J-A06027-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BRENDA L. BOLLINGER, : IN THE SUPERIOR COURT OF
ADMINISTRATRIX OF THE ESTATE OF : PENNSYLVANIA
TONYA M. FOCHT, DEC. :
:
Appellant :
:
v. :
:
IRON ORDER MOTORCYCLE CLUB :
A/K/A IRON ORDER MOTORCYCLE :
CLUB, LLC, TIMOTHY MARTIN, :
ANNA’S BAR-B-Q-PIT, LTD., ANNA :
DELIGIANNIS, HIPPOCRATES :
“LUCKY” DELIGIANNIS, ELENI :
DELIGIANNIS, GRECIAN TERRACE, :
LTD., AND AA&L, LLC :
:
v. :
:
MARK STEPHEN GROFF, STEVEN :
SEIVARD, SHARI PRUIKSMA, WAYNE :
A. RITCHIE, DOUGLAS L. :
GOTTSCHALL, LAREE GOTSCHALL, :
KEITH FRITZ, MICHAEL PETERSHEIM, :
AND RONALD MERCEDES : No. 3446 EDA 2018
Appeal from the Judgment Entered November 16, 2018
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): July Term, 2015, No. 000429
BEFORE: STABILE, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY KING, J.: FILED NOVEMBER 16, 2020
Appellant, Brenda L. Bollinger, administratrix of the estate of Tonya M.
Focht (“Decedent”), appeals from the judgment entered in the Philadelphia
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* Former Justice specially assigned to the Superior Court.
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County Court of Common Pleas, following the denial of her post-trial motion
to remove the compulsory non-suit in favor of Appellee, Iron Order Motorcycle
Club, a/k/a Iron Order Motorcycle Club, LLC (“IOMC”).1 We affirm.
The relevant facts and procedural history of this case are as follows. On
June 19, 2015, Decedent and her fiancée Mark Groff (“Mr. Groff”) were
involved in a bar fight with several members of a local chapter of the IOMC at
Anna’s Bar-B-Q Pit in Sinking Spring, Pennsylvania. During the course of the
fight, Timothy Martin (“Mr. Martin”), a local chapter member, shoved or
punched Decedent to the ground where she was hit by a passing motorist.
Decedent died as a result of her injuries.
Appellant, Decedent’s mother, filed a complaint for negligence, assault,
battery, and other theories of liability against numerous parties involved in
the bar fight. In one of her amended complaints, Appellant named the IOMC
as a defendant.2 Appellant alleged theories of vicarious/ostensible liability
against the IOMC, claiming, inter alia, Mr. Martin and the other local chapter
members involved in the bar fight acted as agents of the IOMC at the time of
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1 All references to the IOMC in this memorandum are to the national or
international IOMC, unless otherwise stated. The parties have referred to the
IOMC as the “national IOMC” or the “international IOMC” interchangeably
throughout this litigation. The local Reading, Pennsylvania chapter of the
IOMC, in which some of the participants of the events forming the genesis of
this litigation were members and which is not a party to this litigation, will be
referred to as the “local chapter.” The other defendants named in the caption
are not parties to this appeal.
2 Appellant did not name the local chapter as a defendant in this case.
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the fight. Appellant filed her fourth and most recent amended complaint on
July 31, 2017. On November 6, 2017, the IOMC filed a motion for summary
judgment. The Honorable Linda Carpenter denied the motion on March 5,
2018. The order denying relief states:
…the motion is denied as genuine issues of material fact
remain, specifically it is for the jury to determine: whether
members of the [IOMC] engaged in the fight in their
capacity as agents of moving defendants; whether members
of the [IOMC] were required to act per rules governing their
membership; and the level of control of the [IOMC] over its
chapters and members.
(Order Denying IOMC’s Motion for Summary Judgment, 3/5/18, at 1; R.R. at
855a) (internal footnote omitted).
On May 31, 2018, Appellant filed notices to attend directed at four of
the IOMC’s corporate officers: Bob Ellis (Regional Director at the time of
Decedent’s death), Patrick Ward (International President), Michael Crouse
(International Vice President), and John Whitfield (Director of Legal Affairs and
member of the International Board of Directors).3 The IOMC filed a motion to
quash the notices to attend on June 14, 2018, asserting the notices failed to
comply with the relevant rules of civil procedure. Specifically, the IOMC
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3 Earlier in the proceedings, Mr. Whitfield served as the IOMC’s counsel. On
February 5, 2018, Appellant filed a motion to disqualify Mr. Whitfield from
representing the IOMC, claiming Mr. Whitfield was a “necessary witness” to
discuss the IOMC’s “culture of violence” and “violations of its own bylaws.”
Following a hearing on April 4, 2018, the court disqualified Mr. Whitfield from
representing the IOMC as lead counsel but permitted Mr. Whitfield’s law firm
to continue representing the IOMC.
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claimed the notices to attend required four individuals who reside in states
outside of Pennsylvania to be available, on telephone notice, as of June 25,
2018, to appear as a live witness at any time during the several weeks
scheduled for trial. The IOMC maintained the notices to attend were entirely
vague, Appellant did not explain what relevant testimony the witnesses had
to offer, and Appellant did not allege why these witnesses’ deposition
testimonies could not be used instead of live testimony given their varying
geographic locations.
In response, Appellant conceded Bob Ellis was not an indispensable
witness, and Appellant could use his deposition testimony if needed.
Regarding the other witnesses, however, Appellant insisted their live
testimony was required because those witnesses are managing agents of the
IOMC. Appellant further emphasized that counsel did not intend for the
witnesses to be available any time during a period of weeks; rather, counsel
said the intent was to make the witnesses aware of their required testimony
and counsel would arrange the appropriate date and time for such testimony
with opposing counsel.
On June 25, 2018, the court granted the motion to quash. Nevertheless,
the court handwrote into the order: “If the testimony at trial shows a basis for
calling these witnesses this court will reconsider this ruling and may permit
[Appellant] to call one or more of these potential witnesses.” (Order Granting
Motion to Quash Notices to Attend, 6/25/18, at 1; R.R. at 1941a).
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Meanwhile, the IOMC also filed separate motions in limine to preclude
expert testimony from Raymond Lubesky, a founder and former President of
the IOMC, and to exclude introduction of the IOMC’s prospect manual and
general information for prospective members. With respect to Mr. Lubesky’s
proffered expert testimony, the IOMC alleged that his “expert” report consists
of nothing more than personal opinion devoid of any industry standards of
methodology, and is intended to serve as a conduit for inadmissible,
prejudicial evidence from an expelled president who is biased against the
IOMC.4
Concerning the prospect manual and related materials, the IOMC
maintained that the local chapter members involved in the bar fight were
active members, not prospective members of the local chapter of the IOMC,
so those materials were irrelevant. Further, the IOMC insisted the proffered
materials do not promote violence but do contain misogynistic content that
Appellant wanted to highlight to prejudice the IOMC. The court dismissed the
motions without prejudice, to be ruled on at trial.
Trial began with jury selection before the Honorable Kenneth Powell.5
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4 Mr. Lubesky’s expert report casts the IOMC in a profoundly negative light.
According to Mr. Lubesky, under his presidency, the IOMC was the largest,
most successful, law-abiding motorcycle club in history. Mr. Lubesky opined
that new leadership of the IOMC transformed it into a violent, outlaw
motorcycle gang.
5 Appellant’s claims against all defendants named in the complaints other than
the IOMC and Mr. Martin were resolved prior to trial.
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On June 26, 2018, while the court was addressing pre-trial motions, Mr. Martin
appeared and explained that he could not be present in court every day for
the next two weeks due to work and family obligations. The court said if Mr.
Martin failed to appear, it would enter a default judgment against Mr. Martin
concerning his liability. Mr. Martin acknowledged the consequences of his
actions and told the court he simply could not be present every day and would
accept the default judgment. Nevertheless, Mr. Martin confirmed he would
make himself available to testify if needed.
During this hearing, counsel for the IOMC also informed the court that
it had received untimely deposition designations from Appellant that morning
that were two weeks late.6
Following opening statements on June 26, 2018, the parties discussed
the IOMC’s outstanding motions in limine to preclude expert testimony and
admission of the prospect manual and related materials. Appellant alleged
the proffered evidence was necessary to prove the local chapter members
were acting as agents on behalf of the IOMC at the time of the fight. Appellant
further insisted the issue of agency was a jury question, and the trial court
was bound by Judge Carpenter’s reasoning in her order denying the IOMC’s
summary judgment motion. In response, the court stated:
I have to hear what happened in that bar. I have to hear
that. I have read it. I know what you’re alleging. And I
think [that] Judge Carpenter addressed the allegata as
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6 As discussed infra, the court revisited this issue later in the proceedings.
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opposed to the probata. And that’s what I’m looking for, is
the probata. And if I don’t hear that, then your case fails.
And I’m waiting to hear that before I can rule on the other
things. That’s why I didn’t rule on it…
(N.T. Trial, 6/26/18, at 84; R.R. at 2117a). Thus, the court deferred ruling
on the outstanding motions in limine pending the presentation of Appellant’s
case.
The issue of Appellant’s proposed expert testimony came up again the
next day. At that juncture, the court said it was still unsure if it would permit
Mr. Lubesky to testify. The court explained that if Appellant could establish a
predicate for agency, the court would consider it. But, the court determined
it would not allow Mr. Lubesky to come in and read the by-laws when Mr.
Lubesky was not a party to the bar fight. Specifically, the court said Mr.
Lubesky’s testimony that the local chapter members were acting on behalf of
the IOMC that night was speculation. The court indicated it could not send
matters to the jury that are too speculative. The court further noted that Mr.
Lubesky’s proposed expert report was “inflammatory.” Nevertheless, the
court reiterated that it would remain open about the admission of Mr.
Lubesky’s testimony depending on the other evidence Appellant introduced.
(N.T. Trial, 6/27/18, at 248-60; R.R. at 2413a-2425a).
Appellant introduced seven witnesses in her case-in-chief to show the
details of Decedent’s death and the consequences caused by her loss.
Appellant first called Decedent’s fiancé, Mr. Groff, to testify to his personal
history with the local chapter members and the sequence of events that led
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to the fight.
Mr. Groff explained that some of the local chapter members of the IOMC
held animosity toward him because Mr. Groff had previously refused to help
them start the local chapter of the club. Mr. Groff also testified that his ex-
wife had an affair with a former member of the local chapter (who had since
moved to another chapter of the IOMC), but Mr. Groff maintained the affair
had nothing to do with why the bar fight started.
On the night in question, Mr. Groff and Decedent went to Anna’s Bar-B-
Q Pit for dinner with two friends. Upon entering the bar, Mr. Groff recognized
several members of the local chapter. Specifically, Mr. Groff identified Wayne
Ritchie, Douglas Gottschall, and Mr. Martin. Douglas Gottschall’s wife, Laree
Gotschall, a member of the females-only Iron Maidens club, was also with
their group. Mr. Groff said the local chapter members noticed him
immediately and began staring at Mr. Groff and Decedent.
About a half hour after their arrival at the bar, Mr. Groff and Decedent
decided to leave to avoid any confrontation, when Mr. Ritchie yelled something
insulting at Decedent. Decedent yelled back. As Mr. Groff started walking
towards Decedent, Mr. Gottschall’s wife stopped him and began rubbing Mr.
Groff’s chest. Decedent and Mrs. Gottschall started to argue, and Mrs.
Gottschall threw a pitcher of ice at Decedent. Mr. Gottschall then punched
Decedent in her forehead with a closed fist. Mr. Groff grabbed Mr. Gottschall,
and Mr. Martin jumped in to attack Mr. Groff. While the men were tussling,
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Mr. Groff observed Decedent lying on the ground of the parking lot bleeding.
Mr. Groff did not observe how Decedent was injured. Following Mr. Groff’s
testimony, the court adjourned for the day.
The next day, Appellant called Dr. Wayne Ross, a forensic pathologist,
to testify about the cause of Decedent’s death. Dr. Ross explained that a
moving vehicle had passed over Decedent’s body, and the muffler or other
materials underneath the car had injured Decedent’s head during impact. Dr.
Ross also explained that Decedent would have been conscious for several
minutes prior to her death.
Appellant also called Chad Numbers, a bar patron who witnessed the
fight. Mr. Numbers testified that he noticed three or four local chapter
members of the IOMC in the bar that night. Mr. Numbers recognized the men
as belonging to the local chapter because they were wearing certain vests with
patches. When Mr. Martin was attacking Mr. Groff, Mr. Numbers saw Decedent
try to pull Mr. Martin away. Mr. Martin pushed Decedent away two times. The
third time Decedent tried to pull Mr. Martin away from Mr. Groff, Mr. Martin
shoved or punched Decedent such that she flew backwards and hit a vehicle
exiting the parking lot, which ran over her. The fight stopped once the
participants realized Decedent was badly injured.
Following Mr. Numbers’ testimony, the court decided it would not permit
Mr. Lubesky to testify as Appellant’s expert. The court said it had re-read Mr.
Lubesky’s proposed expert report and decided Mr. Lubesky had nothing
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relevant to offer. Appellant then asked if Mr. Lubesky could at least testify
regarding under what circumstances the IOMC awards black skull beads to its
members.7 Appellant said Mr. Gottschall had testified in his deposition that
he and Mr. Martin were awarded black skull beads after the fight. Although
Mr. Gottschall stated the black skull beads were a form of discipline and that
a member does not ever want to receive a black skull bead, Appellant argued
that Mr. Lubesky would explain that black skull beads were actually a reward
given to members for defending the IOMC. In essence, Appellant claimed the
IOMC ratified Mr. Martin and Mr. Gottschall’s conduct by rewarding them after
the bar fight with the beads.
In response to Appellant’s arguments, the court asked if Appellant would
be calling Mr. Gottschall to testify. Appellant’s counsel said Appellant wanted
to use Mr. Gottschall’s deposition testimony instead. The court explained
Appellant could not “just read in the evidence” unless Mr. Gottschall was
unavailable as a witness. (N.T. Trial, 6/28/18, at 134-35; R.R. at 2598a-99a).
The court also said Mr. Gottschall’s deposition testimony regarding the black
skull beads was too confusing to be admissible, where Mr. Gottschall had
identified the beads as a form of discipline, not a reward. (Id. at 137-38;
R.R. at 2601a-2602a). The court further commented that Mr. Lubesky’s
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7 Appellant also said Mr. Lubesky’s testimony was necessary to authenticate
the IOMC’s by-laws, prospect manual, and other corporate documents
Appellant sought to admit.
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proffered expert report was “one of the worst expert reports” the court had
ever read. (Id. at 142, 144; R.R. at 2606a, 2608a). The court added that
Mr. Lubesky’s report contained too much inflammatory information and would
overwhelm the jury. For all of those reasons, the court ruled Mr. Lubesky’s
expert testimony was inadmissible.
After the court’s ruling, Appellant asked if Mr. Lubesky could testify as
a fact witness instead of an expert. The court declined Appellant’s request,
explaining a sequestration order had been in effect throughout the trial so far,
and Appellant did not sequester Mr. Lubesky. Thus, the court would not
permit Mr. Lubesky to testify as a fact witness.
Appellant also called Decedent’s mother, daughter, and son to testify
regarding their personal losses suffered as a result of Decedent’s death.
Appellant called an economist, David Hopkins, as an expert witness to testify
about Decedent’s projected earnings had she lived.
On June 29, 2018, the issue of Appellant’s untimely deposition
designations came up again. Appellant sought to submit deposition
designations of Mr. Crouse and Mr. Ward, officers of the IOMC. At that point,
the court reiterated that it would not admit any deposition transcripts because
they were submitted out of time. The court stated: “You know, I don’t send
out pre-trial orders just because I like it. I send out pre-trial orders expecting
you to follow them to the letter. And when you don’t[,] you’re hoisted on your
own petard. So that’s the way I see the world.” (N.T. Trial, 6/29/18, at 5-6;
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R.R. at 2680a-81a).
Later that day, Appellant entered onto the record an offer of proof about
what Mr. Lubesky would have testified to if the court had permitted his
testimony. Specifically, Mr. Lubesky would have offered testimony about the
IOMC’s by-laws, prospect manual, and the Sergeant-At-Arms’8 duties and
responsibilities. Appellant conceded that without testimony from Mr. Lubesky
or any of the IOMC’s officers to authenticate the corporate documents,
Appellant was unable to make her case against the IOMC.
Appellant asked the court to reconsider its rulings once more. The court
agreed it would review Appellant’s proffered evidence once more, stating: “I
came in here [with a] clean slate, didn’t know anything about the case except
what I read in your writing. But, you know, I have made some decisions, and
some I may stick by, I would assume most of them I’ll stick by, but I will give
you the—I’ll indulge you…” (N.T. Trial, 6/29/18, at 74; R.R. at 2749a).
After a break, the court explained it had reviewed Appellant’s proffered
evidence concerning the IOMC’s liability again. The court reiterated that it
had excluded Mr. Gottschall’s deposition testimony because Appellant’s
deposition designations were untimely. Additionally, the court remarked that
Mr. Gottschall states in his deposition that nobody wants a black skull bead,
and he and Mr. Martin got tattoos of the black skulls as a reminder not to get
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8 Mr. Martin was the Sergeant-At-Arms for the local chapter.
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into similar altercations again.
Mr. Gottschall also said in his deposition that he received the black skull
bead from the local chapter president, not anyone from the IOMC. So, the
court repeated that it would be too confusing for the jury to sort out the
relevance, if any, of the black skull beads where it was unclear whether they
were a disciplinary measure or a reward. Because Mr. Gottschall’s deposition
testimony was designated in an untimely fashion, and because the deposition
testimony was contradictory and confusing, the court said it was not
admissible. (Id. at 89, 101; R.R. at 2764a, 2776a). The court indicated
Appellant could still call Mr. Gottschall as a live witness, but Appellant declined
to do so.
The IOMC then moved for a compulsory non-suit, which the court
granted. Appellant rested her case and the jury returned a verdict on July 2,
2018, against Mr. Martin, Mr. Gottschall, and Mrs. Gottschall.9 The jury found
Mr. Martin 50% liable for Decedent’s death, and Mr. and Mrs. Gottschall each
25% liable. The jury awarded Appellant a total of $9,700,000.00, which
included punitive damages.
Appellant timely filed a post-trial motion to remove the non-suit on July
9, 2018, which the court denied on October 9, 2018. Appellant also filed post-
trial motions for delay damages and to mold the verdict, which the court
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9Although Mr. and Mrs. Gottschall had settled with Appellant prior to trial, the
court agreed they could remain on the verdict sheet.
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granted. On November 9, 2018, prior to entry of final judgment, Appellant
filed a premature notice of appeal. Appellant filed a praecipe for entry of final
judgment on the verdict on November 16, 2018. Appellant subsequently filed
an amended notice of appeal on November 21, 2018, from entry of final
judgment.10 On November 28, 2018, the court ordered Appellant to file a
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
Appellant timely filed a Rule 1925(b) statement on December 14, 2018.
Appellant raises three issues on appeal:
Did the trial court err as a matter of law, or otherwise abuse
its discretion, when it refused to admit any testimony or
other evidence that would have established that [the IOMC]
was responsible for the death of [Decedent] when a judge
of coordinate jurisdiction had previously held that this very
same evidence provided the factual basis for the denial of
[the IOMC’s] Motion for Summary Judgment?
Did the trial court err as a matter of law, or otherwise abuse
its discretion, when it refused to admit any testimony or
other evidence that would have established that [the IOMC]
was responsible for the death of [Decedent], either directly
through its policies or vicariously through the action of its
members?
Did the trial court err as a matter of law, or otherwise abuse
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10 “[A]n order denying post-trial motions is not appealable until the order is
reduced to a judgment.” Parker v. Freilich, 803 A.2d 738, 741 n.2
(Pa.Super. 2002), appeal denied, 573 Pa. 659, 820 A.2d 162 (2003).
Nevertheless, “[a] notice of appeal filed after the announcement of a
determination but before the entry of an appealable order shall be treated as
filed after such entry and on the day thereof.” Pa.R.A.P. 905(a). Thus,
notwithstanding Appellant’s amended notice of appeal, Appellant’s original
notice of appeal relates forward to the date judgment was entered on the
verdict, and there are no jurisdictional impediments to our review.
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its discretion, when it refused to remove the Compulsory
Non-suit and order a New Trial?
(Appellant’s Brief at 3) (re-ordered to follow chronology of argument sections
as presented in brief).11
In her first issue, Appellant argues the court violated the coordinate
jurisdiction rule when it improperly allowed the IOMC to re-litigate matters
that had already been adjudicated in the IOMC’s unsuccessful summary
judgment motion. Appellant asserts Judge Carpenter’s order denying
summary judgment made clear the trial was to focus on the level of control
the IOMC exerted over its local chapters and members. Appellant maintains
the trial court erroneously decided the IOMC’s exercise of control was
somehow irrelevant and refused to admit any evidence that would have
established facts necessary to prove the IOMC’s liability. Appellant
emphasizes the trial court lacked authority to overrule Judge Carpenter’s
decision that Appellant’s agency claim must be submitted to the jury.
Appellant concedes the procedural posture of the case had changed by the
time of trial. Nevertheless, Appellant insists the court precluded her from
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11 We note with disapproval that Appellant’s statement of the case is replete
with argument, in contravention of our rules of appellate procedure. See
Pa.R.A.P. 2117(b) (titled: “All argument to be excluded”; stating: “The
statement of the case shall not contain any argument. It is the responsibility
of appellant to present in the statement of the case a balanced presentation
of the history of the proceedings and the respective contentions of the
parties”).
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presenting her case against the IOMC because the trial court refused to admit
evidence that Judge Carpenter had previously decided would be the focus of
trial. Appellant concludes the trial court violated the coordinate jurisdiction
rule, and this Court must remand for a new trial.12 We disagree.
The coordinate jurisdiction rule “commands that upon transfer of a
matter between trial judges of coordinate jurisdiction, a transferee trial judge
may not alter resolution of a legal question previously decided by a transferor
trial judge.” Zane v. Friends Hosp., 575 Pa. 236, 243, 836 A.2d 25, 29
(2003). Simply put, “judges of coordinate jurisdiction should not overrule
each other’s decisions.” Id. This rule is “premised on the sound
jurisprudential policy of fostering finality in pre-trial proceedings, thereby
promoting judicial economy and efficiency.” Riccio v. American Republic
Ins. Co., 550 Pa. 254, 260, 705 A.2d 422, 425 (1997).
“When determining whether the coordinate jurisdiction rule applies, the
court is not guided by whether an opinion was issued in support of the initial
ruling. Instead, this Court looks to where the rulings occurred in the context
of the procedural posture of the case.” Id. at 261, 705 A.2d at 425 (internal
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12 Appellant also suggests the trial court paid no deference to the prior order
disqualifying Mr. Whitfield as counsel. Appellant highlights that Mr. Whitfield
was disqualified as representing the IOMC because he was a necessary
witness, but the trial court refused to let him testify. This particular claim is
not well developed in the argument section of Appellant’s brief, so we deem it
waived. See Bombar v. West American Ins. Co., 932 A.2d 78 (Pa.Super.
2007) (explaining undeveloped or underdeveloped claims are waived on
appeal).
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citation omitted). Significantly:
Where the motions differ in kind, as preliminary objections
differ from motions for judgment on the pleadings, which
differ from motions for summary judgment, a judge ruling
on a later motion is not precluded from granting relief
although another judge has denied an earlier motion.
However, a later motion should not be entertained or
granted when a motion of the same kind has previously
been denied, unless intervening changes in the facts or the
law clearly warrant a new look at the question.
Id. (quoting Goldey v. Trustees of the Univ. of Pennsylvania, 544 Pa.
150, 155-56, 675 A.2d 264, 267 (1996)). See also Parker, supra (holding
trial court did not violate coordinate jurisdiction rule by granting appellees’
motion for nonsuit on issue of ostensible agency; motions for summary
judgment and motions for nonsuit are not motions of same kind; at time court
granted motion for nonsuit, trial judge had before him evidence presented by
appellant in her case-in-chief; by contrast, when prior judge denied summary
judgment motion, trial had not begun and appellant had not presented her
case-in-chief; thus, appellant’s presentation of her case-in-chief constituted
intervening change in facts that warranted second consideration of issue of
ostensible agency through motion for nonsuit).
Instantly, the trial court addressed Appellant’s argument concerning the
coordinate jurisdiction rule as follows:
Here, Appellant’s case significantly changed at trial. This
[c]ourt had an opportunity to look closely at the evidence
Appellant sought to put in front of the jury about the
[IOMC’s] corporate liability. This [c]ourt also had an
opportunity to hear testimony from Appellant’s witnesses
about the incident. After considering all of this information
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and oral arguments from counsel, this [c]ourt granted [the
IOMC’s] motion to Quash Notices to Attend, and [the
IOMC’s] motion to Preclude Testimony of Ray Lubesky….
Having determined that Appellant had no plausible path
forward with respect to the [IOMC’s] corporate liability, this
[c]ourt granted the motion for compulsory nonsuit with
regard to that issue. This issue is meritless.
(Trial Court Opinion, filed April 8, 2019, at 15). Additionally, the court stated:
“If Appellant’s argument were taken seriously, then many trial courts in the
[C]ommonwealth could not grant a motion for compulsory nonsuit.
Appellant’s argument seeks to render this very important procedural stage of
a trial, completely moot.” (Id.)
We agree with the trial court’s analysis. Although Judge Carpenter
denied the IOMC’s motion for summary judgment and anticipated that the
question of agency would be for the jury to resolve, Judge Carpenter was not
asked to decide the admissibility of the evidence offered at trial. The trial
court considered the evidence Appellant sought to admit to establish her claim
against the IOMC, and precluded evidence that was irrelevant, too speculative,
would cause jury confusion, or was otherwise inappropriate. Thus, at the time
Appellant presented her case-in-chief, the procedural landscape of the case
had changed significantly from the summary judgment stage.13 Under these
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13 With respect to the trial court’s references to the variance between the
allegata and probata, see N.T. Trial, 6/26/18, at 84; R.R. at 2117a, “[t]he
first and fundamental rule in the production of evidence is that the evidence
offered must correspond with what is alleged in the pleadings, as the basis of
the action or of the defense; the allegata and probata must agree.” Higgins
Lumber Co. v. Marucca, 48 A.2d 48, 49 (Pa.Super. 1946).
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circumstances, the trial court was free to grant the IOMC’s motion for
compulsory nonsuit, without running afoul the coordinate jurisdiction rule.
See Riccio, supra; Parker, supra.
In her second and third issues combined, Appellant argues the IOMC’s
relationship to Mr. Martin and the other local chapter members was a question
of fact that should have been submitted to the jury. Appellant asserts the
trial court improperly decided as a matter of law that the bar fight had nothing
to do with the IOMC and was based merely on personal animus. Appellant
maintains the trial court’s reasoning in this case was circular—the court would
not admit evidence connecting the IOMC to the fight because no evidence had
been introduced connecting the fight to the IOMC. Appellant claims Mr. Groff’s
testimony could not have established the requisite agency relationship
between the IOMC and the local chapter members because Mr. Groff was not
a member of the club and would not have been privy to its inner-workings.
Appellant highlights Mr. Martin’s deposition testimony that on the night in
question, Mr. Martin acted in his capacity as the local chapter’s Sergeant-At-
Arms. Appellant complains the court improperly precluded her from
introducing Mr. Martin’s deposition testimony.14
____________________________________________
14 Appellant also challenges the court’s exclusion of evidence that the IOMC
paid for Mr. Martin’s legal counsel. Appellant concedes this piece of evidence
alone does not establish agency, but she claims it is one piece of evidence
that, when taken with other evidence, could have supported her theory of
liability against the IOMC. Initially, Appellant mentions this particular claim
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Appellant further argues the court improperly excluded Appellant’s
proffered expert testimony from Mr. Lubesky. Appellant avers that Mr.
Lubesky was one of the founders of the IOMC and the past president, and he
was prepared to testify that the IOMC controls the local chapters. Appellant
insists the court’s exclusion of evidence concerning the black skull beads was
also improper. Appellant contends Mr. Gottschall stated in his deposition
testimony that he received the black skull bead for defending the club.
Appellant insists the court precluded evidence of the black skull beads without
allowing Appellant an opportunity to explore the issue with Mr. Martin or Mr.
Gottschall. Appellant emphasizes that evidence regarding the black skull
beads would have showed the IOMC ratified Mr. Martin and Mr. Gottschall’s
conduct on the night of the fight. Appellant also submits the court improperly
required her to offer Mr. Martin and Mr. Gottschall as live witnesses, even
though the rules of civil procedure permit a plaintiff to use a party’s deposition
testimony for any purpose at trial.
Additionally, Appellant argues the court refused to admit corporate
documents of the IOMC that would have showed the local chapters do not
operate independently of the IOMC. Appellant claims she was prepared to
____________________________________________
only in a footnote, see Appellant’s Brief at 41, n.51, and it is underdeveloped,
so it is waived. See Parker, supra. Further, although the IOMC might have
represented Mr. Martin at some time or paid for his legal counsel, the record
makes clear that when Mr. Martin appeared in court prepared to accept the
default judgment due to his inability to appear for court each day, he was
unrepresented.
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offer evidence that Mr. Martin was an officer within the national chain of
command and bound by the corporate documents. Yet, Appellant maintains
the court refused to allow the IOMC’s corporate officers to appear and testify
about the relevant corporate documents that would have established the
agency relationship between the IOMC and the local chapter members
involved in the fight.15 Appellant concludes the court’s “wholesale preclusion”
of all material evidence necessary to establish Appellant’s theory of liability
against the IOMC was improper, and this Court should vacate the nonsuit and
remand for a new trial limited to the IOMC’s liability. We disagree.
This Court’s standard of review regarding the propriety of a trial court’s
grant of a compulsory non-suit is well-settled:
A motion for compulsory non-suit allows a defendant
to test the sufficiency of a [plaintiff’s] evidence and
may be entered only in cases where it is clear that the
plaintiff has not established a cause of action; in
making this determination, the plaintiff must be given
the benefit of all reasonable inferences arising from
the evidence. When so viewed, a non-suit is properly
entered if the plaintiff has not introduced sufficient
evidence to establish the necessary elements to
maintain a cause of action; it is the duty of the trial
court to make this determination prior to the
____________________________________________
15 Appellant further challenges the trial court’s alternative reasoning that, even
if Appellant had established that Mr. Martin and Mr. Gottschall were agents of
the IOMC, Appellant failed to show they acted in the course and scope of their
membership on the night in question due to their use of excessive force.
Appellant submits the law pertaining to an employee who uses excessive force
outside the scope of his employment does not apply here because the IOMC
is an outlaw motorcycle gang that contemplates fighting as part of its by-laws.
For the reasons discussed infra, we do not have to address this particular
argument.
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submission of the case to the jury. When this Court
reviews the grant of a non-suit, we must resolve all
conflicts in the evidence in favor of the party against
whom the non-suit was entered.
Poleri v. Salkind, [683 A.2d 649, 653 (Pa.Super. 1996)],
appeal denied, 548 Pa. 672, 698 A.2d 595 (1997). “A
compulsory non-suit is proper only where the facts and
circumstances compel the conclusion that the defendants
are not liable upon the cause of action pleaded by the
plaintiff.” Id. …
Hong v. Pelagatti, 765 A.2d 1117, 1121 (Pa.Super. 2000). “An order
denying a motion to remove a compulsory nonsuit will be reversed on appeal
only for an abuse of discretion or error of law.” Alfonsi v. Huntington Hosp.,
Inc., 798 A.2d 216, 218 (Pa.Super. 2002) (en banc).
Likewise, “[q]uestions regarding the admission or exclusion of evidence
are subject to an abuse of discretion standard of review.” Braun v. Target
Corp., 983 A.2d 752, 760 (Pa.Super. 2009), appeal denied, 604 Pa. 701, 987
A.2d 158 (2009). “An abuse of discretion is not merely an error of judgment,
but if in reaching a conclusion the law is overridden or misapplied, or the
judgment exercised is manifestly unreasonable, or the result of partiality,
prejudice, bias or ill-will, as shown by the evidence or the record, discretion is
abused.” Geise v. Nationwide Life and Annuity Co. of America, 939 A.2d
409, 417 (Pa.Super. 2007) (internal citation omitted).
Pennsylvania trial judges enjoy broad discretion regarding
the admissibility of potentially misleading and confusing
evidence. Relevance is a threshold consideration in
determining the admissibility of evidence. A trial court may,
however, properly exclude evidence if its probative value is
substantially outweighed by the danger of unfair prejudice.
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Generally[,] for the purposes of this evidentiary rule,
prejudice means an undue tendency to suggest a decision
on an improper basis. The erroneous admission of harmful
or prejudicial evidence constitutes reversible error.
Braun, supra (quoting Whyte v. Robinson, 617 A.2d 380, 383 (Pa.Super.
1992)). See also Pa.R.E. 401 (defining relevant evidence); Pa.R.E. 403
(stating: “The court may exclude relevant evidence if its probative value is
outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence”). The trial court is responsible for
balancing the “alleged prejudicial effect of the evidence against its probative
value and it is not for an appellate court to usurp that function.” Carlini v.
Glenn O. Hawbaker, Inc., 219 A.3d 629, 639 (Pa.Super. 2019) (internal
citation omitted).
Similarly, “[a]dmissibility of expert testimony is left to the sound
discretion of the trial court, and as such, this Court will not reverse the trial
court’s decision absent an abuse of discretion.” Snizavich v. Rohm and
Haas Company, 83 A.3d 191, 194 (Pa.Super. 2013), appeal denied, 626 Pa.
691, 96 A.3d 1029 (2014). “[E]xpert testimony must be based on more than
mere personal belief, and must be supported by reference to facts, testimony
or empirical data.” Id. at 195 (internal citations and quotation marks
omitted). See also Pa.R.E. 702 (defining expert testimony).
To prove a negligence claim, “a plaintiff may proceed against a
defendant on theories of direct and vicarious liability, asserted either
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concomitantly or alternatively.” Sokolsky v. Eidelman, 93 A.3d 858, 864
(Pa.Super. 2014) (quoting Scampone v. Highland Park Care Ctr., LLC, 618
Pa. 363, 388, 57 A.3d 582, 597 (2012)).
Liability for negligent injury is direct when the plaintiff seeks
to hold the defendant responsible for harm the defendant
caused by the breach of duty owing directly to the plaintiff.
By comparison, vicarious liability is a policy based allocation
of risk. Vicarious liability, sometimes referred to as imputed
negligence, means in its simplest form that, by reason of
some relation existing between A and B, the negligence of A
is to be charged against B although B has played no part in
it, has done nothing whatever to aid or encourage it, or
indeed has done all that [it] possibly can to prevent it. Once
the requisite relationship (i.e., employment, agency) is
demonstrated, the innocent victim has recourse against the
principal, even if the ultimately responsible agent is
unavailable or lacks the availability to pay.
Sokolsky, supra (quoting Scampone, supra at 388-89, 57 A.3d at 597).
An agency relationship may arise “whenever a person authorizes
another expressly or by implication to act as his agent.” Garbish v. Malvern
Fed. Sav. and Loan Ass’n, 517 A.2d 547, 553 (Pa.Super. 1986). An agency
relationship may be created by:
(1) express authority, (2) implied authority, (3) apparent
authority, and/or (4) authority by estoppel. Express
authority exists where the principal deliberately and
specifically grants authority to the agent as to certain
matters. Implied authority exists in situations where the
agent’s actions are ‘proper, usual and necessary’ to carry
out express agency. Apparent agency exists where the
principal, by word or conduct, causes people with whom the
alleged agent deals to believe that the principal has granted
the agent authority to act. Authority by estoppel occurs
when the principal fails to take reasonable steps to disavow
the third party of their belief that the purported agent was
authorized to act on behalf of the principal.
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The basic elements of agency are the manifestation by the
principal that the agent shall act for him, the agent’s
acceptance of the undertaking and the understanding of the
parties that the principal is to be in control of the
undertaking. The creation of an agency relationship
requires no special formalities. … The party asserting the
existence of an agency relationship bears the burden of
proving it by a fair preponderance of the evidence. In
establishing agency, one need not furnish direct proof of
specific authority, provided it can be inferred from the facts
that at least an implied intention to create the relationship
of principal and agent existed.
V-Tech Services, Inc. v. Street, 72 A.3d 270, 278-79 (Pa.Super. 2013)
(quoting Walton v. Johnson, 66 A.3d 782, 786 (Pa.Super. 2018)).
In general, “the existence of an agency relationship is a question of
fact.” McIlwain v. Saber Healthcare Group, Inc., LLC, 208 A.3d 478, 485
(Pa.Super. 2019). “Where the facts giving rise to the relationship are not in
dispute, however, the question is one which is properly decided by the court.”
Consolidated Rail Corp. v. ACE Property & Casualty Ins. Co., 182 A.3d
1011, 1027 (Pa.Super. 2018).
Instantly, although Appellant classifies the trial court’s actions as a
“wholesale preclusion” of all material evidence related to her claims against
the IOMC, Appellant ignores the court’s particular rulings concerning each
piece of evidence Appellant sought to admit. Essentially, Appellant challenges
the court’s separate rulings excluding: (1) expert testimony from Mr. Lubesky;
(2) deposition testimony from Mr. Martin, Mr. Gottschall, and other corporate
witnesses; and (3) the IOMC’s by-laws, prospect manual, and other corporate
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documents.
With respect to Mr. Lubesky, the court precluded his testimony because:
“Mr. Lubesky was not a witness to the fight. Mr. Lubesky’s expert report
consisted of nothing more than rank speculation about what he thinks went
on in the subjective minds of [the local chapter members] on the night of the
incident and about a so called ‘outlaw culture’ that indoctrinated these
individuals. Such speculative testimony is not permissible at trial.” (Trial
Court Opinion at 32). The court further described Mr. Lubesky’s proffered
expert report as “nothing more than an incendiary, rambling, and largely
irrelevant stream of consciousness that provided no insight into the events of
the night [Decedent] was killed. Even if the court allowed Mr. Lubesky to
testify, this [c]ourt would have stricken nearly all of his report due to the
irrelevant and inflammatory nature of its contents.” (Id. at 22 n.11).
Here, the court decided Mr. Lubesky’s proffered testimony was nothing
more than his personal opinion, which was not properly within the realm of
expert testimony. See Snizavich, supra; Pa.R.E. 702. Additionally, the
court weighed the probative value of Mr. Lubesky’s proffered testimony
against its prejudicial effect and decided the prejudicial effect was too great
to permit such testimony. We see no reason to disrupt the court’s evidentiary
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ruling concerning Mr. Lubesky’s proffered expert testimony.16 See Carlini,
supra; Bruan, supra; Pa.R.E. 403.
Regarding Appellant’s attempt to introduce deposition testimony from
various witnesses at trial, the court initially stated it would not permit any
deposition testimony due to Appellant’s failure to designate the deposition
testimony in a timely fashion. (See N.T. Trial, 6/29/18, at 5-6; R.R. at 2680a-
81a); (N.T. Trial, 6/29/18, at 89; 101; R.R. at 2764a; 2776a). In addition to
its untimeliness, the court indicated that Mr. Gottschall’s deposition testimony
pertaining to receipt of the black skull beads was too confusing to go to the
jury. (See N.T. Trial, 6/28/18, at 134-35; R.R. at 2598a-99a); (N.T. Trial,
6/29/18, at 89, 101; R.R. at 2764a, 2776a). The court indicated Appellant
could still call Mr. Gottschall as a live witness to discuss the black skull beads,
but Appellant declined to do so. Under these circumstances, we see no reason
to disrupt the court’s exclusion of deposition testimony from various
____________________________________________
16 Additionally, with respect to Appellant’s claim at trial that the court should
have permitted Mr. Lubesky to testify as a fact witness, even if his expert
opinion was inadmissible, the record supports the court’s denial of Appellant’s
request where Mr. Lubesky was present throughout trial notwithstanding the
court’s sequestration order concerning the other fact witnesses. In her reply
brief, Appellant argues the fact that Mr. Lubesky was present for some points
of trial should not have justified his exclusion. As Appellant cites no law in
support of this statement, we deem this particular assertion waived. See
George v. Ellis, 911 A.2d 121, 126 (Pa.Super. 2006), appeal denied, 592 Pa.
767, 923 A.2d 1174 (2007) (explaining well-settled principle that failure to
cite any supporting authority constitutes waiver of issues on appeal).
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witnesses.17 See Braun, supra; Pa.R.E. 403.
Concerning the court’s exclusion of the corporate documents, Appellant
sought to introduce the by-laws, prospect manual, and other related
documents through live testimony from the IOMC’s officers (before the court
quashed Appellant’s notices to attend), through deposition testimony from the
IOMC’s officers (after the court quashed Appellant’s notices to attend), or
through Mr. Lubesky. See generally PHH Mortg. Corp. v. Powell, 100 A.3d
611, 619 (Pa.Super. 2014) (explaining that to authenticate relevant evidence,
parties should lay foundation to show evidence is fair and accurate
representation of what it is purported to depict, including testimony from
witness with knowledge of what evidence is proclaimed to be); Pa.R.E. 901(a)
(discussing authenticating or identifying evidence). We have already decided
the court did not abuse its discretion in excluding Mr. Lubesky’s testimony or
the untimely depositions.
Turning to the court’s quashal of the notices to attend, the IOMC filed a
motion to quash the notices on June 14, 2018, asserting they failed to comply
with the relevant rules of civil procedure because they were entirely vague,
Appellant did not explain what relevant testimony the witnesses had to offer,
____________________________________________
17 Because the court properly exercised its discretion to exclude the deposition
testimony due to its untimeliness and/or confusing nature, we do not have to
consider Appellant’s claim that the court erred by requiring her to offer live
testimony over deposition testimony. See generally In re Estate of Rood,
121 A.3d 1104, 1105 n.1 (Pa.Super. 2015) (stating this Court may uphold
trial court’s decision if there is any proper basis for result reached).
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and Appellant did not allege why these witnesses’ deposition testimonies could
not be used instead of live testimony given their varying geographic locations.
On June 25, 2018, the court granted the motion to quash. Nevertheless,
the court handwrote into the order: “If the testimony at trial shows a basis for
calling these witnesses this court will reconsider this ruling and may permit
[Appellant] to call one or more of these potential witnesses.” (Order Granting
Motion to Quash Notices to Attend, 6/25/18, at 1; R.R. at 1941a).
In her reply brief, Appellant contends the court’s quashal of her notices
to attend had nothing to do with noncompliance with the rules of civil
procedure. Although the court did not specify the basis for its order granting
the IOMC’s motion to quash, we disagree with Appellant’s position that the
court’s order had nothing to do with granting relief on the grounds specifically
asserted. The fact that the court handwrote onto its order that it might
reconsider its ruling and permit one or more of the potential witnesses to
testify depending on the evidence presented at trial does not mean the court
did not grant the IOMC’s motion on the grounds expressly asserted.
In any event, the court noted throughout trial that the corporate
documents were inflammatory. (See N.T. Trial, 6/28/18, at 144; R.R. at
2608a) (court stated: “There’s just too much inflammatory information. I
think it overwhelms. You know now we have…a dead woman with all this
inflammatory information…”). See also (Trial Court Opinion at 25) (stating:
“At trial, [A]ppellant sought to introduce a number of corporate documents
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from the [IOMC] that do not cast the club in a positive light. The corporate
documents contain lurid material and pugilistic language”).
Consequently, before the trial court would permit introduction of any of
the corporate documents or testimony from the corporate officers discussing
those documents, the trial court required Appellant to set forth some evidence
that the local chapter members were acting on behalf of the IOMC on the night
in question. The trial court suggested Appellant offer Mr. Martin or Mr.
Gottschall to establish this predicate, but Appellant declined to do so.18 In the
absence of such evidence, the court essentially decided the prejudicial effect
of the corporate documents and related testimony outweighed its probative
value. See Braun, supra; Pa.R.E. 403. See also (Trial Court Opinion at 27)
(conceding that many statements in corporate documents are unbecoming of
civilized individuals; nevertheless, court could not allow Appellant to twist and
contort facts of case so that she could punish motorcycle clubs). We cannot
say the court’s evidentiary ruling in this respect constituted an abuse of
____________________________________________
18 Instead, as previously discussed, Appellant sought to offer only Mr. Martin
and Mr. Gottschall’s deposition testimony. We have already decided the court
did not abuse its discretion in precluding the deposition testimony.
Additionally, Appellant did not attempt to call Mr. Whitfield, who was present
in court for at least part of trial. Although Appellant represented to the court
at one point that Mr. Whitfield had “hightailed it out of here” when Appellant
suggested calling him as a witness (see N.T. Trial, 6/28/18, at 129; R.R. at
2593a), nothing on the record supports that statement. Given Appellant’s
prior representation in her motion to disqualify Mr. Whitfield as counsel that
he was a “necessary witness,” it is curious that Appellant did not ask the court
if she could present him as a live witness.
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discretion.19 See Braun, supra; Geise, supra. Because we see no abuse of
discretion concerning the court’s various evidentiary rulings, we agree with
the trial court that Appellant was unable to establish a cause of action against
the IOMC, and the court’s denial of Appellant’s motion to remove the nonsuit
was proper.20 See Alfonsi, supra; Hong, supra. Accordingly, we affirm.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/16/20
____________________________________________
19Based on our disposition that the court did not abuse its discretion by
excluding Appellant’s proffered evidence, we do not have to consider
Appellant’s argument concerning the trial court’s statement that even if
Appellant had established a valid agency claim, Mr. Martin’s role in the fight
exceeded the scope of his membership duties.
20 To the extent Appellant argues some of the trial court’s rulings were
pretextual because the court had already made up its mind that the case was
nothing more than a bar fight, the record belies Appellant’s claim. The record
shows the court repeatedly revisited its rulings, and reviewed the proffered
materials multiple times throughout trial to ensure the court understood
Appellant’s arguments and the evidence she sought to introduce. (See N.T.
Trial, 6/29/18, at 74; R.R. at 2749a).
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