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Wilson v. U.S. Security Associates, Inc.

Superior Court of Pennsylvania

July 18, 2017

KHAALID AMIR WILSON AND GABRIEL DESHAWN WILSON, CO-ADMINISTRATORS OF THE ESTATE OF TANYA RENEE WILSON, DECEASED
v.
U.S. SECURITY ASSOCIATES, INC. AND YVONNE HILLER APPEAL OF: U.S. SECURITY ASSOCIATES, INC. KHAALID AMIR WILSON AND GABRIEL DESHAWN WILSON, CO-ADMINISTRATORS OF THE ESTATE OF TANYA RENEE WILSON, DECEASED Appellants
v.
U.S. SECURITY ASSOCIATES, INC. AND YVONNE HILLER Appellees PAUL MASCIANTONIO, ESQUIRE, ADMINISTRATOR OF THE ESTATE OF LATONYA BROWN, DECEASED
v.
U.S. SECURITY ASSOCIATES, INC. AND YVONNE HILLER APPEAL OF: U.S. SECURITY ASSOCIATES, INC. PAUL MASCIANTONIO, ESQUIRE, ADMINISTRATOR OF THE ESTATE OF LATONYA BROWN, DECEASED Appellant
v.
U.S. SECURITY ASSOCIATES, INC. AND YVONNE HILLER Appellees

         Appeal from the Judgment Entered November 16, 2015 in the Court of Common Pleas of Philadelphia County Civil Division at Nos.: 0971 Oct. Term 2011, 0653 Dec. Term 2011, 111200653

          BEFORE: DUBOW, J., RANSOM, J., and PLATT, J. [*]

          OPINION

          PLATT, J.

         These consolidated appeals arise out of jury verdicts finding civil liability, including punitive damages, against Appellant, U.S. Security Associates, Inc. (USSA), and Yvonne Hiller.[1] USSA provided security guard services under contract at the bakery plant where Hiller, a suspended worker, shot and killed two co-workers, and seriously wounded a third. The underlying complaints asserted Wrongful Death and Survival Acts claims against USSA. The parties challenge various aspects of the verdicts, and assert trial court error in evidentiary and related rulings. USSA raises numerous claims, most notably several challenges to the punitive damages award of thirty-eight-and-a-half million dollars. Appellees[2] generally seek to uphold the verdicts. However, they also challenge the denial of their motion to mold the verdict to make USSA liable for pre-shooting "fear and fright" damages.[3] We affirm in part and reverse in part.

         We take the facts of the case from the findings of the trial court which find support in the record, and our independent review of the certified record. As already noted, this case arises out of the tragic murder of two employees of Kraft Foods Global Inc., and the serious but non-fatal shooting of a third, at the Nabisco bakery plant then operated by Kraft in Northeast Philadelphia.[4] The three victims were shot by Hiller, a disgruntled co- worker, in the disastrous climax of an ongoing series of disputes. While the testimony and arguments differ in some material details, the basic facts underlying the case are not in substantial dispute, except as noted.

         Yvonne Hiller was a dough maker at the Kraft bakery. She had continuing disagreements with co-workers Tanya Renee Wilson, LaTonya Brown, and Bryant Dalton, claiming among other things that they threw deer urine on her car, and that they threw toxic chemicals (including pesticides) at her.

         On the evening of September 9, 2010, at about 8:30 p.m., Kraft supervisor (in Kraft's terminology, business unit leader) Carl Rivers suspended Hiller for her role in a verbal altercation that evening, including threats, against Ms. Wilson, Ms. Brown, and Mr. Dalton. Mr. Rivers directed senior USSA security officer (and USSA site supervisor), Damon Harris, to escort Hiller while she left the premises.[5]

         Mr. Harris parted company with Hiller at the guard shack and left her to return to her car by herself. In fact, contrary to some testimony of Harris, implying that Hiller got directly into her car, (see N.T. Trial, 2/18/15 A.M., at 11), she stopped for a few minutes to smoke a cigarette with an acquaintance in the designated smoking area before leaving. (See N.T. Trial, 2/23/15 P.M., at 71-73).

         The parties dispute whether the failure to escort Hiller all the way to her car was a breach of required procedure under "post orders, " the rules set by Kraft for the performance of USSA's services on its premises under the security contract. (N.T. Trial, 2/18/15 A.M., at 94).

         Appellees claim it was. Appellant denies any such requirement, even though its designated corporate representative, Michael Donapel, in deposition testimony, appeared to assume a walkout to the car was the standard procedure for a disciplinary escort. In any event, Hiller proceeded to the parking lot alone. Once she arrived there she got into her car, but instead of leaving the premises, she decided to drive back to the guard station.

         Brandishing a .357 Magnum revolver she had retrieved from her car, Hiller confronted the two USSA security guards, and pointed the gun at the junior guard, Marc Bentley. Using forthright street language, she demanded to be let back in. Although Bentley had nine years of experience as a prison guard, he had only been on the Kraft job for a few weeks. He let Hiller in, and fell to the floor. Harris ran out of the guard shack, fell, spraining his ankle, and got back up and began to make his way to a boiler room some seventy feet away. (See N.T. Trial, 2/17/15 P.M., at 86; see also Trial Court Memorandum in Support of Orders Denying Motions for Post-Trial Relief, 11/16/15, [Trial Court Memorandum], at 1).

         About this time, David Ciarlante, a mechanic on a smoke break who knew Hiller as a fellow smoker, noticed her returning to the building after he had seen her previously depart. Ciarlante testified that Harris and Bentley both came running out of the guard shack. They warned him that Hiller had entered the building, with a gun. Ciarlante ran back into the building to warn other employees. He also called Kraft's security supervisor, Ms. Rhonda Mowday, on his two-way radio. Mowday asked Ciarlante to confirm with USSA security that Hiller had re-entered the building and had a gun.

         When he did, Mowday told Ciarlante to tell the guards to call 9-1-1.[6]Ciarlante testified that he pursued Hiller and tried to get her to stop. She shot at him and told him to go away. She shot at several other employees as well.

         The trial court found that both USSA guards called 9-1-1 (independently) after several minutes, but that neither ever called Kraft management.[7] (See Trial Court Memorandum, at 1; see also Appellant's brief, at 27; Appellees Brief, at 7).

         The parties vigorously disputed the exact timeline and sequence of events, as well as whether the various clocks on the multiple video surveillance tapes were accurately synchronized. There does not appear to have been a definitive resolution of these questions on the evidence or testimony. The trial court states, without citation to the record, that the parties "agree that approximately eight minutes elapsed" from the time beginning with Hiller's re-entry into the guard shack (8:41 P.M.) to her appearance on the third floor surveillance video (8:49 P.M.). (Trial Court Memorandum, at 17). Appellant does not agree. (See Appellant's Brief, at 72-73) ("The trial court misunderstood the timeline[.]").

         At any rate, after gaining entry at gunpoint Hiller proceeded upstairs to the third floor break room where she confronted the three co-workers, and blamed them for losing her job.[8] Then she shot them. She shot at several other employees and missed. A Philadelphia police SWAT team arrived. Using Ciarlante as a guide to the building lay-out, they approached Hiller. She shot at them, too, before they captured and arrested her.[9]

         Appellees filed separate complaints, which included claims for punitive damages. The two cases were eventually consolidated.[10] (See Order, 5/21/12). Appellant USSA filed preliminary objections. On June 7, 2012, the parties jointly stipulated to the dismissal of the punitive damages count. (See Stipulation to Withdraw, 6/07/12). The parties also agreed to strike the words "reckless, outrageous, intentional and/or wanton" from the relevant paragraphs of the complaints "without prejudice as to Defendant, U.S. Security Associates, Inc. only." (Id.) (emphasis added).

         On the same date, Appellant praeciped the trial court to withdraw its preliminary objections to Appellees' complaints. The praecipe expressly noted that "[a s]tipulation for dismissal for punitive damages without prejudice has been executed by all parties and will be filed with the [c]ourt." (Praecipe to Withdraw Defendant, U.S. Security Associates, Inc.'s Preliminary Objections to Plaintiff's Complaint, 6/07/12) (emphasis added) (capitalization omitted).

         On October 31, 2014, over two years later, and four years after the shooting, successor (and present) counsel for Appellees filed a motion for leave to amend to add punitive damages to the plaintiffs' complaint. (See Plaintiffs' Motion to Amend the Complaint to Add a Claim for Punitive Damages, 10/31/14) (most capitalization omitted). Appellant opposed the motion. (See Response of Defendant U.S. Security Associates, Inc. to Plaintiffs' Motion to Amend Their Complaints to Add a Claim for Punitive Damages, 11/20/14) (most capitalization omitted).

         The first trial began on Tuesday, February 17, 2015.[11] On Monday, February 23, 2015, the trial court granted Appellees' October motion to add punitive damages. The trial had already been in progress for almost a week.

         The parties initially disputed whether Harris called Kraft management. At trial, Mr. Harris testified (again) that he called Carl Rivers, the Kraft supervisor, from the boiler room. On cross-examination, Harris finally conceded that he had lied about calling Rivers, in an effort to protect his job.[12] (See N.T. Trial, 2/17/15 P.M., at 98-99). In his testimony, Mr. Rivers denied that Mr. Harris had called him. (See N.T. Trial, 2/18/15 A.M., at 89).[13]

         The trial court notes that Harris also signed and submitted a false police report (claiming he had called Kraft management), prepared a false Kraft incident report, and testified falsely at both of his pre-trial depositions. (See Trial Court Memorandum, at 13).

         Of note for other claims in this appeal, at trial Appellees also presented the expert testimony of Bennet Omalu, M.D., of Lodi, California. Dr. Omalu was the chief medical examiner of San Joaquin County, California, the president of Bennet Omalu Pathology, and an associate professor of pathology at the University of California-Davis. (See N.T. Trial, 2/20/15 A.M., at 48). The trial court accepted Dr. Omalu "as a qualified expert as a forensic pathologist, a clinical pathologist, and a neuropathologist." (Id.). Counsel for Appellant initially objected, but in the end declined to maintain the objection.[14]

         Based on his review of the medical records, Dr. Omalu testified about the physiological processes which would have occurred in the victims when confronted by Hiller with her handgun, as well as the physical effects of actually being shot. (See id. at 48-96).

         On February 26, 2015, the first jury reached a verdict on compensatory damages. It awarded an aggregate amount of $8, 020, 000 to Appellees.[15] The jury allocated seventy percent of the liability to Hiller and thirty percent to USSA. (See Jury Verdict Slip, 2/26/15, at 1; see also N.T. Trial, 2/26/15, at 34).

         However, the first jury could not reach agreement on whether the USSA guards, Bentley and Harris, acted "outrageously, " precluding an award for punitive damages. (N.T. Trial, 3/03/15, at 3). The trial court dismissed the jury. (See id. at 15).

         A second trial began about three weeks later, on March 23, 2015. The issues presented to the second jury were whether the conduct of the security guards was outrageous, and if so, what amount of punitive damages should be awarded. The trial court informed the second jury that a compensatory award had been made by the first jury, but not the amount or any other details. (See N.T. Trial, 3/23/15 A.M., at 61).

         In the second trial, Appellant wanted to present testimony from Robert M. Toborowsky, M.D., a clinical and forensic psychiatrist, [16] that the acute psychological stress of having a gun pointed at USSA guards Harris and Bentley likely interfered with their judgment and work performance. (See Supplemental Answer to Expert Discovery, 3/20/15).

         The trial court did not permit Dr. Toborowsky to testify, ruling that the defense's submission of him as an expert witness was too late. (See Order, 3/24/15 (citing N.T. Hearing, 3/23/15)). However, the trial court did permit Appellant to re-present the testimony of Appellees/plaintiffs' expert witness, Dr. Omalu, (about the physiological effects of having a gun pointed at the victims) in substitution for the precluded testimony of Dr. Toborowsky.

         The second jury returned a verdict of $38, 512, 600.00 in punitive damages against USSA. (See Punitive Damages Jury Verdict Slip, 3/30/15). This made the total award $46, 532, 600.00, plus interest. (See Trial Worksheet with Attachment, 3/31/15).[17]

         The parties filed various post-trial motions. Notably, Appellant filed a motion for post-trial relief, including a motion for judgment notwithstanding the verdict (JNOV) for both trials, and a motion to mold the verdict.[18] The trial court declined both Appellant's request for a JNOV and Appellees' request to mold the verdict to include "fear and fright" (pre-shooting) damages. These timely cross-appeals followed.[19]

         Appellant nominally presents six questions for our review.[20]

1. Is [Appellant] entitled to JNOV in its favor on [Appellees'] claim for punitive damages, where the trial court allowed [Appellees] to add that claim two years after the statute of limitations expired, and halfway through the trial?
2. Is [Appellant] entitled to JNOV on punitive damages, where the conduct of the security officers under all of the circumstances was insufficient as a matter of law to justify imposing punitive damages against the officers, or vicariously against [Appellant]?
3. Is [Appellant] entitled to a new trial on [Appellees'] claim for punitive damages because of multiple trial errors that unfairly prejudiced [Appellant], including refusing to allow [Appellant] to present its expert on [Appellees'] newly-added claim?
4. Is [Appellant] entitled to a remittitur or new trial on [Appellees'] claim for punitive damages because the punitive damages award was shockingly and unconstitutionally excessive, where the punitive damages were [thirty-six] times higher than [Appellant's] portion of the relevant compensatory award, and USSA's conduct was not reprehensible?
5. Is [Appellant] entitled to JNOV on all issues, because even if the jury could have found negligence, which [Appellant] denies, the evidence was inadequate as a matter of law to find causation?
6. Must the compensatory verdicts in favor of [Appellees] be molded to reflect their joint tortfeasor releases?

(Appellant's Brief, at 6).

         Appellees restate Appellant's issues (albeit in opposition), and present their cross-appeal issues as follows:[21]

USSA's "JNOV" issues:
1. Did [Appellees] introduce sufficient evidence in the first trial that [Appellant] breached a duty of care that caused the deaths of Wilson and Brown?
2. Did [Appellees] introduce sufficient evidence in the second trial that [Appellant's] conduct was outrageous so as to permit punitive damages?
3. Did the trial court act within its discretion by allowing [Appellees] to amend their complaints to seek punitive damages?
USSA's "new trial" issues:
4. Did the trial court permissibly decide that [Appellees] need not re[-]prove causation in the second trial, where causation already had been found by the first jury?
5. Did the trial court act permissibly by not informing the second jury about the first jury's compensatory verdict and prophylactic apportionment of liability?
6. Did the trial court act within its discretion by not permitting expert testimony in the second trial from Dr. Toborowsky given the lateness of his identification?
7. Did the trial court act within its discretion when instructing the second jury on [Appellant's] vicarious liability for its employees' misconduct?
USSA's "damages" issues:
8. Did the trial court properly decline to mold the verdict based either on common-law principles or [Appellees'] releases of Kraft?
9. Did the trial court permissibly decline to remit the verdict under due process principles or Pennsylvania law?
[Appellees'] cross-appeal issues:
10. Did the trial court improperly fail to mold the jury's compensatory verdict so that [Appellant] was liable for the award for pre-shooting assault damages?
11. Did the trial court improperly strike correspondence confirming that [Appellant's] insurance covered punitive damages?

(Appellees' Brief, at 4-5).[22]

         Our standard of review from the denial of JNOV is well-settled:

A JNOV can be entered upon two bases: (1) where the movant is entitled to judgment as a matter of law; and/or, (2) the evidence was such that no two reasonable minds could disagree that the verdict should have been rendered for the movant. When reviewing a trial court's denial of a motion for JNOV, we must consider all of the evidence admitted to decide if there was sufficient competent evidence to sustain the verdict. In so doing, we must also view this evidence in the light most favorable to the verdict winner, giving the victorious party the benefit of every reasonable inference arising from the evidence and rejecting all unfavorable testimony and inference. Concerning any questions of law, our scope of review is plenary. Concerning questions of credibility and weight accorded the evidence at trial, we will not substitute our judgment for that of the finder of fact. If any basis exists upon which the jury could have properly made its award, then we must affirm the trial court's denial of the motion for JNOV. A JNOV should be entered only in a clear case.

Am. Future Sys., Inc. v. Better Bus. Bureau of E. Pa., 872 A.2d 1202, 1215 (Pa. Super. 2005) (citation omitted), affirmed, 923 A.2d 389 (Pa. 2007), cert. denied, 552 U.S. 1076 (2007). Similarly,

Appellate review of a denial of JNOV is quite narrow. We may reverse only in the event the trial court abused its discretion or committed an error of law that controlled the outcome of the case. Abuse of discretion occurs if the trial court renders a judgment that is manifestly unreasonable, arbitrary or capricious; that fails to apply the law; or that is motivated by partiality, prejudice, bias or [i]ll-will.
When reviewing an appeal from the denial of a request for judgment n.o.v., the appellate court must view the evidence in the light most favorable to the verdict[-]winner and give him or her the benefit of every reasonable inference arising therefrom while rejecting all unfavorable testimony and inferences . . . . Thus, the grant of a judgment n.o.v. should only be entered in a clear case and any doubts must be resolved in favor of the verdict[-]winner. Furthermore, [i]t is only when either the movant is entitled to judgment as a matter of law or the evidence was such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant that an appellate court may vacate a jury's finding.

Thomas Jefferson Univ. v. Wapner, 903 A.2d 565, 569 (Pa. Super. 2006) (citations and internal quotation marks omitted). For our review, we accept the trial court's findings of fact which are supported by the record.[23]

It is well-established that parties, by stipulation, may bind themselves on all matters except those affecting jurisdiction and prerogatives of the court. When interpreting a stipulation, courts employ the rules for construction of contracts, with the primary focus placed on ascertaining and giving effect to the intention of the parties. The language of a stipulation, like that of a contract, is construed against the drafter. In construing a stipulation, the court will adopt the interpretation that is the most reasonable and probable, bearing in mind the objects which the parties intended to accomplish through the agreement. The court will not extend the language by implication or enlarge the meaning of terms beyond what is expressed.

Cobbs v. Allied Chem. Corp., 661 A.2d 1375, 1377 (Pa. Super. 1995), appeal denied, 672 A.2d 303 (Pa. 1996) (citations and footnote omitted) (emphasis added).

         In this appeal, Appellant's first issue asserts that the trial court erred and abused its discretion in allowing an amendment to the complaint, after the statute of limitations had expired, to add a claim for punitive damages in the middle of the first trial, notwithstanding the "without prejudice" stipulation of the parties, to its prejudice. (See Appellant's Brief, at 12, 15-25, and passim). We agree.

         Our review of this issue is guided by the following legal principles:

         "Amendments to pleadings are freely allowed under the Pennsylvania Rules of Civil Procedure and it is within the trial court's discretion whether to grant or deny permission to amend. An amendment, however, may not introduce a new cause of action after the applicable statute of limitations has run." Beckner v. Copeland Corp., 785 A.2d 1003, 1005 (Pa. Super. 2001), appeal denied, 805 A.2d 518 (Pa. 2002) (citations omitted) (emphasis added).

         Here, Appellees maintain that a party may amend a pleading at any time. (See Appellees' Brief, at 36). They cite, inter alia, Daley v. John Wanamaker, Inc., 464 A.2d 355, 361 (Pa. Super. 1983). Nonetheless, the Daley court recognized that "[a]mendments to pleadings are freely allowed under the Rules of Civil Procedure. However, an amendment may not introduce a new cause of action after the statute of limitations has run. The reason for this rule is to prevent prejudice to the adverse party." Id. at 361 (emphasis added) (citations and footnote omitted).

         On independent review, we are constrained to conclude that the trial court's decision to permit the addition of a claim for punitive damages in the middle of the first trial was legally incorrect. Quite plainly, and without factual dispute, the statute of limitations had expired.

         Nevertheless, Appellees, tracking the reasoning of the trial court, maintain that reinstatement of the punitive damages claim was not a new cause of action, but merely a revival of an element of damages incident to an existing cause of action. (See Appellees' Brief, at 43) (citing Trial Court Memorandum, 11/16/15, at 52-53). We disagree.

Appellant submits that her proposed amendments to her [c]omplaint would "amplify" and "specifically detail the original causes of action" while also adding a clause seeking punitive damages. These allegations, however, maintain that Appellees acted with "reckless indifference" to the life of Appellant's son and made active "misrepresentations" concerning the program content of [Appellee] to Appellant and the staff of the facility where he was staying prior to his transfer. Such allegations differ greatly from those contained in her [c]omplaint which do no more than allege ordinary negligence. We do not agree that these amendments will act merely as an amplification of the claims Appellant has already made against Appellees, for which we have judged them to be immune. Rather, Appellant is seeking to allege facts which would . . . add another measure of damages.

Willett v. Evergreen Homes, Inc., 595 A.2d 164, 168-69 (Pa. Super. 1991), appeal denied, 600 A.2d 539 (Pa. 1991) (emphases added).

Although amendments to pleadings are freely allowed, an amendment may not introduce a new cause of action after the statute of limitations has run because such may cause prejudice to an adverse party. "A new cause of action does arise . . . if the amendment proposes a different theory or a different kind of negligence than the one previously raised or if the operative facts supporting the claim are changed." Daley [supra at]

361[.] Id. at 169 (two citations omitted).

         In this case, in a self-evident quid pro quo, the parties, through previous counsel, agreed to the withdrawal of Appellant's preliminary objections to Appellees' complaints in exchange for the withdrawal of their punitive damages claim. Counsel jointly stipulated that the words, "reckless, outrageous, intentional and/or wanton, " in paragraph 104 of Plaintiffs' complaint, "are stricken without prejudice as to Defendant, U.S. Security Associates, Inc. only." (Stipulation to Withdraw Specific Allegations in Plaintiff's Complaint, 6/07/12). We remain mindful that:

In construing a stipulation, the court will adopt the interpretation that is the most reasonable and probable, bearing in mind the objects which the parties intended to accomplish through the agreement. The court will not extend the language by implication or enlarge the meaning of terms beyond what is expressed.

Cobbs, supra at 1377 (citations and footnote omitted).

         Two years after the stipulation in this case, Appellees' new counsel sought to introduce an amendment to their complaint, adding a claim for punitive damages. An amendment, however, may not introduce a new cause of action after the applicable statute of limitations has run. See Beckner, supra at 1005; Daley, supra at 361; Willett, supra at 169.

         It is certainly true that the stipulation was "without prejudice." However, it is well-settled that a party which takes a voluntary non-suit even without prejudice must still re-file within the statute of limitations.

         "[W]hen a plaintiff takes a voluntary nonsuit, it is as if the original suit was never initiated. Logically, since the original complaint is treated as if it never existed, the statute of limitations is not tolled by the filing of a complaint subsequently dismissed without prejudice." Williams Studio Div. of Photography by Tallas, Inc. v. Nationwide Mut. Fire Ins. Co., 550 A.2d 1333, 1335-36 (Pa. Super. 1988), appeal denied, 588 A.2d 510 (Pa. 1990) (citation omitted).

         In this appeal, we discern no legal basis on which the strategic withdrawal of one significant cause of action, punitive damages, should be treated differently than our settled controlling authority treats the withdrawal of an entire ...


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