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[U] Eisbacher v. Davidson

Superior Court of Pennsylvania

February 6, 2014



Appeal from the Judgment Entered April 3, 2013 In the Court of Common Pleas of Lackawanna County Civil Division No(s).: 2010-05348.




Appellant, Jessica Eisbacher, appeals from the judgment entered in the Lackawanna County Court of Common Pleas in favor of Appellees, Richard J. Davidson and GEICO Indemnity Company. Appellant contends the court erred by (1) precluding evidence regarding negligence, (2) improperly prejudicing the jury in favor of Appellees, and (3) improperly charging the jury. We affirm.

We state the facts and procedural history as set forth by the trial court.

On August 2, 2010, [Appellant], through Attorney Michael J. Pisanchyn, Jr., filed a civil complaint against [Appellees]. The complaint relates to a two vehicle collision, which occurred on October 31, 2008 at the intersection of Pittston Avenue and Hickory Street in Scranton . . . . At the time of this collision, this intersection was controlled by a traffic light.
The complaint contains a "negligence" count (count one) against [Appellee] Davidson and a "breach of contract" claim (count two) against [Appellee] Geico for underinsurance motorist benefits. . . .
Prior to trial, [Appellee] Davidson filed a motion to bifurcate trial, requesting the bifurcation of the negligence claim asserted against [Appellee] Davidson from the breach of contract claim asserted against the UIM carrier Geico. By order dated May 22, 2012, this court adopted the stipulation of the parties which provided, in part, that (a) Geico would not participate in the trial and (b) Geico agrees to pay any verdict in excess of [Appellee] Davidson's automobile insurance policy limits, up to Geico's underinsurance motorist limits.
The case was originally scheduled for trial on May 29, 2012. At the pre-trial conference on April 25, 2012, it was discovered that [Appellant's] counsel . . . intended to call additional witnesses that were not specifically listed on the parties' joint pre-trial submission. To avoid any prejudice to [Appellee Davidson] and to avoid imposition of a preclusion sanction against [Appellant], this court, with some degree of reluctance, continued the trial to October 1, 2012.

Trial Ct. Op., 3/15/13, at 2-3 (citations and some capitalization omitted).

On the eve of trial, [Appellant's] counsel . . . forwarded a subpoena to Ms. Hope Rose, a State Farm [insurance] adjuster who resided some distance from Scranton, Pennsylvania[, the place of trial]. Ms. Rose was another witness who was not disclosed on the joint pre-trial submission. Sometime after the subject accident, more specifically on November 28, 2008, Ms. Rose had a telephonic discussion with [Appellee] Davidson, her insured. As a result of this discussion, Ms. Rose recorded, in the form of a log entry, what [Appellee] Davidson told her[, i.e., note 106, which is reproduced below.]
On September 28, 2012, [Ms. Rose's counsel filed] a motion to quash [Appellant's] subpoena to attend and testify. In addition to stating the entire historical background regarding Ms. Rose's anticipated testimony, this motion stated that on Wednesday, September 26, 2012, [Appellant's] counsel faxed a subpoena to Ms. Rose, instructing her to appear for trial on October 1, 2012. This subpoena allegedly failed to comply with the requirement of Pa.R.C.P. 234.2, relating to proper service and payment of witness attendance fees. As noted in the motion, counsel for Ms. Rose informed the court that he was not available for a court appearance on October 2 and October 3, 2012 and that Ms. Rose had a pre-planned vacation scheduled for October 4th through October 9, 2012. Upon receipt of this motion, this court scheduled an argument on the motion to quash for Monday[, ] October 1, 2012, prior to trial commencing. Prior to the argument, the parties entered into a stipulation, which reads as follows:
Stipulation of the Parties
The parties, by and through their respective representative counsel, hereby agree as follows:
1. The parties agree that the adjuster notes are authenticated and will be allowed to be used at the time of trial.
2. The parties agree that the jury may be advised that these notes were made contemporaneously with any statements taken and taken on behalf of and for the benefit of [Appellee Davidson].
4. The parties specifically agree to a reading and/or referencing of note 106 as to the statements contained in exhibit 1 of this stipulation. Any use of the remaining notes would be subject to admissibility pursuant to Pa.R.E.
5. The notes other than note 106 are stipulated authentic and their admissibility shall be governed by the applicable Pennsylvania Rules of Evidence.
7. It is further agreed by the parties that the notice to attend directed to Hope Rose is hereby withdrawn, and that she need not attend the trial of this matter. . . .

Id. at 5-7 (citations and some capitalization omitted).

We excerpt and reproduce the relevant portions of the notes at issue, as referenced by the above stipulation. Note 104 was entered by a person named "Ortiz" on November 26, 2008:

[Appellee Davidson's vehicle] entered the intersection on red light & was struck by [Appellant's vehicle] which caused [Appellee Davidson's vehicle] to strike [a third vehicle] head on which was stopped at red light in opp direction. . . .

Ex. 63.

Note 105 was entered by Ms. Rose on November 28, 2008, at 2:38 p.m.:

## Task rep: Please advise of sequence of lights on Pitts Ave[.] north and south bound at the intersection of Hickory St. [Appellee Davidson] S/B approaching intersection as Clmt Russell was N/B. [Appellant] was E/B on Hickory St. [Appellee Davidson] contends green light was green. Clmt Russell contends stopping at red light. [Appellee Davidson] admits to being blinded by sun glare at time of loss. [Redacted]. [(]PR diagram is wrong. [Appellee Davidson] contends [Appellant] broadsided him in right rear[)]. Thanks[.]


Note 106 was also entered by Ms. Rose on November 28, 2008, at 2:46 p.m.:

C: Rec call from NI Richard. Reviewed PR. [Appellee Davidson] believed he had green light. [He] admits that he had sun glaring at him. Explained we can send a task rep to the scene to confirm sequence of lights for his direction. [Redacted]. [Appellee Davidson] confirmed [he] was rotated and spun around and collided with Clmt Russell approaching from opposite direction of [Appellee Davidson]. [Redacted]. . . .


Note 107 was entered by Jenna Pattinson on December 1, 2008:

Task Assignment to Michelle K:
T: Plse Obtain Scene Photos
A: Pittston Ave & Hickory St[.] Scranton, PA 18505
S: Please advise of sequence of lights on Pitts Ave north and south bound at the intersection of Hickory St. [Appellee Davidson] admits to being blinded by sun glareime [sic] of loss. Please advise if possible for Clmt Russell to have a red light and [Appellee Davidson] to have green light traveling in opposite directions on Hickory Street.
C: Hope Rose ex 3587542
R: [(]PR diagram is wrong. [Appellee Davidson] contends [Appellant] broadsided him in right rear[)]


Note 109 was entered by Michelle Kelly on December 2, 2008:

Uploading scene photos and diagram. Pittston Ave[.] is one lane in each direction w/ a 25 mph speed limit. There is a center yellow line. Hickory St[.] is one lane in each direction w/ a 25 mph speed limit. There are no pavement markings on Hickory. [Appellee Davidson] was s/b on Pittston. Clmt Russell was n/b on Pittston. They get the green, yellow and red all at the same time. There is never a time that s/b Pittston has the green when n/b is red. [Appellant] was on Hickory, e/b per [Appellee Davidson]. When Pittston has red, Hickory is green.


Trial commenced on October 1, 2012. During trial, Appellant's counsel notified the court that he intended to cross-examine Appellee Davidson with the above notes (except for note 106). N.T., 10/2/12, at 199. Appellee Davidson's counsel objected, stating that (1) the parties entered into the above stipulation and (2) the notes other than note 106 contain "mental impressions and conclusions and lay opinions" of the adjusters and were hearsay, irrelevant, and prejudicial. Id. at 200. Appellant's counsel countered that he was "not interested in the admissibility" of the other notes, but wanted to know whether the court would have a problem with using the notes during cross-examination. Id. at 202.

The court precluded Appellant's counsel from "cross-examin[ing Appellee Davidson] on impressions of other people." Id. at 203. The court also observed that Appellant's counsel did not subpoena the other declarants, such as Ms. Kelly. Id. at 209. Appellant's counsel maintained that he was entitled to use note 105 to impeach Appellee Davidson if he denied being blinded by the sun. Id. at 213. The trial court reminded Appellant's counsel that he failed to identify witnesses that he intended to call at trial, which led the court to reschedule trial from May to October. Id. at 216; see also Trial Ct. Op. at 3. The court also noted that note 105 does not "speak to a conversation." Id. Appellee Davidson's counsel pointed out that note 105 was entered a few hours before note 106, which recorded a conversation with Appellee Davidson. Id. at 216-17. The court ultimately reiterated its ruling that Appellant's counsel could use note 106 only. Id. at 217.

Subsequently, according to the trial court, the following transpired at trial:

At all times relevant thereto, [Appellant] claimed that she had the green light as she proceeded into the subject intersection. Conversely, [Appellee] Davidson, called as on cross, claimed that he did not run the red light and, the last time he looked, the light was green. On further examination, [Appellee] Davidson noted that the light could have possibly turned red when he was under it.

Trial Ct. Op. at 3. With respect to sun glare, Appellee Davidson testified on cross-examination as follows:

[Appellee Davidson]. The sun was not—the sun did not affect my sight that day. It was a sunny afternoon. When you're driving in the afternoon, the sun is in the sky just like it was here yesterday when we asked that the shades be pulled down. It certainly didn't blind me or anything but there was a glare. It did not affect my vision.
[Appellant's counsel]. Do you know why that person[1] on your behalf and for your benefit said that there could potentially be a problem with your vision due to the sun?
A. I don't know that. I remember her asking me was there a problem with the sun, I said there was a glare I said. I don't ever remember saying that it affected my vision.

N.T., 10/2/12, at 258-60. Trial continued, and the parties subsequently rested. Appellant never moved to recuse the trial judge for bias.

The trial court held a charging conference, during which neither party objected. N.T. Tr. of Exs. and Charge Conference, 10/4/12, at 33-41. After the court charged the jury, the court asked counsel whether they had "Any additions or correction[s]?" Id. at 113. Appellant's counsel responded, "The charge is acceptable, none, Your Honor." Id. Subsequently, on October 5, 2012, the jury "concluded that both [Appellant] and [Appellee] were negligent. The jury, however, found [Appellant] to be 60% negligent, thereby precluding any recovery." Trial Ct. Op. at 3.

Appellant timely filed a post-trial motion claiming the trial court erred by, e.g., not admitting a recorded statement made by Appellee Davidson to an insurance adjuster, prejudicing the jury against Appellant, and charging the jury on comparative negligence. At the hearing on Appellant's post-trial motion, the court asked Appellant's counsel whether he timely objected. N.T., 2/26/13, at 101. Appellant's counsel responded as follows:

I believe we did, Your Honor, but again, that was a long time ago. I've had lots of cases since then. I mean, I don't know that for sure. The record will speak for itself, but I do believe that we also did submit our instructions and I think they preserve it. But I do think that we did raise—and again, I don't want to say this but if my recollection serves me correct, I think we may have raised that as an issue . . . . Id. at 101-02. The court denied Appellant's post-trial motion and entered judgment on April 3, 2013.

Meanwhile, Appellant filed a Pa.R.A.P. 1923 statement with the trial court. Appellant's Statement Pursuant to Rule 1923, 3/20/13. Appellant's statement refers to an unrecorded conference in chambers during which Appellant's counsel accused the trial judge of bias. Id. According to Appellant's statement, the trial judge rejected the accusation. Id. Appellee Davidson filed objections to the Rule 1923 statement. Objections of Appellee to Appellant's Statement Pursuant to Rule 1923, 3/27/13. The court subsequently struck the Rule 1923 statement and ordered that it not be included as part of the certified record.[2] Order, 4/1/13. Appellant timely appealed on April 22, 2013, and the court did not order a Pa.R.A.P. 1925(b) statement.

Appellant raises the following issues:

Whether the trial court prohibited [Appellant's] counsel from introducing vital evidence related to the fault of [Appellee Davidson], which was admissible at least on grounds of impeachment and as a statement against interest under Pa.R.E. 804(b)(3).
Whether the trial court's conduct created an unfavorable impression of [Appellant], [Appellant's] witnesses, and/or [Appellant's] counsel, thereby prejudicing the jury in favor of [Appellee].
Whether the trial court erred when it gave the comparative negligence instructions when both [Appellant] and [Appellee Davidson] contended that they had the green light and the jury found [Appellee Davidson] negligent.

Appellant's Brief at 32.

Appellant, for her first issue, claims the trial court erred by refusing to admit into evidence the insurance adjuster notes other than note 106. Id. at 35; see also Trial Ct. Op. at 3 (quoting parties' stipulation). She suggests that the notes at issue were both relevant and admissible as statements against interest pursuant to Pa.R.E. 804(b)(3). Appellant maintains that she should have been permitted to impeach Appellee Davidson with his comments to the insurance adjusters, as recorded by the adjusters. We hold Appellant is not entitled to relief.

The standard and scope of review for a request of a new trial follows:

To review the two-step process of the trial court for granting or denying a new trial, the appellate court must also undertake a dual-pronged analysis. A review of a denial of a new trial requires the same analysis as a review of a grant. First, the appellate court must examine the decision of the trial court . . . .
At this first stage, the appellate court must apply the correct scope of review, based on the rationale given by the trial court. There are two possible scopes of review to apply when appellate courts are determining the propriety of an order granting or denying a new trial. There is a narrow scope of review: where the trial court articulates a single mistake (or a finite set of mistakes), the appellate court's review is limited in scope to the stated reason, and the appellate court must review that reason under the appropriate standard.
Conversely, if the trial court leaves open the possibility that reasons additional to those specifically mentioned might warrant a new trial, or orders a new trial in the interests of justice, the appellate court applies a broad scope of review, examining the entire record for any reason sufficient to justify a new trial. . . .
The appropriate standard of review also controls this initial layer of analysis. If the mistake involved a discretionary act, the appellate court will review for an abuse of discretion. If the mistake concerned an error of law, the court will scrutinize for legal error. If there were no mistakes at trial, the appellate court must reverse a decision by the trial court to grant a new trial because the trial court cannot order a new trial where no error of law or abuse of discretion occurred. . . .
An abuse of discretion exists when the trial court has rendered a judgment that is manifestly unreasonable, arbitrary, or capricious, has failed to apply the law, or was motivated by partiality, prejudice, bias, or ill will. A finding by an appellate court that it would have reached a different result than the trial court does not constitute a finding of an abuse of discretion. Where the record adequately supports the trial court's reasons and factual basis, the court did not abuse its discretion.
When determining whether the trial court abused its discretion, the appellate court must confine itself to the scope of review, as set forth in our preceding discussion. If the trial court has provided specific reasons for its ruling on a request for a new trial, and it is clear that the decision of the trial court is based exclusively on those reasons, applying a narrow scope of review, the appellate court may reverse the trial court's decision only if it finds no basis on the record to support any of those reasons. As a practical matter, a trial court's reference to a finite set of reasons is generally treated as conclusive proof that it would not have ordered a new trial on any other basis. . . .

Harman ex rel. Harman v. Borah, 756 A.2d 1116, 1122–24 (Pa. 2000) (citations, formatting, quotation marks, and alterations omitted)

Our standard of review for an evidentiary ruling is deferential:

When we review a trial court ruling on admission of evidence, we must acknowledge that decisions on admissibility are within the sound discretion of the trial court and will not be overturned absent an abuse of discretion or misapplication of law. In addition, for a ruling on evidence to constitute reversible error, it must have been harmful or prejudicial to the complaining party.

Hutchinson v. Penske Truck Leasing Co., 876 A.2d 978, 984 (Pa.Super. 2005) (citations omitted); accord Polett v. Pub. Commc'ns, Inc., __A.3d__, __, 2013 WL 6732103, at *10 (Pa.Super. 2013) (en banc).

Pennsylvania Rule of Evidence 804 states in pertinent part:

Rule 804. Exceptions to the Rule Against Hearsay— When the Declarant is Unavailable as a Witness
(a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant:
(1) is exempted from testifying about the subject matter of the declarant's statement because the court rules that a privilege applies;
(2) refuses to testify about the subject matter despite a court order to do so;
(3) testifies to not remembering the subject matter;
(4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; or
(5) is absent from the trial or hearing and the statement's proponent has not been able, by process or other reasonable means, to procure:
(A) the declarant's attendance, in the case of a hearsay exception under Rule 804(b)(1) or (6); or
(B) the declarant's attendance or testimony, in the case of a hearsay exception under Rule 804(b)(2), (3), or (4).
But this subdivision (a) does not apply if the statement's proponent procured or wrongfully caused the declarant's unavailability as a witness in order to prevent the declarant from attending or testifying.
(b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:
(3) Statement Against Interest. A statement that:
(A) a reasonable person in the declarant's position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant's proprietary or pecuniary interest or had so great a tendency to invalidate the declarant's claim against someone else or to expose the declarant to civil or criminal liability; and
(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.

Pa.R.E. 804(a), (b)(3). One treatise explains the interaction between subsections (a) and (b):

Pa.R.E. 804 defines five hearsay exceptions that require that the declarant be unavailable as a witness. Pa.R.E. 804(a) sets out the criteria for determining whether a declarant is unavailable as a witness. These criteria are applicable to all of the Pa.R.E. 804(b) exceptions. . . .
Unavailability is a preliminary question, therefore a party offering hearsay evidence under one of these exceptions must establish the unavailability of the declarant by a preponderance of the evidence.

Leonard Packel & Anne Bowen Poulin, Pennsylvania Evidence § 804(a)-1 (4th ed. 2013) (footnote omitted).

To the extent a party wishes to use hearsay evidence to impeach a witness, we state the following as background:

Any evidence relevant to the impeachment issue may be used against a witness, except that which is prohibited by the rules of evidence. Pa.R.E. 607(b). Hearsay, which is a statement made by someone other than the declarant while testifying at trial and is offered into evidence to prove the truth of the matter asserted, is normally inadmissible at trial. Pa.R.E. 801(c) & 802. Impeaching a witness through the introduction of an inconsistent out-of-court statement will not be considered hearsay if the statement is: (1) under oath subject to the penalty of perjury at a trial, hearing, other proceeding, or deposition; (2) in writing and adopted by the declarant; and (3) a verbatim contemporaneous recording of the oral statement. Pa.R.E. 803.1(1).15
15 Prior statements by witnesses may also be admitted in accordance with Pa.R.E. 613.

Commonwealth v. Carson, 913 A.2d 220, 254-55 & n.15 (Pa. 2006).[3] In Carson, our Supreme Court held counsel could have objected to a police officer's oral recollection of a statement by a witness. Id. at 255.

Instantly, with respect to Appellant's claim that she should have been permitted to use or introduce into evidence notes 104, 105, 107, and 109, we initially acknowledge that Appellant's counsel stated that he was uninterested in whether the notes could be admitted into evidence. See N.T., 10/2/12, at 200. Regardless, Appellant has not explained how any of the declarants were unavailable. See Pa.R.E. 804(a); Packel & Poulin, Pennsylvania Evidence, at § 804(a)-1. Consequently, because the record is devoid of any indication that the declarants were unavailable, Appellant has not met her preliminary burden of establishing an exception to Pa.R.E. 804(a). See Pa.R.E. 804(a); Packel & Poulin, Pennsylvania Evidence, at § 804(a)-1. Accordingly, we discern no abuse of discretion. See Hutchinson, 876 A.2d at 984.

With respect to the use of these notes to impeach Appellee Davidson, these notes were all written by third parties who, except for Ms. Rose, Appellant never subpoenaed to testify regarding their out-of-court statements. See Ex. 63. Appellant made no argument that these declarants were unavailable as witnesses. See Pa.R.E. 804(a). Absent such argument, Appellant cannot meet the preliminary threshold necessary for her to introduce written out-of-court notes—one of which references Appellee Davidson's alleged oral out-of-court statement that he was blinded by sun glare. See id.; see also Carson, 913 A.2d at 254-55. Moreover, Appellant has not established that these out-of-court notes were, e.g., made under oath. See Carson, 913 A.2d at 254-55. Under these unique facts, Appellant cannot attempt to impeach Appellee Davidson via out-of-court written notes prepared by third parties who may have been available to testify. In sum, we perceive no abuse of discretion by the trial court. See Hutchinson, 876 A.2d at 984.

For her second issue, Appellant suggests the trial court was biased against her. In support, she excerpts from the trial transcript several exchanges between her counsel and the court, which purportedly establish the court's animus. We conclude Appellant is not entitled to relief.

We state the following as background:

It is the burden of the party requesting recusal to produce evidence establishing bias, prejudice or unfairness which raises a substantial doubt as to the jurist's ability to preside impartially. As a general rule, a motion for recusal is initially directed to and decided by the jurist whose impartiality is being challenged. In considering a recusal request, the jurist must first make a conscientious determination of his or her ability to assess the case in an impartial manner, free of personal bias or interest in the outcome. The jurist must then consider whether his or her continued involvement in the case creates an appearance of impropriety and/or would tend to undermine public confidence in the judiciary. This is a personal and unreviewable decision that only the jurist can make. Where a jurist rules that he or she can hear and dispose of a case fairly and without prejudice, that decision will not be overruled on appeal but for an abuse of discretion. In reviewing a denial of a disqualification motion, we recognize that our judges are honorable, fair and competent.

Chadwick v. Caulfield, 834 A.2d 562, 571 (Pa.Super. 2003) (citations omitted).

Appellant, in the instant case, bore the burden of establishing the trial judge's alleged bias. See id. Appellant, however, did not move to recuse the trial judge. See id. Because there is no ruling by the trial judge, we decline Appellant's invitation to review a cold transcript and render the initial determination of whether Appellant met her burden of proof. See id.; see also Harber Phila. Ctr. City Office Ltd. v. LPCI Ltd. P'ship, 764 A.2d 1100, 1105 (Pa.Super. 2000) (observing this Court is an error-correcting court).

For her last issue, Appellant contends that the evidence did not justify the court's comparative negligence instruction. She maintains that there was no evidence she "was not exercising ordinary care to keep a proper lookout, " and therefore the instruction was improper. Appellant's Brief at 66-67. We discern no basis to grant relief.

[T]he standard of review for this issue is one of abuse of discretion. [O]ur courts have made clear that an appellant must make a timely and specific objection to a jury instruction to preserve for review a claim that the jury charge was legally or factually flawed.
In reviewing a claim regarding error with respect to a specific jury charge, we must view the charge in its entirety, taking into consideration all the evidence of record to determine whether or not error was committed. If we find that error was committed, we must then determine whether that error was prejudicial to the complaining party. Error will be found where the jury was probably misled by what the trial judge charged or where there was an omission in the charge which amounts to fundamental error.

Braun v. Wal-Mart Stores, Inc., 24 A.3d 875, 968 (Pa.Super. 2011) (citations omitted), appeal granted on other grounds, 47 A.3d 1174 (Pa. 2012); see also Pa.R.A.P. 302(b) ("Specific exception shall be taken to the language or omission complained of" in the jury charge). An appellant is also required to state where in the record the issue was preserved. Pa.R.A.P. 2117(c).

In this case, Appellant directed this Court to pages 969a-973a of the reproduced record as the place in the record where he objected to the jury instruction. See Appellant's Brief at 4. Those pages, however, reference a pretrial motion in limine, filed on October 2, 2012, to preclude Appellee Davidson's testimony of his employment and Appellant's speed. Appellant's pretrial motion is not a specific exception to the disputed jury instruction. See Pa.R.A.P. 302(b).

Further, no party objected at the charging conference. See N.T. Tr. of Exs. and Charge Conference, at 33-41; see also Braun, 24 A.3d at 968. Appellant's counsel did not object during or after the jury charges. After the court instructed the jury, the court asked counsel if they had "Any additions or correction[s]?" N.T., 10/4/12, at 113. Appellant's counsel responded, "The charge is acceptable, none, Your Honor." Id. We hold Appellant has not met her burden of establishing a timely and specific objection to the disputed jury instruction. See Pa.R.A.P. 302(b); Braun, 24 A.3d at 968. Accordingly, Appellant has waived the issue for appellate review and we discern no basis to reverse the trial court's order denying a new trial. See Harman, 756 A.2d at 1122-24.

Judgment affirmed.

Judgment Entered.

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