`IN THE SUPREME COURT OF PENNSYLVANIA
`WESTERN DISTRICT
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`Appellant
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`v.
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`JOHN STAPAS,
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`GIANT EAGLE, INC., A PENNSYLVANIA
`ENTITY; GIANT EAGLE, INC., T/D/B/A
`GETGO FROM GIANT EAGLE, A
`PENNSYLVANIA ENTITY; GIANT EAGLE
`INC., T/D/B/A SOUTHSIDE GETGO, A
`PENNSYLVANIA ENTITY; NADEEN
`MCSHANE, AN INDIVIDUAL; GETGO
`PARTNERS SOUTH, A PENNSYLVANIA
`ENTITY; GETGO PARTNERS SOUTH-
`MARYLAND, LLC, A PENNSYLVANIA
`ENTITY; AND GETGO HOLDINGS, LLP,
`A PENNSYLVANIA ENTITY,
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`Appellees
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`No. 44 WAP 2017
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`Appeal from the Order of the Superior
`Court entered December 23, 2016 at
`No. 1287 WDA 2015, vacating the
`Judgment of the Court of Common
`Pleas of Allegheny County entered
`July 24, 2015 at No. GD09-012965
`and remanding.
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`ARGUED: April 10, 2018
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`DISSENTING OPINION
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`JUSTICE DOUGHERTY
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`DECIDED: NOVEMBER 21, 2018
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`The majority concludes a post-verdict objection prior to the discharge of the jury
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`was required to preserve a challenge to an award that had no relation to the evidence
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`presented during trial, and which included amounts not specified on the approved verdict
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`slip. Under the particular circumstances of this case, where the jury acted unpredictably
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`and against the direction of the trial court and all counsel, I discern no reason to require
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`such an objection prior to and in addition to the filing of post-trial motions. Accordingly,
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`I dissent.
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`The discrete issue before this Court is whether Giant Eagle waived its challenge
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`to the verdict by challenging it for the first time in post-trial motions, and not via an
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`objection before the jury was discharged. This Court has clearly articulated when an
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`objection is required to preserve an issue for appeal. See, e.g., Criswell v. King, 834 A.2d
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`505 (Pa. 2003); Dilliplaine v. Lehigh Valley Trust Co., 322 A.2d 114 (Pa. 1974). Under
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`this well-established jurisprudence, if Giant Eagle’s challenge to the verdict was grounded
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`in trial error, Dilliplaine controls and a “contemporaneous objection” was required to
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`preserve the issue for appeal. Conversely, if the challenge to the verdict is based on its
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`being contrary to the weight of the evidence, Criswell applies and the claim may be raised
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`for the first time in post-trial motions.
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`In my view, the Superior Court correctly assessed Giant Eagle’s challenge to the
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`jury’s verdict as one based on the weight of the evidence, which was therefore correctly
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`preserved through the timely filing of post-trial motions. A claim challenging the weight
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`of the evidence “is not premised upon trial court error or some discrete and correctable
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`event at trial, but instead ripens only after, and because of, the jury’s ultimate verdict in
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`the case.” Criswell, 834 A.2d at 512. A new trial under such circumstances is warranted
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`only “when the jury’s verdict is so contrary to the evidence as to shock one’s sense of
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`justice and the award of a new trial is imperative so that right may be given another
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`opportunity to prevail.” Armbruster v. Horowitz, 813 A.2d 698, 703 (Pa. 2002) (emphasis
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`in original), quoting Commonwealth v. Brown, 648 A.2d 1177, 1189 (Pa. 1994) (additional
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`citations omitted). “A trial judge cannot grant a new trial ‘because of a mere conflict in
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`testimony or because the trial judge on the same facts would have arrived at a different
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`conclusion.’” Id., quoting Brown, 648 A.2d at 1189 (additional citations omitted). This
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`case presents the requisite extraordinary circumstances because the jury undoubtedly
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`disregarded the facts presented by the witnesses, the arguments of counsel, and the
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`[J-21-2018] [MO: Mundy, J.] - 2
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`unambiguous verdict slip when it awarded the largest percentage of damages for future
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`lost wages — a category of damages specifically excluded by both parties and completely
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`absent from the verdict slip.
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`This was not a case of mere conflict in testimony which the jury resolved based on
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`credibility; rather the jury’s award was so completely unmoored to the evidence it was the
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`rare verdict that actually “shocks the conscience.” Moreover, I cannot detect any trial
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`court error which might have been cured by contemporaneous objection. The majority
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`suggests Giant Eagle should have: 1) objected because the jury’s verdict did not conform
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`to the trial court’s instructions regarding a lump sum of damages; 2) submitted a point for
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`charge on wage loss; 3) objected to the trial court’s instruction on wage loss; 4) objected
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`to the verdict slip because it did not differentiate between past and future wage loss.
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`First, although a contemporaneous objection may in theory allow a jury to adjust
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`the amounts it awarded for certain categories of loss, it is implausible that further
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`deliberation by this particular jury — which disregarded the evidence and arguments
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`presented, as well as the plain language on the verdict slip — would have altered the total
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`amount of the verdict. In fact, in such circumstances, it is not proper to “issue a corrective
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`instruction to the jury suggesting that the weight of the evidence does not support its
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`verdict without invading the province of the jury by essentially directing a verdict.”
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`Criswell, 834 A.2d at 512 (citations omitted).
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`The majority’s suggestion Giant Eagle should have objected to the jury instructions
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`or verdict slip is also unavailing. The verdict slip presented the categories of damages as
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`follows: “(a) Scarring; (b) Wage loss; (c) Past and future medical expenses; (d) Past,
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`present and future pain and suffering; (e) Loss of life’s pleasures.” Majority Op., slip.
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`op. at 4, quoting Verdict Slip, 11/17/14 (emphasis added). The verdict slip unquestionably
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`delineated what categories of damages included future calculations — medical expenses
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`[J-21-2018] [MO: Mundy, J.] - 3
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`and pain and suffering. The plain language of the verdict slip together with the evidence
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`presented by Stapas made it clear the case for damages was limited to past lost wages;
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`there simply was no evidence of future wage loss.1 Stapas’s counsel himself conceded
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`this point during closing argument when he stated they were seeking only “past and
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`present wage loss” which was a small amount for “six weeks of [work at] eight or nine
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`dollars an hour[.]” Id. at 3, quoting N.T. 11/17/14 at 836. Further, Giant Eagle’s counsel
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`“estimated Stapas’s wage loss at $2,000 to $3,000.” Id., citing N.T. 11/17/14 at 804.
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`Nevertheless, despite this clear limitation in the evidence which was properly spelled out
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`on the verdict slip, the jury “went rogue” and awarded $1,300,000 for lost future wages.
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`Counsel could not have foreseen this turn of events, and therefore Giant Eagle should
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`not be penalized for failing to anticipate and preemptively object to the verdict slip or
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`instructions on this basis.2
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`1 The majority notes the jury was not instructed it could not award damages for future
`wage loss and the jury was unaware its award should be limited to past lost earnings
`because the verdict slip merely listed “wage loss” as a category of damages. See Majority
`Op., slip op. at 15, n.1 (emphasis added). When fairly examining the verdict slip as a
`whole, however, it is clear the categories which permitted a calculation for future damages
`were strictly delineated. The jury here went outside the express categories provided on
`the verdict sheet and wrote in the word “future” next to the “wage loss” category. Id. at 4,
`quoting Verdict Slip, 11/17/14, Question 6. This handwritten addendum indicates the jury
`recognized it was acting outside the directives of the court and the parties. Today the
`majority apparently holds a trial court’s failure to instruct on a particular category of
`damages, which are also specifically excluded from a verdict slip, properly provides the
`jury with the authority to award such damages. This counterintuitive ruling imposes a
`new (and untenable) burden on parties and the trial court to specifically instruct juries not
`to award damages which were never at issue.
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`2 The unusual fact scenario presented here includes the confusing manner in which the
`verdict was read into the record. Although the trial judge requested the tipstaff to read
`just the lump sum amount of damages into the record, the tipstaff nevertheless began
`reading the itemized damages into the record. The trial judge twice interrupted the tipstaff
`and requested the total lump sum only. In response to the trial judge’s correction, the
`tipstaff read the lump sum amount of damages, but not before he also read a portion of
`the itemized list of damages. N.T. 11/17/14 at 862-63. This unpredictable sequence of
`events not only creates additional questions as to what objection trial counsel could have
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`[J-21-2018] [MO: Mundy, J.] - 4
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`In any event, I question whether we properly granted review in this matter. We
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`have “consistently recognized that, while an appellate court may review whether the trial
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`court abused its discretion in deciding a weight claim, its role is not to consider the
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`underlying question in the first instance.” Armbruster, 813 A.2d at 703, quoting Brown,
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`648 A.2d at 1191. Couching the issue before the Court as a legal question regarding
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`waiver principles, the majority employs a de novo standard of review, and considers the
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`underlying factual question based on the cold record. The majority’s analysis is
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`tantamount to error review in a unique and fact-bound matter where the decision will likely
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`muddy the waters and engender confusion in what was heretofore a clearly established
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`area of law.
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`Chief Justice Saylor joins this dissenting opinion.
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`made on an incomplete and chaotic verdict reading, but also demonstrates the unique
`nature of this case. As a result, the Court’s decision turns on error review and is unlikely
`to provide any guidance to the bench or bar regarding when post-trial motions alone may
`preserve issues for review.
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`[J-21-2018] [MO: Mundy, J.] - 5
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