A.2d 9, 17 (Pa. Super. 2010).

       Appellant bases certain aspects of his appeal on a claim that the

award, based upon a claim of intentional infliction of emotional distress, was

not supported by competent medical testimony.               This argument is

unavailing.

       First, we note that the complaint did not solely allege intentional

infliction of emotional distress; as noted above, the Appellees also claimed

negligent infliction of emotional distress.3 The jury verdict, however, did not

differentiate between damages awarded for negligent or intentional infliction

of emotional distress.       Moreover, Appellant did not ask for a verdict form

that differentiated between those two claims, nor did he object to the form

that was submitted to the jury. To the extent that the jury verdict cannot be

differentiated between the claims of negligent and intentional infliction of

emotional distress and the fact Appellant failed to object, the claim must be

considered waived for failure to raise a timely objection.       See Pa.R.A.P.

302(a) (issue must be raised first in the trial court).




____________________________________________


3
 Our resolution of this matter is not strictly dependent upon any distinctions
between claims of intentional or negligent infliction of emotional distress.
We note that the Complaint characterized Romani’s actions as “intentional,
wanton, willful and reckless” and not negligent. See Complaint at ¶¶ 24,
56, 74.



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      Substantively, Appellant’s argument that the failure to causally link his

actions to the emotional harm claimed is fatal to Appellees’ claims, is based

largely upon Kazatsky v. King David Memorial Park, Inc., 527 A.2d 988

(Pa. 1987).   Kazatsky determined that a claim of intentional infliction of

emotional distress, based solely upon allegations of outrageous conduct,

required expert medical testimony to link the conduct to the harm claimed.

It is important to note that outrageous conduct is characterized as extreme

actions that may border upon malice, but which does not include any

physical impact or injury between the plaintiff and defendant.            See

Kazatsky, 527 A.2d at 991-91, discussing Restatement (Second) of Torts

46 comment(d) and Knaub v. Gotwalt, 220 A.2d 464 (Pa. 1960).

Specifically, in Kazatsky, the plaintiffs, parents of prematurely born twins

who died shortly after birth, filed suit against the cemetery, which failed

both to install the grave marker or to maintain the gravesite. The facts of

Kazatsky bear no resemblance to the instant claim for damages based upon

decades of inappropriate touching of the plaintiffs.

      Additionally, Appellant misstates the record when he claims there was

no evidence of physical impact or injury.     See Appellate Brief at 20. The

evidence from all three plaintiffs described a prolonged course of conduct of

inappropriate physical contact between Romani and the victims. Kazatsky

specifically distinguished claims based solely on outrageous conduct from

those arising from physical contact.




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     The tort of intentional infliction of emotional distress by
     outrageous conduct differs from traditional intentional torts in an
     important respect: it provides no clear definition of the
     prohibited conduct.

        Battery, assault, and false imprisonment describe specific
        forms of behavior; while we can quibble about whether a
        kick in the playground should be attended with the same
        legal consequences as a kick in the classroom, everyone
        can agree that you cannot have a battery without physical
        contact (or an assault without at least the appearance of
        attempted physical contact, or a false imprisonment
        without restraint of the freedom of movement). The
        relative ease with which injury may be established is
        counter balanced by the specificity of the prohibited
        behavior.

        The term “outrageous” is neither value-free nor exacting.
        It does not objectively describe an act or series of acts;
        rather, it represents an evaluation of behavior. The
        concept thus fails to provide clear guidance either to those
        whose conduct it purports to regulate, or to those who
        must evaluate that conduct.

Kazatsky, supra, 527 A.2d at 994, quoting Givelber, The Right to Minimum

Social Decency and the Limits of Evenhandedness: Intentional Infliction of

Emotional Distress by Outrageous Conduct, 82 Col.L.Rev. 42, 52-53 (1982).

     As we noted above, the complaint in this matter alleged assault,

battery and false imprisonment.    The Appellees characterized Appellant’s

actions throughout the years as assaults, batteries and false imprisonment.

See Complaint, supra. Appellant did not answer the complaint and did not

deny those allegations. Pursuant to Kazatsky, such allegations provide the

foundation of physical impact required to distinguish the instant claim from

the outrageous conduct requirements described in Kazatsky.




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J-A32029-15



      Finally, Appellant’s argument that the failure to provide expert medical

testimony dooms the Appellees’ claims for damages, may also have been

waived.    Romani did not object during trial to any of the Appellees’

testimony regarding the harm they suffered.         Although Appellant cited

Kazatsky in his brief in support of his post-trial motion, he only made

reference to the requirement of physical contact, and made no argument

regarding expert testimony.       Accordingly, any argument that Appellees’

claims fail due to a lack of medical testimony has been waived for failure to

raise the issue before the trial court.

      Even if we read Appellant’s Kazatsky based argument most broadly to

include the lack of expert medical testimony, we have already noted that

requirement was based upon a factual situation of outrageous conduct only,

and not a claim based upon years of sexual improprieties.          Appellant’s

attempt to characterize his actions and Appellees’ allegations as lacking

physical impact is demonstrably false. Accordingly, this aspect of Appellant’s

argument also fails.

      Finally, Appellant argues the trial court erred in denying his motion for

remittitur. We reject Appellant’s assertion he is entitled to this relief based

upon the lack of expert medical testimony for the same reasons discussed

above.

      Appellant has also argued the awards are generally excessive in that it

“shocks the sense of justice as to suggest that the jury was influenced by

partiality, prejudice, mistake or corruption,” and the amount bears no

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J-A32029-15



relationship to the “nature of their alleged injuries.” See Concise Statement

of Matters Complained of on Appeal, 2/3/2015, at ¶¶ 7, 8. We disagree, and

rely upon the analysis provided by the trial court in its Pa.R.A.P. 1925(a)

opinion.     Therein, the trial court noted how Appellant manipulated the

Appellees, abusing his position of familial trust;4 how the abuse of two of the

victims began when they were 14 and 10 years old;5 how the abuse of one

of the victims took place over a period of almost twenty-five years.6        The

trial court noted how each victim related Appellant’s actions and how that

abuse adversely impacted her everyday life, from the extensive period of

abuse into the foreseeable future.7            Based upon the detailed testimony

provided by the Plaintiffs, the trial court determined the awards were

supported by the evidence and were not excessive.8              Our review of the

certified record supports the trial court’s determination and we discern no

abuse of discretion therein. See Graham v. Compo, supra.

        In light of the foregoing, Romani is not entitled to relief.

        Judgment affirmed.




____________________________________________


4
    Trial Court Opinion, 12/17/2014, at 13-14.
5
    Id.
6
    Id. at 12.
7
    Id. at 14.
8
    Id. at 14.



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J-A32029-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/6/2016




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