J-A11037-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JENNA MARIE SCOTT, A MINOR BY AND IN THE SUPERIOR COURT OF
THROUGH HER GUARDIAN AD LITEM, PENNSYLVANIA
JUDITH ALGEO, ESQUIRE
v.
LOWER BUCKS HOSPITAL, AMY L.
HARVEY, M.D., MARK D. KUHN, M.D.,
LAURA CASTNER, RN, JO ANN BUTRICA,
RN, AND MARY (BOYLE) ROMOLINI, RN
APPEAL OF: AMY L. HARVEY, M.D., AND
MARK D. KUHN, M.D.
No. 1140 EDA 2015
Appeal from the Order Entered April 10, 2015
in the Court of Common Pleas of Bucks County Civil Division
at No(s): 2010-01193
JENNA MARIE SCOTT, A MINOR BY AND IN THE SUPERIOR COURT OF
THROUGH HER GUARDIAN AD LITEM, PENNSYLVANIA
JUDITH ALGEO, ESQUIRE
v.
LOWER BUCKS HOSPITAL, AMY L.
HARVEY, M.D., MARK D. KUHN, M.D.,
LAURA CASTNER, RN, JO ANN BUTRICA,
RN, AND MARY (BOYLE) ROMOLINI, RN
APPEAL OF: LOWER BUCKS HOSPITAL,
LAURA CASTNER, RN, JO ANN BUTRICA,
RN AND MARY (BOYLE) ROMOLINI, RN
No. 1306 EDA 2015
Appeal from the Order Entered April 10, 2015
in the Court of Common Pleas of Bucks County Civil Division
at No(s): 2010-01193
J-A11037-16
BEFORE: SHOGAN, MUNDY, and FITZGERALD,* JJ.
CONCURRING AND DISSENTING STATEMENT BY FITZGERALD, J.:FILED JULY 21, 2016
I respectfully concur in part and dissent in part for two reasons. First,
Appellee’s counsel did not move for a mistrial in response to the sustained
objections to Appellants’ counsel’s improper questioning. The jury, however,
found in favor of Appellants. The majority awards Appellee with a new trial
despite her counsel’s failure to request a mistrial until after the jury reached
its verdict. This is too late.
Rather, it is incumbent upon the movant to timely move for a mistrial.
McMillen v. 84 Lumber, Inc., 649 A.2d 932, 934 (Pa. 1994). In
McMillen, the trial court granted the plaintiffs’ motion in limine barring the
defendant from referencing certain testimony. Id. at 933. “In direct
defiance of the trial court’s explicit instructions,” defendant’s counsel elicited
the precluded testimony. Id.
[Plaintiffs’] counsel interposed an objection that the trial
court sustained. At this point, the proverbial cat was out
of the bag, but [the plaintiffs’] counsel did not ask for a
mistrial to which they were surely entitled. [The plaintiffs’]
counsel apparently gambled that they could still win before
the jury already empaneled as opposed to incurring the
expenditure of time and money that would necessarily
occur if a mistrial were granted and a new trial ordered.
They lost.
Id.
*
Former Justice specially assigned to the Superior Court.
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In their post-trial motion, the plaintiffs requested a new trial for the
first time based upon the defendant’s violation of the court’s pretrial order.
Id. at 934. The trial court, sitting en banc, denied “the request for a new
trial on the grounds that the right to a new trial had been waived because
[the plaintiffs] had not made a timely request for the declaration of a
mistrial.” Id. The plaintiffs appealed to the Superior Court, which reversed,
reasoning “a strong public interest appeared to outweigh the ordinary need
to protect the judicial system from improperly preserved issues.” Id.
The Pennsylvania Supreme Court held the Superior Court misconstrued
the law, reversed the Superior Court, and affirmed the trial court’s denial of
a new trial. Id. The McMillen Court commanded that a party cannot wait
until an adverse jury verdict before requesting a mistrial:
Aside from capital cases in the domain of criminal law-
where a human life is at stake, no fact situations have
been presented to us, and none readily comes to mind,
where this narrow public interest exception would justify
departure from the waiver rule. This is a fairly routine civil
case. However difficult some strategic decisions are to
trial counsel, a party is bound by his or her counsel’s
actions and if an issue is waived on strategic grounds or by
inadvertence, it is waived. The rule may be harsh at
times, but litigation must eventually come to an end. . . .
To adopt the Superior Court’s approach would substantially
eviscerate the waiver principle and, taken to its logical
conclusion, would result in endless retrials and endless
appeals. That is contrary to sound principles of judicial
administration and to prior decisions of this Court.
Id.
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The precept that a party shall timely request a mistrial and not raise it
for the first time in a post-trial motion is illustrated in Poust v. Hylton, 940
A.2d 380 (Pa. Super. 2007). In Poust, the trial court precluded defense
counsel from using the word “cocaine” with respect to the deceased victim.
Id. at 381. During cross-examination of the plaintiff’s expert, defense
counsel asked about the presence of a cocaine metabolite in the victim. Id.
at 383. Plaintiff’s counsel objected, the court sustained the objection, and
after the jury left the courtroom, the plaintiff moved for a mistrial. Id. The
court denied plaintiff’s motion for a mistrial and declined to give a curative
instruction. Id. at 384. The plaintiff ultimately appealed, and this Court
reversed, as “[u]nder Pennsylvania law, [the plaintiff] was entitled to the
declaration of a mistrial, ipso facto, immediately upon [defense] counsel's
flagrant and intentional use of this obviously prejudicial word ‘cocaine’, in
violation of the prior pre-trial preclusion order of the trial court.” Id. at 385.
For the instant case, I distinguish a party’s timely request for a mistrial
from the trial court’s inherent authority to award a new trial sua sponte.
See Majority Slip Op. at 6-7 (citing caselaw for proposition that court can
sua sponte grant a new trial). The trial court did not grant a new trial sua
sponte. The trial court granted a new trial in response to Appellee’s post-
trial motion for a new trial. I thus suggest we are bound by our Supreme
Court’s reasoning in McMillen. See McMillen, 649 A.2d at 934.
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Second, I discern no basis for us to exercise appellate jurisdiction over
the Hospital’s appeal of its post-trial motion for judgment notwithstanding
the verdict. The trial court granted Appellee’s motion for a new trial after an
adverse jury verdict. The verdict no longer exists. Thus, I question whether
the trial court could even resolve—let alone grant—the Hospital’s motion for
judgment notwithstanding the (non-existent) verdict—a verdict that was in
Hospital’s favor.1 Regardless, the court never ruled on Hospital’s post-trial
motion. The Hospital did not praecipe for judgment. Nothing in
Pennsylvania Rule of Civil Procedure 227.4 permits us to review a non-
existent order. And the Hospital appealed only from the court’s grant of
Appellee’s motion for a new trial. Notice of Appeal, 4/28/15. I otherwise
concur in the majority’s disposition of the guardian ad litem fees.
Accordingly, I concur in part and dissent in part.
1
This is not a situation where one party files both a motion for a new trial
and a motion for judgment notwithstanding the verdict, but the trial court
only rules on one.
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