Kia Motors v. U-Haul Co. of PA

J-A20042-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

KIA MOTORS AMERICA, INC. : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

U-HAUL MOVING AND STORAGE, U- :

HAUL INTERNATIONAL, INC., U-HAUL :

MOVING AND STORAGE OF : No. 2237 EDA 2024

RIVERVIEW, WECCACOE, :

PROPERTIES, LP, BPO REALTY :

GROUP, LP, JOHN DOE 1-5, AMERCO, :

AMERCO REAL ESTATE COMPANY, U- :

HAUL COMPANY OF PENNSYLVANIA, :

SEAL ROOFING COMPANY, MAK :

SHIPPING, GLOVIS AMERICA, INC. :

:

:

APPEAL OF: U-HAUL CO. OF :

PENNSYLVANIA :

Appeal from the Order Entered August 13, 2024

In the Court of Common Pleas of Philadelphia County Civil Division at

No(s): 200801850

BEFORE: MURRAY, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E. *

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 13, 2026

U-Haul Company of Pennsylvania (“U-Haul”) appeals from the order

granting a new trial entered by the Court of Common Pleas of Philadelphia

County after a post-verdict hearing to determine whether after-discovered

evidence warranted vacating the jury’s verdict, which determined U-Haul to

be not negligent with respect to damage to the property of Kia Motors of

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* Retired Senior Judge assigned to the Superior Court.

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America, Inc. (“Kia”).1 Because we find no abuse of discretion by the trial

court, we affirm the order for a new trial.

The trial court accurately summarized the evidence at trial and the post-

verdict hearing, as follows:

On April 15, 2019, the roof of a building located at 8 E. Oregon

Ave. in Philadelphia detached during a storm. At the time, the

building was being leased to and operated by Appellant U-Haul[.]

Debris from the roof landed in a nearby lot that was being used

by Kia to store approximately 208 vehicles, resulting in at least

182 of the vehicles being damaged and/or destroyed. Kia filed suit

against, inter alia, Amerco Real Estate Company [(“AREC”)], who

was the owner of the property, and U-Haul, alleging negligence in

the maintenance of the roof which in turn led to it [to] detach.

Based on representations from counsel to U-Haul that AREC was

merely an out-of-possession owner who had nothing whatsoever

to do with the roof in question, Kia agreed to dismiss AREC from

the case. During the discovery process, Kia requested the

production of all documents and photographs related to any pre-

incident inspection of the building. U-Haul did not produce any

photographic evidence documenting the prior condition of the roof

as it maintained that it took possession of the property without an

inspection having been performed. Lacking evidence of the

building’s pre-incident condition, Kia had to rely upon [its] own

expert testimony at trial to create an inference of negligence on

the part of U-Haul, i.e., that the flaw which caused the roof to

become detached would have been discovered during an

inspection if U-Haul had performed one.

However, Kia’s theory was subsequently upended when U-Haul’s

own expert witness, Timothy Carlsen, stated during his trial

testimony — much to the surprise of Kia — that the building had

in fact been inspected by U-Haul before it took possession of the

property. Moreover, he testified that U-Haul possessed

photographs of the exterior of the building, including the roof, that

were taken at around the time it assumed occupancy. Following

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1 Although interlocutory, “[a]n order in a civil action or proceeding awarding

a new trial,” is appealable as of right. Pa.R.A.P. 311(a)(6).

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Carlsen’s testimony, Kia moved for a mistrial on the grounds that

such photographs were wrongfully withheld during pre-trial

discovery. The [c]ourt denied the motion.

At the close of trial, the jury returned a verdict in favor of U-Haul,

finding that it was not negligent. Following the verdict and in light

of the unproduced photographs, Kia filed a post-trial motion

seeking a new trial on the grounds of discovery abuse. It argued

that the photographs, and by extension the knowledge that a

building inspection had in fact been performed by U-Haul, were

concealed to undermine Kia’s central argument at trial. The

[c]ourt allowed Kia to supplement the record with post-trial

discovery in support of its motion.

U-Haul maintained that its expert only had access to thumbnail

copies of the photographs in question, but that the native photos

belonged to the landlord of the property, which Kia had not

subpoenaed. And crucially, U-Haul conceded that it had made a

strategic decision not to pass the thumbnails during discovery.

Instead, it relied on a master document submitted to Kia — titled

Architectural As-built Drawings & Facility Documentation Of 8 East

Oregon Avenue — which indexed a number of photographs and

documents but without any clear notification that some of these

photos were of the roof in question. Any evidence used by U-

Haul’s expert, it argued, was available to Kia had it done its due

diligence during discovery. However, given U-Haul’s assurances

that no inspection had been conducted of that roof, it was not

unreasonable for Kia to assume that the master document did not

reference any roof photos, especially given the absence of any

notification to the contrary. The [trial court], after receiving a

significant volume of written and oral argument from both parties,

granted Kia’s post-trial motion and awarded a new trial on the

issue of after-discovered evidence. Particularly persuasive was a

native photo taken pre-incident and eventually provided during

post-trial discovery that appeared to show existing damage to the

roof in question.

Opinion, Erdos, J., 11/26/24 (“Trial Court Opinion”), 1-3.

In our own review of the record, to augment the trial court’s opinion,

we note the following. Trial commenced on July 21, 2023. On July 26 and 27,

Carlsen, a forensic engineer, testified as an expert witness in the field of

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engineering and building construction, with respect to his opinion on the

construction and maintenance of the roof that detached in the storm. See N.T.

Trial, 7/26/23, 109, 114, 141-144. During cross-examination, he revealed, for

the first time, that photographs of the roof had been taken on April 1, 2016,

at the time AREC took ownership over the building and prior to the time that

U-Haul took possession and assumed responsibility for maintenance. See N.T.

Trial, 7/27/23, 20-21, 51. The photographs were attached as thumbnail

photographs to architectural drawings, provided to AREC, of the building as it

was built, and had been given by U-Haul to the expert in anticipation of his

providing an opinion. The thumbnail photographs attached to the drawings

were provided to Kia, mid-trial, and were difficult to view because of their

respective sizes. The thumbnail photographs were reproductions in JPEG

format of original digital photographs without any of the metadata that would

have been included with the original digital photographs. Kia moved for a

mistrial. See id., 162-164. The trial court denied the motion. Id., 165. On

July 28, 2023, the jury returned its verdict that U-Haul was not negligent. N.T.

Trial, 7/28/23, 68.

Kia filed a post-trial motion seeking, inter alia, a new trial based on

after-discovered evidence and further requesting post-trial discovery. See

Appellee’s Post-Trial Motion, 8/4/23. In pertinent part, Kia alleged that U-Haul

consistently asserted throughout discovery that (1) “it produced all

information and documentation depicting the roof, and no other relevant

documents existed,” and (2) “no one independently inspected the roof system

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… before the roof disintegrated in April of 2019.” Id., 2. Kia also alleged that

only four of thirty-nine pages of the document, marked at trial as P-258 when

disclosed by U-Haul’s witness, had been produced in discovery, which caused

prejudice to Kia because the photographs were proof supporting Kia’s theory

of liability while contradicting U-Haul’s defense – depicting damage to the

western edge of the roof and other deterioration – and also “directly countered

one of [Kia’s] central themes: U-Haul was negligent in failing to inspect the

subject building before occupying it.” Id., 2-3. Kia argued that it had asked

for photographs and for everything given to U-Haul’s expert in anticipation of

his opinion. See N.T. Post-Trial, 8/8/24, 68 (U-Haul admitting that it was “fair

to say” P-258 would have been responsive to two overlapping discovery

requests). U-Haul, in response, asserted that it had disclosed the existence of

the photographs – located on the first page of the four pages of P-258 that it

produced – in a “list of drawings” that included reference to exterior photos,

among other things. See Appellant’s Answer in Opposition to Motion for Post-

Trial Relief, 8/23/23, 2-3; see also Appellant’s Brief, 9. It also asserted that

Kia had an opportunity during trial to both examine the documents and to

cross-examine U-Haul’s expert and/or recall its own expert. See Appellant’s

Answer in Opposition to Motion for Post-Trial Relief, 8/23/23, 2.

During post-trial discovery, Kia repeatedly sought the photographs

attached to P-258 in the original format, metadata included, which was a

request the trial court deemed “fair.” See N.T. Post-Trial, 10/4/23, 4-8, 21.

U-Haul filed a formal response opposing the disclosure on the grounds that

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Kia never requested the photographs “during pre-trial discovery” and that U-

Haul’s expert “did not reference the photographs at issue during his direct

examination at trial,” while also testifying during cross-examination that he

did not rely on the photographs to formulate any opinion. See Appellant’s

Response to Post-Trial Demand for “A4” Photographs, 1. It also reported that

the requested photographs, in the possession of “a third-party,” AREC, had

“now been provided to Kia.” Id., 2; see also Appellant’s Response to Post-

Trial Demand for “A5” Photographs, Attached Affidavit of Thomas R. Casey,

Vice President of AREC. U-Haul later reported the production of additional

photographs, some in the possession of the company that had prepared the

architectural drawings for AREC, bringing the total of photographs produced

during post-trial discovery to 107 digital photographs. See Appellant’s Final

Response to Post-Trial Demand for Digital Photographs, 12/15/23, 1-2. At

least one of these new photographs depicted deterioration on the side of the

roof that Kia’s expert opined was the location of the detachment that led to

the damage of Kia’s property. See Trial Court Opinion, 3; see also N.T. Post-

Trial, 8/8/24, 58-67.

On August 8, 2024, the trial court reviewed the state of the record with

the parties and heard oral argument on Kia’s motion for a new trial. The trial

court asked U-Haul for its reasoning in turning over only four pages of P-258

during pre-trial discovery, which pages included drawings of other buildings.

See N.T. Post-Trial, 8/8/24, 65-66. U-Haul stated that the limited production

was to give an overall picture of the property and the buildings, and noted

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that it included “multiple references to photographs … identifies the owner of

this document as AREC … [and] the creator of this document as [an unrelated

company].” Id., 67. U-Haul then agreed that it was “fair” to say that the

packet delivered to its expert was the “answer to more than one request for

discovery” by Kia. Id., 68. Counsel further confirmed that U-Haul had “the

entirety of [P-258]” when discovery responses were first prepared. See id.,

68-69. The trial court then asked:

The Court: The question is, when you handed this over, why

didn’t you hand over everything that now encompasses P-258? …

[U-Haul’s Counsel]: I would tell you it was a strategic

decision, litigation-based decision to hand over the documents we

did. We felt they were responsive to the request and roofing issue.

That was the basis for why we turned over the four [pages] we

did.

N.T. Post-Trial, 8/8/24, 69.

The court clarified other matters concerning pre-trial discovery,

including that U-Haul’s expert Carlsen had the thirty-nine-page packet of

documents and thumbnail photographs more than a year before the trial. See

N.T. Post-Trial, 8/28/24, 73-75. In addition, when the court asked U-Haul to

explain why it did not at the time believe it had an obligation to produce the

thumbnail photographs to Kia, it relied on the small size of the thumbnail

photographs, and the fact it was not in the position of the plaintiff, to support

its determination that the photographs were not “responsive” to the request.

See id., 85.

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The court then proceeded to hear argument on the motion for a new

trial. In pertinent part, U-Haul argued that with respect to third-party

discovery pre-trial, it had set out a “defined limited role as to what [it was]

going to be providing documents to, [Kia] never challenged them,” “never

sent supplemental discovery requests” and should have communicated with

U-Haul to ask for the photographs referenced on the first of four pages of P-

258 that U-Haul provided in pre-trial discovery. N.T. Post-Trial, 8/8/24, 124.

U-Haul argued that Kia “never sent a subpoena to AREC as the landlord out of

possession for any documents,” or to the person identified on the “cover

sheet” as the person who prepared the drawings. Id., 125. “Critically, []

Carlsen specifically testified … that he did not rely on nor otherwise utilize the

as-built drawings in his pre-litigation report or in formulating his trial opinions

and testimony.” Id., 126. U-Haul argued that Kia lacked due diligence in

conducting pre-trial discovery and waited until post-trial to do what should

have been done before. See id., 128-29. U-Haul also argued that it “never

had possession of the ‘smoking gun’” photograph, produced through AREC

from its consultant in post-trial discovery. Id., 131. U-Haul concluded that

because it never possessed that key photograph, combined with the lack of

due diligence by Kia pre-trial, post-trial relief should be denied. See id. The

trial court held its decision under advisement. Id., 135. Five days later, the

trial court granted a new trial. See Order, 8/13/24.

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U-Haul timely filed a notice of appeal on August 21, 2024. The trial court

ordered, and U-Haul filed, a statement of errors complained of on appeal. See

Order, 8/22/24; Appellant’s Statement, 1-5; Pa.R.A.P. 1925(b).

In this appeal, U-Haul raises the following two-part question for review:

Did the trial court abuse its discretion or err as a matter of law in

granting Plaintiff’s request for post-verdict discovery and

thereafter granting a new trial on the basis of after-discovered

evidence where:

(1) the new evidence was available through the exercise of

due diligence prior to trial and thus does not constitute

after-discovered evidence; and

(2) the new evidence would not likely compel a different

verdict[?]

Appellant’s Brief, 4.

U-Haul argues that the trial court abused its discretion by granting a

new trial based on after-discovered evidence. See Appellant’s Brief, 34. It first

contends that after-discovered evidence is such evidence that “could not have

been obtained at the trial by reasonable diligence,” and the moving party must

“convincingly show” it could not obtain the evidence. Id. (citing cases).

Because U-Haul made Kia “aware” of the “existence” of the thumbnail

photographs in October 2021 during pre-trial discovery, and Kia did not seek,

prior to trial, “the photographs listed on the cover page [of the four pages it

produced], move to compel production of the photographs, subpoena the

photographs from AREC or John Albarano (who created the as-built drawings),

or seek to depose any [U-Haul] designee, AREC designee[,] or Mr. Albarano,”

Kia failed to “convincingly establish that the [post-trial] photographs and

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deposition testimony … were not available through the exercise of due

diligence prior to trial.” Id., 38.

U-Haul also argues that to warrant a new trial, the after-discovered

evidence “must be such as would likely compel a different result.” Appellant’s

Brief, 45 (citing cases). It relies on the complex corporate structure of the U-

Haul Moving and Storage, in particular the separate, but wholly-owned

corporations U-Haul and AREC, to contend that the cross-examination of its

expert, which revealed the existence of the photographs, was, and remains,

irrelevant, to Kia’s cause of action against U-Haul. Id., 47.2 To the extent that

the photographs produced after trial showed roof deterioration, U-Haul argues

that the photographs only establish that deterioration existed three-years

before the incident without any evidence to show that the deterioration

remained or that U-Haul was responsible for it over AREC. See id., 49-51. We

find that U-Haul is entitled to no relief.

Our standard of review of the grant of a new trial based on after-

discovered evidence

is whether the trial court abused its discretion or committed an

error of law that controlled the outcome of the case.

Commonwealth ex rel. Meyers v. Stern, 501 A.2d 1380, 1382

(Pa. 1985). … The legal requirements for the grant of a new trial

based upon after-discovered evidence are well established: the

evidence must have been discovered after the trial and must be

such that it could not have been obtained at the trial by reasonable

diligence, must not be cumulative or merely impeach credibility,

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2 AREC was dismissed from the case as a defendant by stipulation, about which

there was some dispute, but in return for U-Haul accepting responsibility for

any actions taken by AREC.

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and must be such as would likely compel a different result. Stern,

501 A.2d at 1382; Hornick v. Bethlehem Mines Corp., 165 A.

36, 37 (Pa. 1933).

Daniel v. Wyeth Pharms., Inc., 15 A.3d 909, 915–16 (Pa. Super. 2011). In

conducting this review, there is a “presumption […] that the trial court was

justified in granting the new trial.” Bellettiere v. City of Philadelphia, 81

A.2d 857. 859 (Pa. 1951); Daniel, 15 A.3d at 916 (similar); Matter of Cook,

527 A.2d 1115, 1116 (Pa. Cmwlth. 1987) (similar).3 “Because the trial court

is uniquely qualified to evaluate factual matters, we will not disturb its decision

absent an abuse of discretion or error of law.” Picca v. Kriner, 645 A.2d 868,

869 (Pa. Super. 1994).

The trial court examined the record before it in detail with respect to U-

Haul’s assertion that the additional thirty-five pages of the packet and

thumbnail photographs produced after trial, and excluded from the pre-trial

discovery, was not after-discovered evidence. The court explained its

reasoning for finding contrary to U-Haul’s position as follows:

As a general rule, a party may not cure its own failure to present

sufficient evidence at trial by filing a post-trial motion. Claudio v.

Dean Machine Co., 831 A.2d 140, 145 (Pa. 2003). However,

there is an exception to this rule where new evidence is discovered

after trial. Id. “After-discovered evidence, to justify a new trial,

must have been discovered after the trial, be such that it could

not have been obtained at the trial by reasonable diligence, must

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3 We are not bound by the decisions of the Commonwealth Court, but “such

decisions provide persuasive authority, and we may turn to our colleagues on

the Commonwealth Court for guidance when appropriate.” Petow v.

Warehime, 996 A.2d 1083, 1088 n.1 (Pa. Super. 2010) (quoting Maryland

Cas. Co. v. Odyssey, 894 A.2d 750, 756 n.2 (Pa. Super. 2006)).

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not be cumulative or merely impeach credibility, and must be such

as would likely compel a different result.” Id. at 146.

A court should not grant a new trial based on after-discovered

evidence unless the proponent can “convincingly show that he was

unable to obtain such testimony for the trial by use of reasonable

diligence.” Higbee v. Koziol, 117 A.2d 707, 709 (Pa. 1955). Kia

made such a showing here, demonstrating that despite exercising

reasonable diligence during the discovery phase it nevertheless

was not provided with the evidence at issue and in fact did not

learn of its existence until trial.

The native photographs and drawings were possessed by AREC,

the building’s owner and landlord. [See N.T. Post-Trial, 2/7/24,

5-6]. AREC was originally a defendant in this case but was

dismissed by Kia, along with all other non-U-Haul defendants due

to representations made by U-Haul that none of the other

defendants bore any responsibility for action nor possessed any

discoverable evidence having to do with the operation and

maintenance of the property. Exhibit E of Plaintiff's Post-Trial

Motion Reply filed 4/10/24.

During post-trial discovery, Todj Meyer, U-Haul’s corporate

designee, testified that the company turned over none of the

photographs at issue during the normal discovery period. See

Deposition of Todj Meyer 57:6-60:18. This [decision] was so

despite the fact that Kia’s first request for production specifically

asked for “any photographs of the Premises before, during, and/or

after detachment of the roof(s).” Exhibit M of Plaintiff's Post-Trial

Motion Reply filed 4/10/24, Question 8.

U-Haul did turn over a list of drawings in its document production

that named 39 architectural diagrams that it had access to. Exhibit

P of Plaintiff’s Post-Trial Motion Reply filed 4/10/24. Mr. Meyer

later agreed that Kia would have expected the documents

produced by U-Haul to be limited to only those relevant to the

building at issue. Deposition of Todj Meyer 38:23-39:8. Yet most

of the drawings on this list pertained to other buildings on the

same or adjacent properties, not the building that was damaged.

Id. at 39:17-41:14. Kia was not on adequate notice that there

were also photos of the roof in question and that a motion to

compel would be necessary to obtain these photos and other

relevant documents.

At a post-trial hearing, U-Haul admitted that it did have access to

the JPEG thumbnails, but not the original natives, of the evidence

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prior to trial and that this is what its expert relied upon. [N.T.

Post-Trial, 10/4/23, 13]. The Court then ordered that U-Haul

provide Kia with the native photographs. [Id., 18].

Kia did not learn of the existence of these photos until trial was

already underway. Prior to trial, it was repeatedly led to believe

not only that such evidence did not exist, but that the actual owner

of the photographs, AREC, had no relevant documentation and

should be dismissed from the case. Kia’s request for production of

documents clearly encompassed this evidence. It exercised due

diligence during the normal discovery period yet could not obtain

this important evidence.

Trial Court Opinion, 4-6.

Our review of the record confirms that the trial court’s findings are

soundly based on the evidence. We also conclude that U-Haul’s argument

focuses on the wrong piece of evidence, as it is the native format

photograph(s) depicting deterioration on the western edge of the roof that is

plainly after-discovered and the basis for granting a new trial. See Trial Court

Opinion, 3. Nevertheless, U-Haul contends that because Kia “could have

requested the photographs from [it] during the discovery period, or … could

have sought those photographs from either AREC or Albarano,” the finding

that Kia could not have obtained the photographs prior to trial with due

diligence “defies credulity.” Appellant’s Brief, 44. We note, U-Haul does not

address the court’s findings that it persuaded Kia to dismiss AREC, and other

defendants, from the case based on its “representations … that none of the

other defendants bore any responsibility for action nor possessed any

discoverable evidence having to do with the operation and maintenance of the

property.” Trial Court Opinion, 5. We find that U-Haul’s argument that Kia

should have compelled production of the thumbnail photographs is

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undermined by its “strategic decision” to exclude the thumbnail photographs

from disclosure. N.T. Post-Trial, 8/8/24, 69. The thumbnail photographs,

which were provided to U-Haul’s expert, along with thirty-five additional pages

of architectural drawings, were plainly subject to discovery as they were not

within any privilege,4 and as U-Haul admitted, were responsive to at least two

lines of discovery request and were in its possession when Kia made the

relevant requests. See id., 68-69.

It is on this point – U-Haul’s strategic decision not to disclose – that its

reliance on Claudio, the case also relied on by the trial court for the standard

of review, is inapposite. U-Haul contends that Claudio prohibits the trial court

from relying on any of the post-trial evidence because post-trial discovery

should not have been granted. See Appellant’s Brief, 35-37. However, the

issue addressed by our Supreme Court in Claudio was whether a trial court

could “conduct a post-trial hearing and grant post-trial relief to correct an

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4 We recently stated that the discovery rules “restrict the scope of all discovery

from non-party witnesses retained as experts” and reversed an order to

compel discovery of a broad range of irrelevant material from a plaintiff’s

expert. McKeehan v. Milton S. Hershey Med. Ctr., 328 A.3d 1059, 1064

(Pa. Super. 2024). Here, U-Haul’s argument presumes that the photographs

were discoverable, i.e., not privileged. Further, the photographs of the roof

depicting potential deterioration in the location where the roof subsequently

detached, and which were given to the expert, are within the “fair scope” of

Kia’s evaluation of U-Haul’s expert opinion. See Christiansen v. Silfies, 667

A.2d 396, 402 (Pa. Super. 1995) (“The fair scope inquiry involves a

determination of whether the expert report provides sufficient notice of the

expert’s theory to enable the opposing party to prepare a rebuttal witness”)

(internal quotation marks and citation omitted).

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error alleged [to be] attributable, not to the [trial] court, but to the party

seeking relief.” Claudio, 831 A.2d at 141. The error in question was the

Claudios misnaming the lead defendant in the complaint as Dean Machine

Company (“DMC”) instead of Dean Machine, Inc. (“DMI”), for which the lead

defendant presented corporate documents evidencing corporate creations and

transactions leading to DMI, and on which mistake it had moved for summary

judgment. See id., 142.

The jury rendered both verdicts against DMC. On February 24,

2000, the Claudios filed a post-trial motion to amend the caption

and mold the verdict to enter judgment against DMI. On June 8,

2000, the trial court held oral argument on the motion to amend

the caption, where the Claudios and DMC debated the issue of

successor liability. The trial court granted a continuance to allow

the parties to present evidence on this issue, during which period

counsel for the Claudios traveled to Rhode Island to depose [the]

former counsel to DMC, and … one of the principals of DMI. On

July 19, 2000, the trial court concluded the argument, granted the

motion of the Claudios to substitute DMI for DMC as the “proper

defendant,” and molded the verdict to impose liability on DMI.

Claudio, 831 A.2d at 142–43. DMI contended that “the trial court erred in

conducting a post-trial evidentiary hearing and granting a new trial” pursuant

to Pennsylvania Rule of Civil Procedure 227.1, because that rule permits a trial

court to correct its own error post-trial, and, in the case under review, the

trial court’s opinion “indicated that the error … was attributable to the

Claudios, finding that it may have allowed amendment to the caption before

trial if the Claudios had presented the deposition testimony” it later obtained

post-trial. Id. at 145.

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“The failure of a party to present sufficient evidence before or during

trial to support a decision in that party’s favor cannot be cured by a motion

filed pursuant to Rule 227.1.” Claudio, 831 A.2d at 145. A motion based on

new evidence “discovered after trial,” however, is “a common law exception

to [the] general rule. Id. The Supreme Court then concluded that:

The trial court did not commit an error, based on the information

available to it at the time. … Additionally, the Claudios have failed

to establish or even argue that the deposition testimony they

submitted to the court during the post-trial hearings was not

available through the exercise of due diligence prior to trial.

Therefore, the Claudios were not entitled to post-trial relief

pursuant to Rule 227.1. In certain situations, it may be proper for

a trial court to permit a post-trial evidentiary hearing to determine

if new evidence offered in support of a post-trial motion

constitutes after-discovered evidence. However, where the new

evidence cannot be characterized as after-discovered evidence,

such an evidentiary hearing is not contemplated by the rules.

Accordingly, the trial court erred in granting an evidentiary

hearing under the guise of Rule 227.1(a)(5).

Id. at 146.

In contrast to U-Haul’s argument, the post-trial discovery was necessary

here because Kia’s claim was based on the material given to U-Haul’s expert

but strategically withheld from Kia, which, once given to Kia, led to the

indisputably after-discovered “smoking gun” photograph. A claim based on

after-discovered evidence is an exception to the rule prohibiting post-trial

discovery. Claudio, 831 A.2d at 145. As the trial court found, based on the

evidence obtained post-trial, Kia acted reasonably and with due diligence in

submitting at least two discovery requests that should have fairly produced

the thumbnail photographs provided to U-Haul’s expert. See Trial Court

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Opinion, 6; see also N.T. Post-Trial, 8/8/24, 68. Because U-Haul’s responses

during discovery obscured the fact that the photos existed, Kia “was not on

adequate notice that there were also photos of the roof in question and that

a motion to compel would be necessary to obtain these photos and other

relevant documents.” Trial Court Opinion, 6. Moreover, the trial court “gave

Kia only a brief recess to review miniature versions of the photos that were

absent from the report. The trial then continued with Kia unable to properly

question [the U-Haul expert] on this new evidence due to not having native

photos or the necessary time to review them.” Id., 7.

The thumbnail photographs were available to U-Haul, not subject to a

claim of privilege, and pertinent to Kia’s discovery requests. See Trial Court

Opinion, 5-6. The strategic decision made by U-Haul to not produce them led

both to surprise testimony undermining one theory of negligence, the lack of

an inspection, and the post-trial discovery of many native format photographs,

at least one of which supported an alternate theory of negligence that U-Haul

did not adequately maintain the roof. The trial court granted the new trial

“particularly” on the basis of “a native photo taken pre-incident and eventually

provided during post-trial discovery that appeared to show existing damage

to the roof in question.” Trial Court Opinion, 3. Under the facts presented here,

where: (1) the thumbnail photographs were produced as a surprise

submission while Kia was cross-examining the expert during trial; (2) the tiny

photographs could not be properly examined in the time available during trial;

and (3) the photographs led to significant new evidence discovered post-trial,

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we can discern no abuse of discretion in either the trial court permitting post-

trial discovery or its ruling that the evidence discovered after trial from the

late production of the thumbnail photographs was properly received as after-

discovered evidence. Accordingly, U-Haul is due no relief at this claim.

U-Haul’s second argument is that production of the photograph showing

“existing damage” to the roof prior to the incident would not likely compel a

different result. See Appellant’s Brief, 45-51.

Contrary to U-Haul’s claim, the trial court explained its ruling that

production of the new photograph was likely to compel a different result, as

follows:

Evidence that goes to the “heart” of the proponent’s case can be

said to satisfy this element of the new trial test. [] Cook, 527 A.2d

[at 1117]. Here, the photographs and drawings of the building do

go to the heart of Kia’s case because they provide evidence of

visible deterioration along the edge of the roof that was detached

by the storm. This, in turn, supports Kia’s assertion that U-Haul

was negligent in allowing the roof to persist in a state where

strong winds could cause such damage.

These materials are also evidence of the fact that, despite its

earlier claims, U-Haul did in fact perform some sort of inspection

of the building prior to taking possession of it. Again, a vital

component of Kia’s case is that U-Haul should have been aware of

the roof’s condition yet failed to take corrective action. If the

discovery in question, showing apparent pre-incident damage to

the roof, had been available to Kia prior to trial, it would have

restructured its case to argue negligence on the part of U-Haul in

the form of a faulty inspection and/or failure to repair, rather than

being forced to ask the jury to infer roof damage and to find

negligence in the previously-presumed lack of an inspection. The

jury returned a verdict finding no negligence on the part of U-

Haul; the native photo would likely have led to the opposite

finding.

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Trial Court Opinion, 7-8.

In Cook, our sister court held that evidence of perjury about an expert’s

qualifications discovered after trial “went to the heart of Appellants’ case” with

respect to damages awarded by a jury on the weight it gave the expert’s

opinion in a property condemnation case. Cook, 527 A.2d at 1117. It therefore

held that the trial court did not abuse its discretion by awarding a new trial.

Here, we agree with the trial court that the clear photograph unearthed

during post-trial discovery depicting “visible deterioration along the edge of

the roof that was detached by the storm … supports Kia’s assertion that U-

Haul was negligent in allowing the roof to persist in a state where strong winds

could cause such damage.” Trial Court Opinion, 7. Therefore, the withheld

evidence which would have led to the new photograph goes to the heart of

Kia’s negligence action against U-Haul and thereby likely would compel a

different result.

U-Haul argues that “even if [the] photograph showed some

deterioration, [it] would not likely result in a finding of negligence against [U-

Haul]” because it would be based “solely upon speculation and conjecture.”

Appellant’s Brief, 48. We find, however, to the contrary: the photograph of

the deterioration supports Kia’s expert’s opinion that the roof detached from

that specific area, and together with the maintenance records produced by U-

Haul and relied upon by its own expert, demonstrates the evidentiary

connection U-Haul now denies exists. The direct connection, at the very least,

raises a question for the jury to decide.

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U-Haul further contends that its inspection records show it was not

negligent in maintaining the roof. See Appellant’s Brief, 48-49. However,

rather than accepting a litigant’s own view of its evidence, that factual issue

remains for a jury or factfinder to decide. Lastly, U-Haul contends that it could

not be found liable “as the tenant of the property” for AREC’s alleged failure

to maintain or inspect the roof, see Appellant’s Brief, 50-52, but this argument

runs contrary to the trial court’s finding that U-Haul represented that “AREC

was merely an out-of-possession owner who had nothing whatsoever to do

with the roof in question, [on which] Kia agreed to dismiss AREC from the

case.” Trial Court Opinion, 2.

Accordingly, we can discern no abuse of discretion in the trial court’s

conclusion that the after-discovered evidence, which supported the heart of

Kia’s negligence claim, would likely compel a different result. We therefore

conclude that the trial court did not abuse its discretion in granting a new trial

based on after-discovered evidence.

Order affirmed. Matter remanded for new trial. Jurisdiction relinquished.

Date: 1/13/2026

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