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

J-A32041-16

2017 PA Super 226

KHAALID AMIR WILSON AND GABRIEL IN THE SUPERIOR COURT OF

DESHAWN WILSON, CO- PENNSYLVANIA

ADMINISTRATORS OF THE ESTATE OF

TANYA RENEE WILSON, DECEASED

v.

U.S. SECURITY ASSOCIATES, INC. AND

YVONNE HILLER

APPEAL OF: U.S. SECURITY

ASSOCIATES, INC.

No. 12 EDA 2016

Appeal from the Judgment Entered November 16, 2015

in the Court of Common Pleas of Philadelphia County

Civil Division at No.: 0971 Oct. Term 2011

KHAALID AMIR WILSON AND GABRIEL IN THE SUPERIOR COURT OF

DESHAWN WILSON, CO- PENNSYLVANIA

ADMINISTRATORS OF THE ESTATE OF

TANYA RENEE WILSON, DECEASED

Appellants

v.

U.S. SECURITY ASSOCIATES, INC. AND

YVONNE HILLER

Appellees No. 16 EDA 2016

Appeal from the Judgment Entered November 16, 2015

in the Court of Common Pleas of Philadelphia County

Civil Division at No.: 0971 Oct. Term 2011

J-A32041-16

PAUL MASCIANTONIO, ESQUIRE, IN THE SUPERIOR COURT OF

ADMINISTRATOR OF THE ESTATE OF PENNSYLVANIA

LATONYA BROWN, DECEASED

v.

U.S. SECURITY ASSOCIATES, INC. AND

YVONNE HILLER

APPEAL OF: U.S. SECURITY

ASSOCIATES, INC.

No. 26 EDA 2016

Appeal from the Judgment Entered November 16, 2015

in the Court of Common Pleas of Philadelphia County

Civil Division at No.: 0653 Dec. Term 2011

PAUL MASCIANTONIO, ESQUIRE, IN THE SUPERIOR COURT OF

ADMINISTRATOR OF THE ESTATE OF PENNSYLVANIA

LATONYA BROWN, DECEASED

Appellant

v.

U.S. SECURITY ASSOCIATES, INC. AND

YVONNE HILLER

Appellees No. 30 EDA 2016

Appeal from the Judgment Entered November 16, 2015

in the Court of Common Pleas of Philadelphia County

Civil Division at No.: 111200653

-2-

J-A32041-16

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

OPINION BY PLATT, J.: FILED JULY 18, 2017

These consolidated appeals arise out of jury verdicts finding civil

liability, including punitive damages, against Appellant, U.S. Security

Associates, Inc. (USSA), and Yvonne Hiller.1 USSA provided security guard

services under contract at the bakery plant where Hiller, a suspended

worker, shot and killed two co-workers, and seriously wounded a third. The

underlying complaints asserted Wrongful Death and Survival Acts claims

against USSA. The parties challenge various aspects of the verdicts, and

assert trial court error in evidentiary and related rulings. USSA raises

numerous claims, most notably several challenges to the punitive damages

award of thirty-eight-and-a-half million dollars. Appellees2 generally seek to

uphold the verdicts. However, they also challenge the denial of their motion

____________________________________________

*

Retired Senior Judge assigned to the Superior Court.

1

Although a named co-defendant in this litigation, Yvonne Hiller, the

shooter, did not actually participate in the trial or this appeal. (See N.T.

Trial, 2/20/15, at 25-27). She is incarcerated, following her conviction for

the murders underlying this case. (See infra at 8 n.9). For ease of

reference, we use “Appellant” to mean USSA only, unless differently

specified, or as otherwise reasonably indicated by the context.

2

Appellees, Khaalid Amir Wilson and Gabriel Deshawn Wilson, are co-

administrators of the estate of Tanya Renee Wilson, one of the victims. Paul

Masciantonio, Esquire is the administrator of the estate of LaTonya Brown,

the other decedent victim. A third victim, Bryant Dalton, was also shot and

seriously wounded, but fortunately survived, and testified at trial. He is not

a party in this appeal.

-3-

J-A32041-16

to mold the verdict to make USSA liable for pre-shooting “fear and fright”

damages.3 We affirm in part and reverse in part.

We take the facts of the case from the findings of the trial court which

find support in the record, and our independent review of the certified

record. As already noted, this case arises out of the tragic murder of two

employees of Kraft Foods Global Inc., and the serious but non-fatal shooting

of a third, at the Nabisco bakery plant then operated by Kraft in Northeast

Philadelphia.4 The three victims were shot by Hiller, a disgruntled co-

worker, in the disastrous climax of an ongoing series of disputes. While the

testimony and arguments differ in some material details, the basic facts

underlying the case are not in substantial dispute, except as noted.

Yvonne Hiller was a dough maker at the Kraft bakery. She had

continuing disagreements with co-workers Tanya Renee Wilson, LaTonya

Brown, and Bryant Dalton, claiming among other things that they threw deer

urine on her car, and that they threw toxic chemicals (including pesticides)

at her.

____________________________________________

3

In addition to the briefs of the parties, we also have the benefit of several

amicus curiae briefs. Barbara R. Axelrod, Esq. provided a brief on behalf of

the Pennsylvania Association for Justice. Nicholas A. Cummins, Esq.

provided a brief on behalf of The Pennsylvania Defense Institute.

4

Appellees settled separately with Kraft, which is not a party in this appeal.

(See Appellees’ Brief, at 8).

-4-

J-A32041-16

On the evening of September 9, 2010, at about 8:30 p.m., Kraft

supervisor (in Kraft’s terminology, business unit leader) Carl Rivers

suspended Hiller for her role in a verbal altercation that evening, including

threats, against Ms. Wilson, Ms. Brown, and Mr. Dalton. Mr. Rivers directed

senior USSA security officer (and USSA site supervisor), Damon Harris, to

escort Hiller while she left the premises.5

Mr. Harris parted company with Hiller at the guard shack and left her

to return to her car by herself. In fact, contrary to some testimony of

Harris, implying that Hiller got directly into her car, (see N.T. Trial, 2/18/15

A.M., at 11), she stopped for a few minutes to smoke a cigarette with an

acquaintance in the designated smoking area before leaving. (See N.T.

Trial, 2/23/15 P.M., at 71-73).

The parties dispute whether the failure to escort Hiller all the way to

her car was a breach of required procedure under “post orders,” the rules

set by Kraft for the performance of USSA’s services on its premises under

the security contract. (N.T. Trial, 2/18/15 A.M., at 94).

Appellees claim it was. Appellant denies any such requirement, even

though its designated corporate representative, Michael Donapel, in

____________________________________________

5

USSA provided security services at the facility, under contract, since 2003,

when it acquired the operation of the previous security contractor, Day &

Zimmerman. Mr. Harris had worked at the location since 2000, at first with

Day & Zimmerman. Harris testified that he became a USSA supervisor

“around about 2004.” (N.T. Trial, 2/17/15 P.M., at 14).

-5-

J-A32041-16

deposition testimony, appeared to assume a walkout to the car was the

standard procedure for a disciplinary escort. In any event, Hiller proceeded

to the parking lot alone. Once she arrived there she got into her car, but

instead of leaving the premises, she decided to drive back to the guard

station.

Brandishing a .357 Magnum revolver she had retrieved from her car,

Hiller confronted the two USSA security guards, and pointed the gun at the

junior guard, Marc Bentley. Using forthright street language, she demanded

to be let back in. Although Bentley had nine years of experience as a prison

guard, he had only been on the Kraft job for a few weeks. He let Hiller in,

and fell to the floor. Harris ran out of the guard shack, fell, spraining his

ankle, and got back up and began to make his way to a boiler room some

seventy feet away. (See N.T. Trial, 2/17/15 P.M., at 86; see also Trial

Court Memorandum in Support of Orders Denying Motions for Post-Trial

Relief, 11/16/15, [Trial Court Memorandum], at 1).

About this time, David Ciarlante, a mechanic on a smoke break who

knew Hiller as a fellow smoker, noticed her returning to the building after he

had seen her previously depart. Ciarlante testified that Harris and Bentley

both came running out of the guard shack. They warned him that Hiller had

entered the building, with a gun. Ciarlante ran back into the building to

warn other employees. He also called Kraft’s security supervisor, Ms.

Rhonda Mowday, on his two-way radio. Mowday asked Ciarlante to confirm

with USSA security that Hiller had re-entered the building and had a gun.

-6-

J-A32041-16

When he did, Mowday told Ciarlante to tell the guards to call 9-1-1.6

Ciarlante testified that he pursued Hiller and tried to get her to stop. She

shot at him and told him to go away. She shot at several other employees

as well.

The trial court found that both USSA guards called 9-1-1

(independently) after several minutes, but that neither ever called Kraft

management.7 (See Trial Court Memorandum, at 1; see also Appellant’s

brief, at 27; Appellees Brief, at 7).

The parties vigorously disputed the exact timeline and sequence of

events, as well as whether the various clocks on the multiple video

surveillance tapes were accurately synchronized. There does not appear to

have been a definitive resolution of these questions on the evidence or

testimony. The trial court states, without citation to the record, that the

parties “agree that approximately eight minutes elapsed” from the time

beginning with Hiller’s re-entry into the guard shack (8:41 P.M.) to her

____________________________________________

6

There appears to be a difference of opinion (and testimony) about whether

each of the guards had already called 9-1-1 by then on their own.

7

To the contrary, Kraft Business Unit Leader Jeffrey Smith, on hearing

sporadic reports that Hiller had returned to the building with a gun, called

the USSA guard shack. He asked if Yvonne Hiller was back on the premises.

Bentley said, “Yes.” But when Smith asked, “Where is she?” Bentley replied,

“I can’t talk” and put the phone down. Smith could hear Bentley “almost

sobbing,” say “I can’t believe she pointed a gun at my face[.]” (Deposition

of Jeffrey Smith, 2/16/15, at 54-55; see also id. at 42-55).

-7-

J-A32041-16

appearance on the third floor surveillance video (8:49 P.M.). (Trial Court

Memorandum, at 17). Appellant does not agree. (See Appellant’s Brief, at

72-73) (“The trial court misunderstood the timeline[.]”).

At any rate, after gaining entry at gunpoint Hiller proceeded upstairs

to the third floor break room where she confronted the three co-workers,

and blamed them for losing her job.8 Then she shot them. She shot at

several other employees and missed. A Philadelphia police SWAT team

arrived. Using Ciarlante as a guide to the building lay-out, they approached

Hiller. She shot at them, too, before they captured and arrested her.9

Appellees filed separate complaints, which included claims for punitive

damages. The two cases were eventually consolidated.10 (See Order,

5/21/12). Appellant USSA filed preliminary objections. On June 7, 2012,

the parties jointly stipulated to the dismissal of the punitive damages count.

(See Stipulation to Withdraw, 6/07/12). The parties also agreed to strike

the words “reckless, outrageous, intentional and/or wanton” from the

____________________________________________

8

The surviving victim, Bryant Dalton, testified that Hiller entered the break

room and said, “You motherfuckers costing me my job[,]” before shooting.

(N.T. Trial, 2/18/15 P.M., at 20).

9

Heller was convicted for these crimes, sentenced to life imprisonment

without parole, and her sentence was affirmed on appeal. (See

Commonwealth v. Hiller, 93 A.3d 504 (Pa. Super. filed December 9,

2013) (unpublished memorandum), appeal denied, 93 A.3d 462 (Pa. 2014)).

She remains incarcerated.

10

Accordingly, for ease of reference, we may refer to Appellees’ parallel

complaints in the singular.

-8-

J-A32041-16

relevant paragraphs of the complaints “without prejudice as to Defendant,

U.S. Security Associates, Inc. only.” (Id.) (emphasis added).

On the same date, Appellant praeciped the trial court to withdraw its

preliminary objections to Appellees’ complaints. The praecipe expressly

noted that “[a s]tipulation for dismissal for punitive damages without

prejudice has been executed by all parties and will be filed with the

[c]ourt.” (Praecipe to Withdraw Defendant, U.S. Security Associates, Inc.’s

Preliminary Objections to Plaintiff’s Complaint, 6/07/12) (emphasis added)

(capitalization omitted).

On October 31, 2014, over two years later, and four years after the

shooting, successor (and present) counsel for Appellees filed a motion for

leave to amend to add punitive damages to the plaintiffs’ complaint. (See

Plaintiffs’ Motion to Amend the Complaint to Add a Claim for Punitive

Damages, 10/31/14) (most capitalization omitted). Appellant opposed the

motion. (See Response of Defendant U.S. Security Associates, Inc. to

Plaintiffs’ Motion to Amend Their Complaints to Add a Claim for Punitive

Damages, 11/20/14) (most capitalization omitted).

The first trial began on Tuesday, February 17, 2015.11 On Monday,

February 23, 2015, the trial court granted Appellees’ October motion to add

punitive damages. The trial had already been in progress for almost a week.

____________________________________________

11

Appellees’ complaints originally included claims against USSA for negligent

hiring, training, and supervision of its security guards. However, on

(Footnote Continued Next Page)

-9-

J-A32041-16

The parties initially disputed whether Harris called Kraft management.

At trial, Mr. Harris testified (again) that he called Carl Rivers, the Kraft

supervisor, from the boiler room. On cross-examination, Harris finally

conceded that he had lied about calling Rivers, in an effort to protect his

job.12 (See N.T. Trial, 2/17/15 P.M., at 98-99). In his testimony, Mr. Rivers

denied that Mr. Harris had called him. (See N.T. Trial, 2/18/15 A.M., at

89).13

The trial court notes that Harris also signed and submitted a false

police report (claiming he had called Kraft management), prepared a false

Kraft incident report, and testified falsely at both of his pre-trial depositions.

(See Trial Court Memorandum, at 13).

_______________________

(Footnote Continued)

February 13, 2015, the trial court granted USSA’s unopposed motion in

limine to preclude any evidence, reference, or testimony regarding negligent

hiring or retention of USSA employees. (See Order, 2/13/15). Also, USSA

counsel denied any claim for comparative negligence. (See N.T. Motions in

Limine, 2/11/15, at 6). Accordingly, the “only” claims at issue on trial were

USSA’s respondeat superior liability for the actions of its security guard

employees; Appellees also argued that the USSA guards were improperly

trained.

12

Both Harris and Bentley testified they were still USSA employees at the

time of trial.

13

The trial court found that both USSA security officers eventually called

911, but did not call Kraft management (as provided in the security

agreement and the post orders). (See Trial Court Memorandum, at 13-14;

see also Rule 1925(a) Opinion, 2/03/16, at 1).

- 10 -

J-A32041-16

Of note for other claims in this appeal, at trial Appellees also presented

the expert testimony of Bennet Omalu, M.D., of Lodi, California. Dr. Omalu

was the chief medical examiner of San Joaquin County, California, the

president of Bennet Omalu Pathology, and an associate professor of

pathology at the University of California-Davis. (See N.T. Trial, 2/20/15

A.M., at 48). The trial court accepted Dr. Omalu “as a qualified expert as a

forensic pathologist, a clinical pathologist, and a neuropathologist.” (Id.).

Counsel for Appellant initially objected, but in the end declined to maintain

the objection.14

Based on his review of the medical records, Dr. Omalu testified about

the physiological processes which would have occurred in the victims when

confronted by Hiller with her handgun, as well as the physical effects of

actually being shot. (See id. at 48-96).

On February 26, 2015, the first jury reached a verdict on

compensatory damages. It awarded an aggregate amount of $8,020,000 to

Appellees.15 The jury allocated seventy percent of the liability to Hiller and

____________________________________________

14

Defense counsel initially objected to testimony from Dr. Omalu on

damages from pre-impact fright of the two deceased victims, as non-

recoverable and, accordingly, confusing and misleading to the jury. (See

N.T. Trial, 2/20/15 A.M., at 24). Nevertheless, counsel later apparently

acquiesced and declined to make a final objection to the trial court’s

acceptance of Dr. Omalu as an expert witness. (See id. at 48).

15

The jury allocated the award as follows: (a) $2,000,000 to the Brown

estate under the Survival Act; $600,000 for Ms. Brown’s pre-shooting fright

resulting from Hiller’s assault and USSA’s negligence; $2,000,000 to Ms.

(Footnote Continued Next Page)

- 11 -

J-A32041-16

to mold the verdict to make USSA liable for pre-shooting “fear and fright”

damages.3 We affirm in part and reverse in part.

We take the facts of the case from the findings of the trial court which

find support in the record, and our independent review of the certified

record. As already noted, this case arises out of the tragic murder of two

employees of Kraft Foods Global Inc., and the serious but non-fatal shooting

of a third, at the Nabisco bakery plant then operated by Kraft in Northeast

Philadelphia.4 The three victims were shot by Hiller, a disgruntled co-

worker, in the disastrous climax of an ongoing series of disputes. While the

testimony and arguments differ in some material details, the basic facts

underlying the case are not in substantial dispute, except as noted.

Yvonne Hiller was a dough maker at the Kraft bakery. She had

continuing disagreements with co-workers Tanya Renee Wilson, LaTonya

Brown, and Bryant Dalton, claiming among other things that they threw deer

urine on her car, and that they threw toxic chemicals (including pesticides)

at her.

____________________________________________

3

In addition to the briefs of the parties, we also have the benefit of several

amicus curiae briefs. Barbara R. Axelrod, Esq. provided a brief on behalf of

the Pennsylvania Association for Justice. Nicholas A. Cummins, Esq.

provided a brief on behalf of The Pennsylvania Defense Institute.

4

Appellees settled separately with Kraft, which is not a party in this appeal.

(See Appellees’ Brief, at 8).

-4-

J-A32041-16

On the evening of September 9, 2010, at about 8:30 p.m., Kraft

supervisor (in Kraft’s terminology, business unit leader) Carl Rivers

suspended Hiller for her role in a verbal altercation that evening, including

threats, against Ms. Wilson, Ms. Brown, and Mr. Dalton. Mr. Rivers directed

senior USSA security officer (and USSA site supervisor), Damon Harris, to

escort Hiller while she left the premises.5

Mr. Harris parted company with Hiller at the guard shack and left her

to return to her car by herself. In fact, contrary to some testimony of

Harris, implying that Hiller got directly into her car, (see N.T. Trial, 2/18/15

A.M., at 11), she stopped for a few minutes to smoke a cigarette with an

acquaintance in the designated smoking area before leaving. (See N.T.

Trial, 2/23/15 P.M., at 71-73).

The parties dispute whether the failure to escort Hiller all the way to

her car was a breach of required procedure under “post orders,” the rules

set by Kraft for the performance of USSA’s services on its premises under

the security contract. (N.T. Trial, 2/18/15 A.M., at 94).

Appellees claim it was. Appellant denies any such requirement, even

though its designated corporate representative, Michael Donapel, in

____________________________________________

5

USSA provided security services at the facility, under contract, since 2003,

when it acquired the operation of the previous security contractor, Day &

Zimmerman. Mr. Harris had worked at the location since 2000, at first with

Day & Zimmerman. Harris testified that he became a USSA supervisor

“around about 2004.” (N.T. Trial, 2/17/15 P.M., at 14).

-5-

J-A32041-16

deposition testimony, appeared to assume a walkout to the car was the

standard procedure for a disciplinary escort. In any event, Hiller proceeded

to the parking lot alone. Once she arrived there she got into her car, but

instead of leaving the premises, she decided to drive back to the guard

station.

Brandishing a .357 Magnum revolver she had retrieved from her car,

Hiller confronted the two USSA security guards, and pointed the gun at the

junior guard, Marc Bentley. Using forthright street language, she demanded

to be let back in. Although Bentley had nine years of experience as a prison

guard, he had only been on the Kraft job for a few weeks. He let Hiller in,

and fell to the floor. Harris ran out of the guard shack, fell, spraining his

ankle, and got back up and began to make his way to a boiler room some

seventy feet away. (See N.T. Trial, 2/17/15 P.M., at 86; see also Trial

Court Memorandum in Support of Orders Denying Motions for Post-Trial

Relief, 11/16/15, [Trial Court Memorandum], at 1).

About this time, David Ciarlante, a mechanic on a smoke break who

knew Hiller as a fellow smoker, noticed her returning to the building after he

had seen her previously depart. Ciarlante testified that Harris and Bentley

both came running out of the guard shack. They warned him that Hiller had

entered the building, with a gun. Ciarlante ran back into the building to

warn other employees. He also called Kraft’s security supervisor, Ms.

Rhonda Mowday, on his two-way radio. Mowday asked Ciarlante to confirm

with USSA security that Hiller had re-entered the building and had a gun.

-6-

J-A32041-16

When he did, Mowday told Ciarlante to tell the guards to call 9-1-1.6

Ciarlante testified that he pursued Hiller and tried to get her to stop. She

shot at him and told him to go away. She shot at several other employees

as well.

The trial court found that both USSA guards called 9-1-1

(independently) after several minutes, but that neither ever called Kraft

management.7 (See Trial Court Memorandum, at 1; see also Appellant’s

brief, at 27; Appellees Brief, at 7).

The parties vigorously disputed the exact timeline and sequence of

events, as well as whether the various clocks on the multiple video

surveillance tapes were accurately synchronized. There does not appear to

have been a definitive resolution of these questions on the evidence or

testimony. The trial court states, without citation to the record, that the

parties “agree that approximately eight minutes elapsed” from the time

beginning with Hiller’s re-entry into the guard shack (8:41 P.M.) to her

____________________________________________

6

There appears to be a difference of opinion (and testimony) about whether

each of the guards had already called 9-1-1 by then on their own.

7

To the contrary, Kraft Business Unit Leader Jeffrey Smith, on hearing

sporadic reports that Hiller had returned to the building with a gun, called

the USSA guard shack. He asked if Yvonne Hiller was back on the premises.

Bentley said, “Yes.” But when Smith asked, “Where is she?” Bentley replied,

“I can’t talk” and put the phone down. Smith could hear Bentley “almost

sobbing,” say “I can’t believe she pointed a gun at my face[.]” (Deposition

of Jeffrey Smith, 2/16/15, at 54-55; see also id. at 42-55).

-7-

J-A32041-16

appearance on the third floor surveillance video (8:49 P.M.). (Trial Court

Memorandum, at 17). Appellant does not agree. (See Appellant’s Brief, at

72-73) (“The trial court misunderstood the timeline[.]”).

At any rate, after gaining entry at gunpoint Hiller proceeded upstairs

to the third floor break room where she confronted the three co-workers,

and blamed them for losing her job.8 Then she shot them. She shot at

several other employees and missed. A Philadelphia police SWAT team

arrived. Using Ciarlante as a guide to the building lay-out, they approached

Hiller. She shot at them, too, before they captured and arrested her.9

Appellees filed separate complaints, which included claims for punitive

damages. The two cases were eventually consolidated.10 (See Order,

5/21/12). Appellant USSA filed preliminary objections. On June 7, 2012,

the parties jointly stipulated to the dismissal of the punitive damages count.

(See Stipulation to Withdraw, 6/07/12). The parties also agreed to strike

the words “reckless, outrageous, intentional and/or wanton” from the

____________________________________________

8

The surviving victim, Bryant Dalton, testified that Hiller entered the break

room and said, “You motherfuckers costing me my job[,]” before shooting.

(N.T. Trial, 2/18/15 P.M., at 20).

9

Heller was convicted for these crimes, sentenced to life imprisonment

without parole, and her sentence was affirmed on appeal. (See

Commonwealth v. Hiller, 93 A.3d 504 (Pa. Super. filed December 9,

2013) (unpublished memorandum), appeal denied, 93 A.3d 462 (Pa. 2014)).

She remains incarcerated.

10

Accordingly, for ease of reference, we may refer to Appellees’ parallel

complaints in the singular.

-8-

J-A32041-16

relevant paragraphs of the complaints “without prejudice as to Defendant,

U.S. Security Associates, Inc. only.” (Id.) (emphasis added).

On the same date, Appellant praeciped the trial court to withdraw its

preliminary objections to Appellees’ complaints. The praecipe expressly

noted that “[a s]tipulation for dismissal for punitive damages without

prejudice has been executed by all parties and will be filed with the

[c]ourt.” (Praecipe to Withdraw Defendant, U.S. Security Associates, Inc.’s

Preliminary Objections to Plaintiff’s Complaint, 6/07/12) (emphasis added)

(capitalization omitted).

On October 31, 2014, over two years later, and four years after the

shooting, successor (and present) counsel for Appellees filed a motion for

leave to amend to add punitive damages to the plaintiffs’ complaint. (See

Plaintiffs’ Motion to Amend the Complaint to Add a Claim for Punitive

Damages, 10/31/14) (most capitalization omitted). Appellant opposed the

motion. (See Response of Defendant U.S. Security Associates, Inc. to

Plaintiffs’ Motion to Amend Their Complaints to Add a Claim for Punitive

Damages, 11/20/14) (most capitalization omitted).

The first trial began on Tuesday, February 17, 2015.11 On Monday,

February 23, 2015, the trial court granted Appellees’ October motion to add

punitive damages. The trial had already been in progress for almost a week.

____________________________________________

11

Appellees’ complaints originally included claims against USSA for negligent

hiring, training, and supervision of its security guards. However, on

(Footnote Continued Next Page)

-9-

J-A32041-16

The parties initially disputed whether Harris called Kraft management.

At trial, Mr. Harris testified (again) that he called Carl Rivers, the Kraft

supervisor, from the boiler room. On cross-examination, Harris finally

conceded that he had lied about calling Rivers, in an effort to protect his

job.12 (See N.T. Trial, 2/17/15 P.M., at 98-99). In his testimony, Mr. Rivers

denied that Mr. Harris had called him. (See N.T. Trial, 2/18/15 A.M., at

89).13

The trial court notes that Harris also signed and submitted a false

police report (claiming he had called Kraft management), prepared a false

Kraft incident report, and testified falsely at both of his pre-trial depositions.

(See Trial Court Memorandum, at 13).

_______________________

(Footnote Continued)

February 13, 2015, the trial court granted USSA’s unopposed motion in

limine to preclude any evidence, reference, or testimony regarding negligent

hiring or retention of USSA employees. (See Order, 2/13/15). Also, USSA

counsel denied any claim for comparative negligence. (See N.T. Motions in

Limine, 2/11/15, at 6). Accordingly, the “only” claims at issue on trial were

USSA’s respondeat superior liability for the actions of its security guard

employees; Appellees also argued that the USSA guards were improperly

trained.

12

Both Harris and Bentley testified they were still USSA employees at the

time of trial.

13

The trial court found that both USSA security officers eventually called

911, but did not call Kraft management (as provided in the security

agreement and the post orders). (See Trial Court Memorandum, at 13-14;

see also Rule 1925(a) Opinion, 2/03/16, at 1).

- 10 -

J-A32041-16

Of note for other claims in this appeal, at trial Appellees also presented

the expert testimony of Bennet Omalu, M.D., of Lodi, California. Dr. Omalu

was the chief medical examiner of San Joaquin County, California, the

president of Bennet Omalu Pathology, and an associate professor of

pathology at the University of California-Davis. (See N.T. Trial, 2/20/15

A.M., at 48). The trial court accepted Dr. Omalu “as a qualified expert as a

forensic pathologist, a clinical pathologist, and a neuropathologist.” (Id.).

Counsel for Appellant initially objected, but in the end declined to maintain

the objection.14

Based on his review of the medical records, Dr. Omalu testified about

the physiological processes which would have occurred in the victims when

confronted by Hiller with her handgun, as well as the physical effects of

actually being shot. (See id. at 48-96).

On February 26, 2015, the first jury reached a verdict on

compensatory damages. It awarded an aggregate amount of $8,020,000 to

Appellees.15 The jury allocated seventy percent of the liability to Hiller and

____________________________________________

14

Defense counsel initially objected to testimony from Dr. Omalu on

damages from pre-impact fright of the two deceased victims, as non-

recoverable and, accordingly, confusing and misleading to the jury. (See

N.T. Trial, 2/20/15 A.M., at 24). Nevertheless, counsel later apparently

acquiesced and declined to make a final objection to the trial court’s

acceptance of Dr. Omalu as an expert witness. (See id. at 48).

15

The jury allocated the award as follows: (a) $2,000,000 to the Brown

estate under the Survival Act; $600,000 for Ms. Brown’s pre-shooting fright

resulting from Hiller’s assault and USSA’s negligence; $2,000,000 to Ms.

(Footnote Continued Next Page)

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J-A32041-16

thirty percent to USSA. (See Jury Verdict Slip, 2/26/15, at 1; see also N.T.

Trial, 2/26/15, at 34).

However, the first jury could not reach agreement on whether the

USSA guards, Bentley and Harris, acted “outrageously,” precluding an award

for punitive damages. (N.T. Trial, 3/03/15, at 3). The trial court dismissed

the jury. (See id. at 15).

A second trial began about three weeks later, on March 23, 2015. The

issues presented to the second jury were whether the conduct of the

security guards was outrageous, and if so, what amount of punitive damages

should be awarded. The trial court informed the second jury that a

compensatory award had been made by the first jury, but not the amount or

any other details. (See N.T. Trial, 3/23/15 A.M., at 61).

In the second trial, Appellant wanted to present testimony from Robert

M. Toborowsky, M.D., a clinical and forensic psychiatrist,16 that the acute

_______________________

(Footnote Continued)

Brown’s beneficiaries under the Wrongful Death Act; (b) $1,500,000 to the

Wilson estate under the Survival Act; $720,000 for Ms. Wilson’s pre-shooting

fright resulting from Hiller’s assault and USSA’s negligence; and $1,200,000

to Ms. Wilson’s beneficiaries under the Wrongful Death Act. The trial court’s

explanation for including a special interrogatory on pre-impact (pre-

shooting) fear and fright damages may be found in the Trial Court

Memorandum, at 20-21. For further discussion of this issue, see this

opinion, infra at *52-*55.

16

Dr. Toborowsky also held a teaching position as a clinical associate

professor in the psychiatric department of the Perelman School of Medicine

at the University of Pennsylvania, among numerous other professional

duties, publications, and recognition.

- 12 -

J-A32041-16

psychological stress of having a gun pointed at USSA guards Harris and

Bentley likely interfered with their judgment and work performance. (See

Supplemental Answer to Expert Discovery, 3/20/15).

The trial court did not permit Dr. Toborowsky to testify, ruling that the

defense’s submission of him as an expert witness was too late. (See Order,

3/24/15 (citing N.T. Hearing, 3/23/15)). However, the trial court did permit

Appellant to re-present the testimony of Appellees/plaintiffs’ expert witness,

Dr. Omalu, (about the physiological effects of having a gun pointed at the

victims) in substitution for the precluded testimony of Dr. Toborowsky.

The second jury returned a verdict of $38,512,600.00 in punitive

damages against USSA. (See Punitive Damages Jury Verdict Slip, 3/30/15).

This made the total award $46,532,600.00, plus interest. (See Trial

Worksheet with Attachment, 3/31/15).17

The parties filed various post-trial motions. Notably, Appellant filed a

motion for post-trial relief, including a motion for judgment notwithstanding

the verdict (JNOV) for both trials, and a motion to mold the verdict. 18 The

trial court declined both Appellant’s request for a JNOV and Appellees’

____________________________________________

17

The jury verdict worksheet was prepared and signed by the trial court

judge herself. The worksheet combines the results of the two separate jury

verdicts.

18

JNOV is the acronym abbreviation for judgment notwithstanding the

verdict, from the Latin-derived name, judgment non obstante veredicto.

- 13 -

J-A32041-16

request to mold the verdict to include “fear and fright” (pre-shooting)

damages. These timely cross-appeals followed.19

Appellant nominally presents six questions for our review.20

____________________________________________

19

Both parties filed timely court-ordered statements of error. The trial court

filed an opinion on February 3, 2016, which referenced its Memorandum in

Support of Orders Denying Motions for Post-Trial Relief and Granting

Petitions for Delay Damages, filed 11/16/15. See Pa.R.A.P. 1925.

20

In an expanded brief, counsel for Appellant proceeds to argue at least

twenty-two, if not twenty-nine, claims, subsidiary questions, and various

other inter-related issues. (See Appellant’s Brief, at 12-79). The arguments

made are often unduly repetitive, in a meandering sequence which

sometimes tracks the six questions presented and sometimes does not. See

Pa.R.A.P. 2119(a). Some of the twenty-two arguments are “fairly

suggested” by the six nominal questions; some are not. Pa.R.A.P. 2116;

(see also Appellees’ Brief at 34, describing “a scattershot of weak factual

arguments”).

Counsel cites the well-known maxim that an appellate brief containing

ten or twelve points raises a presumption that none of them have any merit.

(See Appellant’s Brief, at 15). Nevertheless, counsel proclaims that “[t]his

case is an exception that proves the rule.” (Id.). It does, but not in the

way counsel probably intended.

We understand that a zealous advocate can be tempted to include

every conceivable argument in an effort to leave no stone unturned. This is

especially so in a high-profile case where multi-million dollar verdicts are at

stake. Nevertheless, in reality, zealous representation does not require, or

even benefit from, such all-inclusive “kitchen sink” advocacy.

To the contrary, the indiscriminate introduction of numerous marginal

arguments does not enhance appellate advocacy; it detracts from it. See

J.J. DeLuca Co. Inc. v. Toll Naval Assocs., 56 A.3d 402, 410 (Pa. Super.

2012) (“[T]he effectiveness of appellate advocacy may suffer when counsel

raises numerous issues, to the point where a presumption arises that there

is no merit to any of them.”) (citation omitted). This is true even in capital

cases:

(Footnote Continued Next Page)

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1. Is [Appellant] entitled to JNOV in its favor on

[Appellees’] claim for punitive damages, where the trial court

allowed [Appellees] to add that claim two years after the statute

of limitations expired, and halfway through the trial?

2. Is [Appellant] entitled to JNOV on punitive damages,

where the conduct of the security officers under all of the

circumstances was insufficient as a matter of law to justify

imposing punitive damages against the officers, or vicariously

against [Appellant]?

3. Is [Appellant] entitled to a new trial on [Appellees’]

claim for punitive damages because of multiple trial errors that

unfairly prejudiced [Appellant], including refusing to allow

[Appellant] to present its expert on [Appellees’] newly-added

claim?

_______________________

(Footnote Continued)

[Our Supreme] Court is aware of the felt need to leave no

stone unturned when counsel presents a capital appeal.

However, we note that the quality of representation is not

measured by the number of issues raised. It is not

necessary to raise patently unavailing matters in order to

ward off fears of a later finding of ineffectiveness; a good

attorney will not disguise and thus weaken good points by

camouflaging them in a flurry of makeweight issues which

clearly have no merit.

Commonwealth v. Williams, 581 Pa. 57, 863 A.2d 505, 510

n.5 (2004); see Commonwealth v. Robinson, 581 Pa. 154,

864 A.2d 460, 479 n.28 (2004) (“While we certainly understand

the duty of the attorney to be a zealous advocate, we pose that

conduct such as what we presently encounter does not advance

the interests of the parties and, if anything, is a disservice to the

client.”); United States v. Hart, 693 F.2d 286, 287 n.1 (3d Cir.

1982) (“Because of the inordinate number of meritless

objections pressed on appeal, spotting the one bona fide issue

was like finding a needle in a haystack.”).

Commonwealth v. Wright, 961 A.2d 119, 131 n.7 (Pa. 2008).

- 15 -

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4. Is [Appellant] entitled to a remittitur or new trial on

[Appellees’] claim for punitive damages because the punitive

damages award was shockingly and unconstitutionally excessive,

where the punitive damages were [thirty-six] times higher than

[Appellant’s] portion of the relevant compensatory award, and

USSA’s conduct was not reprehensible?

5. Is [Appellant] entitled to JNOV on all issues, because

even if the jury could have found negligence, which [Appellant]

denies, the evidence was inadequate as a matter of law to find

causation?

6. Must the compensatory verdicts in favor of [Appellees]

be molded to reflect their joint tortfeasor releases?

(Appellant’s Brief, at 6).

Appellees restate Appellant’s issues (albeit in opposition), and present

their cross-appeal issues as follows:21

USSA’s “JNOV” issues:

1. Did [Appellees] introduce sufficient evidence in

the first trial that [Appellant] breached a duty of care that

caused the deaths of Wilson and Brown?

2. Did [Appellees] introduce sufficient evidence in

the second trial that [Appellant’s] conduct was outrageous

so as to permit punitive damages?

3. Did the trial court act within its discretion by

allowing [Appellees] to amend their complaints to seek

punitive damages?

USSA’s “new trial” issues:

____________________________________________

21

Appellees present their issues (including their version of Appellant’s

issues) in somewhat unorthodox fashion. To avoid unnecessary confusion,

we reprint all the issues verbatim as reformulated by Appellees/Cross-

Appellants, except for bracketed insertions.

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J-A32041-16

4. Did the trial court permissibly decide that

[Appellees] need not re[-]prove causation in the second

trial, where causation already had been found by the first

jury?

5. Did the trial court act permissibly by not informing

the second jury about the first jury’s compensatory verdict

and prophylactic apportionment of liability?

6. Did the trial court act within its discretion by not

permitting expert testimony in the second trial from Dr.

Toborowsky given the lateness of his identification?

7. Did the trial court act within its discretion when

instructing the second jury on [Appellant’s] vicarious

liability for its employees’ misconduct?

USSA’s “damages” issues:

8. Did the trial court properly decline to mold the

verdict based either on common-law principles or

[Appellees’] releases of Kraft?

9. Did the trial court permissibly decline to remit the

verdict under due process principles or Pennsylvania law?

[Appellees’] cross-appeal issues:

10. Did the trial court improperly fail to mold the

jury’s compensatory verdict so that [Appellant] was liable

for the award for pre-shooting assault damages?

11. Did the trial court improperly strike

correspondence confirming that [Appellant’s] insurance

covered punitive damages?

(Appellees’ Brief, at 4-5).22

____________________________________________

22

It bears mentioning that our admonition against multiplication of marginal

issues applies to the eleven questions in Appellees’ brief as well. (See

supra at *14 n.20).

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

A JNOV can be entered upon two bases: (1) where the

movant is entitled to judgment as a matter of law; and/or, (2)

the evidence was such that no two reasonable minds could

disagree that the verdict should have been rendered for the

movant. When reviewing a trial court’s denial of a motion for

JNOV, we must consider all of the evidence admitted to decide if

there was sufficient competent evidence to sustain the verdict.

In so doing, we must also view this evidence in the light most

favorable to the verdict winner, giving the victorious party the

benefit of every reasonable inference arising from the evidence

and rejecting all unfavorable testimony and inference.

Concerning any questions of law, our scope of review is plenary.

Concerning questions of credibility and weight accorded the

evidence at trial, we will not substitute our judgment for that of

the finder of fact. If any basis exists upon which the jury could

have properly made its award, then we must affirm the trial

court’s denial of the motion for JNOV. A JNOV should be entered

only in a clear case.

Am. Future Sys., Inc. v. Better Bus. Bureau of E. Pa., 872 A.2d 1202,

1215 (Pa. Super. 2005) (citation omitted), affirmed, 923 A.2d 389 (Pa.

2007), cert. denied, 552 U.S. 1076 (2007). Similarly,

Appellate review of a denial of JNOV is quite narrow. We

may reverse only in the event the trial court abused its

discretion or committed an error of law that controlled the

outcome of the case. Abuse of discretion occurs if the trial court

renders a judgment that is manifestly unreasonable, arbitrary or

capricious; that fails to apply the law; or that is motivated by

partiality, prejudice, bias or [i]ll-will.

When reviewing an appeal from the denial of a request for

judgment n.o.v., the appellate court must view the

evidence in the light most favorable to the verdict[-]winner

and give him or her the benefit of every reasonable

inference arising therefrom while rejecting all unfavorable

testimony and inferences . . . . Thus, the grant of a

judgment n.o.v. should only be entered in a clear case and

any doubts must be resolved in favor of the

verdict[-]winner. Furthermore, [i]t is only when either the

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J-A32041-16

movant is entitled to judgment as a matter of law or the

evidence was such that no two reasonable minds could

disagree that the outcome should have been rendered in

favor of the movant that an appellate court may vacate a

jury’s finding.

Thomas Jefferson Univ. v. Wapner, 903 A.2d 565, 569 (Pa. Super. 2006)

(citations and internal quotation marks omitted). For our review, we accept

the trial court’s findings of fact which are supported by the record.23

It is well-established that parties, by stipulation, may bind

themselves on all matters except those affecting jurisdiction

and prerogatives of the court. When interpreting a

stipulation, courts employ the rules for construction of contracts,

with the primary focus placed on ascertaining and giving effect

to the intention of the parties. The language of a stipulation, like

that of a contract, is construed against the drafter. In

construing a stipulation, the court will adopt the interpretation

that is the most reasonable and probable, bearing in mind the

objects which the parties intended to accomplish through the

agreement. The court will not extend the language by

implication or enlarge the meaning of terms beyond what is

expressed.

____________________________________________

23

However, we may not defer to the trial court’s findings of fact which rely

solely on the allegations of Appellees’ complaints. (See, e.g., Trial Court

Memorandum, at 1-2). “Allegations are not evidence[.]” Commonwealth

v. Delbridge, 859 A.2d 1254, 1258 (Pa. 2004). Without evidence there is

no proof. See, e.g., Francis Gerard Janson, P.C. v. Frost, 618 A.2d

1003, 1006 (Pa. Super. 1993) (appellees had no proof without evidence).

“Where the evidence is insufficient to sustain the verdict or decision

of the trial court, the remedy granted in civil cases is a judgment

notwithstanding the verdict.” Lanning v. West, 803 A.2d 753, 759 (Pa.

Super. 2002) (citing Lilley v. Johns-Manville Corp., 596 A.2d 203, 206

(Pa. Super. 1991), appeal denied, 607 A.2d 254 (Pa. 1992) (emphasis

added).

- 19 -

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Cobbs v. Allied Chem. Corp., 661 A.2d 1375, 1377 (Pa. Super. 1995),

appeal denied, 672 A.2d 303 (Pa. 1996) (citations and footnote omitted)

(emphasis added).

In this appeal, Appellant’s first issue asserts that the trial court erred

and abused its discretion in allowing an amendment to the complaint, after

the statute of limitations had expired, to add a claim for punitive damages in

the middle of the first trial, notwithstanding the “without prejudice”

stipulation of the parties, to its prejudice. (See Appellant’s Brief, at 12, 15-

25, and passim). We agree.

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

“Amendments to pleadings are freely allowed under the Pennsylvania

Rules of Civil Procedure and it is within the trial court’s discretion whether to

grant or deny permission to amend. An amendment, however, may not

introduce a new cause of action after the applicable statute of

limitations has run.” Beckner v. Copeland Corp., 785 A.2d 1003, 1005

(Pa. Super. 2001), appeal denied, 805 A.2d 518 (Pa. 2002) (citations

omitted) (emphasis added).

Here, Appellees maintain that a party may amend a pleading at any

time. (See Appellees’ Brief, at 36). They cite, inter alia, Daley v. John

Wanamaker, Inc., 464 A.2d 355, 361 (Pa. Super. 1983). Nonetheless, the

Daley court recognized that “[a]mendments to pleadings are freely allowed

under the Rules of Civil Procedure. However, an amendment may not

- 20 -

J-A32041-16

introduce a new cause of action after the statute of limitations has

run. The reason for this rule is to prevent prejudice to the adverse party.”

Id. at 361 (emphasis added) (citations and footnote omitted).

On independent review, we are constrained to conclude that the trial

court’s decision to permit the addition of a claim for punitive damages in the

middle of the first trial was legally incorrect. Quite plainly, and without

factual dispute, the statute of limitations had expired.

Nevertheless, Appellees, tracking the reasoning of the trial court,

maintain that reinstatement of the punitive damages claim was not a new

cause of action, but merely a revival of an element of damages incident to

an existing cause of action. (See Appellees’ Brief, at 43) (citing Trial Court

Memorandum, 11/16/15, at 52-53). We disagree.

Appellant submits that her proposed amendments to her

[c]omplaint would “amplify” and “specifically detail the original

causes of action” while also adding a clause seeking

punitive damages. These allegations, however, maintain that

Appellees acted with “reckless indifference” to the life of

Appellant’s son and made active “misrepresentations” concerning

the program content of [Appellee] to Appellant and the staff of

the facility where he was staying prior to his transfer. Such

allegations differ greatly from those contained in her

[c]omplaint which do no more than allege ordinary

negligence. We do not agree that these amendments will act

merely as an amplification of the claims Appellant has already

made against Appellees, for which we have judged them to be

immune. Rather, Appellant is seeking to allege facts which

would . . . add another measure of damages.

Willett v. Evergreen Homes, Inc., 595 A.2d 164, 168–69 (Pa. Super.

1991), appeal denied, 600 A.2d 539 (Pa. 1991) (emphases added).

- 21 -

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Although amendments to pleadings are freely allowed, an

amendment may not introduce a new cause of action after the

statute of limitations has run because such may cause prejudice

to an adverse party. “A new cause of action does arise . . . if the

amendment proposes a different theory or a different kind of

negligence than the one previously raised or if the operative

facts supporting the claim are changed.” Daley [supra at]

361[.]

Id. at 169 (two citations omitted).

In this case, in a self-evident quid pro quo, the parties, through

previous counsel, agreed to the withdrawal of Appellant’s preliminary

objections to Appellees’ complaints in exchange for the withdrawal of their

punitive damages claim. Counsel jointly stipulated that the words,

“reckless, outrageous, intentional and/or wanton,” in paragraph 104 of

Plaintiffs’ complaint, “are stricken without prejudice as to Defendant, U.S.

Security Associates, Inc. only.” (Stipulation to Withdraw Specific Allegations

in Plaintiff’s Complaint, 6/07/12). We remain mindful that:

In construing a stipulation, the court will adopt the interpretation

that is the most reasonable and probable, bearing in mind the

objects which the parties intended to accomplish through the

agreement. The court will not extend the language by

implication or enlarge the meaning of terms beyond what is

expressed.

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

Two years after the stipulation in this case, Appellees’ new counsel

sought to introduce an amendment to their complaint, adding a claim for

punitive damages. An amendment, however, may not introduce a new

- 22 -

J-A32041-16

cause of action after the applicable statute of limitations has run. See

Beckner, supra at 1005; Daley, supra at 361; Willett, supra at 169.

It is certainly true that the stipulation was “without prejudice.”

However, it is well-settled that a party which takes a voluntary non-suit

even without prejudice must still re-file within the statute of limitations.

“[W]hen a plaintiff takes a voluntary nonsuit, it is as if the original suit

was never initiated. Logically, since the original complaint is treated as if it

never existed, the statute of limitations is not tolled by the filing of a

complaint subsequently dismissed without prejudice.” Williams Studio

Div. of Photography by Tallas, Inc. v. Nationwide Mut. Fire Ins. Co.,

550 A.2d 1333, 1335–36 (Pa. Super. 1988), appeal denied, 588 A.2d 510

(Pa. 1990) (citation omitted).

In this appeal, we discern no legal basis on which the strategic

withdrawal of one significant cause of action, punitive damages, should be

treated differently than our settled controlling authority treats the

withdrawal of an entire lawsuit. See Willett, supra at 168–69; Williams

Studio, supra at 1335–36.

Nor does the phrase “without prejudice” mean that Appellees are free

to disregard controlling case authority or the rules of civil procedure. “When

interpreting a stipulation, courts employ the rules for construction of

contracts[.]” Cobbs, supra at 1377 (citation omitted). Accordingly, absent

contemporaneous indication of the intent of the parties to the contrary, we

- 23 -

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give the stipulation the benefit of its plain meaning, but no more. Appellees

were arguably able to reinstate their punitive damages claim within the

limitations period, but not beyond. “The court will not extend the language

by implication or enlarge the meaning of terms beyond what is expressed.”

Id. (citation omitted).

Appellees also contend that the reinsertion of punitive damages is

merely an amendment to the ad damnum clause, incident to an underlying

cause of action, rather than the cause of action itself. (See Appellees’ Brief,

at 41) (citing Hutchison ex rel. Hutchison v. Luddy, 870 A.2d 766, 772

(Pa. 2005) and Hilbert v. Roth, 149 A.2d 648, 652 (Pa. 1959)). We

disagree.

First, most noticeably, neither of these two cases addresses the key

question at issue here, namely, whether a claim for punitive damages, once

voluntarily withdrawn by stipulation of counsel, can be unilaterally reinstated

on mere request, after the statute of limitations has run. Nor does either of

these cases present legal principles analogous to the issues raised in this

appeal.

Hutchison, supra, was a molestation case involving a Catholic priest

and a minor boy. See id. at 767. On earlier review, a panel of this Court

had reasoned that, because the sexual encounter at issue occurred in a hotel

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room, outside of Church premises,24 the diocese of Altoona-Johnstown and

related parties could not, as a matter of law, be liable for punitive damages

under the Restatement (Second) of Torts § 317 (1965) [master-servant

liability], which the panel majority had read to require the tort to occur on

the premises of the master.25 See Hutchison, 763 A.2d at 832. On

remand from our Supreme Court, in a complex, and somewhat complicated

opinion, the panel in this Court decided that “the cause of action for a

practice or pattern was not cognizable as a basis for a claim for punitive

damages and section 317 could not support a claim for punitive damages.”

Id. at 837–38.

____________________________________________

24

It appears that the statute of limitations had run out on a series of prior

encounters in the rectory, or other church property.

25

Section 317, in pertinent part, provided that:

A master is under a duty to exercise reasonable care so to

control his servant while acting outside the scope of his

employment as to prevent him from intentionally harming others

or from so conducting himself as to create an unreasonable risk

of bodily harm to them, if

(a) the servant

(i) is upon the premises in possession of the master

or upon which the servant is privileged to enter only as his

servant, or

(ii) is using a chattel of the master[.]

Restatement (Second) of Torts § 317(a) (1965) (emphasis added; original

emphasis removed).

- 25 -

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Our Supreme Court vacated and remanded. Pertinent to the issues for

which appeal was granted, it held that “there is no general proscription in

law against pursuing punitive damages in the Section 317 context, where

the facts so warrant.” Hutchison, 870 A.2d at 773.

Our Supreme Court explained: “[W]e reject the Superior Court’s

conclusion that punitive damages are unavailable, as a matter of law, in an

action for negligent supervision. We remand the matter to the Superior

Court to determine whether the jury’s award of punitive damages against

26

the [d]iocesan [p]arties was properly supported by the evidence.” Id.

Therefore, aside from the recital of general principles not substantively

at issue here, the holding in Hutchison on its face does not address the

issue of reinstatement of a previously withdrawn claim for punitive

damages, past the expiration of the statute of limitations.

____________________________________________

26

The Court further explained:

In overturning the jury award of punitive damages in this

case, the Superior Court panel did not view the question before

it as requiring application of the settled punitive damages

standard to the facts of the case. Instead, the panel concluded

that, since the cause of action for negligent supervision may

succeed upon a showing of ordinary negligence, and an award of

punitive damages requires far more than ordinary negligence,

negligent supervision causes of action can never be the basis for

an award of punitive damages. In so holding, the panel

conflated theories of liability with the distinct issue of damages,

misconstrued this Court’s precedent, and thereby committed an

error of law.

Hutchison, supra at 772 (emphases in original).

- 26 -

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It is beyond question that the mere existence of

negligence and the occurrence of injury are insufficient to

impose liability upon anyone as there remains to be proved

the link of causation. Furthermore, our Supreme Court

has stated that “. . . even when it is established that the

defendant breached some duty of care owed the plaintiff, it

is incumbent on a plaintiff to establish a causal connection

between defendant’s conduct, and it must be shown to

have been the proximate cause of plaintiff’s injury.”

Proximate causation is defined as a wrongful act

which was a substantial factor in bringing about the

plaintiff’s harm. Proximate cause does not exist where the

causal chain of events resulting in plaintiff’s injury is so

remote as to appear highly extraordinary that the conduct

could have brought about the harm. At issue here is

whether or not Appellee’s negligence was a “substantial

factor” in bringing about Appellant’s injuries to satisfy the

element of causation.

In order to establish causation, the plaintiff must

prove that the breach was both the proximate and

actual cause of the injury. Proximate cause is a

question of law to be determined by the court before the

issue of actual cause may be put to the jury. A

determination of legal causation[ ] essentially regards

whether the negligence, if any, was so remote that as a

matter of law, [the actor] cannot be held legally

responsible for [the] harm which subsequently occurred.

Therefore, the court must determine whether the injury

would have been foreseen by an ordinary person as the

natural and probable outcome of the act complained of.

The substantial factor test for determining whether a

party’s negligence was the proximate or legal cause of another’s

injury is set forth in Wisniewski v. Great Atlantic & Pacific

Tea Co., 226 Pa. Super. 574, 323 A.2d 744, 748 (1974):

This test provides that the actor’s negligent conduct is a

legal cause of harm to another if:

(a) his conduct is a substantial factor in bringing about

the harm, and

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(b) there is no rule of law relieving the actor from

liability because of the manner in which his negligence

has resulted in harm.

[Id.] (citing RESTATEMENT (SECOND) OF TORTS, § 431

(1965)).

The method for determining whether negligent conduct is a

substantial factor in producing the injury is set forth in Willard

v. Interpool, Ltd., 758 A.2d 684, 688 (Pa. Super. 2000) [,

appeal denied, 775 A.2d 808 (Pa. 2001)]:

The following considerations are in themselves or in

combination with one another important in determining

whether the actor’s conduct is a substantial factor in

bringing about harm to another:

(a) the number of other factors which contribute in

producing the harm and the extent of the effect which

they have in producing it;

(b) whether the actor’s conduct has created a force or

series of forces which are in continuous and active

operation up to the time of the harm, or has created a

situation harmless unless acted upon by other forces

for which the actor is not responsible;

(c) lapse of time.

[Id.] (citing RESTATEMENT (SECOND) OF TORTS § 433 (1965)).

Lux v. Gerald E. Ort Trucking, Inc., 887 A.2d 1281, 1286–87 (Pa. Super.

2005), appeal denied, 901 A.2d 499 (Pa. 2006) (some citations and internal

quotation marks omitted).

For this appeal, we observe preliminarily that Appellant mis-reads the

applicability of the decision in Feld, supra and misstates its holding. (See

Appellant’s Brief, at 65, 68). Feld is, at its core, a landlord-tenant case:

“The threshold question is whether a landlord has any duty to protect

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tenants from the foreseeable criminal acts of third persons, and if so, under

what circumstances.” Feld, supra at 745.

Here, Appellant is not a landlord, and the victims were not tenants.

Contrary to Appellant’s categorical assertion, our Supreme Court in Feld has

nothing specific to say about the contractual standard of care for a private

security services company.37 (See Appellant’s Brief, at 65).

In any event, in stark contrast to Appellant’s purportedly contract-

based “no more, no less” standard of care, (Appellant’s Brief, at 65), under

both Feld and Kerns, when a party does offer a program of security, “he

must perform the task in a reasonable manner and where a harm

follows a reasonable expectation of that harm, he is liable. The duty

is one of reasonable care under the circumstances.” Kerns, supra at

1077 (quoting Feld, supra at 747) (first emphasis added here; second

emphasis added in Kerns). Under the Restatement (Second) of Torts § 323

(1965),38 adopted as law in Pennsylvania, (see Feld, supra at 746–47), one

____________________________________________

37

In fact, in Feld, the jury found no liability for the security firm, leaving

no issues about a security firm’s duty of care for review on appeal. See

Feld, supra at 745 (“The jury absolved Globe Security of any liability.”).

The actual holding in Feld (for the apartment complex owners) is more

analogous to Kraft’s situation in this case, not Appellant’s.

38

§ 323 Negligent Performance of Undertaking to Render Services

One who undertakes, gratuitously or for consideration, to render services

to another which he should recognize as necessary for the protection of

the other’s person or things, is subject to liability to the other for physical

(Footnote Continued Next Page)

- 37 -

J-A32041-16

who undertakes to render services to another may be held liable for doing so

in a negligent fashion;39 (see also Trial Court Memorandum, at 9).40 As

_______________________

(Footnote Continued)

harm resulting from his failure to exercise reasonable care to perform his

undertaking, if

(a) his failure to exercise such care increases the risk of such harm,

or

(b) the harm is suffered because of the other’s reliance upon the

undertaking.

Restatement (Second) of Torts § 323 (1965) (emphasis omitted).

39

Pertinent to the claims at issue here, the companion section, § 324A,

addresses liability to third parties:

§ 324A Liability to Third Person for Negligent

Performance of Undertaking

One who undertakes, gratuitously or for consideration, to

render services to another which he should recognize as

necessary for the protection of a third person or his things, is

subject to liability to the third person for physical harm resulting

from his failure to exercise reasonable care to protect his

undertaking, if

(a) his failure to exercise reasonable care increases the

risk of such harm, or

(b) he has undertaken to perform a duty owed by the

other to the third person, or

(c) the harm is suffered because of reliance of the other or

the third person upon the undertaking.

Restatement (Second) of Torts § 324A (1965) (most emphasis omitted).

40

Even Appellant concedes the reasonable care standard, later in the brief.

(See Appellant’s Brief, at 69).

- 38 -

J-A32041-16

aptly summarized by the trial court, “where a program of security is offered

it must be performed in a reasonable manner[.]” (Trial Court Memorandum,

at 9).

Applying these principles to the first causation argument (escort

service liability), we agree with Appellant that the negligent performance of

the escort service was not a legal cause of the murders. There was certainly

sufficient evidence for the jury to conclude that Harris was supposed to

escort Hiller all the way to her car.41 However, there is no evidence of

record to support the proposition that a failure to provide an escort all the

way to Hiller’s car was a proximate cause or a substantial factor in the

shootings.

We review the evidence in the light most favorable to the Appellees as

verdict winners, but we cannot speculate where no evidence exists. The

suggested causal link, that a walk all the way to the car would have

discouraged or prevented Hiller from returning, is unsupported, speculative,

and never rises above mere conjecture. It is too remote to establish legal

causation. There was nothing to prevent Hiller from returning on her own.

In fact, she did. There is no evidence to establish that a lengthier escort

would have made any difference in the ultimate course of events.

____________________________________________

41

Even Harris testified as much. (See N.T. Trial, 2/17/15 P.M., at 51 (“Carl

[Rivers] said that we’re going to ─ that he needed me to come out and

escort Ms. Yvonne, Ms. Hiller, to her car because she’s being terminated.”))

(emphasis added).

- 39 -

J-A32041-16

Rather, in her statement to the police that night, Hiller confirmed that

she originally intended to drive away, but changed her mind. (See

Statement of Hiller to Police, supra at 3) (“I planned on going right home,

but I started to think about the fifteen years that I have spent there that

somebody was just taking away from me. I started to drive out, but I

turned and went back in.”) (emphasis added).

Therefore, even viewing the evidence in the light most favorable to

Appellees, we find nothing in the record to establish that escorting Hiller to

her car would have ensured her permanent departure from the property, or

prevented her return. (See Appellees’ Brief, at 6-7, 15-16). Accordingly,

there was no evidence that an escort to Hiller’s car would have prevented

the shootings. We conclude that any breach of escort service procedures

was not a proximate or legal cause of the murders. See Amarhanov,

supra at 810.

Nevertheless, the fifth claim merits no relief from the jury’s finding of

negligence, because Appellant fails to disprove causation in its second and

third arguments.

In its second causation–related claim, Appellant asserts that any

failure to call Kraft management was not a proximate cause of the

shootings. (See Appellant’s Brief, at 72-74). Abandoning the claim that the

guards did call Kraft, (disproved at trial), Appellant maintains on appeal that

even if the guards had called, there was no evidence it would have made “a

- 40 -

J-A32041-16

bit of difference.” (Id. at 72; see also id. at 73 (“would have made no

difference”)). We disagree.

Most notably, Appellant disregards our standard of review.42

Complaining that the trial court opinion does not “fairly depict the evidence,”

Appellant summarizes its own selected version of the facts. (Appellant’s

Brief, at 68; see also id. at 68-69).43 Appellant’s effort at re-

characterization of the evidence fails for two reasons.

First, under both applicable standards of review (for JNOV as well as

sufficiency of the evidence), we view the evidence in the light most favorable

to the verdict winners, not the Appellant. Secondly, we do not re-weigh the

evidence, as Appellant would have us do. To the contrary, we reject “all

unfavorable testimony and inferences[.]” Thomas Jefferson Univ., supra

at 569. JNOV is only proper when “no two reasonable minds could disagree

____________________________________________

42

We continue to view the evidence in the light most favorable to the

Appellees as verdict winners, together with the benefit of every reasonable

inference, and rejecting all unfavorable testimony and inferences. See

Thomas Jefferson Univ., supra at 569; Zeffiro, supra at 1013.

43

Appellant’s arguments here, as elsewhere, are repetitive, jumbled, and

undeveloped. (See Appellant’s Brief, at 68-70). Nevertheless, they may be

summarized as follows: Harris and Bentley were “frightened and panicked”

by Hiller; their fear caused a primitive reaction in the brain; nevertheless,

despite the “cascade of physical and chemical changes” in their brains and

bodies, the guards satisfied the contract/post order requirement of

alternative notice (“get another person’s attention”) by warning Ciarlante

that Hiller was back with a gun; both Harris and Bentley called 911; and the

guards cooperated with the police when they arrived. (Id. at 69; see also

id. at 68-70).

- 41 -

J-A32041-16

that the outcome should have been rendered in favor of the movant,” not

merely when, as here, Appellant offers an alternative theory of the case.

Id.

For the same reasons we reject all adverse inferences, even if

characterized as causation arguments, e.g., that “[notice] would [not] have

made a bit of difference,” (Appellant’s Brief, at 72); and “[c]alling up to

Rivers would certainly have made no difference.” (Id. at 73).44 Assertions

that taking the actions the guards were supposed to take by contract and

post order would not have made any difference are not a disproof of

causation. They are speculation and conjecture.

Additionally, contrary to the argument of Appellant, the jury was free

to find that the guards’ warning of Mr. Ciarlante was not the equivalent of

giving notice to Kraft management. (See Appellant’s Brief, at 69) (citing

N.T. Trial, 2/23/15, at 90). Notably, neither Bentley nor Harris asked

Ciarlante to notify Kraft Management for them. (See N.T. Trial, 2/23/15, at

90).45

____________________________________________

44

Moreover, Appellant’s self-serving reformulation of the facts neither

disproves negligence nor exonerates the security guards. For one thing it is

demonstrably inaccurate. Harris did not “cooperate” with the police. He lied

to the police to protect his job. (See N.T. Trial, 2/17/15 P.M., at 99). He

provided a false written report to the police. He also filed a false report with

Kraft. (See Trial Court Memorandum, at 13).

45

It also bears noting that the jury was free to reject the various excuses

offered by Harris and Bentley, e.g., that Harris dropped his radio, that

(Footnote Continued Next Page)

- 42 -

J-A32041-16

Appellant’s over-arching explanation is that Harris and Bentley failed

to perform their duties because they were “frightened and panicked” by

Hiller. (Appellant’s Brief, at 69). Even assuming for the sake of argument

that Appellant’s claim is correct, that only explains why the guards were

negligent. It does not undo their negligence, transform their obvious

negligence into minimal compliance, or diminish its tragic consequences.46

Because the decision to evacuate rested with Kraft management, the

first priority of response for the USSA guards was to notify Kraft

management. Mr. Ciarlante was not Kraft’s “representative.” (Appellant’s

Brief, at 69). He was a regular employee who appears to have acted

heroically when an emergency situation called for an immediate response.

The jury was free to find on the evidence presented that there was no

reason the USSA guards could not or should not have notified Kraft

_______________________

(Footnote Continued)

Bentley gave his radio to Mr. Ciarlante (who testified that he already had his

own Kraft-issued radio), that Bentley did not know how to operate the

communications equipment, etc. The jury was free to find on the evidence

that there was no serious obstacle to either USSA guard notifying Kraft

management of the emergency situation directly. There was no need, or

particular benefit, in having Ciarlante perform their contractual duties for

them.

46

Moreover, we observe that Appellant’s multiple excuses stand in stark

contrast to Mr. Ciarlante’s spontaneous pro-active response, calling Kraft

management (Ms. Mowday) and rushing back into the building to pursue

Hiller himself.

- 43 -

J-A32041-16

management of the emergency situation themselves, not Mr. Ciarlante,

saving precious moments when every second counted.

The shootings were foreseeable. Indeed, it was the fear of being shot

themselves that prompted the guards to let Hiller re-enter in the first place.

There was evidence that the USSA guards had the same two-way radios as

Kraft employees, and cell phones.47 Kraft also maintained landline

telephones, and a public address system. Harris and Bentley failed to use

any of these communication facilities.

“[W]hen a party offers a program of security, ‘he must perform the

task in a reasonable manner and where a harm follows a reasonable

expectation of that harm, he is liable. The duty is one of reasonable care

under the circumstances.’” Kerns, supra at 1077 (quoting Feld, supra at

747) (emphasis omitted).

Proximate cause is a term of art, and may be established

by evidence that a defendant’s negligent act or failure to act was

a substantial factor in bringing about the harm inflicted upon a

plaintiff. Pennsylvania law has long recognized that this

substantial factor need not be . . . the only factor, i. e., “that

cause which . . . produces the result.” A plaintiff need not

exclude every possible explanation, and the fact that some other

cause concurs with the negligence of the defendant in producing

an injury does not relieve defendant from liability unless he can

show that such other cause would have produced the injury

independently of his negligence.

____________________________________________

47

Harris testified that he dropped his radio when he fell while running to the

boiler room. He did not go back to retrieve it.

- 44 -

J-A32041-16

In Hamil v. Bashline, [392 A.2d 1280, 1285 (Pa. 1978)],

we noted that Section 323(a) of the Restatement (Second) of

Torts (1965) has long been recognized as part of the law of

Pennsylvania, and then held that the effect of that section was to

relax the degree of certainty ordinarily required of a plaintiff’s

evidence to provide a basis upon which a jury may find

causation:

(O)nce a plaintiff has demonstrated that defendant’s acts

or omissions, in a situation to which Section 323(a) applies, have

increased the risk of harm to another, such evidence furnishes a

basis for the fact-finder to go further and find that such

increased risk was in turn a substantial factor in bringing about

the resultant harm; the necessary proximate case will have been

made out if the jury sees fit to find cause in fact.

Jones v. Montefiore Hosp., 431 A.2d 920, 923–24 (Pa. 1981) (some

citations omitted).

Viewing the evidence in the light most favorable to the Appellees as

verdict winners, we conclude that the jury could properly find that failure to

perform the “communication duty,” (Appellant’s brief, at 68), was a

substantial factor, even if not the only factor, and one of the proximate

causes of the shootings. The jury could have properly concluded that this

failure to communicate an emergency threatening situation was a substantial

factor in increasing the risk of harm, setting in operation the sequence of

events by which Hiller could proceed unimpeded to the break room, where

she shot her victims. See Lux, supra at 1286–87 (citing Willard, supra at

688).

We discern no abuse or other error in the finding of the jury and

decline to disturb it. Appellant’s second causation claim fails.

- 45 -

J-A32041-16

who undertakes to render services to another may be held liable for doing so

in a negligent fashion;39 (see also Trial Court Memorandum, at 9).40 As

_______________________

(Footnote Continued)

harm resulting from his failure to exercise reasonable care to perform his

undertaking, if

(a) his failure to exercise such care increases the risk of such harm,

or

(b) the harm is suffered because of the other’s reliance upon the

undertaking.

Restatement (Second) of Torts § 323 (1965) (emphasis omitted).

39

Pertinent to the claims at issue here, the companion section, § 324A,

addresses liability to third parties:

§ 324A Liability to Third Person for Negligent

Performance of Undertaking

One who undertakes, gratuitously or for consideration, to

render services to another which he should recognize as

necessary for the protection of a third person or his things, is

subject to liability to the third person for physical harm resulting

from his failure to exercise reasonable care to protect his

undertaking, if

(a) his failure to exercise reasonable care increases the

risk of such harm, or

(b) he has undertaken to perform a duty owed by the

other to the third person, or

(c) the harm is suffered because of reliance of the other or

the third person upon the undertaking.

Restatement (Second) of Torts § 324A (1965) (most emphasis omitted).

40

Even Appellant concedes the reasonable care standard, later in the brief.

(See Appellant’s Brief, at 69).

- 38 -

J-A32041-16

aptly summarized by the trial court, “where a program of security is offered

it must be performed in a reasonable manner[.]” (Trial Court Memorandum,

at 9).

Applying these principles to the first causation argument (escort

service liability), we agree with Appellant that the negligent performance of

the escort service was not a legal cause of the murders. There was certainly

sufficient evidence for the jury to conclude that Harris was supposed to

escort Hiller all the way to her car.41 However, there is no evidence of

record to support the proposition that a failure to provide an escort all the

way to Hiller’s car was a proximate cause or a substantial factor in the

shootings.

We review the evidence in the light most favorable to the Appellees as

verdict winners, but we cannot speculate where no evidence exists. The

suggested causal link, that a walk all the way to the car would have

discouraged or prevented Hiller from returning, is unsupported, speculative,

and never rises above mere conjecture. It is too remote to establish legal

causation. There was nothing to prevent Hiller from returning on her own.

In fact, she did. There is no evidence to establish that a lengthier escort

would have made any difference in the ultimate course of events.

____________________________________________

41

Even Harris testified as much. (See N.T. Trial, 2/17/15 P.M., at 51 (“Carl

[Rivers] said that we’re going to ─ that he needed me to come out and

escort Ms. Yvonne, Ms. Hiller, to her car because she’s being terminated.”))

(emphasis added).

- 39 -

J-A32041-16

Rather, in her statement to the police that night, Hiller confirmed that

she originally intended to drive away, but changed her mind. (See

Statement of Hiller to Police, supra at 3) (“I planned on going right home,

but I started to think about the fifteen years that I have spent there that

somebody was just taking away from me. I started to drive out, but I

turned and went back in.”) (emphasis added).

Therefore, even viewing the evidence in the light most favorable to

Appellees, we find nothing in the record to establish that escorting Hiller to

her car would have ensured her permanent departure from the property, or

prevented her return. (See Appellees’ Brief, at 6-7, 15-16). Accordingly,

there was no evidence that an escort to Hiller’s car would have prevented

the shootings. We conclude that any breach of escort service procedures

was not a proximate or legal cause of the murders. See Amarhanov,

supra at 810.

Nevertheless, the fifth claim merits no relief from the jury’s finding of

negligence, because Appellant fails to disprove causation in its second and

third arguments.

In its second causation–related claim, Appellant asserts that any

failure to call Kraft management was not a proximate cause of the

shootings. (See Appellant’s Brief, at 72-74). Abandoning the claim that the

guards did call Kraft, (disproved at trial), Appellant maintains on appeal that

even if the guards had called, there was no evidence it would have made “a

- 40 -

J-A32041-16

bit of difference.” (Id. at 72; see also id. at 73 (“would have made no

difference”)). We disagree.

Most notably, Appellant disregards our standard of review.42

Complaining that the trial court opinion does not “fairly depict the evidence,”

Appellant summarizes its own selected version of the facts. (Appellant’s

Brief, at 68; see also id. at 68-69).43 Appellant’s effort at re-

characterization of the evidence fails for two reasons.

First, under both applicable standards of review (for JNOV as well as

sufficiency of the evidence), we view the evidence in the light most favorable

to the verdict winners, not the Appellant. Secondly, we do not re-weigh the

evidence, as Appellant would have us do. To the contrary, we reject “all

unfavorable testimony and inferences[.]” Thomas Jefferson Univ., supra

at 569. JNOV is only proper when “no two reasonable minds could disagree

____________________________________________

42

We continue to view the evidence in the light most favorable to the

Appellees as verdict winners, together with the benefit of every reasonable

inference, and rejecting all unfavorable testimony and inferences. See

Thomas Jefferson Univ., supra at 569; Zeffiro, supra at 1013.

43

Appellant’s arguments here, as elsewhere, are repetitive, jumbled, and

undeveloped. (See Appellant’s Brief, at 68-70). Nevertheless, they may be

summarized as follows: Harris and Bentley were “frightened and panicked”

by Hiller; their fear caused a primitive reaction in the brain; nevertheless,

despite the “cascade of physical and chemical changes” in their brains and

bodies, the guards satisfied the contract/post order requirement of

alternative notice (“get another person’s attention”) by warning Ciarlante

that Hiller was back with a gun; both Harris and Bentley called 911; and the

guards cooperated with the police when they arrived. (Id. at 69; see also

id. at 68-70).

- 41 -

J-A32041-16

that the outcome should have been rendered in favor of the movant,” not

merely when, as here, Appellant offers an alternative theory of the case.

Id.

For the same reasons we reject all adverse inferences, even if

characterized as causation arguments, e.g., that “[notice] would [not] have

made a bit of difference,” (Appellant’s Brief, at 72); and “[c]alling up to

Rivers would certainly have made no difference.” (Id. at 73).44 Assertions

that taking the actions the guards were supposed to take by contract and

post order would not have made any difference are not a disproof of

causation. They are speculation and conjecture.

Additionally, contrary to the argument of Appellant, the jury was free

to find that the guards’ warning of Mr. Ciarlante was not the equivalent of

giving notice to Kraft management. (See Appellant’s Brief, at 69) (citing

N.T. Trial, 2/23/15, at 90). Notably, neither Bentley nor Harris asked

Ciarlante to notify Kraft Management for them. (See N.T. Trial, 2/23/15, at

90).45

____________________________________________

44

Moreover, Appellant’s self-serving reformulation of the facts neither

disproves negligence nor exonerates the security guards. For one thing it is

demonstrably inaccurate. Harris did not “cooperate” with the police. He lied

to the police to protect his job. (See N.T. Trial, 2/17/15 P.M., at 99). He

provided a false written report to the police. He also filed a false report with

Kraft. (See Trial Court Memorandum, at 13).

45

It also bears noting that the jury was free to reject the various excuses

offered by Harris and Bentley, e.g., that Harris dropped his radio, that

(Footnote Continued Next Page)

- 42 -

J-A32041-16

Appellant’s over-arching explanation is that Harris and Bentley failed

to perform their duties because they were “frightened and panicked” by

Hiller. (Appellant’s Brief, at 69). Even assuming for the sake of argument

that Appellant’s claim is correct, that only explains why the guards were

negligent. It does not undo their negligence, transform their obvious

negligence into minimal compliance, or diminish its tragic consequences.46

Because the decision to evacuate rested with Kraft management, the

first priority of response for the USSA guards was to notify Kraft

management. Mr. Ciarlante was not Kraft’s “representative.” (Appellant’s

Brief, at 69). He was a regular employee who appears to have acted

heroically when an emergency situation called for an immediate response.

The jury was free to find on the evidence presented that there was no

reason the USSA guards could not or should not have notified Kraft

_______________________

(Footnote Continued)

Bentley gave his radio to Mr. Ciarlante (who testified that he already had his

own Kraft-issued radio), that Bentley did not know how to operate the

communications equipment, etc. The jury was free to find on the evidence

that there was no serious obstacle to either USSA guard notifying Kraft

management of the emergency situation directly. There was no need, or

particular benefit, in having Ciarlante perform their contractual duties for

them.

46

Moreover, we observe that Appellant’s multiple excuses stand in stark

contrast to Mr. Ciarlante’s spontaneous pro-active response, calling Kraft

management (Ms. Mowday) and rushing back into the building to pursue

Hiller himself.

- 43 -

J-A32041-16

management of the emergency situation themselves, not Mr. Ciarlante,

saving precious moments when every second counted.

The shootings were foreseeable. Indeed, it was the fear of being shot

themselves that prompted the guards to let Hiller re-enter in the first place.

There was evidence that the USSA guards had the same two-way radios as

Kraft employees, and cell phones.47 Kraft also maintained landline

telephones, and a public address system. Harris and Bentley failed to use

any of these communication facilities.

“[W]hen a party offers a program of security, ‘he must perform the

task in a reasonable manner and where a harm follows a reasonable

expectation of that harm, he is liable. The duty is one of reasonable care

under the circumstances.’” Kerns, supra at 1077 (quoting Feld, supra at

747) (emphasis omitted).

Proximate cause is a term of art, and may be established

by evidence that a defendant’s negligent act or failure to act was

a substantial factor in bringing about the harm inflicted upon a

plaintiff. Pennsylvania law has long recognized that this

substantial factor need not be . . . the only factor, i. e., “that

cause which . . . produces the result.” A plaintiff need not

exclude every possible explanation, and the fact that some other

cause concurs with the negligence of the defendant in producing

an injury does not relieve defendant from liability unless he can

show that such other cause would have produced the injury

independently of his negligence.

____________________________________________

47

Harris testified that he dropped his radio when he fell while running to the

boiler room. He did not go back to retrieve it.

- 44 -

J-A32041-16

earning power from the date of injury until death. . . .”

Slaseman v. Myers, supra [ ], 455 A.2d 1213 at 1217 ([Pa.

Super.] 1983) (emphasis added [in original]). Thus, we have

always limited recovery to damages for pain and suffering and

emotional distress occurring after the time of injury.

Nye, supra at 321 (emphases in original).

Appellees dismiss this statement from Nye as dicta,53 but the caselaw

they offer as an alternative is not compelling. (See Appellees’ Brief, at 90-

94). They cite Renk v. City of Pittsburgh, 641 A.2d 289, 293 (Pa. 1994),

a police indemnification case. It appears to be presented primarily if not

solely for the proposition, not in dispute here, that civil assault is actionable.

(See Appellees’ Brief, at 90). The principal issue for disposition in Renk was

whether a police officer could be indemnified under The Political Subdivision

Tort Claims Act for a civil judgment for assault, battery, and false

imprisonment absent a judicial determination of willful misconduct. Its

immediate applicability to the claim in this appeal is not readily apparent.

Appellees also cite Commonwealth, [Pennsylvania Dep't of

Transp.]. v. Phillips, 488 A.2d 77, 80 (Pa. Commw. 1985), (see Appellees’

Brief, at 91-92). The abrogation of Phillips was recognized in Osborne v.

Cambridge Twp., 736 A.2d 715, 722 (Pa. Commw. 1999), appeal denied,

759 A.2d 925 (Pa. 2000), cert. denied, 531 U.S. 1113 (2001).

____________________________________________

53

The decedent in Nye apparently died instantaneously. See Nye, supra

at 321.

- 53 -

J-A32041-16

Appellees also cite decisions of the Courts of Common Pleas. (See

Appellees’ Brief, at 91-93). “[C]ommon pleas court decisions are not binding

on appellate courts.” U.S. Bank Nat’l Ass'n v. Powers, 986 A.2d 1231,

1234 n.3 (Pa. Super. 2009) (citing Makozy v. Makozy, 874 A.2d 1160,

1172 n.7 (Pa. Super. 2005), appeal denied, 891 A.2d 733 (Pa. 2005)).

Even the cases otherwise cited by Appellees recognize the limitations

correctly observed by the trial court. See Amato v. Bell & Gossett, 116

A.3d 607, 625 (Pa. Super. 2015), appeal granted in part sub nom.

Vinciguerra v. Bayer CropScience Inc., 130 A.3d 1283 (Pa. 2016),

appeal dismissed as improvidently granted sub nom. Vinciguerra v. Bayer

CropScience Inc., 150 A.3d 956 (Pa. 2016) (survival damages are for pain

and suffering endured by the decedent between the time of injury and

death) (cited in Appellees’ Brief, at 91); Mecca v. Lukasik, 530 A.2d 1334,

1344 (Pa. Super. 1987) (instruction properly charged jury that damages

were compensable “from the moment of the accident until the moment of

death”). (Appellees’ Brief, at 93) (emphases added).

In short, we discern no compelling authority which would require us to

disturb the ruling of the trial court. Moreover, as an intermediate court of

appellate review, this Court is an “error-correcting court.” Trach v. Fellin,

817 A.2d 1102, 1119 (Pa. Super. 2003), appeal denied sub nom. Trach v.

Thrift Drug, Inc., 847 A.2d 1288 (Pa. 2004) (citation omitted).

As an intermediate appellate court, this Court is obligated to

follow the precedent set down by our Supreme Court. It is not

- 54 -

J-A32041-16

the prerogative of an intermediate appellate court to enunciate

new precepts of law or to expand existing legal doctrines. Such

is a province reserved to the Supreme Court.

Moses v. T.N.T. Red Star Exp., 725 A.2d 792, 801 (Pa. Super. 1999),

appeal denied, 739 A.2d 1058 (Pa. 1999) (citations omitted). Such a sea

change in the computation and award of damages as advocated by Appellees

and amicus should come from our Supreme Court, or the Legislature.

In Appellees’ last issue, they challenge the trial court’s striking of

correspondence involving the question of insurance coverage for punitive

damages. (See Appellees’ Brief, at 94-95; see also Order, 11/16/15).

Briefly, the trial court denied Appellees’ efforts to introduce

correspondence of counsel involving insurance coverage for punitive

damages, as evidence in refutation of Appellant’s claim that it was unaware

that it could be subject to a large punitive damages verdict.

“Evidence that a person was or was not insured against liability is not

admissible to prove whether the person acted negligently or otherwise

wrongfully. But the court may admit this evidence for another purpose, such

as proving a witness’s bias or prejudice or proving agency, ownership, or

control.” Pennsylvania Rule of Evidence 411. Generally, an appellate court’s

standard of review of a trial court's evidentiary ruling is whether the trial

court abused its discretion. See Zieber v. Bogert, 773 A.2d 758, 760 n.3

(Pa. 2001). If the evidentiary ruling at issue turns on a question of law,

however, our review is plenary. See id.

- 55 -

J-A32041-16

However, the mootness doctrine requires an actual controversy to

exist at all stages of litigation. See Commonwealth, Dep't of Envtl. Prot.

v. Cromwell Twp., Huntingdon Cty., 32 A.3d 639, 651 (Pa. 2011). In

this appeal, because we have decided that a claim for punitive damages

improperly added a new cause of action after the statute of limitations had

run, the amount of an award for punitive damages is no longer at issue.

Accordingly, any issue regarding the admissibility of correspondence

referencing insurance coverage for punitive damages is moot.

Although our reasoning differs on occasion from that of the trial court,

it is well-settled that we can affirm the trial court’s decision on any valid

basis, as long as the court came to the correct result. See Wilson v.

Transp. Ins. Co., 889 A.2d 563, 577 n.4 (Pa. Super. 2005) (citing, inter

alia, Boyer v. Walker, 714 A.2d 458 (Pa. Super. 1998)).

We reverse the trial court’s denial of JNOV as to punitive damages. In

all other respects, we affirm the judgment of the trial court.

Judgment affirmed in part and reversed in part.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/18/2017

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