Mudra, M., Sr. v. Schlumberger Technology

J-A23041-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

MICHAEL J. MUDRA, SR. : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

:

v. :

:

:

SCHLUMBERGER TECHNOLOGY : No. 1439 MDA 2021

CORPORATION

Appellant

Appeal from the Judgment Entered November 8, 2021

In the Court of Common Pleas of Bradford County Civil Division

at No(s): 2021CV0283

BEFORE: BOWES, J., McCAFFERY, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED: JULY 26, 2023

Schlumberger Technology Corporation (“STC”) appeals from the

November 8, 2021 judgment entered in favor of Appellee, Michael J. Mudra,

Sr., in this premises liability case, following the September 30, 2021 denial of

STC’s motions for post-trial relief and the October 29, 2021 order granting

Appellee’s motion for delay damages. After careful review, we affirm.

The relevant facts and procedural history of this case, as gleaned from

the certified record, are as follows: Appellee, an employee of Water

Providers, Ltd., d/b/a Sweet H20 (“Sweet H20”), filed a civil action complaint

against STC on June 28, 2012. Appellee claimed he suffered serious and

____________________________________________

* Former Justice specially assigned to the Superior Court.

J-A23041-22

debilitating physical injuries while working on an oil and gas drilling well site

in Troy, Pennsylvania on November, 24 2010, due to STC’s negligence.

Chesapeake Appalachia, LLC (“Chesapeake”) was the leaseholder and

operator of the site and contracted with various other companies to bring the

well into production, including STC, which oversaw the hydraulic fracturing

(“fracking”) operations at the site.

At trial, Appellee claimed that, while doing his job, he slipped off a step

and caught his foot under a large, 12-inch diameter hose that was improperly

placed and under the control of STC. Appellee testified that when he arrived

at the well site he advised STC of the hose and the need to move it, and that

he felt compelled to do his job despite the danger based on the expensive,

urgent, and highly-coordinated fracking process that was already underway.

Appellee had to repeatedly travel up and down a steep metal staircase and

step over the improperly placed hose at the bottom of the stairs. Near the

end of his shift he slipped, caught his foot under the hose, and injured his

ankle, causing painful, serious, and long-term disabilities which require him

to walk with a cane.

On April 10, 2017, nearly five years after Appellee filed his complaint,

STC filed a motion for entry of judgment of non pros, arguing that Appellee’s

failure to exercise due diligence in advancing this matter had hampered STC’s

ability to defend the lawsuit and caused it prejudice. See “Motion for Entry of

Judgment Non Pros,” 4/10/17 at ¶¶ 3-10. On April 16, 2017, the trial court

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entered an order directing Appellee to show cause why the motion for entry

of judgment of non pros should not be granted. Appellee filed a response

and memorandum of law in opposition to STC’s motion, and on July 25, 2017,

the trial court denied the motion without prejudice.

On September 13, 2019, STC filed a motion for summary judgment and

a brief in support of said motion. On January 17, 2020, the trial court held

argument on the matter, at the conclusion of which it denied STC’s motion on

January 23, 2020.

Following some COVID-related delays in this case, a civil jury trial was

ultimately scheduled for the week of November 2, 2020. The trial court also

confirmed that discovery was “complete,” and advised the parties about the

possibility of sanctions for violations that “cause prejudice ... or unreasonably

disrupt or delay the trial proceedings.” See trial court order, 2/14/20 at ¶ 11.

On September 30 and October 13, 2020, Appellee filed motions in

limine seeking to preclude the testimony of STC’s expert, Dr. J.P. Purswell,

and to strike two witnesses, Kevin Schwind and Tim Howard, because they

were named later in the action. On October 14, 2020, the trial court granted

the motions, in part, and denied them, in part, insofar as the trial court allowed

the testimony of Purswell as to certain matters; precluded entirely the

testimony of Schwind; and permitted the testimony of Howard. See trial court

order, 10/14/20 at ¶¶ 2-3.

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Both parties timely filed several proposed jury instructions. All the non-

standard instructions proposed by both parties were rejected at trial, including

STC’s proposed instructions relating to the (i) “open and obvious doctrine”;

(ii) “deliberate encounter exception to the open and obvious doctrine”; and

(iii) “duties of contractors and independent contractors”[.] See STC’s “Motion

for Post-Trial Relief,” 11/13/20, at 12-14.

A jury trial commenced on November 2, 2020. Following the three-day

trial, the jury returned a verdict in the amount of $1,767,827.84 in favor of

Appellee and against STC. The award was reduced by 45% to reflect the jury’s

finding regarding of Appellee’s comparative negligence.

STC made an oral motion for a directed verdict during trial on November

4, 2020, and an oral motion for judgment notwithstanding the verdict

(“JNOV”) following the return of the verdict in the case; both motions were

denied by the trial court. On November 6, 2020, Appellee filed a motion for

delay damages pursuant to Pa.R.C.P. 238, requesting that the verdict be

amended to reflect additional delay damages of $332,600.86.

On November 13, 2020, STC filed motions for post-trial relief,

requesting a new trial. On September 30, 2021, the trial court entered a

comprehensive opinion and order denying STC’s motions for post-trial relief.

See trial court opinion, 9/30/21 at 1-23. The trial court subsequently entered

an opinion and order on October 29, 2021 granting Appellee’s motion for delay

damages. Thereafter, on November 8, 2021, judgment was entered in favor

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of Appellee and against STC in the amount of $1,304,906.17. This timely

appeal followed.1

STC raises the following issues for our review:

A. Whether the trial court erred in denying the

motion for summary judgment of [STC], an

independent contractor hired by Chesapeake to

perform work on its multi-contractor oil and gas

well site, because the open and obvious doctrine

precluded the claims of [Appellee], an employee

of another contractor also hired by Chesapeake,

SweetH2O, when the undisputed facts of record

established that [Appellee] saw the 12-inch

diameter hose, believed it was potentially a

tripping hazard, successfully traversed it

multiple times, but nevertheless still

subsequently tripped over it?

B. Whether the trial court erred in denying [STC’s]

motion for summary judgment under the

“deliberate encounter” exception to the open

and obvious doctrine based only on [Appellee’s]

subjective belief that he had no choice but to

continue working around the hose, and without

evidence that [STC] had any objective reason to

believe that [Appellee] would lose his job

otherwise?

C. Whether the trial court erred in denying [STC’s]

motion for directed verdict and JNOV based on

the open and obvious doctrine even though, by

the trial court’s own assessment, “the open and

obvious nature of the hose was not in dispute”?

D. Whether the trial court erred in refusing to

instruct the jury on the open and obvious

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1 The record reflects that on December 3, 2021, STC filed concise statement

of errors complained of on appeal, in accordance with Pa.R.A.P. 1925(b) and

the trial court’s November 12, 2021 directive. On December 7, 2021, the trial

court filed a statement in lieu of a Rule 1925(a) opinion.

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doctrine based on its belief that the open and

obvious doctrine applies only to duty to warn

claims?

E. Whether the trial court erred in refusing to

instruct the jury on the duty of care owed by an

independent contractor to employees of another

independent contractor on the same job site?

F. Whether the trial court erred and abused its

discretion in precluding a Chesapeake corporate

representative from testifying at trial based on

purported “late disclosure”?

G. Whether the trial court erred and abused its

discretion by only permitting [STC’s] safety

engineering expert to testify about the

applicable OSHA regulations generally and not

allowing him to offer his expert opinion that,

based on the record evidence, [STC] had

complied with those regulations?

H. Whether the trial court erred and abused its

discretion in denying [STC’s] motion for entry of

judgment of non pros due to inactivity without

permitting [STC] to create a factual record and

without holding oral argument?

I. Whether the trial court erred and abused its

discretion by including in its delay damages

calculation the three (3) years of non-activity

caused by [Appellee’s] prior counsel?

STC’s brief at 5-10.

Preliminarily, we note that the issues presented in STC’s “Statement of

Questions Involved” do not align with those raised in the “Argument” section

of its appellate brief. Although STC raises 9 distinct issues above, the

“Argument” section contains only 5 intertwined claims delineated by letters A

through E.

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To the extent STC challenges the trial court’s denial of its motions for

summary judgment and for a directed verdict, see Issues A-C, supra, we

note that these claims are not properly framed for appellate review. See e.g.,

Whitaker v. Frankford Hosp. of City of Philadelphia, 984 A.2d 512, 517

(Pa.Super. 2009) (stating, “[o]nce this case proceeded to trial and Appellants

presented a defense, the trial court’s refusal to grant them summary judgment

and a compulsory nonsuit became moot. Once a jury verdict in favor of

Appellees was entered, the issue became whether the trial court erred in

failing to grant them [JNOV].” (internal citations omitted)). Accordingly, we

now turn to STC’s remaining arguments on appeal.

I. JNOV

STC first argues that the trial court abused its discretion in denying his

motion for JNOV based upon the open and obvious doctrine. STC’s brief at

31-36; issue A(ii)(1). In support of its contention, STC avers that the open

and obvious nature of the hose was not in dispute; it did not own the hose

and was not responsible for its placement; and it did not control the area

where the hose was located. Id. at 25-26. Thus, STC avers it was under no

duty to warn Appellee of a dangerous condition related to the hose. Id. For

the following reasons, we disagree.

Our standard of review of an order denying JNOV is

whether, viewing the record in the light most

favorable to the verdict winner and granting the

benefit of every favorable inference, there is sufficient

competent evidence to support the verdict. Any

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conflict in the evidence is resolved in the verdict

winner’s favor. JNOV may be granted only in clear

cases where the facts are such that no two reasonable

minds could fail to agree that the verdict was

improper. We will disturb a trial court’s grant or denial

of JNOV only for an abuse of discretion or an error of

law.

Ruff v. York Hospital, 257 A.3d 43, 48–49 (Pa.Super. 2021) (citations and

internal quotation marks omitted), appeal denied, 266 A.3d 1064 (Pa.

2021).

“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.” Egan v. USI Mid-Atl., Inc.,

92 A.3d 1, 20 (Pa.Super. 2014) (citation omitted).

Instantly, our review of the record reveals that STC’s claim merits no

relief. As the trial court emphasized in its opinion, in rendering its verdict in

favor of Appellee, there was ample evidence in the record for the jury to

conclude that

[STC] was in control of the worksite where [Appellee]

was injured; that [STC] owned or controlled the hose

at issue; that a dangerous condition existed and had

been reported; and that [STC] owed a duty to

[Appellee]. Additionally, the Court advised [STC’s]

counsel that the “open and obvious” doctrine relied

upon by [STC] in arguing for a directed verdict, did

not operate to compel the relief sought by [STC]

because it was reasonable to conclude that the

potential harm could have been reasonably foreseen.

Trial court opinion, 9/30/21 at 14 (citations omitted).

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Accordingly, as there exists a basis upon which the jury could have

rendered its verdict, the entry of JNOV was clearly not warranted in this

matter. See Egan, 92 A.3d at 20. STC’s claim to the contrary must fail.

II. Jury Instructions

STC next argues that the trial court abused its discretion in refusing to

charge the jury with its proposed jury instructions on: (a) the open and

obvious doctrine and the deliberate encounter exception thereto; and (b) the

duty of care that an independent contractor owes to the employees of another

independent contractor at a job site. STC’s brief at 36-50; issue A(ii)(2). We

disagree.

Our standard of review regarding jury instructions is

limited to determining whether the trial court

committed a clear abuse of discretion or error of law

which controlled the outcome of the case. Error in a

charge occurs when the charge as a whole is

inadequate or not clear or has a tendency to mislead

or confuse rather than clarify a material issue.

Conversely, a jury instruction will be upheld if it

accurately reflects the law and is sufficient to guide

the jury in its deliberations.

The proper test is not whether certain portions or

isolated excerpts taken out of context appear

erroneous. We look to the charge in its entirety,

against the background of the evidence in the

particular case, to determine whether or not error was

committed and whether that error was prejudicial to

the complaining party.

James v. Albert Einstein Med. Ctr., 170 A.3d 1156, 1163–1164 (Pa.Super.

2017) (citation omitted; emphasis added).

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Instantly, the record reflects that STC declined the trial court’s offer to

give the Pennsylvania Suggested Standard Jury Instruction on the “open and

obvious” doctrine. Thus, STC has waived any challenge to omission of its

proposed “open and obvious” charge on appeal. See notes of testimony,

11/4/20 at 39, 44, 115-117.

Likewise, we discern no abuse of discretion on the part of the trial court

in electing not to charge the jury on the deliberate encounter exception to the

open and obvious doctrine, given that STC rejected the trial court’s offer of

the standard instruction. As the trial court properly stated in its opinion:

Because there was no instruction as to the open and

obvious doctrine given, there was no need to give an

instruction on the deliberate encounter exception to

the open and obvious doctrine. Furthermore, [STC]

should not be heard to complain because the Court

declined to charge the jury on a doctrine that is an

exception to a rule of law that [STC] declined to have

explained to the jury in its standard form.

Trial court opinion, 9/30/21 at 21.

The record further reflects that the trial court rejected STC’s proposed

jury instructions on the duty owed among independent contractors as

“inappropriate and confusing,” see id. at 22, opting instead to give the

standard jury instructions on negligence and the duty of care. See notes of

testimony, 11/4/20 at 203-206.

The trial court reasoned that,

the standard jury instructions explaining simple

negligence principles – grounded in reasonableness –

were the most appropriate instructions to give the jury

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to help them determine whether [STC] owed

[Appellee] a duty and failed to reasonably exercise

that duty, whether [STC] controlled the work site

where [Appellee] was allegedly injured, and whether

[STC] had been negligent in not acting to eliminate a

reported dangerous condition. It would be up to the

jury, based on the facts as determined from the

evidence presented, to decide the case.

Trial court opinion, 9/30/21 at 23 (citations omitted).

Upon review, we conclude that the trial court did not abuse its discretion

by declining to give STC’s proposed instructions to the jury. Our independent

review of the record reveals that the trial court’s instructions clearly,

adequately, and accurately presented the relevant law to the jury for its

consideration. This Court has recognized that “there is no right to have any

particular form of instruction given; it is enough that the charge clearly and

accurately explains the relevant law.” James, 170 A.3d at 1164 (citation

omitted). Accordingly, STC’s claim must fail.

III. Motion in Limine to Strike Witness

STC next argues that the trial court abused its discretion in granting

Appellee’s motion in limine to preclude Kevin Schwind, an employee of

Chesapeake, from testifying at trial. STC’s brief at 50-54; issue B.

Our standard of review of an order granting or denying a motion in

limine is well-settled.

A motion in limine is used before trial to obtain a

ruling on the admissibility of evidence. It gives the

trial judge the opportunity to weigh potentially

prejudicial and harmful evidence before the trial

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occurs, thus preventing the evidence from ever

reaching the jury. A trial court’s decision to grant or

deny a motion in limine is subject to an evidentiary

abuse of discretion standard of review.

Questions concerning the admissibility of evidence lie

within the sound discretion of the trial court, and we

will not reverse the court’s decision absent a clear

abuse of discretion. An abuse of discretion may not

be found merely because an appellate court might

have reached a different conclusion, but requires a

manifest unreasonableness, or partiality, prejudice,

bias, or ill-will, or such lack of support so as to be

clearly erroneous.

In addition, to constitute reversible error, an

evidentiary ruling must not only be erroneous, but

also harmful or prejudicial to the complaining party.

E. Steel Constructors, Inc. v. Int'l Fid. Ins. Co., 282 A.3d 827, 843–844

(Pa.Super. 2022), quoting Parr v. Ford Motor Co., 109 A.3d 682, 690-691

(Pa.Super. 2014) (citations omitted), appeal denied, 123 A.3d 331 (Pa.

2015), cert. denied, 577 U.S. 1008 (2015).

Following our careful review of the record, including the briefs of the

parties, the applicable law, the well-reasoned opinion of the trial court, we

find that Schwind was properly precluded from testifying on STC’s behalf

because he was only identified as a prospective witness a mere 26 days before

trial. In reaching this conclusion, the trial court set forth the following

analysis, which we adopt as our own:

[G]iven the extent and protracted duration of

discovery, and the clear opportunity [STC] had to

advise [Appellee] at an earlier date that they wished

to call new, previously unidentified witnesses (given

that the case was originally set for trial in June and

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the parties met with each other and the Court on 3

[June 3, 2020] to discuss new trial dates), the

violation was sufficiently severe such that it should not

be overlooked; [STC] had offered no reasonable,

satisfactory, or verifiable excuse for its apparent

misrepresentation (or, at minimum, insufficient and

inaccurate disclosure) to the Court and [Appellee] on

[February 14, 2020] and again on [June 3, 2020] as

to the completion of discovery and the identity of

potential witnesses, suggesting that the withholding

of the Chesapeake witness was intentional; [STC’s]

failure to timely name both witnesses, but particularly

Kevin Schwind, resulted in prejudice to [Appellee];

the resultant prejudice to [Appellee] could not be

timely cured because of the necessity for the trial to

proceed as scheduled, having already been continued

once due to COVID-19, and the unfairness to

[Appellee] of having to arrange, prepare for, and take

a last-minute deposition (all of which was further

complicated by COVID-19 restrictions) as opposed to

making final preparations for trial; and [STC] had

offered no explanation as to why Schwind’s testimony

was required, given that, according to [STC’s]

summary of their anticipated testimony, both Tim

Howard and Kevin Schwind were going to address the

same topics as Mark Brunet, the initial corporate

representative who had previously been deposed.

Additionally, the Court was permitting Howard to

testify.

Trial court opinion, 9/30/21, at 12 (numeration omitted; date formatting

corrected).

IV. Expert Testimony

STC next argues that the trial court abused its discretion in limiting the

testimony of its liability expert, Dr. J.P. Purswell, at trial. STC’s brief at 54-

59; issue C. We disagree.

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“The admission of expert testimony is a matter of discretion [for] the

trial court and will not be remanded, overruled or disturbed unless there was

a clear abuse of discretion.” A.Y. v. Janssen Pharms. Inc., 224 A.3d 1, 22

(Pa.Super. 2019) (citation omitted), appeal denied, 238 A.3d 341 (Pa.

2020), cert. denied, ___ U.S. ___, 141 S.Ct. 2658 (2021).

It is well settled in Pennsylvania that the standard for

qualification of an expert witness is a liberal one.

When determining whether a witness is qualified as an

expert the court is to examine whether the witness

has any reasonable pretension to specialized

knowledge on the subject under investigation. It is to

ascertain whether the proposed witness has sufficient

skill, knowledge, or experience in the field at issue as

to make it appear that the opinion or inference offered

will probably aid the trier of fact in the search for

truth.

Rettger v. UPMC Shadyside, 991 A.2d 915, 930 (Pa.Super. 2010) (citations

omitted), appeal denied, 15 A.3d 491 (Pa. 2011).

Here, the record reflects that in lieu of presenting Purswell’s live

testimony at trial, STC elected to offer his testimony by reading into the record

the transcript of his deposition. As a result, the trial court was able to review

the transcript and determine which portions should be omitted.

Specifically, STC was permitted to present Purswell’s testimony about

the safety obligations that OSHA imposes on employers at a worksite, as well

as his expert opinion that STC’s actions with regard to Appellee did not violate

OSHA. Purswell opined as follows:

Q. If a company on a multi-employer worksite

doesn’t create the dangerous condition that

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caused an injury to another company’s

employee, can it be citable under OSHA as a

creating employer?

A. If the second contractor does not create the

hazard, they are not citable as the creating

employer, no.

Q. Okay. This case, as you know, involved a hose,

hypothetically speaking, if [STC] did not own or

place the hose that [Appellee] alleges he tripped

over, could it be cited for an OSHA violation as

a creating employer?

A. It could not.

....

Q. Okay, Dr. Purswell. Could — if you don’t recall

my question, my previous question was could

[STC] be held liable as an exposing employer

under the OSHA regulations?

A. If the employees of [STC] are exposed to the

tripping hazard of the hose, it could be cited as

an exposing employer. [STC] could not be cited

as an exposing employer for exposing — for the

exposure of other employee, other businesses,

entities at the site, for their exposure to the

hazard. So whether it is the Sweetwater H2O,

or whether it is a sand fracking supplier,

whether it is something else, whether it’s the

company man coming out who’s at the scene, if

it’s not the [STC] employee, [STC] is not the

exposing employer.

Notes of testimony, 11/4/20 at 162-163.

The trial court, however, precluded Purswell from testifying about the

contractual obligations of the contractors at the well site and the comparative

liability of each. Specifically, the trial court stated that it was improper for

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Purswell to comment on the functioning of the well site and to “point[] a finger

at the other parties, Chesapeake and Sweet Water,” because that was beyond

the scope of his pre-trial report and was based upon his interpretation of the

contract, of which he admitted he had no expertise. Notes of testimony,

11/3/20 at 157-161; see also trial court opinion, 9/30/21 at 8-9.

Upon review, we discern no abuse of discretion on the part of the trial

in limiting the portions of Purswell’s deposition testimony that were read into

evidence to those subjects that were properly within the scope of his pretrial

report and expertise.

This court has long recognized that “[a]n expert’s testimony on direct

examination is to be limited to the fair scope of the expert’s pre-trial report.”

Stalsitz v. Allentown Hosp., 814 A.2d 766, 779 (Pa.Super. 2002), appeal

denied, 854 A.2d 968 (Pa. 2004). Moreover, “in determining whether to

admit expert testimony, the usual test to be applied is whether the witness

has a reasonable pretension to specialized knowledge on the subject matter

in question.” McFeeley v. Shah, 226 A.3d 582, 596 (Pa.Super. 2020)

(citation omitted).

Based on the foregoing, STC’s claim that it was prejudiced by the

omission of those portions of Purswell’s deposition testimony that were clearly

beyond the scope of his pre-trial report and expertise must fail.

V. Judgement of Non Pros

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STC next argues that the trial court abused its discretion in denying its

motion for entry of judgment of non pros. STC’s brief at 59-62; issue D.

STC alleges that it was prejudiced by the nearly three-year period of “docket

inactivity” from July 2014 until April 2017 that was attributable to Appellee,

such that he was incapable of properly preparing for trial. Id.; see also

“Motion for Entry of Judgment Non Pros,” 4/10/17 at ¶¶ 3-10. For the

following reasons, we disagree.

“The standard governing our review of a trial court decision to deny a

petition to open a judgment of non pros is one of abuse of discretion.” Florig

v. Estate of O’Hara, 912 A.2d 318, 323 (Pa.Super. 2006) (citations omitted),

appeal denied, 929 A.2d 1162 (Pa. 2007). “A trial court will be found to

have abused its discretion if, in reaching its conclusion, the law is overridden

or misapplied, or the judgment exercised is manifestly unreasonable or the

result of partiality, prejudice, bias or ill will.” Id. at 323–324 (citation

omitted).

“Relief from a judgment of non pros shall be sought by petition. All

grounds for relief, whether to strike off the judgment or to open it, must be

asserted in a single petition.” Pa.R.C.P. 3051(a). To open a judgment of non

pros, the petition shall allege facts showing that:

(1) the petition is timely filed,

(2) there is a reasonable explanation or legitimate

excuse for the conduct that gave rise to the entry of

judgment of non pros, and

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(3) there is a meritorious cause of action.

Pa.R.C.P. 3051(b)(1-3).

In interpreting Rule 3051, this Court has stated that:

in order for the judgment of non pros to be opened,

three elements must coalesce: 1) the petition to open

must be promptly filed; 2) the default or delay must

be reasonably explained or excused; and 3) facts

must be shown to exist which support a cause of

action.

Madrid v. Alpine Mountain Corp., 24 A.3d 380, 381 (Pa.Super. 2011)

(citations omitted), appeal denied, 40 A.3d 1237 (Pa. 2012).

Instantly, the trial court addressed this issue in its opinions authored in

support of its September 30, 20201 order denying STC’s post-trial motions

and its October 29, 2021 order granting Appellee’s motion for delay damages.

Therein, the trial court found that “[Appellee’s] reasons for the alleged

inactivity … were credible, satisfactory, compelling, and not indicative of bad

faith or intentional delay.” Trial court opinion, 9/30/21 at 5. The trial court

further concluded that STC’s claim that Appellee had done nothing to move

the case forward during the nearly three-year period that the proceeded the

filing of its motion is belied by the record. The trial court stated:

In direct response to [STC’s] claim that there was “no

docket activity” after July 14, 2014, [Appellee]

provides a list of documents that purport to support

[Appellee’s] claim that discovery was ongoing during

this period, including: a subpoena to produce issued

August 15, 2014; a letter from [Appellee] to [STC]

requesting depositions dated November 6, 2014;

supplemental discovery sent by [Appellee] to [STC]

by letter dated November 11, 2014; a subpoena to

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produce issued January 1, 2015; and a subpoena to

produce issued March 5, 2015. While these

documents may not have been listed on the docket

and were not part of the record, their authenticity is

obvious and has not been challenged by [STC].

[Appellee] also notes that [STC] switched counsel, for

the second time, on June 2, 2015, followed by a

change of [Appellee’s] counsel on August 30, 2016.

From this, [Appellee] argues that the “timeline is

indicative of [Appellee’s] due diligence in pursuit of his

claim” and that “[a]ny alleged period of inactivity in

this litigation is not attributable to [Appellee] and

should not bar him from receiving delay damages.”

Trial court opinion, 10/29/21 at 4 (citation omitted; internal quotation marks

in original).

Following our own independent review, we find that the record supports

the trial court’s findings. Accordingly, we discern no abuse of discretion on

the part of the trial court in denying STC relief on its motion for judgment of

non pros.

VI. Delay Damages

Similarly, STC further argues that the trial court abused its discretion in

finding that Appellee was entitled to delay damages for the aforementioned

“3-year period of inactivity from 2014 until 2017” that was the subject of its

motion for entry of judgment non pros. STC’s brief at 62-63; issue E. This

claim is meritless.

“Our standard of review in assessing whether a trial court erred in

calculating delay damages is well-settled. We will not reverse a trial court’s

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decision to impose delay damages absent an abuse of discretion.” Sopko v.

Murray, 947 A.2d 1256, 1258 (Pa.Super. 2008) (citation omitted).

Pennsylvania Rule of Civil Procedure 238 governs delay damages for

actions for bodily injury or death and provides, in relevant part, as follows:

(a)(1) At the request of the plaintiff in a civil action

seeking monetary relief for bodily injury, death or

property damage, damages for delay shall be added

to the amount of compensatory damages awarded

against each defendant or additional defendant found

to be liable to the plaintiff in the verdict of a jury, in

the decision of the court in a nonjury trial … and shall

become part of the verdict, decision or award.

(2) Damages for delay shall be awarded for the period

of time from a date one year after the date original

process was first served in the action up to the date

of the award, verdict or decision.

(3) Damages for delay shall be calculated at the rate

equal to the prime rate as listed in the first edition of

the Wall Street Journal published for each calendar

year for which the damages are awarded, plus one

percent, not compounded.

(b)(1) The period of time for which damages for delay

shall be calculated under subdivision (a)(2) shall

exclude the period of time, if any,

(i) after the defendant made a written offer

which complied with the requirements of

subdivision (b)(2), provided that the plaintiff

obtained a recovery which did not exceed the

amount described in subdivision (b)(3), or

(ii) during which the plaintiff caused delay of the

trial.

Pa.R.C.P. 238(a), (b).

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“The purpose of Rule 238 is to alleviate delay in the courts by providing

an incentive and encouragement for defendants to settle meritorious claims

as soon as reasonably possible.” Sopko, 947 A.2d at 1258 (citation omitted).

“[A] defendant bears the burden of proof when opposing imposition of delay

damages and may do so on two bases: (1) establishing that the requisite offer

has been made in accordance with the terms of Pa.R.C.P. 238(b)(1)(i); or (2)

establishing that the plaintiff was responsible for specified periods of delay.”

Shay v. Flight C Helicopter Servs., Inc., 822 A.2d 1, 20–21 (Pa.Super.

2003) (citation omitted).

As discussed, the trial court found that Appellee did not unnecessarily

delay this case during the nearly three-year period that preceded the filing of

STC’s motion for entry of judgment non pros, and thus, “did not cause a

delay of trial that would bar the recovery of delay damages in whole or part.”

Trial court opinion, 10/29/21 at 4-5. Accordingly, the trial court awarded

Appellee delay damages of $332,600.86, in accordance with the proper

method of calculation – prime rate plus 1% – as set forth in Rule 238(a)(3).

See id. at 2; trial court order, 10/29/21. Upon review, we find this was a

proper exercise of the trial court’s discretion. Accordingly, STC’s final claim

of trial court error must fail.

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For all the foregoing reasons, we affirm the November 8, 2021 judgment

entered in favor of Appellee and against STC in the amount of $1,304,906.17.2

____________________________________________

2 The majority acknowledges there is an inconsistency in the law in this

Commonwealth regarding the appealability of pre-trial motions. Compare,

e.g., Whitaker, 984 A.2d 517 (noting that once the case proceeded to trial

and the defendants presented a defense, the denial of their motion for

summary judgment became moot and, upon entry of a verdict in plaintiff’s

favor, “the issue became whether the trial court erred in failing to grant them

[JNOV]”); and Xtreme Caged Combat v. Zarro, 247 A.3d 42, 50 (Pa.Super.

2021) (applying Whitaker in concluding that “the denial of [plaintiff’s]

summary judgment motion is not appealable as an issue separate from the

grant of the nonsuit at trial”); with Windows v. Erie Insurance, 161 A.3d

953 (Pa.Super. 2017) (reaching merits of trial court’s denial of summary

judgment motion on appeal following trial without explanation as to why the

denial was reviewable); and Brownlee v. Home Depot U.S.A., Inc., 241

A.3d 455 (Pa.Super. 2020) (non-precedential decision at 6-7 & n.5) (holding

that the denial of a motion for summary judgment is not moot following trial

and noting further “that a litigant should be permitted to challenge, on appeal,

a trial court’s denial of a pretrial motion for summary judgment even after the

parties have proceed to trial and a verdict.”). An En Banc panel of this Court

should be considered in light of inconsistent jurisprudence regarding

appealability of pre-trial motions.

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Judgment affirmed.

An En Banc panel of this Court should be considered in light of

inconsistent jurisprudence regarding appealability of pre-trial motions.

Judge McCaffery joins.

Judge Bowes files a Concurring Memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/26/2023

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