J. Hall & R. Hall, his Wife v. R. Morris v. R. Hall

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joseph Hall and Rosemarie Hall, :

his Wife, :

Appellants :

:

v. :

:

Ryan Morris, Holly Sue Morris, :

Shickshinny Volunteer Fire :

Company, Inc. :

:

v. :

: No. 220 C.D. 2019

Rosemarie Hall : Argued: December 10, 2019

BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE FIZZANO CANNON FILED: January 6, 2020

Joseph and Rosemarie Hall (Appellants) appeal from the August 30,

2018 order of the Court of Common Pleas of Luzerne County (trial court) that denied

Appellants’ motion for post-trial relief. Upon review, we affirm.

This matter involves a civil suit for personal injuries arising out of a

motor vehicle accident. Following trial, a jury determined Appellants were acting

in the course and scope of their employment at the time of the accident, thereby

precluding Appellants’ civil claims pursuant to immunities provided by

Pennsylvania’s Workers’ Compensation Act (Act).1 We summarize the pertinent

facts underlying this matter as follows.

On the evening of May 12, 2006, Appellants, who were members of the

Shickshinny Volunteer Fire Company, Inc. (the Fire Company), learned of and

responded to an emergency call from the Fire Company regarding an accident that

had occurred at Mocanaqua Bridge in the Borough of Shickshinny (the Mocanaqua

Bridge accident). While responding to the Mocanaqua Bridge accident, Appellants

themselves were involved in a motor vehicle accident with Ryan Morris (the

accident), who was coincidentally also a volunteer with the Fire Company and was

responding to the Mocanaqua Bridge accident at the time.

On November 17, 2006, Appellants filed a Complaint against Ryan

Morris, Holly Sue Morris, the owner of the vehicle operated by Ryan Morris, and

the Fire Company (collectively, Appellees) as defendants.2 After a lengthy period

of discovery, the matter proceeded to a jury trial in January 2018.

The jury heard testimony from multiple witnesses at trial. See generally

Notes of Trial Testimony Commencing January 9, 2018 (N.T.). Relevantly,

Rosemarie Hall testified that, out of a desire to help the community, she applied to

join the Fire Company to help with fundraisers and similar activities. See N.T. at

250. Ms. Hall testified that she and her husband Joseph Hall were ultimately

approved and joined the Fire Company. Id. at 251. Ms. Hall testified that she never

fought fires, but that she instead did some fundraisers and assisted and directed

traffic at accident scenes. Id. at 251 & 334. She testified that the Fire Company

issued her a coat, helmet, and a pager on which she would receive calls from the

1

Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.

2

Appellant Rosemarie Hall was a plaintiff and an additional defendant in the underlying

matter.

2

Luzerne County 911 and the Fire Company. Id. at 334-35. Ms. Hall testified that

she and her husband both had their Fire Company pagers on them on the day of the

accident. Id. at 254 & 339.

Ms. Hall also testified that on May 11, 2000, she received a certified

letter from the Fire Company that explained that she could no longer be a member

of the Fire Company until the Fire Company received a doctor’s note stating that she

was capable of being a firefighter. See N.T. at 252. Ms. Hall further testified that,

although she did not obtain such a doctor’s note and was not allowed to participate

as a firefighter prior to the accident, she was still able to participate in the Fire

Company’s community activities such as fundraisers. Id. at 253.

Ms. Hall further testified that, on the date of the accident, she and

Joseph Hall had intended to go from their apartment to their new house to inspect an

apple tree and otherwise look the property over in preparation to move into the new

house. N.T. at 256. She explained that, while waiting in her car for Joseph Hall to

emerge from their apartment, the Fire Company’s pager, which was with her in the

car, went off and indicated an accident had occurred at the Mocanaqua Bridge. Id.

at 259. Ms. Hall testified that thereafter Joseph Hall entered the vehicle, they pulled

away from the apartment, and were then involved in the accident with Ryan Morris.

Id. Ms. Hall confirmed that she signed a document in the hospital indicating that

she was a co-employee acting as a member of the Fire Company at the time of the

accident. Id. at 352.

Joseph Hall also testified at the trial of this matter. See N.T. at 384-430

& 779-80. Mr. Hall explained that he served as “fire police” for the Fire Company.

Id. at 393. Mr. Hall testified that he would respond as part of the Fire Company to

small fires and automobile accidents approximately 10 times a week. Id. at 400.

3

Like Rosemarie Hall, Mr. Hall testified to receiving a certified letter from the Fire

Company that informed him that he could not participate in duties as a volunteer

firefighter absent a doctor’s letter stating he was able to do so. Id. at 394. Mr. Hall

further testified that, on the date of the accident, he had his Fire Company pager with

him, it was turned on, and he received two calls about the Mocanaqua Bridge

accident. Id. at 397.

Beverly Ann Moore, a registered nurse and a member of the Fire

Company, testified that she was among the first medical responders on the scene of

the accident. N.T. at 444-48. Ms. Moore testified that she examined Joseph Hall at

the scene and that he told her that, at the time of the accident, he and Rosemarie Hall

had been responding to the Mocanaqua Bridge accident. Id. at 451. Ms. Moore

testified that Rosemarie Hall also told her that she and Joseph Hall were responding

to the Mocanaqua Bridge accident at the time the accident occurred. Id. at 452.

Fire Company volunteer firefighter Kevin McDaniels also testified.

See N.T. at 471-81. Mr. McDaniels testified that he responded to the accident scene

as well. Id. at 472-74. He testified that he heard Ms. Moore’s conversation with

Joseph Hall during which Mr. Hall explained that he and Rosemarie Hall had been

responding to the Mocanaqua Bridge accident at the time of the accident. Id. at 476.

Debra McDaniels also testified that she responded to the accident. See

N.T. at 482-94. Ms. McDaniels is an Emergency Medical Technician and a

volunteer for the Fire Company. Id. at 482. Ms. McDaniels testified that she

examined Mr. Hall, who explained to her that he and Rosemarie Hall were

responding to the Mocanaqua Bridge accident at the time the accident occurred. Id.

at 488-89.

4

Holly Sue Morris, the Fire Company’s President, also testified. See

N.T. at 602-42. Ms. Morris confirmed that, due to Rosemarie Hall’s physical

limitations, the Fire Company had asked Ms. Hall to obtain a doctor’s note stating

that she was capable of continuing as a firefighter. Id. at 612. Ms. Morris testified,

however, that Rosemarie Hall was not precluded from any of her duties at the Fire

Company, and further that neither Rosemarie nor Joseph Hall were ever told that

they could not continue to perform their duties for the Fire Company prior to the

accident. Id. at 612-13. Ms. Morris explained that Appellants were considered

members of the Fire Company and had equipment, turnout gear, and pagers assigned

to them at the time of the accident. Id. at 620. Ms. Morris further testified that she

heard a conversation between Rosemarie and Joseph Hall that occurred in the back

of the ambulance following the accident in which Appellants indicated they had been

en route to the Mocanaqua Bridge accident at the time of the accident. Id. at 614.

Kevin Morris, the Fire Company’s Fire Chief, also testified. See N.T.

at 646-684. Mr. Morris testified that, at the time of the accident, Appellants were

members of the Fire Company and responded to emergencies. Id. at 648-50. Mr.

Morris testified that he heard Joseph Hall tell a third party that he had been

responding to the Mocanaqua Bridge accident when he was involved in the accident.

Id. at 657.

After hearing the above testimony and deliberating, the jury answered

two special interrogatories3 regarding whether Appellants were acting within the

3

The jury answered the following special interrogatories:

1. Was Joseph Hall a volunteer fireman acting within the scope and

course of his duties with the Shickshinny Volunteer Fire Company

at the time of the automobile accident?

5

course and scope of their employment as volunteer firepersons with the Fire

Company at the time of the accident in the affirmative. By virtue of the immunities

contained within the Act, the jury’s affirmative answer to the special interrogatories

had the effect of defeating Appellants’ civil claims. As a result, the jury returned a

verdict in favor of Appellees. Appellants filed a post-trial motion seeking a new

trial, which the trial court denied. The instant timely appeal followed.

Appellants raise multiple claims on appeal. First, Appellants claim the

trial court erred by allowing the jury to determine issues regarding workers’

compensation, over which the trial court lacked subject matter jurisdiction. See

Appellants’ Brief at 4 & 22-24. Second, Appellants argue that the trial court erred

by failing to properly charge the jury regarding Section 601 of the Act, 77 P.S. §

1031.4 See id. at 4 & 25-29. Next, Appellants allege the trial court erred by not

precluding Appellees from employing an immunity defense based on judicial

estoppel. See id. at 4 & 30-35. Finally, Appellants claim the trial court erred by not

_____ Yes _____ No

2. Was Rosemarie Hall a volunteer fireman acting within the scope

and course of her duties with the Shickshinny Volunteer Fire

Company at the time of the automobile accident?

_____ Yes _____ No

If your answer to Questions 1 and 2 is “Yes”, please do not answer

any further questions and return to the Courtroom.

If your answer to Questions 1 or 2 is “No”, please proceed to

question 3.

Reproduced Record at 629-30.

4

Section 601 was added to the Act by the Act of December 5, 1974, P.L. 782, 77 P.S. §

1031.

6

overturning the jury’s verdict and awarding Appellants a new trial because the jury’s

verdict was against the weight of the evidence. See id. at 4 & 35-38.

Motions for a New Trial

Initially, we will discuss our review of the trial court’s denial of

Appellants’ request for a new trial. As our Supreme Court has explained, “[t]rial

courts have broad discretion to grant or deny a new trial.” Harman ex rel. Harman

v. Borah, 756 A.2d 1116, 1121 (Pa. 2000). “[W]hen analyzing a decision by a trial

court to grant or deny a new trial, the proper standard of review, ultimately, is

whether the trial court abused its discretion.” Id. at 1122.

The Supreme Court has explained:

Each review of a challenge to a new trial order must begin

with an analysis of the underlying conduct or omission by

the trial court that formed the basis for the motion. There

is a two-step process that a trial court must follow when

responding to a request for new trial. First, the trial court

must decide whether one or more mistakes occurred at

trial. These mistakes might involve factual, legal, or

discretionary matters. Second, if the trial court concludes

that a mistake (or mistakes) occurred, it must determine

whether the mistake was a sufficient basis for granting a

new trial. The harmless error doctrine underlies every

decision to grant or deny a new trial. A new trial is not

warranted merely because some irregularity occurred

during the trial or another trial judge would have ruled

differently; the moving party must demonstrate to the trial

court that he or she has suffered prejudice from the

mistake.

Id. (internal citations omitted). Further:

To review the two-step process of the trial court for

granting or denying a new trial, the appellate court must

7

also undertake a dual-pronged analysis. A review of a

denial of a new trial requires the same analysis as a review

of a grant. First, the appellate court must examine the

decision of the trial court [as to whether] a mistake

occurred.

....

If the mistake involved a discretionary act, the appellate

court will review for an abuse of discretion. If the mistake

concerned an error of law, the court will scrutinize for

legal error.

Id. at 1122–23 (internal citations, quotation marks, and brackets omitted).

Workers’ Compensation Subject Matter Issue

Appellants first argue that the trial court erred in allowing the jury to

decide whether Appellants were acting within the scope and course of their duties

for the Fire Company as their employer. See Appellants’ Brief at 22-24. Appellants

argue that the jury effectively determined whether Appellants were entitled to

workers’ compensation benefits, a determination reserved exclusively for a

Workers’ Compensation Judge (WCJ), and therefore beyond the subject matter

jurisdiction of a court of common pleas. See id. We disagree.

Section 303 of the Act provides that the Act is the exclusive remedy of

an injured employee against an employer as follows:

The liability of an employer under this act shall be

exclusive and in place of any and all other liability to such

employes, his legal representative, husband or wife,

parents, dependents, next of kin or anyone otherwise

entitled to damages in any action at law or otherwise on

account of any injury or death . . . or occupational disease

....

8

77 P.S. § 481(a) (footnotes omitted). Section 601 of the Act expressly includes

within its definition of “employe” members of volunteer fire companies injured

“while actively engaged as firemen or while going to or returning from a fire which

the fire company or fire department attended including travel from and the direct

return to a fireman’s home, place of business or other place where he shall have been

when he received the call or alarm[.]” 77 P.S. § 1031(a)(1). Further, the Act

provides immunity for the non-intentional negligent acts of co-workers. See 77 P.S.

§ 72.5 Additionally, courts of common pleas retain subject matter jurisdiction to

determine whether the Act bars an action. Bell v. Kater, 943 A.2d 293, 295 (Pa.

Super. 2008).6

Here, Appellees pled immunity under the Act as an affirmative defense

and alleged that Appellants were employees acting in the scope and course of their

employment with the Fire Company when they were involved in the accident with

their co-worker that caused their injuries. See Answer and New Matter at ¶ 86;

Reproduced Record (R.R.) at 50-51. Whether Appellants (and Ryan Morris) were

acting within the course and scope of their employment was, therefore, essential to

determining the applicability of the Act’s immunity provisions to Appellants’

claims. Appellants’ suggestion that this factual determination amounted to the jury

5

Section 205 of the Act provides:

If disability or death is compensable under this act, a person shall

not be liable to anyone at common law or otherwise on account of

such disability or death for any act or omission occurring while such

person was in the same employ as the person disabled or killed,

except for intentional wrong.

Section 205 was added to the Act by the Act of August 24, 1963, P.L. 1175, 77 P.S. § 72.

6

Although not binding, Superior Court decisions are persuasive authority in this Court.

Lerch v. Unemployment Comp. Bd. of Review, 180 A.3d 545, 550 (Pa. Cmwlth. 2018).

9

making determinations about Appellants’ rights to workers’ compensation benefits

is incorrect. As the trial court noted:

The factual issue remaining of whether or not Joseph Hall

and Rosemarie Hall were acting within the scope and

course of their duties with the Shickshinny Volunteer Fire

Company at the time of the accident was properly before

the jury. The jury heard all of the admissible evidence

regarding whether or not Joseph Hall and Rosemarie Hall

were acting within the scope and course of their duties

with the Shickshinny Volunteer Fire Company at the time

of the accident. They did not do so for the purpose of

awarding workers’ compensation benefits, but did so to

determine if the claim was barred.

Trial Court Opinion dated February 14, 2019 (Trial Court Opinion) at 16. The trial

court had subject matter jurisdiction to entertain evidence that would allow the court

to determine whether the Act’s immunity provisions applied. See Bell. Accordingly,

the trial court did not err in allowing the jury to make these factual determinations.

Additionally, Appellants’ suggestion that Section 401.1 of the Act,

added by the Act of Feb. 8, 1972, P.L. 25, No. 12, § 3, requires that a WCJ determine

the applicability of the Act’s immunity provisions is likewise incorrect. In pertinent

part, Section 401.1 provides that:

The department shall also hear and determine all petitions

by employers or insurers to suspend, terminate, reduce or

otherwise modify compensation payments, awards, or

agreements and petitions by employes or their dependents

to increase, modify or reinstate compensation payments,

awards, or agreements.

77 P.S. § 710. This section simply does not require that a WCJ determine a party’s

invocation of Act immunities as an affirmative defense, and such an interpretation

10

would be contrary to the ability of courts of common pleas to determine whether the

Act bars actions before such courts. See Bell.

Jury Instruction Claim

Appellants next claim that the trial court erred by failing to properly

charge the jury regarding Section 601 of the Act, which concerns the application of

the Act to members of volunteer fire companies.7 See Appellants’ Brief at 25-29.

Appellants have waived this claim.

Pennsylvania’s Rules of Appellate Procedure provide that, generally,

“[i]ssues not raised in the lower court are waived and cannot be raised for the first

time on appeal.” Pa.R.A.P. 302. More specifically, pursuant to Pennsylvania Rule

of Appellate Procedure 1925(b)(4)(vii), “[i]ssues not included in the [s]tatement [of

errors complained of on appeal] and/or not raised in accordance with the provisions

of this paragraph (b)(4) are waived.” Pa.R.A.P. 1925(b)(4)(vii); see City of

Philadelphia v. Lerner, 151 A.3d 1020, 1024 (Pa. 2016) (reaffirming the “well-

7

Section 601 of the Act provides, in pertinent part:

(a) In addition to those persons included within the definition of the

word “employe” as defined in section 104, “employe” shall also

include:

(1) members of volunteer fire departments or volunteer fire

companies, including any paid fireman who is a member of a

volunteer fire company and performs the services of a volunteer

fireman during off-duty hours, who shall be entitled to receive

compensation in case of injuries received while actively engaged as

firemen or while going to or returning from a fire which the fire

company or fire department attended including travel from and the

direct return to a fireman’s home, place of business or other place

where he shall have been when he received the call or alarm[.]

77 P.S. § 1031(a)(1).

11

settled, bright-line rule” that “issues not raised in a Rule 1925(b) statement will be

deemed waived” and holding that “[b]y failing to comply with Rule 1925(b), [the

appellant] waived the issue that he . . . request[ed] [the] Court to address”).

The record illustrates that at trial of this matter Appellants neither

requested that the trial court provide a jury instruction regarding Section 601 of the

Act nor objected to the lack of such an instruction in the jury charge given. Further,

Appellants did not raise the issue in their Concise Statement of Errors Complained

of On Appeal. See Supplemental Reproduced Record (S.R.R.) at 76b-92b; 97b-

101b. In fact, this specific argument appears now, for the first time, in Appellants’

Brief. This issue may not be raised for the first time now on appeal. Accordingly,

Appellants waived this jury instruction claim.8

Judicial Estoppel Claim

Appellants next claim that the trial court should have judicially

estopped Appellees from claiming that Appellants’ injuries occurred within the

scope and course of their employment with the Fire Company. See Appellants’ Brief

at 30-35. Specifically, Appellants claim that Appellees previously denied that

Appellants were acting within the course and scope of their employment with the

Fire Company in workers’ compensation filings and proceedings, and, therefore, the

trial court should have estopped Appellees from arguing the opposite in the instant

8

We acknowledge that Appellants allege to have objected at trial to the jury interrogatories

and further claim that they did raise their objection to the text of the special jury interrogatories in

their post-trial motions. We note, however, that an objection to the text of a written special

interrogatory to be sent out with the jury for deliberation – effectively the text of the verdict sheet

– is separate and distinct from a claim regarding instructions on the law to be given during a trial

court’s jury charge prior to deliberation. These distinct objections require separate objections at

different points in the court proceedings. While Appellants may have preserved their special

interrogatory claim by objecting at trial, no party objected to the trial court’s jury instructions.

Therefore, and for the additional reasons stated supra, Appellants waived any jury instruction

claim based on Section 601 of the Act in this matter.

12

matter. See Appellants’ Brief at 30-35. We do not agree that judicial estoppel

applies to this case.

“The purpose of judicial estoppel is to ensure the parties do not play

‘fast and loose’ with the facts in order to suit their interests in different actions before

different tribunals.” Marazas v. Workers’ Comp. Appeal Bd. (Vitas Healthcare

Corp.), 97 A.3d 854, 859 (Pa. Cmwlth. 2014); see also Trowbridge v. Scranton

Artificial Limb Co., 747 A.2d 862, 865 (Pa. 2000) (“the purpose of the doctrine is to

uphold the integrity of the courts by preventing parties from abusing the judicial

process by changing positions as the moment requires”) (citations omitted). As this

Court has explained:

as a general rule, a party to an action is estopped from

assuming a position inconsistent with his or her assertion

in a previous action, if his or her contention was

successfully maintained. Accordingly, judicial estoppel is

properly applied only if the court concludes the following:

(1) that the appellant assumed an inconsistent position in

an earlier action; and (2) that the appellant’s contention

was “successfully maintained” in that action.

Marazas, 97 A.3d at 859 (brackets omitted). “To estop later inconsistent statements,

the original statements must be verified or sworn.” Id. at 860. Further,

[f]or judicial estoppel to attach, the position asserted also

must have been “successfully maintained.” Stated

differently, the prior inconsistent statement must persuade

the decision-maker.

Our courts interpret “successfully maintain” as different

than litigating to conclusion. Settlement of a claim,

despite binding the parties and ending an action, does not

equal “successfully maintain.” Thus, our courts uphold

the “successfully maintain” element of judicial estoppel

13

based on the action of a decision-maker, not the actions of

the parties.

Id. at 860–61 (internal citations omitted).

Here, the record does not support Appellants’ argument that Appellees

changed their position regarding whether Appellants were acting within the course

and scope of their employment with the Fire Company at the time of the accident.

Initially, Shickshinny Borough and its workers’ compensation insurance carrier, not

Appellees, filed the Notices of Workers’ Compensation Denial relied on by

Appellants. See R.R. at 273 & 275. Additionally, the record clearly illustrates that

Shickshinny Borough’s workers’ compensation insurer issued the June 20, 2006

Notices of Workers’ Compensation Denial in response to a June 9, 2006 letter from

Appellants’ counsel informing the insurance adjuster that Appellants were not acting

in the course of their employment at the time of the accident. See S.R.R. at 46b-47b,

50b-51b & 56b. As a result of Appellants’ counsel’s June 9, 2006 letter, the workers’

compensation insurance carrier closed the file and the matter was not further

contested before any tribunal.

Based on this evidence, the trial court dismissed Appellants’ judicial

estoppel claim, concluding as follows:

[Appellants’] attorney authored a letter regarding their

workers’ compensation claims on June 9, 2006 in which

their legal counsel stated that they were not in the course

of their employment as members of the Shickshinny

Volunteer Fire Company on the date of the accident,

thereby, ending their Workers’ Compensation claims at

that time. The matter did not proceed any further to

adjudication before a [WCJ] to consider, nor did [a WCJ]

take testimony or render an opinion regarding this matter.

Thus, [Appellants’] claim fails.

14

Trial Court Opinion at 19.

We agree with the trial court’s conclusion. Even assuming the

statements of the Notices of Workers’ Compensation Denial could be imputed to

Appellees, because Appellants’ workers’ compensation ended as a result of

Appellants’ voluntary representation regarding their employment relation to the Fire

Company, no “successful maintenance” of a prior inconsistent position ever

occurred. See Marazas, 97 A.3d at 861 (noting that an employer “cannot be estopped

from taking a position contrary to the one it never established”); see also Ham v.

Gouge, 257 A.2d 650 (Pa. Super. 1969) (finding judicial estoppel improper based

on a defendant’s representation in civil pleadings that was inconsistent with a

defendant’s position in a prior workers’ compensation matter that plaintiff had

voluntarily withdrawn prior to decision by a WCJ).

Because the record does not illustrate that Appellees successfully

maintained a position contrary to that taken at trial, the trial court properly declined

to apply judicial estoppel to this matter.

New Trial/Weight of the Evidence Claim

Lastly, Appellants claim the trial court erred by not granting their

motion for a new trial because the jury’s verdict was against the weight of the

evidence. See Appellants’ Brief at 35-38. This claim lacks merit.

As this Court has explained:

A new trial based on weight of the evidence issues will not

be granted unless the verdict is so contrary to the evidence

as to shock one’s sense of justice; a mere conflict in

testimony will not suffice as grounds for a new trial. Upon

review, the test is not whether this Court would have

reached the same result on the evidence presented, but

rather after due consideration of the evidence found

credible by the jury, and viewing the evidence in the light

15

most favorable to the verdict winner, whether the court

could reasonably have reached its conclusion. It is not the

role of an appellate court to pass on the credibility of

witnesses or to act as the trier of fact, and an appellate

court will not substitute its judgement [sic] for that of the

fact-finder.

Worley v. Cty. of Delaware, 178 A.3d 213, 237–38 (Pa. Cmwlth. 2017) (internal

citations, quotations, and corrections omitted). Further,

[a]ppellate review of a weight claim is a review of the [trial

court’s] exercise of discretion, not of the underlying

question of whether the verdict is against the weight of the

evidence. Because the trial judge has had the opportunity

to hear and see the evidence presented, an appellate court

will give the gravest consideration to the findings and

reasons advanced by the trial judge when reviewing a trial

court’s determination that the verdict is against the weight

of the evidence. One of the least assailable reasons for

granting or denying a new trial is the lower court’s

conviction that the verdict was or was not against the

weight of the evidence and that a new trial should be

granted in the interest of justice.

Id. at 238 (citation omitted).

The trial court assessed Appellants’ weight of the evidence claim as

follows:

After having the opportunity to observe the

witnesses and listen to the testimony, the [c]ourt was

anything but shocked by the jury’s verdict. As noted

above, the record through the testimony of witnesses,

which included the testimony of [Appellants], [] reflected

that both Rosemarie and Joseph Hall were approved to be

members of the Shickshinny Volunteer Fire Company.

Rosemarie Hall received a coat, helmet and a pager that

16

received calls from the Luzerne County 911 Center and

would assist and direct traffic at accident scenes. On the

date of the accident, Rosemarie and Joseph Hall had their

pagers with them. Furthermore, at the hospital, Rosemarie

Hall signed a form indicating that she was a co-employee

acting as a member of the fire department at the time of

the accident. The jury also heard that on the date of the

accident, Joseph Hall had the Shickshinny Volunteer Fire

Company pager turned on and he received two calls for the

Mocanaqua Bridge accident.

There was minimal inconsistent testimony during

the trial in this matter which goes to credibility and the

[c]ourt is not permitted to substitute its judgment for that

of the jury on issues of credibility. Nothing in the record

leads to the conclusion that the verdict was against the

weight of the evidence. The jury heard from Kevin

McDaniels who testified that he overheard the

conversation between Beverly Ann Moore and Joseph

Hall indicating that Joseph and Rosemarie Hall were going

to the fire call at the time of the accident. Debra

McDaniels testified that during her examination of Joseph

Hall, he indicated that he was sitting outside on a bench on

the side of Wachovia Bank when Rosemarie Hall ran out

of the house and said that the pager went off. Rosemarie

Hall then got into the car and did a U-turn he [sic] got in

the car and they proceeded to travel south on Main Street

toward the accident.

Holly Sue Morris testified that Rosemarie Hall was

never precluded from doing any of the activities she had

been doing for the fire department. Furthermore,

Rosemarie Hall and Joseph Hall were never told that they

could not continue to perform activities for the fire

company into May of 2006 when the accident occurred.

At the time of the accident, both Rosemarie Hall and

Joseph Hall were still considered to be members of the fire

department and had equipment, turnout gear and a pagers

[sic] assigned to them. Ms. Morris testified that she heard

the conversation between Joseph and Rosemarie Hall

17

while they were in the back of the ambulance indicating

that they were on their way to the accident. Finally, Kevin

Morris testified that he heard Joseph Hall telling Beverly

Moore that he was going to the accident and got into an

accident on the way to the accident.

As the above excerpts of the trial testimony reflect,

there was an abundance of evidence presented by all

parties that the jury found credible. Nothing in the record

leads to the conclusion that the verdict that Joseph and

Rosemarie Hall were acting within the scope and course

of their duties with the Shickshinny Volunteer Fire

Company at the time of the automobile accident was

against the weight of the evidence or shocked one’s sense

of justice.

Trial Court Opinion at 20-22 (internal record citations omitted).

We find no abuse of discretion in the trial court’s assessment of the

evidence presented at trial. Adequate evidence of record existed to allow the jury to

conclude, as it did, that Appellants were acting within the course and scope of their

employment with the Fire Company at the time of the accident. Accordingly, we

find no error in the trial court’s denial of a new trial based upon Appellants’ weight

of the evidence claim.

For the reasons above, we find no error of law or abuse of discretion in

the trial court’s denial of Appellants’ post-trial motion seeking a new trial.

Accordingly, we affirm the order of the trial court.

__________________________________

CHRISTINE FIZZANO CANNON, Judge

18

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joseph Hall and Rosemarie Hall, :

his Wife, :

Appellants :

:

v. :

:

Ryan Morris, Holly Sue Morris, :

Shickshinny Volunteer Fire :

Company, Inc. :

:

v. :

: No. 220 C.D. 2019

Rosemarie Hall :

ORDER

AND NOW, this 6th day of January, 2020, the August 30, 2018 order

of the Court of Common Pleas of Luzerne County is AFFIRMED.

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CHRISTINE FIZZANO CANNON, Judge