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[U] Palmieri v. Frances M. Sullivan Living Trust

Superior Court of Pennsylvania

September 26, 2013

SHARON F. PALMIERI AND HERMAN DAVID PALMIERI, HER HUSBAND, Appellants
v.
FRANCES M. SULLIVAN LIVING TRUST DATED JANUARY 22, 2003, PATRICIA A. SULLIVAN, SUCCESSOR TRUSTEE OF THE FRANCES M. SULLIVAN TRUST DATED JANUARY 22, 2003, Appellee SHARON F. PALMIERI AND HERMAN DAVID PALMIERI, HER HUSBAND, Appellants
v.
FRANCES M. SULLIVAN LIVING TRUST DATED JANUARY 22, 2003, PATRICIA A. SULLIVAN, SUCCESSOR TRUSTEE OF THE FRANCES M. SULLIVAN TRUST DATED JANUARY 22, 2003, Appellee

NON-PRECEDENTIAL DECISION

Appeal from the Judgment Entered August 19, 2013 In the Court of Common Pleas of Allegheny County Civil Division at No(s): G.D. 08-026091

BEFORE: BENDER, GANTMAN AND OLSON, JJ.

MEMORANDUM

OLSON, J.

Appellants, Sharon F. Palmieri and Herman David Palmieri, appeal from the judgment entered on August 19, 2013, in favor of "Frances M. Sullivan Living Trust Dated January 22, 2003, Patricia A. Sullivan, Successor Trustee of the Frances M. Sullivan Trust Dated January 22, 2003" (hereinafter "the Trust"). We affirm.

On December 7, 2006, Sharon F. Palmieri ("Mrs. Palmieri") was visiting her elderly mother, Frances M. Sullivan, and, while Mrs. Palmieri was in her mother's house, Mrs. Palmieri slipped and fell on the basement floor. After Mrs. Palmieri's mother passed away, Appellants filed a complaint against the Trust, sounding in negligence.[1], [2]

On July 18, 2011, Calendar Control for the Allegheny County Court of Common Pleas issued notice that the case was scheduled for trial call on November 29, 2011. Although the record is silent as to the exact date on which the jury was selected – and although the parties neither requested nor received a recordation or transcription of the jury selection process – it appears that the jury was selected on or about November 29, 2011. See Trial Court Opinion, 4/16/12, at 1 (noting that Appellants "did not request that a court reporter be present during the jury selection process although they were free to have done so").

Trial began on November 30, 2011 and, during the three-day jury trial, the following evidence was presented.

In 1943, Mrs. Palmieri's biological parents purchased the house in which the accident occurred. N.T. Trial, 12/1/11, at 334. Mrs. Palmieri's parents raised their family[3] in the house and continuously lived in the house for the remainder of their lives.[4] Id.

According to Mrs. Palmieri, on the afternoon of December 7, 2006, she was visiting her 88-year old mother at the house and, while there, Mrs. Palmieri had "planned on doing laundry, changing the beds[, ] and spending the day with [her] mother." N.T. Trial, 11/30/11, at 69. Mrs. Palmieri testified that, after briefly speaking with her mother, Mrs. Palmieri walked down to the unfinished basement to check on the laundry. As Mrs. Palmieri testified, she turned on the basement lights, "took about three steps" towards the washing machine, and "slipped" on "a peak in the concrete" basement floor that was created by a crack in the concrete. Id. At 76, 82, 84, and 89. Mrs. Palmieri then fell and broke her left wrist and elbow. Id. at 89, 114, and 168.

At the time of her fall, Mrs. Palmieri was aware that there were multiple cracks in the basement's concrete floor. Id. at 143-144. However, Mrs. Palmieri testified that she was not familiar with the particular crack upon which she slipped, as a chair had "always" been placed over the area; Mrs. Palmieri testified that the chair served as a sitting station for the adjacent sewing machine. Id. at 89.

According to Mrs. Palmieri, at the time of her fall, the chair that had covered the "peak" in the concrete was missing and someone had replaced the normal, 100-watt light bulb in the basement with "maybe a 15, 20 watt light bulb." Id. at 88-90. As a result, Mrs. Palmieri testified, she did not see the particular crack, or "peak, " upon which she slipped. Id. at 140.

Mrs. Palmieri also testified that, when the accident occurred on December 7, 2006 – and although she had long moved away from her parent's house – Mrs. Palmieri: was "very familiar with the house, " as she grew up in the house and regularly visited her mother in the house "at least once a week;" would "always" do laundry at the house; always did this laundry in the unfinished basement area of the house; and, had walked through the unfinished basement "literally thousands of times" in her life. Id. at 61, 108, 139, and 169.

Further, during trial, evidence was presented that tended to show: the sewing machine chair did not "always" cover the peak in the concrete floor; Mrs. Palmieri's 88-year-old mother walked through the unfinished basement "every single day" to take a shower or to do her own laundry and had never fallen; Mrs. Palmieri knew of no one who had ever fallen in the basement; and, on the day of the accident, the basement lighting was no different than it had always been. N.T. Trial, 11/30/11, at 143-149 and 163; N.T. Trial, 12/1/11, at 196-197 and 342-343.

After the evidentiary presentation concluded, the parties proceeded to closing argument and, as is relevant to the current appeal, Appellants did not object to anything that was said during the Trust's closing argument. N.T. Trial, 12/5/11, at 45-59. The trial court then instructed the jury and, "within minutes [of] entering deliberations, " the jury rendered its verdict. Appellants' Motion for Post-Trial Relief, 12/15/11, at 5. The jury unanimously concluded that the Trust was not negligent. N.T. Trial, 12/5/11, at 101-103.

On December 15, 2011, Appellants filed a timely motion for post-trial relief and raised multiple claims of error. Appellants' Motion for Post-Trial Relief, 12/15/11, at 4-19. The two trial court judges whose rulings were challenged denied Appellants' post-trial motion by orders entered on April 4, 2012 and April 16, 2012.

On May 2, 2012 – which was almost five months after the verdict was entered and almost two-and-a-half months after the transcripts had been prepared – Appellants filed an "Emergency Motion for a New Trial" and claimed that they were entitled to a new trial because the trial court "fail[ed] to record the voir dire examination of the jurors" and because the trial transcripts were "incomplete, inaccurate[, ] and flawed." Appellants' "Emergency Motion for a New Trial, " 5/2/12, at 1-28. Appellants neither requested nor received leave to file this supplemental post-trial motion – and the trial court never ruled upon the merits of the motion.

On May 3, 2012, Appellants filed a notice of appeal to this Court – purporting to appeal from the trial court orders entered on April 4, 2012 and April 16, 2012, wherein the trial court denied Appellants' timely post-trial motion. In an unpublished judgment order filed July 31, 2013, we remanded the case, retained jurisdiction, and ordered Appellants to take the necessary procedural steps to reduce the verdict to judgment. Palmieri v. Frances M. Sullivan Living Trust, __ A.3d __(Pa. Super. 2013) (unpublished ...


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