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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NON-PRECEDENTIAL DECISION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 judgment order) at 1-3. Appellants complied and, on August 19, 2013, judgment was entered in favor of the Trust and against Appellants.[5]

Now on appeal, Appellants raise the following 11 claims:[6]

[1.] Did the [trial c]ourt err by failing to grant a new trial since the proceedings by and between [Appellants'] counsel and [the trial court judge] regarding "for cause" strikes of prospective jurors due to bias and/or prejudice of the prospective jurors have been lost forever because the [trial c]ourt failed to record the voir dire examination of the jurors (and make [the transcriptions] available for transcribing at the request of the [Appellants]) according to Rule 5000.2 of the Pennsylvania Code[?]
[2.] Did the [trial c]ourt err by failing to grant a new trial because the transcript(s) of the trial are incomplete, inaccurate[, ] and flawed?
[3.] Did the [trial c]ourt err by failing to strike potential jurors "for cause" and by failing to recognize that the jury was biased against [Appellants] from the outset?
[4.] Did the [trial c]ourt err by requiring [Appellants] to use preemptory challenges on prospective jurors who should have been stricken for cause?
[5.] Did the [trial c]ourt err by failing to admonish Rita Sullivan Radvansky and by failing to instruct the jury to disregard Rita Sullivan Radvansky's derisive outburst against her sister on the initial day of trial?
[6.] Did the [trial c]ourt err by not allowing witness Rita Sullivan Radvansky to testify on rebuttal?
[7.] Did the [trial c]ourt err by instructing counsel for [Appellants] to limit further cross-examination of Patricia A. Sullivan regarding her knowledge of the [g]eneral [d]urable [p]ower of [a]ttorney of Frances M. Sullivan, ("Principal")?
[8.] Did the [trial c]ourt err by not allowing the jury members to take notes and/or not informing the jury members that they are allowed to and could take notes?
[9.] Did the [trial c]ourt err by allowing [c]ounsel for [the Trust] to make improper statements during her closing argument?
[10.] Did the [trial c]ourt err by failing to prevent jurors from talking to each other about the case during trial and before deliberations?
[11.] Did the [trial c]ourt err by not recognizing that the verdict is against the weight of the evidence and, therefore, by failing to grant a new trial?

Appellants' Brief at 8-9.[7]

The vast majority of Appellants' claims are waived or unreviewable.

At the outset, Appellants have waived claims one and two (wherein Appellants assert that the trial court erred by "fail[ing] to record the voir dire examination of the jurors" and that they are entitled to a new trial because the trial transcripts were "incomplete, inaccurate[, ] and flawed"), as Appellants did not raise these claims in their initial, timely post-trial motion.

As Pennsylvania Rule of Civil Procedure 227.1 mandates, a post-trial motion must be filed within ten days of the verdict. Pa.R.Civ.P. 227.1(c)(1). Rule 227.1(b)(2) then provides:

Except as otherwise provided by Pa.R.E. 103(a), post-trial relief may not be granted unless the grounds therefor . . . are specified in the [post-trial] motion. The motion shall state how the grounds were asserted in pre-trial proceedings or at trial. Grounds not specified are deemed waived unless leave is granted upon cause shown to specify additional grounds.

Pa.R.Civ.P. 227.1(b)(2) (emphasis added).

Within Appellants' initial, timely post-trial motion, Appellants did not claim that the trial court erred by "fail[ing] to record the voir dire examination of the jurors" or that they were entitled to a new trial because the trial transcripts were "incomplete, inaccurate[, ] and flawed." Further, while Appellants attempted to raise the additional claims in their untimely, supplemental post-trial motion, Appellants neither requested nor were granted leave to file a supplemental motion. See Pa.R.Civ.P. 227.1(b)(2).

It is true that, under our case law, a trial court need not expressly grant a litigant leave to file a supplemental post-trial motion. We have held:

whenever original and/or supplemental post-trial motions are filed at a time where the trial court has jurisdiction over the matter but outside the ten day requirement of 227.1, the trial court's decision to consider these motions should not be subject to review by this court unless the opposing party has set forth an objection setting forth specific facts to demonstrate prejudice. If no objection is raised by the opposing party and the trial court rules on the merits of the issues contained in untimely filed motions, the trial court's action will be considered an implicit grant of leave to the filing of the motions. This decision should not be subject to review by this court, and we should go on to consider the issues contained in these motions on their merits, as did the trial court.

Millard v. Nagle, 587 A.2d 10, 12 (Pa. Super. 1991) (en banc) (emphasis added).

The rule announced in Millard does not, however, apply to the case at bar, as the trial court in this case did not consider the merits of Appellants' untimely, supplemental post-trial motion. Indeed, the trial court made no ruling whatsoever upon the motion. As such, the trial court did not "implicit[ly] grant" Appellants leave to file the untimely, supplemental post-trial motion and the untimely filing did not act to preserve Appellants' first two numbered claims. Appellants' first two claims are thus waived.[8]Pa.R.Civ.P. 227.1(b)(2); see also Diener Brick Co. v. Mastro Masonry Contractor, 885 A.2d 1034, 1038-1039 (Pa. Super. 2005) ("[i]t is well-established that issues not raised in post[-]trial motions are waived for purposes of appeal").

Moreover, Appellants have waived a number of other claims on appeal. We conclude:[9]

Appellants have waived Claim Number 5 (wherein Appellants claim that the trial court erred in "failing to admonish Rita Sullivan Radvansky and [in] failing to instruct the jury to disregard Rita Sullivan Radvansky's derisive outburst against her sister on the initial day of trial), as Appellants did not request that the trial court "admonish" Ms. Radvansky and Appellants did not request that the trial court issue a curative instruction to the jury;[10], [11]
Appellants have waived Claim Number 6 (wherein Appellants claim that the trial court erred in "not allowing witness Rita Sullivan Radvansky to testify on rebuttal"), as there is nothing in the record that would support Appellants' claim that they moved to call Rita Sullivan Radvansky as a rebuttal witness and there is nothing in the record that would reveal the grounds for which Appellants sought to introduce the rebuttal testimony;[12]
Appellants have waived Claim Number 8 (wherein Appellants claim that the trial court erred "by not allowing the jury members to take notes"), as Appellants never requested that the jury members be permitted to take notes and Appellants never objected to the fact that the jury members were not taking notes;[13]
Appellants have waived Claim Number 9 (wherein Appellants claim that the trial court erred in "allowing [c]ounsel for [the Trust] to make improper statements during her closing argument"), as Appellants never objected to anything that was said during the Trust's closing argument;[14] and,
Appellants have waived Claim Number 10 (wherein Appellants claim that the trial court erred "by failing to prevent jurors from talking to each other about the case during trial and before deliberations"), as there is no record of any improper juror discussions and Appellants did not bring any such issue to the trial court's attention.[15]

Further, we conclude that claims three and four (wherein Appellants claim that the trial court erred in "failing to strike potential jurors 'for cause'" and in requiring Appellants "to use preemptory challenges on prospective jurors who should have been stricken for cause") are unreviewable, as there is absolutely no record or transcript of the jury selection process. See Griffin, 65 A.3d at 936 ("[i]t is the responsibility of an appellant to ensure that the record certified on appeal is complete in the sense that it contains all of the materials necessary for the reviewing court to perform its duty"); see also Lineberger v. Wyeth, 894 A.2d 141, 147 (Pa. Super. 2006) (recognizing that the Superior Court is an error-correcting court).

With respect to the two claims that Appellants have preserved for appeal, both are meritless. Appellants' seventh claim asserts that the trial court erred when it "instruct[ed] counsel for [Appellants] to limit further cross-examination of Patricia A. Sullivan regarding her knowledge of the [g]eneral [d]urable [p]ower of [a]ttorney of Frances M. Sullivan." Appellants' Brief at 36. The issue relates to the fact that, on January 22, 2003, Frances Sullivan (the mother of both Mrs. Palmieri and Patricia Sullivan) executed a general durable power of attorney and named Patricia Sullivan as the Trust's agent. N.T. Trial, 12/1/11, 347-348. During Appellants' cross-examination of Patricia Sullivan, Appellants' counsel extensively questioned Patricia Sullivan as to when she first knew she was granted the power of attorney. See N.T. Trial, 12/1/11, at 368-374 and N.T. Trial, 12/5/11, at 25-29. Notwithstanding Patricia Sullivan's consistent testimony that she did not know she was granted a power of attorney until 2005, Appellants' counsel persisted with questions that implied that she knew about the grant when the document was executed on January 22, 2003. See N.T. Trial, 12/1/11, at 368-374 and N.T. Trial, 12/5/11, at 25-29.

On the second day of questioning on this single topic, the trial court instructed Appellants' counsel to "move on" because "we went through this on Friday." N.T. Trial 12/5/11, at 28-29. Appellants now claim that the trial court erred in "limiting" their cross-examination on this issue. This claim is meritless.

As we have observed:
It is axiomatic that a trial judge has broad powers concerning the conduct of a trial and[] particularly with regard to the admission or exclusion of evidence. Controlling cross-examination is likewise within the sound discretion of the trial judge.

Commonwealth v. Ferri, 599 A.2d 208, 213 (Pa. Super. 1991), quoting Commonwealth v. Niemetz, 422 A.2d 1369, 1376 (Pa. Super. 1980); see also Commonwealth v. Washington, 63 A.3d 797, 805 (Pa. Super. 2013) ("[i]t is well settled that the trial court has the discretion to determine the scope and limits of cross-examination and that [the Superior] Court cannot reverse those findings absent a clear abuse of discretion or an error of law") (internal quotations and citations omitted); see also Pa.R.E. 611(b).

In the case at bar, the trial court was clearly within its discretion when it limited Appellants' counsel's repetitive and cumulative questioning of Patricia Sullivan. Indeed, as the trial court cogently stated: "[t]his was a slip and fall case. The issue [of Patricia Sullivan's] power of attorney was discussed extensively on two separate days. The [trial c]ourt clearly has the power to direct the flow of testimony on a collateral issue." Trial Court Opinion, 7/25/12, at 4. Appellants' claim of error is meritless.

Finally, Appellants' eleventh claim asserts that the jury's verdict was against the weight of the evidence because the "undisputed" facts of this case demonstrate the Trust's negligence. Appellants' Brief at 62-66. This claim fails.

As our Supreme Court has explained:

in a challenge to the weight of the evidence, the function of an appellate court on appeal is to review the trial court's exercise of discretion based upon a review of the record, rather than to consider de novo the underlying question of the weight of the evidence. In determining whether this standard has been met, appellate review is limited to whether the trial judge's discretion was properly exercised, and relief will only be granted where the facts and inferences of record disclose a palpable abuse of discretion. It is for this reason that the trial court's denial of a motion for a new trial based on a weight of the evidence claim is the least assailable of its rulings.

Commonwealth v. Rivera, 983 A.2d 1211, 1225 (Pa. 2009) (internal quotations and citations omitted). Moreover, the trier of fact "has [the] discretion to accept or reject a witness' testimony, including that of an expert witness, and is free to believe all, part, or none of the evidence presented." In re Bosley, 26 A.3d 1104, 1111 (Pa. Super. 2011).

In this case, the trial court rejected Appellants' weight of the evidence claim at the post-trial motion stage of the proceedings. Trial Court Order, 4/4/12, at 1. This ruling was clearly not an abuse of discretion, as Appellants' case was predicated upon the jury accepting Mrs. Palmieri's testimony as true - and the jury, apparently, did not completely accept Mrs. Palmieri's testimony. The jury's credibility determination was within its province - and the trial court was within its discretion when it denied Appellants' motion for a new trial. Appellants' claim to the contrary fails.

Judgment affirmed. Jurisdiction relinquished.

Judgment Entered.


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