KHAALID AMIR WILSON AND GABRIEL DESHAWN WILSON, CO-ADMINISTRATORS OF THE ESTATE OF TANYA RENEE WILSON, DECEASED
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
U.S. SECURITY ASSOCIATES, INC. AND YVONNE HILLER Appellees PAUL MASCIANTONIO, ESQUIRE, ADMINISTRATOR OF THE ESTATE OF LATONYA BROWN, DECEASED
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
U.S. SECURITY ASSOCIATES, INC. AND YVONNE HILLER Appellees
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. [*]
consolidated appeals arise out of jury verdicts finding civil
liability, including punitive damages, against Appellant,
U.S. Security Associates, Inc. (USSA), and Yvonne
Hiller. 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 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. We affirm in part and
reverse in part.
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. 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.
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.
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
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).
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).
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.
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).
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.
did, Mowday told Ciarlante to tell the guards to call
9-1-1.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.
trial court found that both USSA guards called 9-1-1
(independently) after several minutes, but that neither ever
called Kraft management. (See Trial Court Memorandum,
at 1; see also Appellant's brief, at 27;
Appellees Brief, at 7).
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[.]").
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
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
filed separate complaints, which included claims for punitive
damages. The two cases were eventually
consolidated. (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.)
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)
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).
first trial began on Tuesday, February 17,
2015. 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
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. (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).
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).
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.
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).
February 26, 2015, the first jury reached a verdict on
compensatory damages. It awarded an aggregate amount of $8,
020, 000 to Appellees. 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).
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).
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).
second trial, Appellant wanted to present testimony from
Robert M. Toborowsky, M.D., a clinical and forensic
psychiatrist,  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,
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.
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).
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. 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
nominally presents six questions for our
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
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']
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
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).
restate Appellant's issues (albeit in opposition), and
present their cross-appeal issues as follows:
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
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
(Appellees' Brief, at 4-5).
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
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
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).
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.
review of this issue is guided by the following legal
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).
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).
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.
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).
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
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
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.
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).
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