[J-21-2018] [MO: Mundy, J.]
`IN THE SUPREME COURT OF PENNSYLVANIA
`WESTERN DISTRICT
`
`
`
`
`Appellant
`
`v.
`
`JOHN STAPAS,
`
`
`
`
`
`
`
`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,
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Appellees
`
`No. 44 WAP 2017
`
`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.
`
`ARGUED: April 10, 2018
`
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`
`DISSENTING OPINION
`
`
`
`JUSTICE DOUGHERTY
`
`
`
`
`
`
`
`DECIDED: NOVEMBER 21, 2018
`
`The majority concludes a post-verdict objection prior to the discharge of the jury
`
`was required to preserve a challenge to an award that had no relation to the evidence
`
`presented during trial, and which included amounts not specified on the approved verdict
`
`slip. Under the particular circumstances of this case, where the jury acted unpredictably
`
`and against the direction of the trial court and all counsel, I discern no reason to require
`
`such an objection prior to and in addition to the filing of post-trial motions. Accordingly,
`
`I dissent.
`
`

`

`The discrete issue before this Court is whether Giant Eagle waived its challenge
`
`to the verdict by challenging it for the first time in post-trial motions, and not via an
`
`objection before the jury was discharged. This Court has clearly articulated when an
`
`objection is required to preserve an issue for appeal. See, e.g., Criswell v. King, 834 A.2d
`
`505 (Pa. 2003); Dilliplaine v. Lehigh Valley Trust Co., 322 A.2d 114 (Pa. 1974). Under
`
`this well-established jurisprudence, if Giant Eagle’s challenge to the verdict was grounded
`
`in trial error, Dilliplaine controls and a “contemporaneous objection” was required to
`
`preserve the issue for appeal. Conversely, if the challenge to the verdict is based on its
`
`being contrary to the weight of the evidence, Criswell applies and the claim may be raised
`
`for the first time in post-trial motions.
`
`In my view, the Superior Court correctly assessed Giant Eagle’s challenge to the
`
`jury’s verdict as one based on the weight of the evidence, which was therefore correctly
`
`preserved through the timely filing of post-trial motions. A claim challenging the weight
`
`of the evidence “is not premised upon trial court error or some discrete and correctable
`
`event at trial, but instead ripens only after, and because of, the jury’s ultimate verdict in
`
`the case.” Criswell, 834 A.2d at 512. A new trial under such circumstances is warranted
`
`only “when the jury’s verdict is so contrary to the evidence as to shock one’s sense of
`
`justice and the award of a new trial is imperative so that right may be given another
`
`opportunity to prevail.” Armbruster v. Horowitz, 813 A.2d 698, 703 (Pa. 2002) (emphasis
`
`in original), quoting Commonwealth v. Brown, 648 A.2d 1177, 1189 (Pa. 1994) (additional
`
`citations omitted). “A trial judge cannot grant a new trial ‘because of a mere conflict in
`
`testimony or because the trial judge on the same facts would have arrived at a different
`
`conclusion.’” Id., quoting Brown, 648 A.2d at 1189 (additional citations omitted). This
`
`case presents the requisite extraordinary circumstances because the jury undoubtedly
`
`disregarded the facts presented by the witnesses, the arguments of counsel, and the
`
`
`[J-21-2018] [MO: Mundy, J.] - 2
`
`

`

`unambiguous verdict slip when it awarded the largest percentage of damages for future
`
`lost wages — a category of damages specifically excluded by both parties and completely
`
`absent from the verdict slip.
`
`This was not a case of mere conflict in testimony which the jury resolved based on
`
`credibility; rather the jury’s award was so completely unmoored to the evidence it was the
`
`rare verdict that actually “shocks the conscience.” Moreover, I cannot detect any trial
`
`court error which might have been cured by contemporaneous objection. The majority
`
`suggests Giant Eagle should have: 1) objected because the jury’s verdict did not conform
`
`to the trial court’s instructions regarding a lump sum of damages; 2) submitted a point for
`
`charge on wage loss; 3) objected to the trial court’s instruction on wage loss; 4) objected
`
`to the verdict slip because it did not differentiate between past and future wage loss.
`
`First, although a contemporaneous objection may in theory allow a jury to adjust
`
`the amounts it awarded for certain categories of loss, it is implausible that further
`
`deliberation by this particular jury — which disregarded the evidence and arguments
`
`presented, as well as the plain language on the verdict slip — would have altered the total
`
`amount of the verdict. In fact, in such circumstances, it is not proper to “issue a corrective
`
`instruction to the jury suggesting that the weight of the evidence does not support its
`
`verdict without invading the province of the jury by essentially directing a verdict.”
`
`Criswell, 834 A.2d at 512 (citations omitted).
`
`The majority’s suggestion Giant Eagle should have objected to the jury instructions
`
`or verdict slip is also unavailing. The verdict slip presented the categories of damages as
`
`follows: “(a) Scarring; (b) Wage loss; (c) Past and future medical expenses; (d) Past,
`
`present and future pain and suffering; (e) Loss of life’s pleasures.” Majority Op., slip.
`
`op. at 4, quoting Verdict Slip, 11/17/14 (emphasis added). The verdict slip unquestionably
`
`delineated what categories of damages included future calculations — medical expenses
`
`
`[J-21-2018] [MO: Mundy, J.] - 3
`
`

`

`and pain and suffering. The plain language of the verdict slip together with the evidence
`
`presented by Stapas made it clear the case for damages was limited to past lost wages;
`
`there simply was no evidence of future wage loss.1 Stapas’s counsel himself conceded
`
`this point during closing argument when he stated they were seeking only “past and
`
`present wage loss” which was a small amount for “six weeks of [work at] eight or nine
`
`dollars an hour[.]” Id. at 3, quoting N.T. 11/17/14 at 836. Further, Giant Eagle’s counsel
`
`“estimated Stapas’s wage loss at $2,000 to $3,000.” Id., citing N.T. 11/17/14 at 804.
`
`Nevertheless, despite this clear limitation in the evidence which was properly spelled out
`
`on the verdict slip, the jury “went rogue” and awarded $1,300,000 for lost future wages.
`
`Counsel could not have foreseen this turn of events, and therefore Giant Eagle should
`
`not be penalized for failing to anticipate and preemptively object to the verdict slip or
`
`instructions on this basis.2
`
`
`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.
`
`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
`
`
`[J-21-2018] [MO: Mundy, J.] - 4
`
`

`

`In any event, I question whether we properly granted review in this matter. We
`
`have “consistently recognized that, while an appellate court may review whether the trial
`
`court abused its discretion in deciding a weight claim, its role is not to consider the
`
`underlying question in the first instance.” Armbruster, 813 A.2d at 703, quoting Brown,
`
`648 A.2d at 1191. Couching the issue before the Court as a legal question regarding
`
`waiver principles, the majority employs a de novo standard of review, and considers the
`
`underlying factual question based on the cold record. The majority’s analysis is
`
`tantamount to error review in a unique and fact-bound matter where the decision will likely
`
`muddy the waters and engender confusion in what was heretofore a clearly established
`
`area of law.
`
`Chief Justice Saylor joins this dissenting opinion.
`
`
`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.
`
`
`[J-21-2018] [MO: Mundy, J.] - 5
`
`