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

> Superior Court of Pennsylvania · July 18, 2017

URL: https://www.frixlaw.com/law-library/cases/4187102

## Case

- **Court:** Superior Court of Pennsylvania
- **Decided:** July 18, 2017
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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.

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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.

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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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J-A32041-16

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 -
J-A32041-16

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.

- 16 -
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).

- 17 -
J-A32041-16

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

- 18 -
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 -
J-A32041-16

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 -
J-A32041-16

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 -
J-A32041-16

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

- 24 -
J-A32041-16

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 -
J-A32041-16

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 -
J-A32041-16

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

- 35 -
J-A32041-16

(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

- 36 -
J-A32041-16

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.

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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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4187102. Public record. Not legal advice.