[J-21-2018]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
JOHN STAPAS, : No. 44 WAP 2017
:
Appellant : Appeal from the Order of the Superior
: Court entered December 23, 2016 at
: No. 1287 WDA 2015, vacating the
v. : Judgment of the Court of Common
: Pleas of Allegheny County entered
: July 24, 2015 at No. GD09-012965
GIANT EAGLE, INC., A PENNSYLVANIA : and remanding.
ENTITY; GIANT EAGLE, INC., T/D/B/A :
GETGO FROM GIANT EAGLE, A : ARGUED: April 10, 2018
PENNSYLVANIA ENTITY; GIANT EAGLE :
INC., T/D/B/A SOUTHSIDE GETGO, A :
PENNSYLVANIA ENTITY; NADEEN :
MCSHANE, AN INDIVIDUAL; GETGO :
PARTNERS SOUTH, A PENNSYLVANIA :
ENTITY; GETGO PARTNERS SOUTH- :
MARYLAND, LLC, A PENNSYLVANIA :
ENTITY; AND GETGO HOLDINGS, LLP, :
A PENNSYLVANIA ENTITY, :
:
Appellees :
OPINION
JUSTICE MUNDY DECIDED: NOVEMBER 21, 2018
In this appeal by allowance, we consider whether Giant Eagle was required to
object to the jury’s verdict awarding future lost wages to preserve its challenge to the
verdict, which Giant Eagle labeled as a weight of the evidence challenge in its post-trial
motion. We conclude that an objection to a jury’s verdict that is premised on trial errors,
correctable before the jury is discharged, must be raised before the jury is discharged.
Accordingly, we reverse the Superior Court’s order awarding Giant Eagle a new trial on
damages.
In this premises liability case, John Stapas sued Giant Eagle and related entities
(collectively Giant Eagle) for injuries he sustained at a GetGo convenience store. At the
time of the incident, Stapas was 17 years old and worked full-time as a busboy and
dishwasher at a restaurant, earning $8.25 per hour plus $14.00-$20.00 per shift in tips.
On July 18, 2007, Stapas went to GetGo after his restaurant shift. At GetGo, he was
talking to his friend, Crystal Stogden, who worked the night shift there. Minutes after
Stapas arrived, a customer exiting the store held the door open for Brandon McCallister
to enter. McCallister had been banned from patronizing that GetGo location.
McCallister, who appeared intoxicated, started arguing with Stogden about his
ban. Stapas was not initially involved in the argument. After about one minute, Stapas
intervened to attempt to diffuse the argument and protect Stogden and another female
employee, LaToya Stevens.
Eventually, Stapas, McCallister, Stogden, and Stevens exited the store into the
parking lot area. Outside the store, McCallister’s friend was waiting for him. Stapas told
Stogden to get back inside the store, and Stevens remained outside. McCallister
continued screaming at the employees as Stapas followed him to his vehicle, insisting
that he leave. As they approached McCallister’s car, McCallister initiated a physical fight
with Stapas. During the fight, McCallister pulled out a gun, which he had concealed on
his person, and shot Stapas four times. Stapas missed six weeks of work while
recovering from the injuries, and he continues to have daily stomach pain from the
shooting.
On July 16, 2009, Stapas filed a writ of summons, and on November 10, 2009,
Stapas filed a complaint asserting negligence claims against Giant Eagle. This case
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proceeded to a five-day jury trial, from November 10 to November 17, 2014. Pertinent to
this appeal, Stapas did not present evidence on, or make any claim for, future wage loss.
In his closing argument, Stapas’s counsel mentioned Stapas’s potential future lost
wages if he could not continue to work with his injuries, but stated that Stapas was “not
sitting here asking you for, you know [$]6-700,000 in wages for the rest of his life, because
he’s going to fight through this. . . . [T]hat’s a decision we made. And the Judge will give
you the numbers of past and present wage loss. It’s small. It’s six weeks of eight or nine
dollars an hour, and it’s not much.” N.T., 11/17/14, at 836. Similarly, Giant Eagle’s
counsel estimated Stapas’s wage loss at $2,000 to $3,000. Id. at 804.
Following the parties’ closing arguments, the trial court charged the jury that if it
found Giant Eagle liable, its damages award should “fairly and adequately compensate
[Stapas] for all the physical and financial injuries he has sustained as a result of the
incident. The amount . . . must compensate [Stapas] completely for damages sustained
in the past, as well as damage [Stapas] will sustain in the future.” Id. at 848. The trial
court did not specifically instruct the jury on past and future wage loss. Id. at 848-50.
Additionally, the trial court instructed the jury to return its verdict in “a single lump sum.”
Id. Giant Eagle did not object to the trial court’s instructions on damages or request an
instruction on past or future wage loss.
The trial court gave the jury a verdict slip with six interrogatories. The first five
interrogatories related to the various elements of negligence. The sixth interrogatory,
related to damages, called for the jury to:
State the amount of damages, if any, sustained by the Plaintiff
as a result of the accident (occurrence), without regard to and
without reduction by the percentage of causal negligence, if
any, that you have attributed to the Plaintiff, including the
items listed below. In the event that you find in favor of
Plaintiff, you will add the sums of damage together and return
your verdict in a single, lump sum.
[J-21-2018] - 3
Verdict Slip, 11/17/14, Question 6 (R. 1063a).
Below the sixth interrogatory, there was a list of five categories of damages,
followed by a line beginning with “total.” Giant Eagle did not object to the verdict form.
The jury found Giant Eagle liable and filled out the damages interrogatory by handwriting
an amount next to each category (indicated below with bold and underlining), even though
they were not specifically directed to, and then writing the sum on the “total” line, as
follows:
a. Scarring liposuction $3000
b. Wage loss past $3000, future $1,300,000
c. Past and future medical expenses past $30,000 future 0
d. Past, present and future pain and suffering $500,000
e. Loss of life’s pleasures $250,000
Total: $2,086,000
Id. (R. 1064a).
When the jury returned the verdict slip, the trial court’s tipstaff read the itemized
damages, including the amount for wage loss, and the total amount. Giant Eagle did not
object. Immediately after the verdict, the trial court polled the jury, confirmed that counsel
had no further questions or objections, and dismissed the jury. The trial court entered a
molded verdict in favor of Stapas and against Giant Eagle for $1,552,780.00, which
reflected the jury’s finding that Giant Eagle was 73% negligent and Stapas was 27%
negligent. Additionally, on February 25, 2015, the trial court added delay damages of
$279,795.17, for a total award of $1,802,575.17.
[J-21-2018] - 4
On November 26, 2014, Giant Eagle filed a motion for post-trial relief, requesting
a new trial, JNOV, or remittitur.1 The trial court continued oral argument on the motion
pending the preparation of the complete trial transcript. The transcript was not filed until
July 20, 2015, which was approximately eight months after Giant Eagle filed its motion.
On July 24, 2015, Stapas filed a praecipe to enter judgment because more than 120 days
had passed since Giant Eagle filed its post-trial motion, which rendered the post-trial
motion denied by operation of law. See Pa.R.C.P. 227.4(1)(b). On August 21, 2015,
Giant Eagle filed a notice of appeal in the Superior Court.
Although the trial court did not have an opportunity to rule on Giant Eagle’s post-
trial motions, it filed an opinion expressing its view that Giant Eagle had waived its
objections to the jury’s calculation of the $2,086,00.00 general verdict. Trial Ct. Op. at 5
(citing Picca v. Kriner, 645 A.2d 868, 871 (Pa. Super. 1994) (holding the request for a
new trial is waived if objections to a jury’s inconsistent verdict are not raised before the
jury is dismissed)). The trial court explained that the parties jointly drafted and agreed to
the jury verdict slip containing the six interrogatories, the trial court gave the verdict form
to the jury without objection, and Giant Eagle did not object to the jury’s verdict before the
trial court dismissed the jury. The trial court noted if Giant Eagle had objected before the
jury was dismissed, the trial court could have required the jury to clarify its verdict.
Accordingly, the trial court concluded Giant Eagle had waived its right to a new trial by
failing to object to the jury’s damages award before the trial court dismissed the jury.
1 While the post-trial motion set forth a claim for remittitur, Giant Eagle did not pursue this
claim either in the Superior Court or in this appeal. In particular, Giant Eagle has not
sought a reduction of the lump sum award of damages ($2,086,000) on the grounds that
it was excessive and not supported by the evidence of record. Instead, Giant Eagle has
focused its efforts exclusively on attempts to obtain a new trial based upon the weight of
the evidence for the award for future lost wages noted on the verdict slip.
[J-21-2018] - 5
On appeal, a unanimous panel of the Superior Court vacated the judgment and
remanded for a new trial on damages. The Superior Court explained it reviews the denial
of a motion for a new trial for an abuse of discretion or error of law. Stapas v. Giant Eagle,
Inc., 153 A.3d 353, 359 (Pa. Super. 2016). Further, the court noted a claim that the verdict
was against the weight of the evidence warrants a new trial only “where the verdict is so
contrary to the evidence it shocks one’s sense of justice.” Id. (quoting Cangemi ex rel.
Estate of Cangemi v. Cone, 774 A.2d 1262, 1265 (Pa. Super. 2001)).
The Superior Court first classified the verdict as a “general verdict with special
findings.” Id. at 363. The court reasoned that while the trial court instructed the jury to
return a general verdict, the jury actually returned a general verdict with special findings
by assigning an amount of damages to each category listed in the damages interrogatory
on the verdict slip. Id.
Next, the Superior Court disagreed with the trial court that Giant Eagle had waived
its argument for failing to object before the jury was dismissed. Id. at 364. The court
stated that a party “who fails to object to an ambiguous or flawed jury verdict before the
jury is dismissed waives the right to challenge the verdict in post-trial motions.” Id. (citing
Criswell v. King, 834 A.2d 505, 508 (Pa. 2003)). The Superior Court noted the trial court,
citing Picca, relied on this rule to conclude Giant Eagle’s issue was waived. Id. at 363.
However, the court noted an exception to this rule is that a party does not have to raise a
challenge to the weight of the evidence before the jury is discharged; instead, it may be
raised for the first time in post-trial motions. Id. at 364 (citing Criswell, 834 A.2d at 512).
Because Giant Eagle’s post-trial claim was framed as a challenge to the sufficiency and
weight of the evidence, the Superior Court concluded “Giant Eagle properly preserved its
right to seek a new trial by filing a timely post-trial motion contending the verdict was
against the weight of the evidence and shocked one’s sense of justice.” Id. at 364.
[J-21-2018] - 6
Analyzing Giant Eagle’s weight of the evidence challenge, the Superior Court
concluded the record did not support the verdict for future lost wages because Stapas did
not seek and did not prove that category of damages. Id. at 365. The court acknowledged
that if the jury had followed the trial court’s instructions to return a lump sum verdict, the
court would not be able to discern the jury’s error in awarding future lost wages. Id.
However, the jury’s special findings reflected the award of $1,300,000.00 for future lost
wages, which the court concluded was “inconsistent with the general verdict.” Id. (relying
on Fritz v. Wright, 907 A.2d 1083, 1092 (Pa. 2006) (stating “in the usual case where
special findings are consistent with the general verdict, the special findings are
considered merely advisory”)). According to the court, “[u]nder these circumstances, the
special findings compel us to conclude that the verdict was against the weight of the
evidence and that the trial court abused its discretion by not granting Giant Eagle a new
trial.” Id. Therefore, the Superior Court vacated the judgment and remanded for a new
trial limited to damages. Id. at 372.
We granted allocatur to consider whether Giant Eagle waived its challenge to the
damages award by not objecting before the jury was discharged but instead raising the
issue for the first time in its post-trial motions. We also granted allocatur to consider
whether the Superior Court’s decision conflicted with this Court’s decisions in Dilliplaine
v. Lehigh Valley Trust Co., 322 A.2d 114 (Pa. 1974), and Straub v. Cherne Industries,
880 A.2d 561 (Pa. 2005). Stapas v. Giant Eagle, Inc., 171 A.3d 1283 (Pa. 2017). The
applicability of waiver principles presents a question of law, over which our standard of
review is de novo and our scope of review is plenary. Straub, 880 A.2d at 566 n.7.
As the parties’ arguments involve a discussion of Dilliplaine, Criswell, and Straub,
we will first discuss those cases to provide the legal background surrounding the issue.
In Dilliplaine, this Court held that a “timely specific objection” must be raised to preserve
[J-21-2018] - 7
allegations of trial error. Dilliplaine, 322 A.2d at 117. In so doing, this Court abolished
the “fundamental error” doctrine, which had allowed an appellate court to consider
fundamental errors for the first time on appeal. Id. at 116-17. The Dilliplaine Court
explained that requiring a timely, specific objection at trial promoted judicial efficiency by
giving the trial court the opportunity to correct trial errors, reducing appellate review of
those issues, and avoiding the delay to litigants inherent in appellate review. Id. at 117.
Accordingly, the Dilliplaine Court held that the appellant waived his objection to a jury
instruction because he did not offer a point for charge or object to the trial court’s jury
instruction. Id.
The Dilliplaine rule has come to be known as the “contemporaneous objection”
rule. It is now codified in Pennsylvania Rule of Civil Procedure 227.1(b), which provides:
(b) Except as otherwise provided by Pa.R.E. 103(a), post-trial
relief may not be granted unless the grounds therefor,
(1) if then available, were raised in pre-trial
proceedings or by motion, objection, point for charge,
request for findings of fact or conclusions of law, offer
of proof or other appropriate method at trial; and
(2) are specified in the motion. The motion shall state
how the grounds were asserted in pre-trial proceedings
or at trial. Grounds not specified are deemed waived
unless leave is granted upon cause shown to specify
additional grounds.
Pa.R.C.P. 227.1(b)(1)-(2). Further, the note to Rule 227.1 explains “[i]f no objection is
made, error which could have been corrected in pre-trial proceedings or during trial by
timely objection may not constitute a ground for post-trial relief.” Pa.R.C.P. 227.1, Note.
In Criswell, this Court held that a weight of the evidence challenge does not have
to be raised before the jury is discharged to preserve it, and a weight claim can be raised
for the first time in post-trial motions. Criswell, 834 A.2d at 506. Criswell involved a
[J-21-2018] - 8
negligence claim arising out of an automobile accident in which the parties presented
competing evidence to the jury, mainly on damages. Id. at 507. The jury in Criswell found
the appellee’s negligence did not cause the appellant’s injuries in response to a causation
interrogatory. Id. at 507. The appellant did not object before the jury was discharged and
later filed a post-trial motion for a new trial, arguing the verdict was against the weight of
the evidence. Id. The trial court found the jury’s verdict on causation was against the
weight of the evidence and granted a new trial. Id.
However, the Superior Court reversed, concluding the appellant waived the weight
challenge by failing to object before the jury was discharged. Id. at 508. To reach its
conclusion, the Superior Court applied its decision in Picca, which held a party’s failure
to object to the jury’s ambiguous response to special interrogatories before the jury was
dismissed waives the ability to challenge the verdict in post-trial motions. Id. (citing Picca,
645 A.2d at 868). The Superior Court reasoned that if the appellant had objected to the
verdict, the trial court could have instructed the jury to clarify its ambiguous verdict. Id.
This Court reversed the Superior Court and concluded that a weight of the
evidence claim ripens after the jury’s verdict, reasoning:
A weight challenge is sui generis. Such a claim is not
premised upon trial court error or some discrete and
correctable event at trial, but instead ripens only after, and
because of, the jury’s ultimate verdict in the case. The
challenge does not dispute the power of the jury to render the
verdict it rendered, nor does it even allege any facial error in
the verdict of the jury (be it, in the eyes of the challenger, a
flaw, an inconsistency or a total injustice). Assuming that the
case properly was ripe for jury consideration--i.e., neither of
the parties was entitled to a directed verdict because a
properly joined issue of material fact remained for resolution-
-the jury is fully empowered to rule in favor of either or any
party. The basis for a weight claim derives from the fact that
the trial court, like the jury, had an opportunity to hear the
evidence and observe the demeanor of the witnesses; the
hope and expectation animating a weight challenge is that the
[J-21-2018] - 9
trial court will conclude that the verdict was so contrary to what
it heard and observed that it will deem the jury's verdict such
a miscarriage of justice as to trigger the courts time-honored
and inherent power to take corrective action.
Id. at 512. Because a weight challenge is addressed to the trial court’s discretion, only
the trial judge can resolve it; the trial court cannot instruct the jury to weigh the evidence
differently. Id. at 513. Accordingly, a party seeking to raise a weight challenge is not
required to object before the jury is discharged to preserve the claim, because the jury
cannot resolve the claim. Id. Based on this analysis, this Court concluded the appellant
presented a weight claim that ripened only after the verdict, and he did not have to object
to the verdict before the trial court dismissed the jury. Id.
In Straub, this Court held the defendant waived its argument, advanced for the first
time in its post-trial motion, that the evidence was insufficient to support the jury’s verdict.
Straub, 880 A.2d at 567. The jury in Straub found, in response to special interrogatories,
that the defendant’s product was not defective but that the defendant was negligent. Id.
at 565. The defendant did not object to the interrogatories, the trial court’s jury
instructions, or the verdict. Id. at 567. Instead, the defendant filed a post-trial motion,
which asserted the jury’s finding that the defendant was negligent could not stand
because the jury found the product was not defective and the plaintiff did not produce any
independent evidence of negligence unrelated to the condition of the product. Id. at 565.
Applying Rule 227.1, the Straub Court held that the defendant waived this argument. Id.
at 567. This Court reasoned that the defendant’s argument was that the jury could not
find the defendant negligent as a matter of law, not that the jury erred in weighing the
evidence. Id. (explaining “[the defendant] is not arguing that the verdict cannot stand
because a reasonable jury could not have found [the defendant] negligent based on the
evidence that [the plaintiffs] introduced at trial”). Therefore, this Court concluded the
[J-21-2018] - 10
defendant’s objections were waived because the verdict sheet and the jury instructions
did not accurately state the law, and the defendant did not object to them. Id.
We now turn to the parties’ arguments in this case. Stapas argues that Giant Eagle
waived its challenge to the flawed jury verdict by failing to object at trial. Stapas asserts
that Dilliplaine requires a contemporaneous objection to problematic verdicts and trial
errors. Stapas contends that despite Dilliplaine’s contemporaneous objection
requirement, Giant Eagle failed to object to the verdict or the trial court errors preceding
the verdict. First, Stapas notes that the jury’s verdict did not conform to the trial court’s
instructions because the jury did not return a single, lump sum of damages; instead, the
jury created its own special findings. However, Giant Eagle did not object. Second, Giant
Eagle did not request a point for charge on wage loss. Third, Giant Eagle did not object
to the trial court’s instructions explaining wage loss. Fourth, Giant Eagle did not object to
the verdict slip that listed “wage loss,” but did not differentiate between past wage loss
and future wage loss. Therefore, according to Stapas, Giant Eagle waived its right to a
new trial on damages based on the jury’s flawed verdict.
Additionally, Stapas contends this Court has established a bright-line rule for when
an objection to a verdict must be raised to preserve an issue for appeal in Straub and
Samuel-Bassett v. Kia Motors America, Inc., 34 A.3d 1, 46 (Pa. 2011) (holding the failure
to object to a molded verdict waived the issue on appeal). If the verdict is the product of
trial error, or involves a discrete, correctable event at trial, or involves the capacity of the
jury to return the verdict at all, the objection must be lodged before the jury is discharged.
On the other hand, under Criswell, a weight of the evidence challenge may be raised for
the first time in post-trial motions. In this case, Stapas contends Straub is controlling
because Giant Eagle disputed the right of the jury to make its findings as a matter of law.
[J-21-2018] - 11
Further, Stapas argues the Superior Court erred in not considering Straub in its decision.
Thus, Stapas maintains that Giant Eagle’s failure to object waived the issue.
Further, Stapas argues that Giant Eagle’s attempt to label its challenge to the jury’s
verdict as a weight of the evidence issue fails. Stapas asserts that Giant Eagle argued
the jury’s apparent award of future wage loss was unsupported by any evidence; Giant
Eagle did not argue that the jury improperly weighed competing evidence on future wage
loss. Because the jury in this case did not resolve a factual dispute over future wage loss,
Stapas argues this case is distinguishable from Criswell. Instead, Stapas views Straub
as controlling because the jury verdict arose from errors in the jury instructions and the
verdict sheet, to which Giant Eagle did not object. According to Stapas, this is not a
weight of the evidence issue, it is an assertion that the jury could not award future wage
loss as a matter of law. As such, Stapas concludes Giant Eagle waived it by failing to
object before the jury was discharged.
Lastly, Stapas contends that if Giant Eagle had objected to the jury verdict, the trial
court could have recharged the jury by defining wage loss. Stapas points out the trial
court opined it could have corrected the errors before it discharged the jury. If the jury
then returned the same amount, it would have represented the jury’s clarification that it
mischaracterized the damages as “future wage loss.” Stapas posits that the jury might
have intended to compensate Stapas for working the rest of his life in pain or for the
mental stress of worrying about being unemployable because of his injuries. On the other
hand, if the jury returned a lesser amount after being recharged, it would have clarified
that it was confused by the “wage loss” category without further instructions. Thus, the
error was correctable at trial, and Giant Eagle had to raise an objection at trial to preserve
the issue.
[J-21-2018] - 12
Stapas contends that if we do not enforce the contemporaneous objection rule, we
would be giving a windfall to Giant Eagle. Specifically, the jury awarded over $750,000.00
in noneconomic damages. By not raising the issue until the post-trial stage, Giant Eagle
obtained a new trial on damages with a new jury free to award a different amount of
noneconomic damages. Stapas argues this creates a disincentive to objecting at trial
and giving the trial court the opportunity to correct trial errors to arrive at a more
unobjectionable verdict.
In response, Giant Eagle maintains that its challenge to the jury’s verdict was not
waived because it is a true weight of the evidence claim. Giant Eagle stresses that its
post-trial motions argued the jury’s award of $1.3 million for future wage loss shocked the
judicial conscience. Giant Eagle submits that the jury’s verdict was not facially
inconsistent; instead, the jury’s damages award was excessive in light of the evidence.
Accordingly, Giant Eagle asserts it was not necessary to object to give the jury an
opportunity to correct its findings.
Giant Eagle relies on Criswell’s reasoning that a challenge to the weight of the
evidence ripens after the verdict, and the trial court cannot issue a corrective instruction
requiring the jury to reweigh the evidence because it would essentially be directing a
verdict. Giant Eagle argues that the jury’s verdict in this case was legally and logically
consistent, but still not supported by the evidence. The consistency of this verdict
distinguishes it from Straub, where the verdict was inherently inconsistent. Giant Eagle’s
challenge to the verdict is not based on a claim of inconsistency, but is based on the
verdict shocking the conscience. Because of this, Giant Eagle argues that the trial court
could not have corrected the jury’s award of damages for future wage loss with additional
instructions and the jury redeliberating.
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Giant Eagle also contends the trial court did not issue erroneous jury instructions.
It points out that Stapas endorsed the trial court’s instructions and verdict slip. Giant
Eagle posits that under Stapas’s theory, Giant Eagle should have requested an instruction
that punitive damages were not available as they were not requested or proven.
According to Giant Eagle, it did not challenge the jury instructions or inconsistency of the
verdict, but its lack of evidentiary support.
Giant Eagle concludes by noting that the Superior Court properly awarded a new
trial on damages because even Stapas admits the evidence did not support the verdict
awarding damages for future wage loss. Further, Stapas does not advocate a worthy
cause or seek to vindicate any rights. Instead, Stapas concedes he has no right to the
award for future wage loss but relies on a waiver rule to keep the verdict.
After careful review, we conclude Giant Eagle waived its challenge to the jury’s
verdict by failing to object to the verdict before the trial court dismissed the jury. Under
Dilliplaine and Rule 227.1(b), post-trial relief cannot be granted if the basis for the post-
trial motion related to a verdict arose during the trial proceedings and the party seeking
relief did not raise a contemporaneous objection. See Dilliplaine, 322 A.2d at 117;
Pa.R.C.P. 227.1(b)(1).
Here, Giant Eagle is challenging the jury’s ability to award damages for future lost
wages even though Stapas did not introduce any evidence of future wage loss and the
trial court did not instruct the jury on the definition of “wage loss.” Giant Eagle had multiple
opportunities to preserve this ground for post-trial relief during the trial court proceedings
but failed to do so. Specifically, Giant Eagle did not request a point for charge limiting
wage loss to only past wage loss, did not object to the jury interrogatory listing “wage
loss” as a category of damages, and did not object to the trial court’s damages
instructions. Additionally, Giant Eagle did not object to the jury’s verdict in which the jury
[J-21-2018] - 14
specified that it awarded Stapas $1,300,000.00 for future wage loss. When the trial
court’s tipstaff read the jury’s itemized verdict, Giant Eagle had a basis to object because
the verdict did not conform to the trial court’s instruction to return a single, lump-sum
verdict and because the jury awarded damages for future lost wages, a category of
damages that Stapas was not entitled to as a matter of law. By failing to raise an objection
at any point during the trial before the jury was discharged, Giant Eagle waived its
challenge to the jury’s verdict.
Dilliplaine’s judicial efficiency rationale for the contemporaneous objection
requirement supports this conclusion. In this case, the trial court did not instruct the jury
on the difference between past wage loss and future wage loss, and the verdict slip did
not qualify the category of “wage loss” damages. In fact, the trial court instructed the jury
to “compensate [Stapas] completely for damages sustained in the past, as well as
damage [Stapas] will sustain in the future.” N.T., 11/17/14, at 848. As the trial court
explained, if Giant Eagle had objected before it dismissed the jury, it could have required
the jury to clarify the verdict. Alternatively, it could have provided the jury with an
instruction on past wage loss. Compare Pa. Suggested Standard Civil Jury Instructions
§ 7.110 (providing jury instruction for past lost earnings) with id. § 7.40 (supplying jury
instruction for future loss of earnings and lost earnings capacity). Because the trial court
did not instruct the jury at all on the definition of “wage loss” as used in the interrogatories,
such an instruction could have clarified the issue for the jury.2 Further, such an instruction
would not be directing the jury to reweigh the evidence, but it would provide direction on
which type of wage loss was recoverable as a matter of law. By not objecting to the
2The dissent maintains, “the jury acted unpredictably and against the direction of the trial
court and all counsel.” Dissenting Op. at 1. However, the jury was not instructed that it
could not award damages for future wage loss or that it could award damages only for
past lost earnings. Instead, it was presented with a verdict slip that listed “wage loss” as
a category of damages.
[J-21-2018] - 15
verdict, Giant Eagle deprived the trial court of the opportunity to efficiently correct a trial
error. Raising the issue for the first time in a post-trial motion is an inefficient use of
judicial resources, which Dilliplaine sought to eliminate through the contemporaneous
objection requirement. See Dilliplaine, 322 A.2d at 117.
Giant Eagle’s characterization of its challenge to the verdict as a weight of the
evidence challenge does not avoid waiver. Giant Eagle’s challenge was not grounded in
the weight of the evidence. As the Criswell Court explained, a weight of the evidence
claim ripens after the verdict because it does not challenge the jury’s ability to render a
verdict; instead, it contends the jury’s resolution of competing evidence was “a
miscarriage of justice.” Criswell, 834 A.2d at 512. Further, if either party was entitled to
a directed verdict on the issue because there were no material facts for the jury to resolve,
the issue is not properly before the jury and cannot form the basis of a weight of the
evidence claim. Id. In this case, Stapas did not present any evidence of future lost wages
and further acknowledged in his closing argument that he was not seeking damages for
future lost wages. There was no competing evidence on future lost wages for the jury to
weigh, and that issue was not ripe for the jury’s consideration. See id. Instead, Giant
Eagle’s position is that the jury could not award damages for future lost wages as a matter
of law. Therefore, we conclude Giant Eagle’s challenge to the verdict is not a challenge
to the weight of the evidence and thus its failure to object to the jury instructions, damages
interrogatory, and jury verdict waived the grounds raised in its post-trial motion. See
Straub, 880 A.2d at 567 (reasoning that defendant’s sufficiency challenge was waived
because it was not based on the evidence but on the jury’s ability to render a verdict as
a matter of law).3
3The dissent agrees, “there simply was no evidence of future wage loss.” Dissenting Op.
at 4.
[J-21-2018] - 16
For these reasons, we conclude Giant Eagle did not preserve the grounds upon
which it claimed post-trial relief. Accordingly, we reverse the order of the Superior Court
granting Giant Eagle a new trial on damages and reinstate the jury’s verdict.
Jurisdiction relinquished.
Justices Baer, Todd, Donohue and Wecht join the opinion.
Justice Dougherty files a dissenting opinion in which Chief Justice Saylor joins.
[J-21-2018] - 17