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

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) - 11 - 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. - 12 - 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. - 13 - 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) - 14 - 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. - 55 - 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 - 56 -