from the Judgment Entered December 10, 2018 In the Court of
Common Pleas of Centre County Civil Division at No(s):
BEFORE: LAZARUS, J., MURRAY, J., and STEVENS [*], P.J.E.
Waite, Jr., ("Waite") and Haranin Construction,
Inc., ("Haranin Construction") (collectively
"Appellants") appeal from the judgment entered on
December 10, 2018,  in the Court of Common Pleas of Centre
County in favor of Seth Nazarak ("Nazarak"). After
a careful review, we affirm.
relevant facts and procedural history are as follows: On June
26, 2016, Nazarak filed a complaint against Appellants, and
in response to Appellants' preliminary objections,
Nazarak filed an amended complaint on July 25,
2016. Therein, Nazarak contended that, on or
about December 10, 2014, Waite was driving a commercial
vehicle owned by his employer, Haranin Construction, and
Nazarak was driving a commercial vehicle owned by his
employer, M & C Trucking Company. Both men were acting
within the course and scope of their employment when the
vehicle being driven by Waite rear-ended the vehicle being
driven by Nazarak, who was stopped at a red traffic signal at
the intersection of Route 22 and Cook Street in Cambria
contended that, as a direct and proximate result of the
accident, he sustained serious injury. Accordingly, he
presented claims of negligence against Waite, vicarious
liability against Haranin Construction, and negligent
entrustment against Haranin Construction. On September 15,
2016, Appellants filed an answer with new matter to
Nazarak's amended complaint, and on October 5, 2016,
Nazarak filed a reply to the new matter.
September 14, 2017, Appellants filed a motion to compel an
independent medical examination, and on October 17, 2017, the
parties agreed upon a consent order for Nazarak to submit to
an independent medical examination with Appellants'
expert, J. William Bookwalter, III, M.D.
4, 2018, Appellants filed several motions in limine.
Relevantly, Appellants filed motions in limine
seeking to limit Nazarak's medical damages evidence
solely to the amount paid by workers' compensation and
the Department of Public Welfare, preclude evidence of
compromise and release and limit Nazarak's wage loss to
the amount of indemnity benefits paid by workers'
compensation, and preclude Charles J. Harvey, D.O., from
testifying based on opinions and reports authored by a
non-testifying expert. Nazarak filed a reply in opposition to
Appellants' motions in limine, and the trial
court denied the motions in limine indicated
both parties filed proposed jury instructions, and Appellants
additionally filed supplemental proposed jury instructions.
The case proceeded to a jury trial, at the conclusion of
which the jury answered "yes" to the question:
"Was the negligence of Rubin Waite, Jr. and Haranin
Construction, Inc. a factual cause of any harm to Seth
Nazarak?" Jury Verdict Sheet, filed 6/21/18. Further,
the jury answered "$750, 000" to the question:
"State the amount of damages, if any, sustained by Seth
Nazarak as a result of the accident." Id.
filed timely post-trial motions, to which Nazarak filed a
reply in opposition. By opinion and order entered on October
15, 2018, the trial court denied Appellants' post-trial
motions. Appellants filed a notice of appeal on November 13,
2018. On that same date, the trial court directed Appellants
to file a Pa.R.A.P. 1925(b) statement, Appellants timely
complied, and the trial court filed a brief statement
referring this Court to its October 15, 2018, opinion.
Thereafter, as indicated supra, judgment was entered
against Appellants and in favor of Nazarak.
appeal, Appellants present the following issues for our
A. WHETHER THE COURT MADE EVIDENTIARY ERRORS
REQUIRING A NEW TRIAL IN PERMITTING EVIDENCE OF
PLAINTIFF'S WORKERS' COMPENSATION LIEN AT
1. Whether the trial court erred in permitting evidence of
Plaintiff's workers' compensation lien at trial as it
is an inadmissible collateral source, permitted a double
recovery and usurped the function of the jury by valuing the
case and prejudicing the Defendants?
2. Whether a new trial should be awarded as the trial court
erred in permitting evidence of Plaintiff's workers'
compensation compromise and release at trial as evidence of
settlements are inadmissible at trial and its introduction
valued the case for the jury prejudicing the Defendants?
3. Whether a new trial should be awarded as the trial court
erred in refusing to issue Defendants' supplemental jury
points for charge 1 and 3 to provide the jury with a full
understanding of Plaintiff's duty to repay the
workers' compensation lien misleading the jury and
prejudicing the Defendants?
B. WHETHER THE COURT MADE EVIDENTIARY ERRORS
REQUIRING A NEW TRIAL BASED UPON EXPERT TESTIMONY PERMITTED
AND EXCLUDED AT TRIAL?
4. Whether a new trial should be awarded as Plaintiff's
vocational expert Celia Evans testified outside the scope of
her expert report prejudicing the Defendants?
5. Whether a new trial should be awarded as the expert report
and opinions of non-testifying expert Dr. Brooks were
permitted to be introduced at trial prejudicing the
6. Whether a new trial should be awarded for precluding the
testimony of Plaintiff's expert Dr. Rundorff that
Plaintiff's lumbar spine could have been in the same
condition prior to the at-issue accident prejudicing the
C. WHETHER THE COURT MADE EVIDENTIARY ERRORS
REQUIRING A NEW TRIAL BY PERMITTING IMPROPER REFERENCES AT
7. Whether a new trial should be awarded based upon
Plaintiff's counsel's improper reference in his
closing argument to the fact that the Defendants did not
produce a vocational or economic expert as their figures if
presented would have been large prejudicing the Defendants?
8. Whether a new trial should be awarded based upon
Plaintiff's counsel's solicitation of testimony
regarding the brake failure of the at-issue truck from
Defendant Waite after Defendants had already admitted
negligence prejudicing the Defendants?
Appellants' Brief at 11-12 (suggested answers omitted)
(bold in original).
issue "A," Appellants present three sub-issues
related to evidence regarding Nazarak's receipt of
workers' compensation benefits. Specifically, they
contend the trial court erred in permitting evidence that
Nazarak received workers' compensation benefits,
permitting evidence of Nazarak's compromise and release
with regard to his workers' compensation claim, and
failing to give Appellants' supplemental points for
charge numbers 1 and 3.
regard to their first sub-issue, Appellants contend the trial
court erred in admitting evidence that Nazarak received
workers' compensation benefits, which Nazarak would have
to repay in the event of a recovery in the instant
case. Id. at 31. Specifically,
Appellants assert the evidence regarding the existence of the
workers' compensation lien violated the "collateral
source rule." Id. at 33. They further assert
the evidence of the workers' compensation lien confused
and misled the jury into believing that, since such benefits
were paid to Nazarak, his injuries "must have been
caused by the at-issue accident[, ]" thus usurping the
function of the jury. Id. at 35. Finally, they
suggest the evidence of the workers' compensation lien
permitted a "double recovery" by Nazarak.
Id. at 38.
admission or exclusion of evidence is within the sound
discretion of the trial court. In reviewing a challenge to
the admissibility of evidence, we will only reverse a ruling
by the trial court upon a showing that it abused its
discretion or committed an error of law." Schmidt v.
Boardman Co., 958 A.2d 498, 516 (Pa.Super. 2008)
An abuse of discretion may not be found merely because an
appellate court might have reached a different conclusion,
but requires a result of manifest unreasonableness, or
partiality, prejudice, bias, or ill-will, or such lack of
support so as to be clearly erroneous. In addition, to
constitute reversible error, an evidentiary ruling must not
only be erroneous, but also harmful or prejudicial to the
Jacobs v. Chatwani, 922 A.2d 950, 960 (Pa.Super.
addressing Appellants' first sub-issue, the trial court
relevantly indicated the following:
The collateral source rule provides that payments from a
collateral source shall not diminish the damages recoverable;
the rule was intended to avoid precluding a party from
obtaining redress for injuries merely because coverage was
provided by a collateral source. Nigra v. Walsh, 797
A.2d 353, 356 [(Pa.Super. 2002)]. A plaintiff is prevented
from introducing evidence about the lack of workers'
compensation during trial due to the possibility of creating
sympathy. Hileman v. Pittsburgh and Lake Erie R.
Co., 546 Pa. 433, 685 A.2d 994, 999 (1996).
Specifically, "it has never appeared necessary to negate
any assumption that there is workers' compensation (or
subrogation for that matter) in actions by employees against
third parties for injuries that occur on the job."
Workers' compensation gives employers the right of
subrogation when the employer made payments as a result of
negligence by a third party. Liberty Mutual Ins. Co. v.
Domtar Paper Co., 77 A.3d 1282, 1289 [(Pa.Super. 2013)].
The purpose of subrogation is to prevent double recovery for
the same injury,  relieve employers of liability for third
party's negligence, and prevent negligent parties from
escaping liability. Young v. W.C.A.B. (LGB
Mechanical), 976 A.2d 627, 630 (Pa.Commw. 2009).
The evidence that was presented was not presented to preclude
Plaintiff [Nazarak] from recovering; Plaintiff [Nazarak] will
not receive double pay. Workers' compensation is not a
collateral source because the lien must be paid back, as the
stated purpose of allowing subrogation of claims by the
employer is to prevent workers' compensation from being a
collateral source. Additionally, the jury was not influenced
by the introduction of the testimony, as the existence of a
workers' compensation lien does not imply causation in
this case, particularly since [Appellants] admitted liability
and the issue was damages.
Trial Court Opinion, filed 10/15/18, at 2-3 (citation
conclude the trial court did not abuse its discretion in this
regard. As this Court has recognized:
The collateral source rule, which is intended to protect tort
victims, "provides that payments from a collateral
source shall not diminish the damages otherwise recoverable
from the wrongdoer." Thus, this rule "prohibits a
defendant in a personal injury action from
introducing evidence of the plaintiff's receipt of
benefits from a collateral source for the same injuries which
are alleged to have been caused by the defendant."
Simmons v. Cobb, 906 A.2d 582, 585 (Pa.Super. 2006)
(citations and footnote omitted) (emphasis added). Further,
as our Supreme Court has recognized, this rule "was
intended to avoid precluding a [plaintiff] from obtaining
redress for his or her injury merely because coverage for the
injury was provided by some collateral source, e.g.
insurance." Beechwoods Flying Service, Inc.
v. Al Hamilton Contracting Corp., 504 Pa. 618, 476 A.2d
350, 352 (1984). See Denardo v. Carneval, 444 A.2d
135, 140 (Pa.Super. 1982) ("Pennsylvania law is clear;
the victim of a tort is entitled to the damages caused by the
tortfeasor's negligence regardless of compensation the
victim receives from other sources.").
present case, it was Nazarak, the plaintiff below, who wanted
the jury to know that he had received the workers'
compensation benefits. Thus, the purpose underlying the
collateral source rule-protection of the plaintiff and
prevention of a benefit to the alleged wrongdoer-simply was
not implicated. See Simmons, supra.
Accordingly, the trial court did not abuse its discretion in
its application of the collateral source rule.
there is no dispute that Nazarak will have to repay the
workers' compensation lien from the damages awarded by
the jury. See Liberty Mutual Ins. Co.,
supra (noting an employer/workers' compensation
carrier may seek subrogation or reimbursement out of a tort
recovery by an injured claimant). In such a case, this Court
has held that an injured claimant may "plead, prove, and
recover" the amount paid by the workers'
compensation carrier. See Ricks v. Nationwide Ins.
Co., 879 A.2d 796 (Pa.Super. 2005).
we note that, because Nazarak will have to repay the
workers' compensation lien, there is no risk of
"double recovery" as alleged by Appellants, and the
jury was free to determine what impact, if any, the payment
of such benefits had on its finding of factual causation and
damages. See Dale Mfg. Co. v. Bressi, 491 Pa. 493,
421 A.2d 653 (1980) (holding where there is subrogation in
workers' compensation matters, there is no double
recovery when the claimant recovers for negligence against a
third party); Matheny v. West Shore Country Club,
648 A.2d 24 (Pa.Super. 1994) (holding it is within the
exclusive province of the jury, as factfinder, to hear
evidence on damages and decide what amount fairly compensates
the plaintiff). Accordingly, we conclude the trial court
did not abuse its discretion in permitting Nazarak to
introduce evidence of the workers' compensation lien in
his pursuit of damages.
regard to their next sub-issue, Appellants contend the trial
court erred in admitting evidence of Nazarak's compromise
and release with regard to his workers' compensation
claim. Specifically, Appellants aver the evidence of the
compromise and release violated 42 Pa.C.S.A. § 6141,
pertaining to the inadmissibility of settlement
6141 of the Judicial Code provides, in relevant part, the
§ 6141. Effect of certain settlements
(a) Personal injuries.--Settlement with or
any payment made to an injured person or to others on behalf
of such injured person with the permission of such injured
person or to anyone entitled to recover damages on account of
injury or death of such person shall not constitute an
admission of liability by the person making the payment or on
whose behalf the payment was made, unless the parties to such
settlement or payment agree to the contrary.
(c) Admissibility in evidence.--Except in an
action in which final settlement and release has been pleaded
as a complete defense, any settlement or payment referred to
in subsections (a) and (b) shall not be admissible in evidence on
the trial of any matter.
42 Pa. C.S.A. § 6141(a), (c) (bold in original)
to an analysis of 42 Pa.C.S.A. § 6141, the clear and
unambiguous words of Subsection (a) provide that settlement
with or any payment to an injured person is not
"an admission of liability by the person making
the payment or on whose behalf the payment was
made[.]" 42 Pa.C.S.A. § 6141(a) (bold
added). See Hatfield v. Continental Imports, Inc.,
530 Pa. 551, 610 A.2d 446, 451 (1992) (holding the rules of
statutory construction are used to interpret Section 6141).
case sub judice, there is no dispute that the
"settlement" at issue (the workers'
compensation compromise and release) was not made by
Appellants, and Appellants were not in any way a party to the
settlement. Rather, the settlement was made between Nazarak
and his employer/employer's workers' compensation
carrier, Liberty Mutual. Thus, according to the plain
language of Subsection 6141(a), while the settlement does not
constitute an admission of liability by Nazarak's
employer or Liberty Mutual, it has no effect on the liability
of Appellants (the third party tortfeasors). 1 Pa.C.S.A.
§ 1903 (indicating words and phrases are given their
common and approved usage); 1 Pa.C.S.A. § 1921
(indicating when words are clear and free from ambiguity they
may not be disregarded).
as the trial court noted, Subsection (c) indicates that a
settlement referred to in Subsection (a) "shall
not be admissible in evidence on the trial of any
matter." 42 Pa.C.S.A. § 6141(c) (bold
added). Accordingly, when Subsections (a) and (c) are read
together, arguably, the settlement at issue was not
admissible in the instant trial.
to the extent the trial court erred in permitting Nazarak to
enter into evidence the fact he settled his workers'
compensation claim, we agree with the trial court that the
error does not constitute reversible error. As the trial
court cogently indicated:
[Appellants] admitted liability before the trial began and
the issue remaining was damages. The existence of the
[compromise] and release was not used to improperly imply
liability but rather was used to show damages by [Nazarak],
and that he was no longer employed. There was no prejudice to
[Appellants] due to [Appellants'] acceptance of
liability. The jury was not instructed they were bound by the
figure [contained in the compromise and release] but were
free to accept the evidence as it was presented.
The improper admission of a settlement agreement into
evidence does not necessarily constitute reversible error. To
constitute reversible error, a ruling on evidence or an
instruction to a jury must be shown not only to have been
erroneous but harmful to the party complaining. The
harm inflicted upon the defendant from the introduction of a
settlement into evidence results from the jury's tendency
to improperly construe a legal settlement as an admission by
the settling party to liability. Rochester Mach. Corp. v.
Mulach Steel Corp., 498 Pa. 545, 549, 449 A.2d 1366,
1368 (1982). The admission of a settlement agreement
prejudices the plaintiff by resulting in a lower damage
award, because the jury may improperly infer that the
plaintiff has already been compensated for his or her
[Appellants] argue that by introducing the figure used by
Liberty Mutual to calculate [Nazarak's] damages in the
settlement, the fact-finding role of the jury was usurped.
[Appellants] argue the jury simply used Liberty Mutual's
figures for damages, rather than making an independent
finding of damages. The settlement agreement was not
prejudicial in that regard. The jury, as fact-finder, is
entitled to give as much or as little weight, if any at all,
to any piece of evidence that is so desires, and was
instructed as such at trial. There is simply no factual or
legal basis to support the conclusion that the jury copied
Liberty Mutual's damage calculations into the verdict.
Trial Court Opinion, filed 10/15/18, at 4-5 (citations,
quotation marks, and quotations omitted) (emphasis in
agree with the trial court's reasoning and, consequently,
conclude that a new trial is not warranted as to this issue.
Ettinger v. Triangle-Pacific Corp., 799 A.2d 95, 110
(Pa.Super. 2002) ("To constitute reversible error, an
evidentiary ruling must not only be erroneous, but also
harmful or [unduly] prejudicial to the complaining
regard to their next sub-issue, Appellants argue the trial
court erred in refusing to give the jury Appellants'
proposed supplemental jury instructions numbers 1 and 3.
Specifically, Appellants contend the trial court's
failure to give the proposed supplemental jury instructions
improperly resulted in the jury believing "that Liberty
Mutual was owed the full lien amount regardless of the case
outcome and that [Nazarak] personally would owe that
amount." Appellants' Brief at 57. They also suggest
the trial court's instruction did not ...