Carlini, S. v. Glenn O. Hawbaker, Inc.

J-A02039-19

2019 PA Super 282

SUSAN CARLINI : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

GLENN O. HAWBAKER, INC. :

:

Appellant : No. 814 MDA 2018

Appeal from the Judgment April 20, 2018

In the Court of Common Pleas of Centre County Civil Division at No(s):

2016-3583

SUSAN CARLINI : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

:

v. :

:

:

GLENN O. HAWBAKER, INC. : No. 879 MDA 2018

Appeal from the Judgment April 20, 2018

In the Court of Common Pleas of Centre County Civil Division at No(s):

2016-3583

BEFORE: LAZARUS, J., DUBOW, J., and NICHOLS, J.

OPINION BY NICHOLS, J.: FILED SEPTEMBER 13, 2019

Appellant/Cross-Appellee Glenn O. Hawbaker, Inc. (Hawbaker) and

Appellee/Cross-Appellant Susan Carlini (Carlini) appeal from the judgment

entered in favor of Carlini in her actions for wrongful discharge and invasion

of privacy. Hawbaker challenges various evidentiary rulings and the amount

of damages awarded by the jury. Carlini argues that the trial court erred in

refusing to instruct the jury that it could award non-economic compensatory

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damages for the wrongful discharge claim. We affirm the jury’s verdict as to

Hawbaker’s liability for Carlini’s wrongful discharge and invasion of privacy

claims. We also affirm the compensatory damages awarded for the invasion

of privacy claim and the economic damages awarded for the wrongful

discharge claim. Nevertheless, we vacate the judgment and remand for a new

trial limited to the issues of punitive damages and the non-economic damages

for the wrongful discharge claim.

The relevant facts and procedural history of this appeal are as follows.

Hawbaker employed Carlini as a heavy equipment operator for twenty-four

years. On April 7, 2016, Carlini suffered an on-the-job injury while clearing a

downed tree from a roadway. Carlini sought workers’ compensation benefits

in June 2016.

On June 15, 2016, Carlini attended an appointment with Dr. Christopher

Varacallo, a physician on Hawbaker’s workers’ compensation panel. As a

member of the panel, Dr. Varacallo was approved to see Hawbaker’s

employees who suffer on-the-job injuries. Dr. Varacallo diagnosed Carlini with

sacroiliac joint pain, acute low back pain, acute left knee pain, and sacroiliitis.

Dr. Varacallo approved Carlini for regular activity, and he permitted her to

return to work, without restrictions, on June 16, 2016. Dr. Varacallo also

ordered Carlini to return to his office for a follow-up appointment on June 30,

2016.

On June 22, 2016, Hawbaker ordered Carlini to travel to Ohio to operate

a “rock truck” at a construction site. Carlini had not operated a rock truck

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since suffering her injuries, and she informed her supervisor that she would

be unable to operate the vehicle due to the pain from her injuries. Hawbaker

sent Carlini home and warned her that it would consider her refusal to accept

the assignment as an act of insubordination.

Carlini immediately called Dr. Varacallo’s office to inform him about her

concerns over the work assignment. After the phone call, Dr. Varacallo

electronically signed a work status note stating:

Work Restrictions:

The patient is permitted to engage in sedentary work activities,

which means walking or standing only occasionally, lifting 10

pounds maximum and frequent lifting or carrying of objects such

as small tools.

Comments:

Sedentary duty until re-evaluated after EMG. Please allow

position changes. [Follow-up appointment] 6/30/16 @ 3:15pm.

R.R. at 1385a.1

Also on June 22, 2016, Dr. Varacallo’s office forwarded the new work

status restriction to Ashlee Thompson, the medical case manager working with

Hawbaker to coordinate Carlini’s medical care for the workers’ compensation

claim. Thompson then informed Hawbaker about the work status restriction.

Hawbaker personnel responded by asking Thompson to call Dr. Varacallo’s

office and request that Carlini’s work status not be changed until after the

doctor evaluated Carlini at the follow-up appointment.

____________________________________________

1 We cite to the documents contained in the reproduced record for the

convenience of the parties.

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At approximately 3:00 p.m. that same day, Thompson contacted Dr.

Varacallo’s office to insist that the doctor conduct the follow-up appointment

before changing Carlini’s work status. The doctor’s office acquiesced and

changed Carlini’s follow-up appointment to June 23, 2016 at 10:15 a.m. The

doctor’s office also voided the sedentary duty restriction pending the results

of the follow-up appointment.

After learning about the new appointment time, Hawbaker contacted

Carlini and informed her that she needed to attend a meeting at Hawbaker’s

office at 8:00 a.m. the next morning, before going to the follow-up

appointment. Carlini attended the 8:00 a.m. meeting, at which time

Hawbaker terminated her for insubordination.

On September 23, 2016, Carlini filed a complaint against Hawbaker,

raising a wrongful discharge claim. The complaint alleged that Hawbaker fired

Carlini in retaliation for exercising her workers’ compensation rights. Carlini

filed an amended complaint on March 6, 2017, which included an invasion of

privacy claim. In the amended complaint, Carlini alleged that Hawbaker

violated her privacy rights by contacting Dr. Varacallo to change the date of

her follow-up appointment.2

____________________________________________

2 After Carlini filed her complaints, the parties entered into a “compromise and

release” agreement to settle Carlini’s workers’ compensation claim for

$52,500. The agreement included a lump-sum payment of $40,500. The

agreement also contained the following language regarding Carlini’s other

claims against Hawbaker:

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The parties subsequently filed pretrial motions in limine to address

various evidentiary issues. Among other things, Hawbaker sought to bifurcate

the trial and preclude evidence of its net worth, unless the jury determined

that punitive damages were warranted. Carlini sought to prelude evidence of

the compromise and release agreement, which she deemed irrelevant to her

claims. The trial court denied Hawbaker’s motion in limine and granted

Carlini’s motion in limine.

Prior to trial, the parties also submitted proposed jury instructions.

Carlini requested that the trial court instruct the jury about the awarding of

non-economic damages for the wrongful discharge claim. Specifically, Carlini

wanted the trial court to instruct the jury that if it found in her favor on the

wrongful discharge claim, Carlini was entitled “to be compensated for the

suffering, inconvenience, embarrassment and mental anguish she has

endured and will endure as a result of her termination.” R.R. at 760a.

____________________________________________

The parties agree and understand that this Compromise & Release

Agreement in no way releases [Hawbaker] from any claims,

liability and/or causes of action related to [Carlini’s] employment

other than workers’ compensation benefits. This Compromise &

Release Agreement shall have no effect on the lawsuit currently

filed in the Court of Common Pleas of Centre County . . . or the

claim filed by [Carlini] with the Equal Employment Opportunity

Commission, or any other claim of wrongful termination or

employment discrimination as [Carlini] does not release or

compromise any such claims, causes of action or lawsuits by

entering into this Agreement.

R.R. at 72a.

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Hawbaker objected to Carlini’s proposed jury instruction, and the trial court

sustained Hawbaker’s objection.

The matter proceeded to a jury trial on December 18, 2017. On

December 20, 2017, the jury found in favor of Carlini on both her wrongful

discharge and invasion of privacy claims. In a special interrogatory, the jury

determined that Carlini’s filing of a workers’ compensation claim was the

factual cause of her firing. The jury also determined that Hawbaker’s invasion

of privacy was a factual cause of harm to Carlini. For the wrongful discharge

claim, the jury awarded economic damages (lost wages and benefits) in the

amount of $260,095.68, and punitive damages in the amount of $1,000,000.

For the invasion of privacy claim, the jury awarded no compensatory damages

and punitive damages in the amount of $1,000,000.

Both parties filed post-trial motions. Hawbaker’s motion argued that

the trial court erred by (1) refusing to grant bifurcation; (2) precluding

evidence of the parties’ compromise and release agreement; (3) admitting

evidence of Hawbaker’s net worth;3 and (4) failing to mold the verdict to

____________________________________________

3 Regarding the evidence of its net worth, Hawbaker challenged Carlini’s

examination of its regional vice president, Michael Hall. Specifically, Carlini

questioned Hall about Hawbaker’s 2015-2016 financial statement, which the

trial court admitted as Exhibit 53. Hawbaker objected to Hall testifying about

the information in the financial records, claiming that Hall was not qualified to

discuss Hawbaker’s finances. R.R. at 1077a-78a. Hawbaker also claimed that

its accounting firm, Baker Tilly, prepared the financial records, and Carlini

should have presented a Baker Tilly accountant to authenticate the financial

records prior to admission. Id. at 1078a-79a. The court overruled

Hawbaker’s objections. Id. at 1080a. Thereafter, Hall read numbers from

the financial records indicating Hawbaker’s net worth. Id. at 1081a-82a.

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reflect the amount of the workers’ compensation settlement. Hawbaker also

claimed that the jury’s award of $2,260,095.68 “was excessive and shocks

the judicial conscience and is so palpably and shockingly offensive as to

warrant a substantial remittitur.” R.R. at 1634a. Hawbaker requested relief

in the form of (1) a new trial; (2) remittitur; (3) an order molding the verdict;

and (4) any “further and different relief as the [trial c]ourt deems just and

proper.” Id. at 1613a.

Carlini’s post-trial motion complained that the trial court failed to

provide a jury instruction concerning non-economic damages incurred as a

result of the wrongful discharge. Carlini also asserted that the jury

interrogatories should have included a line for the jury to award non-economic

damages for the wrongful discharge. Carlini concluded that she was “entitled

to a new trial solely to determine the amount of non-economic damages

caused by [Hawbaker’s] wrongful discharge.” Id. at 1747a.

By opinion and order entered April 13, 2018, the trial court denied the

parties’ post-trial motions. On April 20, 2018, Carlini filed a praecipe for entry

of judgment on the jury’s verdict. Hawbaker timely filed a notice of appeal on

May 17, 2018. On May 24, 2018, Carlini timely filed her notice of cross-

appeal. The parties timely filed court-ordered Rule 1925(b) concise

statements of errors complained of on appeal. The trial court did not file a

responsive opinion. Instead, the trial court relied on its prior opinions

disposing of the parties’ pretrial and post-trial motions.

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At docket number 814 MDA 2018, Hawbaker raises six issues on appeal

that we have reordered as follows:

1. Did the trial court commit reversible error by denying

Hawbaker’s in limine motion to bifurcate the trial (even on a

limited basis) and to preclude Carlini from introducing evidence of

Hawbaker’s net worth unless and until the jury determined

punitive damages were warranted?

2. Did the trial court commit reversible error by denying

Hawbaker’s post-trial request to mold the compensatory damages

award to reflect those amounts paid to Carlini under her workers’

compensation settlement?

3. Did the trial court commit reversible error by precluding

Hawbaker from introducing evidence of a workers’ compensation

settlement entered into by the parties at trial after Carlini “opened

the door?”

4. Did the trial court commit reversible error by overruling

Hawbaker’s objection at trial to the introduction of its financial

condition through impermissible hearsay documents and a witness

who lacked sufficient personal knowledge to establish a

foundation?

5. Did the trial court commit reversible error by denying

Hawbaker’s request for post-trial relief from the jury’s punitive

damages award that shocks the conscience, is unconstitutionally

excessive under federal law and Pennsylvania law, and could only

be the result of passion and prejudice?

6. Did the trial court commit reversible error by denying

Hawbaker’s post-trial request for remittitur of the jury verdict

based on a punitive damages award that shocks the conscience,

is unconstitutionally excessive under federal law and Pennsylvania

law, and could only be the result of passion and prejudice?

Hawbaker’s Brief at 6-7.

In its first issue, Hawbaker claims that evidence of its net worth “served

no legitimate purpose to either party (or the jury) during the liability phase of

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trial.” Id. at 32. Hawbaker asserts that evidence of its net worth “could only

prejudice the jury into making a decision based on Hawbaker’s ability to pay,”

and such evidence became relevant only after liability was established. Id. at

33. Hawbaker also complains that the court’s failure to bifurcate “allow[ed]

Carlini to introduce and discuss Hawbaker’s financial condition whenever it

served her best[,] without any regard to its irrelevance or prejudicial impact.”

Id. Hawbaker emphasizes that Carlini’s references to Hawbaker’s net worth,

particularly during opening statements, served “the sole purpose of anchoring

the jury and inciting passion before Hawbaker could even begin to defend

itself.” Id. at 34. For these reasons, Hawbaker insists that the trial court

should have granted its request to bifurcate the proceedings. Id. at 37.

“The decision whether to bifurcate is entrusted to the sound discretion

of the trial court, which is in the best position to evaluate the necessity for

such measures. Thus, the appellate court must determine if the trial court’s

bifurcation decision is a reasonable exercise of its discretion in this respect.”

Castellani v. Scranton Times, L.P., 161 A.3d 285, 297 (Pa. Super. 2017)

(citations and quotation marks omitted). “An abuse of discretion generally

will not be found unless there is a showing of manifest unreasonableness, or

partiality, prejudice, bias, or ill-will, or such lack of support as to be clearly

erroneous.” Krishnan v. Cutler Grp., Inc., 171 A.3d 856, 899 (Pa. Super.

2017) (citation omitted).

“The court, in furtherance of convenience or to avoid prejudice, may, on

its own motion or on motion of any party, order a separate trial of any cause

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of action, claim, or counterclaim, set-off, or cross-suit, or of any separate

issue . . . .” Pa.R.C.P. 213(b). “Our Supreme Court has observed that

bifurcation should be carefully and cautiously applied and be utilized only in a

case and at a juncture where informed judgment impels the court to conclude

that application of the rule will manifestly promote convenience and/or

actually avoid prejudice.” Castellani, 161 A.3d at 297 (citation and quotation

marks omitted).

“In determining whether to bifurcate a trial, the trial judge should be

alert to the danger that evidence relevant to both issues may be offered at

only one-half of the trial. This hazard necessitates the determination that the

issues of liability and damages are totally independent prior to bifurcation.”

Stevenson v. General Motors Corp., 521 A.2d 413, 419 (Pa. 1987).

Instantly, the trial court explained its denial of Hawbaker’s request for

bifurcation as follows:

The [c]ourt found that the knowledge of [Hawbaker’s]

corporation, including the size and general hierarchy of the

corporation, the number of employees, their available resources,

and net worth were significantly more relevant than prejudicial for

the jury to determine whether [Hawbaker] acted intentionally in

this matter. Particularly, evidence of [Hawbaker’s] available

resources and overall net worth would allow the jury to determine

if [Hawbaker] intentionally handled the matter as [Carlini] alleged

despite knowing other options were available. Furthermore, any

possible prejudice of allowing a statement of net worth was

lessened when the jury was presented with other evidence of

[Hawbaker’s] wealth, including the territorial scope of its

operations, number of employees, a salary for an average

employee, and discussion of the equipment owned by

[Hawbaker].

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Op. and Order, 4/13/18, at 6-7.

Here, the trial court analyzed the evidence regarding Hawbaker’s net

worth and determined that such evidence was relevant. See Stevenson, 521

A.2d at 419. We acknowledge that evidence of Hawbaker’s financial resources

provided additional context for the scope and sophistication of Hawbaker’s

business operations, which could assist the jury in determining the validity of

Carlini’s wrongful discharge claim. Further, Hawbaker has not demonstrated

that the admission of this evidence resulted in prejudice as to the jury’s

findings on liability, particularly where other evidence provided ample support

for the verdict on Carlini’s underlying claims. See Castellani, 161 A.3d at

297. On this record, Hawbaker has not established that the trial court’s

decision to forego bifurcation was an unreasonable exercise of its discretion.4

Id.

In its second and third issues, Hawbaker contends that the trial court

“abused its discretion by granting Carlini’s motion in limine and precluding

Hawbaker from introducing evidence of the [c]ompromise and [r]elease at

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4 Moreover, the trial court instructed the jury that it could consider Hawbaker’s

wealth in determining the amount of punitive damages “insofar as it’s relevant

in fixing an amount that will punish it and deter it and others from like conduct

in the future.” R.R. at 1281a. This instruction was consistent with the relevant

law concerning punitive damages. See Sprague v. Walter, 656 A.2d 890,

923 (Pa. Super. 1995) (holding that the trial court did not err in permitting

the plaintiff to introduce stipulated evidence of the defendant’s net worth

during the liability phase of a trial where the plaintiff sought punitive damages;

approving of a jury instruction on punitive damages that stated, “[Y]ou may

award punitive damages as well as any compensatory damages in order to

punish the defendant for his conduct and to deter the defendant and others

from the commission of like acts”).

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trial.” Hawbaker’s Brief at 47. Hawbaker asserts that the court “compounded

that error at trial when it acknowledged that Carlini had ‘opened the door’ to

the [c]ompromise and [r]elease becoming relevant, only to again preclude

Hawbaker from introducing it into the record.” Id.

Hawbaker insists that the trial court should have allowed it to inform the

jury that Carlini agreed to a lump-sum payment as compensation for lost

wages, which “are the same exact lost wages the jury awarded Carlini after

it concluded that Hawbaker had wrongfully terminated her employment.” Id.

at 47-48 (emphasis in original). Hawbaker concludes the trial court “abused

its discretion and [denied] Hawbaker the opportunity to introduce that

relevant evidence at trial so as to provide the jury with a complete story about

Carlini’s workers’ compensation claim.” Id. at 48. Further, Hawbaker

requests that “this Court reverse the trial court order denying its request to

mold the verdict and enter an order molding Carlini’s compensatory damages

award to reflect the $40,500-lump-sum as a setoff.” Id. at 50.

“Admission of evidence is within the sound discretion of the trial court

and a trial court’s rulings on the admission of evidence will not be overturned

absent an abuse of discretion or misapplication of law.” Maisano v. Avery,

204 A.3d 515, 523 (Pa. Super. 2019) (citation omitted). “To constitute

reversible error, a ruling on evidence must be shown not only to have been

erroneous but harmful to the party complaining.” Brown v. Halpern, 202

A.3d 687, 708 (Pa. Super. 2019) (citation omitted).

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“Admissibility depends on relevance and probative value. Evidence is

relevant if it logically tends to establish a material fact in the case, tends to

make a fact at issue more or less probable or supports a reasonable inference

or presumption regarding a material fact.” Smith v. Morrison, 47 A.3d 131,

137 (Pa. Super. 2012) (citation omitted).

Evidence, even if relevant, may be excluded if its probative value

is outweighed by the potential prejudice.

Unfair prejudice supporting exclusion of relevant evidence means

a tendency to suggest decision on an improper basis or divert the

jury’s attention away from its duty of weighing the evidence

impartially. The function of the trial court is to balance the alleged

prejudicial effect of the evidence against its probative value and it

is not for an appellate court to usurp that function.

Id. (citations and quotation marks omitted).

Additionally, “It is well settled that a trial court in this Commonwealth

has the power to mold a jury’s verdict to conform to the clear intent of the

jury.” Mendralla v. Weaver Corp., 703 A.2d 480, 485 (Pa. Super. 1997)

(en banc) (citation omitted).

The power of a trial judge to exercise his discretion in molding a

verdict to fit the expressed desires of the jury is a corner-stone of

the jury system. Moreover, verdicts which are not technically

correct in form but which manifest a clear intent on the part of the

jury may be corrected without resort to further jury deliberations

or the grant of a new trial.

Mirizio v. Joseph, 4 A.3d 1073, 1088 (Pa. Super. 2010) (citation and

brackets omitted).

Instantly, the trial court precluded evidence concerning the compromise

and release agreement, concluding that such evidence would be significantly

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more prejudicial than relevant. See Op. and Order at 5. Regarding

Hawbaker’s allegation that Carlini “opened the door” to the agreement

becoming relevant, the trial court noted that it “addressed issues as they

arose. . . .”5 Id. In light of the agreement’s express language indicating that

it “shall have no effect on” Carlini’s wrongful discharge and invasion of privacy

lawsuits, we conclude that the trial court’s evidentiary rulings correctly

balanced the alleged prejudicial effect of the evidence against its probative

value. See Smith, 47 A.3d at 137. Further, the jury’s compensatory damage

award did not require molding to reflect the lump-sum payment under the

compromise and release agreement. See Mirizio, 4 A.3d at 1088.

In its fourth issue, Hawbaker contends that Carlini’s counsel questioned

Hall about the financial records prepared by Hawbaker’s accountant.

Hawbaker’s Brief at 35. Hawbaker argues that Hall “lacked sufficient, personal

knowledge to authenticate” the financial records, which amounted to

____________________________________________

5 Specifically, Carlini’s counsel cross-examined Elaine Lang, Hawbaker’s risk

management specialist, asking the following question: “[A]ny medical

treatment after you fired her, since you denied her workers’ compensation

claim, [Carlini] was going to have to schedule those things on her own and

pay for them, right?” R.R. at 995a. Hawbaker’s counsel immediately

objected, arguing that this question had opened the door for him to address

the workers’ compensation settlement. Id. at 995a-96a. Carlini’s counsel

offered to ask a follow-up question to establish that the medical bills were paid

for, and he agreed not to ask additional questions about the topic. Id. at

997a. The trial court agreed with this resolution. Id. at 999a. Following the

sidebar, the trial court sustained the objection from Hawbaker’s counsel. Id.

at 1000a. Carlini’s counsel then stated, “I’m going to make something clear.

Ultimately, all of Ms. Carlini’s medical expenses related to her work injury got

paid; correct?” The witness confirmed that the medical bills were paid, and

Carlini’s counsel moved on to a different topic. Id.

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impermissible hearsay evidence. Id. Hawbaker maintains that Hall “had

never seen the [financial] documents before that day, was not an accountant

by trade (or otherwise qualified to assess a company’s net worth), and had

never before even calculated a company’s net worth.” Id. (citation and

footnote omitted). Hawbaker concludes that the trial court erred in admitting

evidence of its net worth through Hall’s testimony and the financial records.

Id. at 39-40.

“It is well-settled that when punitive damages are at issue in a case, the

jury must consider not only the character of the act underlying the claim and

the harm suffered by the plaintiff, but also the wealth of the defendant.”

Sprague, 656 A.2d at 920 (citations omitted). Net worth is a valid measure

of a defendant’s wealth.6 See id.

Further, “[t]he Pennsylvania Rules of Evidence define ‘hearsay’ as an

out of court statement offered in court for the truth of the matter asserted. A

writing constitutes a ‘statement’ as defined by Rule 801(a). Generally,

hearsay is inadmissible at trial unless it falls under an exception provided by

the Rules.” MB Fin. Bank v. Rao, 201 A.3d 784, 788 (Pa. Super. 2018)

(citations omitted). Rule 803 provides an exception governing the admission

of a recorded act, event or condition if:

(A) the record was made at or near the time by―or from

information transmitted by―someone with knowledge;

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6 The “term ‘net worth’ merely signifies [the] remainder after deduction of

liabilities from assets.” Sprague, 656 A.2d at 920 (citing W.H. Miner, Inc.

v. Peerless Equip. Co., 115 F.2d 650, 655 (7th Cir. 1940)).

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(B) the record was kept in the course of a regularly conducted

activity of a “business”, which term includes business, institution,

association, profession, occupation, and calling of every kind,

whether or not conducted for profit;

(C) making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the

custodian or another qualified witness, or by a certification that

complies with Rule 902(11) or (12) or with a statute permitting

certification; and

(E) the opponent does not show that the source of information or

other circumstances indicate a lack of trustworthiness.

Pa.R.E. 803(6). Additionally, the Uniform Business Records as Evidence Act

states, in relevant part:

A record of an act, condition or event shall, insofar as relevant, be

competent evidence if the custodian or other qualified witness

testifies to its identity and the mode of its preparation, and if it

was made in the regular course of business at or near the time of

the act, condition or event, and if, in the opinion of the tribunal,

the sources of information, method and time of preparation were

such as to justify its admission.

42 Pa.C.S. § 6108(b). “While a qualified witness need not have personal

knowledge, the individual must be able to ‘provide sufficient information

relating to the preparation and maintenance of the records to justify a

presumption of trustworthiness . . . .’” Keystone Dedicated Logistics, LLC

v. JGB Enters., Inc., 77 A.3d 1, 13 (Pa. Super. 2013) (citation omitted).

Rule 901 governs the authentication of evidence, in pertinent part, as

follows:

(a) In General. To satisfy the requirement of authenticating or

identifying an item of evidence, the proponent must produce

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evidence sufficient to support a finding that the item is what the

proponent claims it is.

(b) Examples. The following are examples only―not a complete

list―of evidence that satisfies the requirement:

(1) Testimony of a Witness with Knowledge. Testimony that

an item is what it is claimed to be.

Pa.R.E. 901(a), (b)(1).

Instantly, the trial court concluded that it did not err in admitting

evidence of Hawbaker’s net worth through Hall’s testimony and the admission

of the financial records:

Michael Hall was a regional vice president [at Hawbaker]. He was

asked to read numbers presented to him and determine

[Hawbaker’s] net worth by subtracting one number from another

number. The [c]ourt is confident that Michael Hall was capable

and qualified to answer a basic subtraction question. The [c]ourt

takes judicial notice that generally net worth can be determined

by subtracting liabilities from assets. [Hawbaker] had opportunity

at trial to offer evidence of a different value or process to

determine net worth.

[Hawbaker] also argues the [financial] document was inadmissible

hearsay. The main issue in this regard is [Carlini’s] counsel’s

failure to establish the information necessary under Pa.R.E.

803(6). The [financial] document was a compilation of records

regularly kept in the course of [Hawbaker’s] business.

[Hawbaker] represented in its answer to punitive damage

interrogatories that the [financial] document accurately reflected

its total assets and liabilities. The authenticity and accuracy of

the [financial] document was not in question by either party at the

time of trial or during the hearing for post-trial motions.

* * *

The [alleged] error was [Carlini’s] failure to establish the

necessary information as per Pa.R.E. 803(6). The proper thing

would have been to go through the information as required

in Pa.R.E. 803(6).

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* * *

The [c]ourt did not prejudice [Hawbaker] by allowing the

introduction of the evidence at trial since the [c]ourt determined

that the document would ultimately be accepted as evidence.

Op. and Order at 3-4 (citation omitted) (emphasis added).

Significantly, the trial court conceded that it should have examined the

admissibility of the financial records under Rule 803(6). To the extent the

trial court noted that Hawbaker effectively vouched for the accuracy of the

financial records in its answer to interrogatories, this action alone did not

provide an adequate basis to admit the financial records. See Keystone

Dedicated Logistics, 77 A.3d at 11-12 (disagreeing with the trial court’s

conclusion that it properly admitted invoices into evidence merely because the

defendant had provided them during discovery; “[s]uch a conclusion ignores

that the discovery of documents and proof of their reliability at trial are two

different matters”).

Regarding the authentication of Hawbaker’s financial records, Hall

initially testified that he is a regional vice president in charge of the “DuBois

region of Hawbaker’s construction.”7 R.R. at 1077a. Hall provided no

additional information relating to Baker Tilly’s preparation and maintenance of

the financial records. Thereafter, Carlini’s counsel presented Hall with the

financial records and asked him to read aloud information directly from the

records. Id. at 1081a-82a. Absent more, there is no indication that Hall

____________________________________________

7 Hall later testified that he possesses a degree in civil engineering. R.R. at

1092a.

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possessed knowledge sufficient to authenticate financial records prepared by

Baker Tilly, and a presumption of the records’ trustworthiness was not

justified.8 See Keystone Dedicated Logistics, 77 A.3d at 13; Pa.R.E.

901(a), (b)(1).

On this record, Carlini did not present testimony to establish that the

financial records satisfied the business record exception to the hearsay rule,

and the trial court abused its discretion in permitting the admission of the

financial records and testimony regarding Hawbaker’s net worth. See

Maisano, 204 A.3d at 523; Brown, 202 A.3d at 708; see also Keystone

Dedicated Logistics, 77 A.3d at 12 (vacating the judgment and remanding

for a new trial on damages where, among other things, the trial court abused

its discretion in admitting invoices that were not properly authenticated at

trial). Because this evidence was the only evidence on which the jury could

have based its calculation of the punitive damages, Hawbaker is entitled to a

new trial limited to the issue of punitive damages for the wrongful discharge

and invasion of privacy claims.9

____________________________________________

8 Hall’s testimony revealed his apparent discomfort with testifying about the

information in the financial records. At one point, Carlini’s counsel asked Hall

to confirm a revenue figure listed in the document. Hall stated, “That appears

to be what [the document] says. But I’m not an accountant, sir.” R.R. at

1081a. After Carlini’s counsel concluded his questioning, Hawbaker’s counsel

established that Hall does not possess an accounting degree, he had not seen

the financial statements before taking the witness stand, and he had never

before calculated a company’s net worth. Id. at 1092a.

9 Due to our disposition, we need not address Hawbaker’s final two issues

challenging the amount of the punitive damage awards.

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At docket number 879 MDA 2018, Carlini raises one issue for our review:

Whether the trial court committed an error of law when it denied

[Carlini’s] motion for post-trial relief in the form of a new trial to

determine the appropriate amount of non-economic

compensatory damages, in addition to the economic

compensatory damages and punitive damages already awarded,

when evidence of non-economic harm was admitted into evidence

but the trial court refused to instruct the jury on non-economic

compensatory damages or allow the jury to award non-economic

compensatory damages caused by [Carlini’s] wrongful discharge.

Carlini’s Brief at 4.

Carlini contends that wrongful discharge is a tort, and “tort law allows

for recovery of compensatory damages in the form of both economic and non-

economic damages.” Id. at 19. Carlini asserts that “compensatory damages

are such damages as measure the actual loss,” and “our jurisprudence has

long recognized non-economic losses are actual losses.” Id. at 16, 17

(citations omitted). In support of her assertion, Carlini cites multiple cases

from Pennsylvania and other jurisdictions where plaintiffs recovered economic

and non-economic damages for wrongful discharge. Id. at 20-21, 23-26.

Carlini also emphasizes that she presented ample evidence of mental

anguish and emotional distress caused by her wrongful termination. Id. at

21. In light of this evidence, Carlini argues that the trial court “committed an

error of law by ruling that compensatory damages in wrongful discharge cases

are limited to economic damages,” and this error caused Carlini prejudice by

“precluding the jury from fully compensating [Carlini] for actual harm caused

by [Hawbaker].” Id. at 22. Carlini concludes that this Court must reverse

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the order denying her post-trial motion and “remand the case to the trial court

for a new trial limited to the amount of non-economic damages to which

[Carlini] is entitled.” Id. at 27.

The following standard of review applies to our review of the trial court’s

denial of Carlini’s post-trial motion:

We will reverse a trial court’s decision to deny a motion for a new

trial only if the trial court abused its discretion. We must review

the court’s alleged mistake and determine whether the court erred

and, if so, whether the error resulted in prejudice necessitating a

new trial. If the alleged mistake concerned an error of law, we

will scrutinize for legal error. Once we determine whether an error

occurred, we must then determine whether the trial court abused

its discretion in ruling on the request for a new trial.

Stalsitz v. Allentown Hosp., 814 A.2d 766, 771 (Pa. Super. 2002) (citations

and quotation marks omitted).

[T]he standard of review for [a jury charge] issue is one of abuse

of discretion. Our 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.

Similarly:

Error in a charge is sufficient ground for a new trial, if the

charge as a whole is inadequate or not clear or has a

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tendency to mislead or confuse rather than clarify a material

issue. A charge will be found adequate unless the issues

are not made clear to the jury or the jury was palpably

misled by what the trial judge said or unless there is an

omission in the charge which amounts to fundamental error.

A reviewing court will not grant a new trial on the ground of

inadequacy of the charge unless there is a prejudicial

omission of something basic or fundamental.

Finally,

The court is vested with substantial discretion in fashioning

the charge and may select its own language cognizant of the

need to adequately apprise the jury of the law as it applies

to the evidence adduced at trial. Unless the language the

court chose incorrectly states the law or mischaracterizes

the evidence in a way that prejudiced the jury’s

consideration and thereby undermined the accuracy of the

verdict, we will not interfere with the court’s exercise of

discretion.

Braun v. Wal-Mart Stores, Inc., 24 A.3d 875, 968 (Pa. Super. 2011) (per

curiam) (citations and quotation marks omitted).

“In this Commonwealth, this Court has consistently held that the

purpose of damages is to compensate victims to the full extent of the loss

sustained as a direct result of the injury.” Crespo v. Hughes, 167 A.3d 168,

178 (Pa. Super. 2017) (citation omitted), appeal denied, 184 A.3d 146 (Pa.

2018). “Compensatory damages are damages awarded to a person as

compensation, indemnity or restitution for harm sustained by [her].” Raynor

v. D’Annunzio, 205 A.3d 1252, 1264 (Pa. Super. 2019) (citations and

quotation marks omitted).

“Compensatory damages that may be awarded without proof of

pecuniary loss include compensation . . . for emotional distress.” Restatement

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(Second) of Torts § 905 (Am. Law Inst. 1975); see also Bailets v.

Pennsylvania Tpk. Comm’n, 181 A.3d 324, 333 (Pa. 2018) (stating that

“our jurisprudence has long recognized non-economic losses are actual losses”

(citations omitted)). “Damages for nonpecuniary harm are most frequently

given in actions for bodily contact and harm to reputation . . . , but they may

also be given in actions for other types of harm[.]” Restatement (Second) of

Torts § 905 cmt. a (citations omitted).

“In Pennsylvania[,] one who is liable to another for interference with a

contract is liable for damages for the emotional distress which is reasonably

expected to result from the wrongful interference.” Kilpatrick v. Delaware

Cty. S.C.P.A., 632 F. Supp. 542, 550 (E.D. Pa. 1986) (citation omitted);10

see also Pelagatti v. Cohen, 536 A.2d 1337, 1343 (Pa. 1987) (quoting the

____________________________________________

10 The Kilpatrick Court noted that in “evaluating a wrongful termination claim,

Pennsylvania courts weigh several factors, balancing the employee’s interest

in making a living, the employer’s interest in running its business, its motive

in terminating the employee, its manner of effecting the termination and any

social interests or public policies that may be implicated in the discharge.”

Kilpatrick, 632 F. Supp. at 545 (citing Yaindl v. Ingersoll-Rand Co., 422

A.2d 611, 620 (Pa. Super. 1980), abrogation on other grounds recognized in

Yetter v. Ward Trucking Corp., 585 A.2d 1022 (Pa. Super. 1991)).

According to the Kilpatrick Court, “[i]n Yaindl[,] the court held that the

factors which should be weighed when evaluating a claim for wrongful

termination were identical to the factors considered relevant to a claim of

intentional interference with the performance of a contract.” Id. at 550

(citation omitted). Although “absent a United States Supreme Court

pronouncement, the decisions of federal courts are not binding on

Pennsylvania state courts, even when a federal question is involved,” we may

rely on their reasoning to the extent we find it persuasive. See NASDAQ

OMX PHLX, Inc. v. PennMont Secs., 52 A.3d 296, 303 (Pa. Super. 2012)

(citation omitted).

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Restatement (Second) of Torts for the proposition that “actual damages” for

interference with a contract include, among other things, emotional distress if

it is reasonably to be expected to result from the interference). “The victim

of a wrongful termination, therefore, also should be entitled to recover

damages for emotional distress reasonably expected to result from the

wrongful discharge.” Kilpatrick, 632 F. Supp. at 550.

Instantly, the trial court denied Carlini’s request for a jury instruction

concerning non-economic damages incurred as result of the wrongful

discharge, noting that “[t]he cases relied on by [Carlini] either do not directly

discuss what non-economic damages are permitted in a wrongful discharge

award or are not controlling in this matter since they are from different

jurisdictions.”11 Op. and Order at 11. The trial court, however, failed to

acknowledge the theoretical underpinnings for the award of non-economic

____________________________________________

11 Carlini’s brief in support of her post-trial motion analyzed two Pennsylvania

cases, Signora v. Liberty Travel, Inc., 886 A.2d 284, 297-98 (Pa. Super.

2005) (concluding that the plaintiff/appellant in a wrongful discharge action

was not entitled to relief on her claim that the jury was obligated to award her

some amount of damages for past lost earnings and lost earning capacity,

future lost earnings and lost earning capacity, damaged reputation and loss

of occupational standing, and loss of enjoyment of life; although this Court

noted that jury did award the plaintiff in excess of $127,000 in compensatory

damages for emotional distress, aggravation, inconvenience, embarrassment

and humiliation, the propriety of this award was not at issue on appeal), and

Reuther v. Fowler & Williams, Inc., 386 A.2d 119, 121-22 (Pa. Super.

1978) (vacating the trial court’s entry of compulsory nonsuit in a case where

the plaintiff/appellant sued his former employer in trespass, alleging that he

had been wrongfully discharged in retaliation for taking time off from work for

jury duty). See R.R. at 1754a-57a. Additionally, Carlini cited several cases

from other states. Id. at 1755a-56a.

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damages. Based upon the foregoing, we conclude that the victim of a wrongful

discharge is entitled to recover damages for emotional distress that can be

reasonably expected to result from the wrongful discharge. See Kilpatrick,

632 F. Supp. at 550; Restatement (Second) of Torts § 905 cmt. a. Because

the trial court committed an error of law by failing to instruct the jury that it

could award non-economic damages under such circumstances, the court

abused its discretion in denying Carlini’s post-trial motion. See Stalsitz, 814

A.2d at 771. Therefore, Carlini is entitled to a new trial limited to the issue of

compensatory damages for the wrongful discharge claim.

Accordingly, we affirm the jury’s verdict as to Hawbaker’s liability for

Carlini’s wrongful discharge and invasion of privacy claims. We also affirm the

compensatory damages awarded for the invasion of privacy claim and the

economic damages awarded for the wrongful discharge claim. We vacate the

judgment and remand for a new trial limited to the issues of punitive damages

and the non-economic damages for the wrongful discharge claim.

Judgment vacated. Case remanded with instructions. Jurisdiction is

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/13/2019

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