holding court did not abuse its discretion in permitting testimony from witness whose identity was not disclosed until after discovery deadline had passed because appellant had opportunity to depose this witness prior to trial and suffered no prejudice as result of late disclosure
How later courts described this case
- holding court did not abuse its discretion in permitting testimony from witness whose identity was not disclosed until after discovery deadline had passed because appellant had opportunity to depose this witness prior to trial and suffered no prejudice as result of late disclosure
- “If any basis exists upon which the court 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.”
- “It is beyond argument that the fact-finder is free to accept or reject the credibility of both expert and lay witnesses, and to believe all, part or none of the evidence.”
- “If any basis exists upon - 19 - J-S39015-15 which the court could have properly made its award, then we must affirm the trial court's denial of the motion for J.N.O.V.”
Written by the judges who cited it.
The opinion
CONCURRING OPINION BY
STRASSBURGER, J.:
I join the Majority Opinion in its treatment of various issues regarding admission of evidence. Opinion at 771-74. I concur in the result regarding the Majority’s discussion of the weight and sufficiency of the evidence. I write separately to address what, in my view, is an oft repeated misstatement of the law regarding post-trial motion practice.
In his motion for post-trial relief, Trinidad challenged the weight of the evidence presented at trial in both a motion for judgment notwithstanding the verdict (JNOV) and a motion for a new trial. In the civil context, the proper vehicle for presenting a weight-of-the-evidence claim is a motion for a new trial, not a motion for JNOV. See Morin v. Brassington, 871 A.2d 844, 851 (Pa.Super.2005) (“Previously, in Lanning v. West, 803 A.2d 753 (Pa.Super.2002), we explained that the remedy of entry of judgment in a party’s favor is proper only when a party successfully challenges the sufficiency of the evidence. On the other hand, the remedy of a new trial is proper when the verdict rendered by the trial court indicates that the trial court abused its discretion when weighing the evidence.”) (citations omitted; emphasis in original).
I recognize that there is case law that suggests that weight-of-the-evidence claims can be brought via motions for a new trial and for JNOV. However, I do not believe these cases withstand scrutiny.
For instance, the Majority quotes this Court’s recent decision in Haan v. Wells, 103 A.3d 60, 70 (Pa.Super.2014), in relevant part, as follows:
The trial court may award a judgment notwithstanding the verdict or a new trial “only when the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice. In determining whether this standard has .been met, appellate review is limited to whether the trial judge’s discretion was properly exercised, and relief will only be granted where the facts and inferences of record disclose a palpable abuse of discretion.” [Samuel-Bassett v. Kia Motors Am., Inc., 613 Pa. 371 , 34 A.3d 1, 39 (2011) ] (citing Commonwealth v. Cousar, 593 Pa. 204 , 928 A.2d 1025, 1035-36 (2007)).
It is true that, in Samuel-Bassett, our Supreme Court stated, in language completely unnecessary to the result in that case, “Allegations that a motion for judgment notwithstanding the verdict or a new trial should have been granted because the verdict was against the weight of the evidence are addressed to the discretion of the trial court.” Samuel-Bassett, 34 A.3d *775 at 39 . However, in support of that proposition, the Supreme Court cited to Commonwealth v. Cousar, 593 Pa. 204 , 928 A.2d 1025, 1035-36 (2007).
Cousar is a criminal ease; thus, a motion for JNOV was not available to Cousar. Indeed, he challenged the weight of the evidence in a motion for a new trial.
To the extent that Trinidad intended to challenge the weight of the evidence in his motion for post-trial relief and to appeal the trial court’s disposition of that challenge, for the reasons stated above, I conclude that his motion for JNOV failed as a matter of law. I further conclude that the trial court did not abuse its discretion by denying his motion for a new trial.