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Olga Mirabel and Jorge Mirabel v. Rolando Morales C/O Latin Express Services

November 2, 2012

OLGA MIRABEL AND JORGE MIRABEL
v.
ROLANDO MORALES C/O LATIN EXPRESS SERVICES, INC., LATIN EXPRESS SERVICES, INC., RICHARD A. SCHULGEN C/O COMCAST CORPORATION, AND COMCAST CORPORATION APPEAL OF: COMCAST OF PHILADELPHIA II, LLC (INCORRECTLY IDENTIFIED AS COMCAST CORPORATION) AND RICHARD A. SCHULGEN



Appeal from the Order Entered June 28, 2011 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): December Term, 2008, No. 04548

The opinion of the court was delivered by: Panella, J.

J-A17045-12

BEFORE: STEVENS, P.J., GANTMAN, J., and PANELLA, J.

OPINION BY PANELLA, J.

Before us is an appeal from the Appellants, Richard Schulgen and Comcast of Philadelphia II, LLC (Comcast), from a post-trial order denying part of the Appellants' motion for a new trial. On February 15, 2011, a jury found the Appellants liable for injuries the Appellee, Olga Mirabal,*fn1 suffered in a car accident. After the verdict, the Appellants filed a motion for a new trial because Mirabal's counsel made improper statements at closing regarding race and the size and wealth of Comcast. The trial court granted part of the Appellants' motion and awarded a new trial solely on damages. After the trial court issued this order, the Appellants appealed. The issues on appeal concern whether the trial court abused its discretion by not granting a new trial on both liability and damages. After careful review, we reverse.

On February 11, 2007, Olga Mirabal was traveling from Union City, New Jersey, to Miami, Florida, on a bus operated by Latin Express, Inc. See N.T., Trial, 2/7/11, at 157-59. While this bus was traveling through Philadelphia, it collided with a van, owned and operated by Comcast, at the intersection of Aramingo Avenue and Cumberland Street. See N.T., Trial, 2/9/11, at 139, 145, 152-54.

Both the driver of the bus, Rolando Morales, and the driver of the Comcast van, Richard Schulgen, testified that they had green lights to proceed through the intersection when the accident occurred. See id., at 145; N.T., Trial, 2/10/11, at 43. According to Morales, he was proceeding southbound on Aramingo Avenue through a green light at the intersection of Aramingo and Cumberland when the Comcast van pulled into the middle of the intersection. See N.T., Trial, 2/9/11, at 145. Morales tried to avoid hitting the Comcast van by swerving to the right, but the bus ultimately hit the van. See id. According to Schulgen, after his light turned green, he pulled out into the intersection to make a left turn when he saw a bus approaching from Aramingo Avenue. See N.T., Trial, 2/10/11, at 43-46. Schulgen tried to avoid hitting the bus by making a hard left onto Aramingo Avenue. See id., at 55. However, this maneuver was unsuccessful and the bus hit Schulgen's van. See id., at 56.

Because of this accident, Mirabal suffered back and shoulder pain that ultimately required surgery. See N.T., Trial, 2/7/11, at 174, 182. Mirabal sued Schulgen, Comcast, Morales, and Latin Express to compensate her for these injuries.*fn2 See Complaint, Mirabel v. Morales, No. 4548, (December 29, 2008).

Before trial, Schulgen and Comcast filed a motion in limine in which they sought to preclude all parties from making statements about the size and wealth of Comcast. See N.T., Motions Hearing, 2/4/11, at 18-19. No party objected to this motion and the trial court granted it.*fn3 See id., at 19-

20. Also before trial, Mirabal settled her claims against Morales and Latin Express. See Order Granting Release of Morales and Latin Express, Mirabel v. Morales, No. 4548 (February 11, 2011). The only claims that were addressed at trial were Mirabal's claims against Schulgen and Comcast, and the cross-claims between Morales and Latin Express, and Schulgen and Comcast.*fn4

According to the trial court, at trial, the parties selected a jury of ten African-American women, one African-American man, and one Caucasian woman. Trial Court Opinion, at 9. In his closing arguments, Mirabal's counsel made several statements in which he tried to appeal to the racial makeup of the jury. He stated:

You walked in this room before. Right? You walked in this room. Did it look like a movie studio when you walked in that first day. Everything all taped up and everything? And now it has turned into this. I walked in, I was like, is this Warner Brothers? No it's Comcast Brothers. Well, maybe no brothers.

N.T., Trial, 2/11/11, at 86. Comcast and the trial court believed that Mirabal's counsel attempted to appeal to the racial composition of the jury with this statement by implying that there were no "brothers" or AfricanAmericans representing Comcast at the trial. N.T., Post-Trial Motions Hearing, 6/9/11, at 9-11; Trial Court Opinion, at 15. This statement also violated the pre-trial order that excluded statements regarding the size and wealth of Comcast as Mirabal's counsel compared the technology used by Comcast at trial to a movie studio.

In addition to trying to appeal to the racial composition of the jury, Mirabal's counsel also emphasized the fact that Mirabal is Hispanic and was treated poorly by Comcast because she is Hispanic. First, while discussing Comcast's argument that the bus hit the van because the driver of the bus, Morales, was distracted by passengers on the bus asking him to stop for lunch, Mirabal's counsel stated:

Come on now. Like, you know, like these Latinos, like we got to get to the Ritz for our 2 o'clock appointment, don't you know? Otherwise it's cancelled. Come on. They are a bunch of Latinos on the bus. Like she said, we are talking with each other, we are joking with each other. Hey, stop the bus, we trying to get some lunch. Hey, Poppie, we hungry, we want to get some lunch. N.T., Trial, 2/11/11, at 76-77. Further, Mirabal's counsel stated:

Let me tell you something. If that bus wasn't a bus full of Latinos but it was [sic] bus of CEOs or presidents on their way to a golf outing, okay, and this accident happened, I guarantee you, it would have been a ...


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