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2023 PA Super 31
GEORGE ROGERS, ADMINISTRATOR OF IN THE SUPERIOR COURT
THE ESTATE OF JOSHUA ROGERS OF PENNSYLVANIA
Appellant
v.
LLOYD THOMAS, HAYDEN THOMAS
AND/OR THE OUTDOORSMAN INC.
No. 1915 MDA 2018
Appeal from the Judgment Entered November 21, 2018
In the Court of Common Pleas of Susquehanna County
Civil Division at No.: 2016-1244
SUZETTE BENET, ADMINISTRATOR OF IN THE SUPERIOR COURT
THE ESTATE OF GILBERTO ALVAREZ OF PENNSYLVANIA
Appellant
v.
LLOYD THOMAS, HAYDEN THOMAS
AND/OR THE OUTDOORSMAN INC.
No. 1916 MDA 2018
Appeal from the Judgment Entered November 21, 2018
In the Court of Common Pleas of Susquehanna County
Civil Division at No.: 2016-00869
BEFORE: PANELLA, P.J., BENDER, P.J.E., BOWES, OLSON, STABILE,
KUNSELMAN, NICHOLS, KING and McCAFFERY, JJ.
OPINION BY STABILE, J.: FILED: MARCH 2, 2023
Appellants George Rogers, Administrator of the Estate of Joshua Rogers
(the “Rogers Estate”), and Suzette Benet, Administrator of the Estate of
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Gilberto Alvarez (the “Alvarez Estate”), appeal from the November 21, 2018
judgments entered against them in the Court of Common Pleas of
Susquehanna County (“trial court”) following a multi-day jury trial in these
wrongful death and survival actions. Upon review, we affirm.
I. BACKGROUND FACTS1
On February 11, 2012, Lloyd Thomas (“Lloyd”) shot and killed Joshua
Rogers (“Rogers”) and Gilberto Alvarez (“Alvarez”) (collectively “Decedents”)
while Decedents were on a property owed by Lloyd’s father, Hayden Thomas
(“Hayden”). Lloyd subsequently was arrested and charged with the voluntary
manslaughter of Rogers and Alvarez; a jury found him guilty in January 2014.
On March 3, 2014, Lloyd was sentenced to an aggregate term of 6 to 12 years
in prison, followed by 8 years’ probation.
At the time of the killing, Hayden was the owner and sole occupant of a
home located at 114 Pine Ayers Road, Hallstead, Pennsylvania. Hayden was
79 years old at the time of Lloyd’s trial and had resided in the home for 50
years. The home was located in a somewhat remote location accessible only
by crossing a narrow wooden bridge and then driving up a winding gravel
road. Hayden operated a small gun shop called The Outdoorsman Inc.
(“Outdoorsman”) from a room attached to his home. On the day of Rogers’
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1 We recite these general background facts based upon our review of the trial
record, subject to the standards of review applicable to each of the issues
raised by Appellants.
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and Alvarez’ killing, Hayden was not at home and asked his son Lloyd to watch
his dog.
Lloyd went to Hayden’s home the day before this incident and installed
a new birdfeeder. The following morning, he noticed squirrels had damaged
the birdfeeder. He took his pistol and began shooting at squirrels. At about
this time, Rogers was driving a Mustang along a road near Hayden’s home
with Alvarez as his passenger. They returned to their home complaining
someone had shot their car. They were aggravated, upset, and stated that
they were going to find the person who shot at the car and make them pay
for damages. They did not call the police.
Upon returning to their homes, both Rogers and Alvarez retrieved
camouflaged coats and secured firearms. At the time, Rogers was prohibited
from owning or having access to firearms. At Lloyd’s criminal trial, a witness
testified that on the day of the shooting incident he saw a black Mustang turn
onto Pine Ayers Road, cross the bridge, and turn and park on the road. Two
men exited the vehicle and the witness thought they were going to Hayden’s
home. Instead of going up the road, they proceeded through the woods. The
route through the woods was up a steep bank. The vehicle was parked at the
end of the driveway to effectively block anyone from driving up the road to
Hayden’s home. Another witness testified that on the day of this incident, a
man knocked on her door and asked if she knew whether anyone was
shooting. She responded there was a gun shop on the hill and they might be
practicing or sighting guns. The witness stated that the person at the door
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said someone shot at his vehicle, he was looking to see who it was, and it
appeared he was trying to track down the shooter.
Lloyd testified that on the morning of February 11, 2012, he was at his
father’s (Hayden) property to watch his father’s dog. Lloyd said he was in the
garage when he heard the dogs bark.2 He observed two men split up and
surround the house. He did not view this as normal. He went into the house
and saw Rogers under the deck. Rogers shoved a shotgun in Lloyd’s face and
Lloyd was scared for his life. He then shot Rogers two times. Lloyd then
encountered Alvarez on the other side of the home. Lloyd saw him leaving
the garage and thought he was in the garage trying to get into the gun shop.
When Alvarez came out of the gun shop, he walked past Lloyd, whereupon
Lloyd yelled to him, but Alvarez was walking quickly and showed no fear.
Lloyd stated he shot Alvarez because he had a shotgun shoved in his face 30
seconds before, he was scared for his life, and believed he still was under a
threat from his encounter with Rogers.3
On March 5, 2012, the Rogers Estate filed a wrongful death and survival
action in the Court of Common Pleas of Lackawanna County against Lloyd,
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2The record is not clear whether there was a single dog or multiple dogs to
be watched.
3 It appears from the record that at the time of the shooting, only Rogers
carried a firearm, as Alvarez left his firearm in the vehicle. N.T., Sentencing,
3/3/14, at 67.
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Hayden, and the Outdoorsman. Following Lloyd’s criminal conviction,4 the
Rogers Estate moved for partial summary judgment against Lloyd. The trial
court entered partial summary judgment against Lloyd and explained that by
finding Lloyd guilty of voluntary manslaughter, the jury had found beyond a
reasonable doubt that Lloyd had committed an intentional and unjustified
killing—that is, Lloyd did not act in justifiable self-defense. The trial court thus
found that the principles of collateral estoppel were applicable and barred
Lloyd from relitigating intent in the Rogers civil action.
On February 10, 2014, the Alvarez Estate filed its wrongful death and
survival action against Lloyd, Hayden, and the Outdoorsman in the Court of
Common Pleas of Luzerne County, which sustained a preliminary objection to
venue and consequently transferred the case to Susquehanna County. This
Court affirmed the transfer on interlocutory appeal.5 Subsequently, the
Lackawanna County Court of Common Pleas coordinated the Rogers Estate
case with the Alvarez Estate case and directed further proceedings to take
place in Susquehanna County. The Court of Common Pleas of Susquehanna
County then consolidated the cases.
The trial court granted in part Appellants’ pre-trial motion to preclude
evidence of Decedents’ alleged violent propensities, criminal records,
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4 Commonwealth v. Thomas, 125 A.3d 436 (Pa. Super. filed July 6, 2015)
(unpublished memorandum).
5Benet v. Thomas, 131 A.3d 85 (Pa. Super. filed August 7, 2015)
(unpublished memorandum).
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protection from abuse records, and prior vehicle violations. The trial court,
however, refused to preclude evidence that Decedents were trespassers on
Hayden’s property, had firearms in their possession at the time of the
shooting, and that they had parked their vehicle in Hayden’s driveway. The
trial court further declined to preclude evidence relating to Decedents’ chronic
drug use. It also denied Appellants’ motion to preclude Lloyd from asserting
a defense of comparative negligence, an affirmative defense that had not been
available in Lloyd’s criminal trial. Additionally, the trial court granted a motion
to quash Appellants’ subpoena for John Michael Shovlin, M.D., a friend and
neighbor of Hayden who happened to be a psychiatrist, and his wife Lori
Shovlin to testify at trial as fact witnesses.
The case proceeded to a nine-day jury trial, at which several witnesses
testified about Lloyd’s actions in the years and months leading up to the
shooting and whether Hayden knew that Lloyd had exhibited any concerning
behavior. One such witness, Jeffrey Gunn, testified about an incident in 2008
or 2009 in which a vehicle driven by Lloyd almost hit Gunn’s vehicle. Gunn
stated he initially followed Lloyd, but then stopped, at which point Lloyd
stopped his car, got out, and pulled out a gun. Gunn testified that Lloyd “just
stood there looking at me,” and after “[Gunn] identified [him]self and his
passenger . . . [Lloyd] got back in his truck and he left.” N.T., Trial, 4/16/18,
at 178. Gunn testified that Hayden was not present during the incident. Id.
at 182. A friend of Hayden’s, John Touch, testified that Lloyd changed after
some events in his life, such as a fire at a previous location of the
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Outdoorsman and a tree falling on his car. Id. at 190. He testified that Lloyd
became scared and paranoid, and said that he spoke with Hayden about
Lloyd’s behavior. Id. at 190, 198.
Another witness, Kathryn Chesnick, testified that she called the police
in January 2012 after she ran past Lloyd and saw him acting aggressively and
cursing. Id. at 212. She told the police that Lloyd was “off his rocker,” not
acting like himself, and she was afraid he would kill himself or someone else.
Id. One other person, Brian Griffis, testified that Lloyd removed a flag from
Griffis’ porch, threw it on the ground, and jumped on it. Id. at 245. However,
he said he did not speak to Hayden about the incident. Id. at 259. Appellants
also presented evidence that Lloyd used marijuana and that he previously had
entered a mental health or rehabilitation facility. N.T., Trial, 4/20/18, at 61,
133.
The jury also heard testimony about the ownership of the gun Lloyd
used in the shooting and Lloyd’s relationship with the Outdoorsman.
Appellants presented testimony that an official report listed the gun as
belonging to a third party, and not to either Lloyd or the Outdoorsman.
According to the testimony, such would be the case if the Outdoorsman had
the gun, because when a shop purchases a firearm, the listed owner does not
change until the store sells the firearm to a customer. N.T., Trial, 4/19/18, at
129. Appellants also presented testimony that Lloyd signed and filed
documents for the Outdoorsman and helped with the paperwork. N.T., Trial,
4/20/18, at 137-38. Appellees countered with testimony that the gun
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belonged to Lloyd and that Lloyd did not work at the Outdoorsman at the time
of the shootings. Id. at 153, 170.
Following the close of Appellants’ evidence, Hayden and the
Outdoorsman orally moved for compulsory nonsuits, which the trial court
granted only as to Hayden. Eventually, a jury returned a verdict in favor of
Lloyd and the Outdoorsman finding Decedents 100% comparatively negligent.
Appellants timely filed post-trial motions, which essentially were deemed
denied by operation of law because the trial court failed to dispose of them
within 120 days as required under Pa.R.Civ.P. 227.4(1)(b).6 These appeals
followed.7 Appellants and the trial court complied with Pa.R.A.P. 1925.
II. ISSUES PRESENTED FOR REVIEW
On appeal, Appellants present the following issues for our review, which
we have reordered for ease of disposition.
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6 Rule 227.4(1)(b) provides in relevant part:
[T]he prothonotary shall, upon praecipe of a party enter judgment
upon . . . the decision of a judge following a trial without jury if
. . . one or more timely post-trial motions are filed and the court
does not enter an order disposing of all motions within one
hundred twenty days after the filing of the first motion. A
judgment entered pursuant to this subparagraph shall be final as
to all parties and all issues and shall not be subject to
reconsideration[.]
Pa.R.Civ.P. 227.4(1)(b).
7 Appellants filed a notice of appeal at each docket number, each listing both
trial court docket numbers. Because there is a separate notice at each docket,
we do not quash this appeal. Commonwealth v. Johnson, 236 A.3d 1141,
1147-48 (Pa. Super. 2020) (en banc).
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1. Whether [Appellants] are entitled to a new trial when summary
judgment was granted [as] to [Lloyd] and the trial court allowed
the jury to determine if [Lloyd] was negligent?
2. Whether the trial court erred when it allowed the jury to hear
and decide comparative negligence issues despite [Lloyd’s]
actions being found intentional and without justification beyond a
reasonable doubt in the criminal case?
3. Whether nonsuit should have been denied [as to Hayden] when
there was sufficient evidence of record to establish liability?
4. Whether the trial court erred when it allowed psychiatrist
Shovlin to not appear and testify at [the] time of trial?
5. Whether the trial court erred when it allowed prior bad acts and
alleged chronic drug use of [Decedents] to be introduced at [the]
time of trial?
6. Whether the trial court erred when it refused to have proper
questions included, allowed impermissible questions and did not
have the proper order of the questions on the jury verdict slip?
7. Whether the trial court erred when it refused to give and/or
included certain jury instructions?
8. Whether the trial court erred when not granting [Appellants’]
directed verdict?
9. Whether this case, on remand, should be coordinated in
Lackawanna County?
Appellants’ Brief at 8 (unnecessary capitalization omitted). After a panel of
this Court split on whether Appellants were entitled to a new trial, this Court
certified this case for en banc review.
III. DISCUSSION
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A. The Request for a New Trial as to All Defendants; The Impact of
Lloyd’s Criminal Conviction.8
Appellants first claim that the trial court erred in submitting the issue of
Lloyd’s liability to the jury because they had the right to rely upon liability
already having been determined in these civil actions based upon Lloyd’s
criminal conviction for voluntary manslaughter. Appellants’ Brief at 36, 37,
39. Appellants maintain that the decision of the Lackawanna County Court
granting summary judgment9 affirmed that Lloyd’s criminal conviction for
voluntary manslaughter conclusively established his “liability” in these civil
actions under collateral estoppel and that they now are entitled to a new trial
on the issue of damages alone.10 Id. at 40. We disagree. Appellants employ
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8 “In reviewing an order to grant a new trial, our standard of review is limited
to determining whether the trial court abused its discretion or committed an
error of law.” Lykes v. Yates, 77 A.3d 27, 30 (Pa. Super. 2013) (citations
and alterations omitted).
9 In point of fact, it was the Rogers Estate’s motion for partial summary
judgment that was decided by the Lackawanna County Court before these
actions were consolidated and coordinated in Susquehanna County. For sake
of convenience we may sometimes refer to this decision as the grant of
“summary judgment.”
10 Although Appellants’ statement of the question on this issue assigns error
to the trial court for allowing the jury to consider whether Lloyd was
“negligent,” Appellants’ argument makes clear that what they contend is that
Lloyd’s “liability” for the Decedents’ harm should have been conclusively
established in these civil actions based upon his criminal conviction, leaving
only the question of damages. We have confirmed that this is the issue being
presented and that this is the issue preserved for our review. See Brief for
Appellants, supra; Plaintiff’s Special Verdict Slip at ¶¶ 1, 6, 8, 9, and 10
(where Appellants request binding instructions on all issues pertaining to
Lloyd’s liability); Appellants’ Concise Statement of Errors Complained of on
Appeal at ¶¶ 8, 11, and 12; Pa.R.A.P. 302(a).
(Footnote Continued Next Page)
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collateral estoppel too broadly to argue that Lloyd’s criminal conviction
conclusively established his liability in these civil actions.
Four elements are necessary to establish a cause of action in negligence:
a duty or obligation recognized by law; breach of that duty by the defendant;
a causal connection between the defendant's breach of that duty and the
resulting injury; and actual loss or damage suffered by the
complainant. Reilly v. Tiergarten Inc., 633 A. 2d 208 (Pa. Super. 1993);
accord R.W. v. Manzek, 888 A. 2d 740, 746 (Pa. 2005). Establishing only
a breach of duty, i.e., negligent conduct, does not automatically entitle a
plaintiff to damages. A plaintiff also must prove causation before being
allowed to proceed to the question of damages. Additionally, Pennsylvania
law provides that if a plaintiff’s negligence is greater than the causal
negligence of the defendant or defendants, i.e., greater than 50%, against
whom recovery is sought, a plaintiff may not recover damages. See 42
Pa.C.S.A. § 7102(a) (“the fact that the plaintiff may have been guilty of
contributory negligence shall not bar a recovery by the plaintiff or his legal
representative where such negligence was not greater than the causal
negligence of the defendant or defendants against whom recovery is
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In addressing this first issue, the prior panel of this Court, in considering
collateral estoppel, concluded Lloyd was estopped from arguing that he did not
intentionally shoot Appellant and from arguing that he had a reasonable belief
that such action was necessary. In their Supplemental Brief to this Court,
submitted prior to en banc consideration, Appellants agree with this
conclusion. Supplemental Brief for Reargument at 12. As we explain, infra,
this alone does not settle the question of liability as contended by Appellants.
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sought.”). As will be explained, Lloyd’s conviction for voluntary manslaughter
conclusively established under collateral estoppel facts determined in his
criminal trial, but that did not answer the questions of causation or
comparative fault that also had to be determined before the jury could
consider damages.
Our examination begins with the opinion and order of the Lackawanna
County Court which granted the Rogers Estate’s motion for partial summary
judgment.11 The Rogers Estate’s motion was premised on the argument that
collateral estoppel bound the issue of Lloyd’s liability in that civil proceeding.
Lackawanna County Court Opinion, 10/1/14, at 1 (unpaginated). The court
reasoned that principles of collateral estoppel barred Lloyd from relitigating
the issue of intent in this civil action. It concluded in somewhat cryptic
language that the conviction of voluntary manslaughter permitted the court
to make a finding of collateral estoppel “to effectuate the purposes of the
precedent of this principle of law.” Id. at 3 (unnumbered). The court,
therefore, granted the Rogers Estate’s motion for partial summary judgment
only as to Lloyd. While the Rogers Estate’s motion sought a judgment that
collateral estoppel bound the issue of “liability,” the court in granting the
motion went no further than to conclude that Lloyd’s conviction for voluntary
manslaughter established that he committed an intentional killing. Id.
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11At the time the motion was filed, the Rogers Estate had not yet been
consolidated with the Alvarez Estate in the Susquehanna County Court.
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To address the effect of collateral estoppel upon these civil proceedings
resulting from Lloyd’s previous criminal conviction, we find it necessary to
review briefly the development of our case law on this issue.
For many years in Pennsylvania, judgments in criminal cases were held
inadmissible to establish facts in a civil case. See Hurtt v. Stirone, 206 A.2d
624, 626 (Pa. 1965). It appears that the case of Greifer’s Estate, 5 A.2d
118 (Pa. 1939), marked the earliest departure from this evidentiary
prohibition. In Greifer, the question was whether a wife, who killed her
husband and was convicted of murder of the first degree, could successfully
claim benefits coming to her under a trust created by him for her benefit. The
Court held that the wife was barred by the common law principle that a person
will not be permitted to profit by their own wrong, particularly by their own
crime. This was followed in the case of Mineo v. Eureka Sec. Fire & Marine
Ins. Co., 125 A.2d 612 (Pa. Super. 1956), wherein this Court considered
whether it should permit recovery from insurance companies for a fire loss,
when the insureds were properly convicted of procuring the burning of the
property for which recovery was sought. Citing Grefier, we noted there was
disagreement among jurisdictions concerning the evidence necessary in a civil
action to establish the fact of the insured’s criminal responsibility for the
damage, and whether the conviction was a bar to bringing the action. The
central question was what use can be made in a civil action of the insureds’
conviction of arson. In this regard, the Grefier Court was called upon to
determine whether the criminal conviction was a bar to the civil action as
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contended by the defendants, whether it was inadmissible in a civil action for
any purpose as contended by the plaintiff, or whether it was admissible as
prima facie but not conclusive evidence of guilt as held by the court below.
Upon review, we held that the insured’s conviction was a complete bar to
recovery, acknowledging that this position, at that time, was contrary to the
more generally accepted rule throughout the country. In coming to this
conclusion, we explained:
This rule is founded upon the public interest which requires that
the laws against crime be enforced, and that courts aid no man in
any effort he may make to benefit from his own violation of them.
The rule is enforced upon the ground of public policy alone and
not out of consideration for the defendant to whom the advantage
is incidental.
This case does not present a question which in our opinion can
properly be disposed of by the application of some technical rule
of evidence, such as a ruling that the first conviction is hearsay
when admitted in the civil action. It is a question which turns
upon the principle of estoppel. It is a matter of public
policy. It is a matter of recognizing a judgment of a court.
Mineo, 125 A.2d at 617 (internal citation omitted) (emphasis added). This
Court in Mineo looked not only to public policy, but perhaps for the first time
also announced this rule as a bar to recovery based upon the principle of
estoppel.
In Kravitz’s Estate, 211 A.2d 443 (Pa. 1965), our Supreme Court
detailed more precisely what was established by way of a prior conviction.
There, the question presented was whether a wife, convicted of murdering her
husband, was precluded from benefitting from his estate under the Slayer’s
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Act of 1941.12 That law provided “No slayer shall in any way acquire any
property or receive any benefit as the result of the death of the decedent.” In
concluding that the issue of murder could not again be litigated by the wife in
the Orphans’ Court, or in a civil action in any other court, the Court
acknowledged that a growing minority of jurisdictions, including the federal
courts, would admit the criminal record as evidence of the facts determined
in the criminal proceeding unless excluded by statute, as opposed to what was
the rule then in most jurisdictions that a judgment entered in a criminal case
was not proof of anything in a subsequent civil case other than the fact of its
rendition. Following the more expansive view, the Court ruled that (1) the
record of conviction and judgment of sentence of the wife for the murder of
her husband was not merely prima facie evidence thereof, but was a
conclusive bar to her right to take under or against her husband’s will, and (2)
that neither the question of “murder” nor her guilt or innocence of the crime
could be relitigated in the Orphans’ Court. Hence, in addition to concluding
that the fact of the conviction was admissible and a conclusive bar to recovery
under the Slayer’s Act, the Court held that the questions of murder, guilt, or
innocence likewise could not be relitigated in the civil proceeding.
Building upon these earlier cases, in Shaffer v. Smith, 673 A.2d 872
(Pa. 1996), our Supreme Court granted allocatur to determine the point at
which a criminal conviction is considered final in order to serve as a basis for
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12 20 P.S. §§ 3441-3456 (repealed).
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collateral estoppel in a civil trial. The Court held that the appellant’s prior
criminal conviction was final for purposes of collateral estoppel,
notwithstanding appellant’s filing of a Post Conviction Relief Act (“PCRA”)
petition. Shaffer appears to be the first case in which the Court examined
the effect of a criminal conviction in a subsequent case by expressly couching
the issue in terms of “collateral estoppel.”13 Relying upon Folino v. Young,
568 A.2d 171 (Pa. 1990), Kravitz, and Hurtt, the Shaffer Court stated that
it was well established that a criminal conviction collaterally estops a
defendant from denying his acts in a subsequent civil trial. Importantly, the
Court emphasized that unlike merger and bar (res judicata) that establish
claim preclusion, collateral estoppel is applicable only to essential issues of
fact that have been litigated. See Shaffer, 673 A.2d at 675, see also
Zarnecki v. Shepegi, 532 A.2d 873, 878-79 (Pa. Super. 1987) (defendant in
a mortgage foreclosure action precluded under collateral estoppel from
claiming her signature on a mortgage was a forgery, since issue of signature
already litigated in a prior action). Collateral estoppel not only conclusively
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13 The Shaffer Court explained:
[A] plea of collateral estoppel is valid if, 1) the issue decided in
the prior adjudication was identical with the one presented in the
later action, 2) there was a final judgment on the merits, 3) the
party against whom the plea is asserted was a party or in privity
with a party to the prior adjudication, [and] 4) the party against
whom it is asserted has had a full and fair opportunity to litigate
the issue in question in a prior action.
Shaffer, 673 A.2d at 876 (citations omitted).
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establishes the fact of a conviction, but also of the facts actually litigated to
reach the conviction. Zarnecki, 532 A.2d at 874-75.
As applied to the present circumstances, under collateral estoppel,
Lloyd’s criminal conviction not only conclusively established his guilt of
voluntary manslaughter, but also those facts necessary and actually litigated
to arrive at that conviction.
The crime of voluntary manslaughter is defined under Pennsylvania law
as follows:
§ 2503. Voluntary manslaughter.
(a) General rule.--A person who kills an individual without
lawful justification commits voluntary manslaughter if at the time
of the killing he is acting under a sudden and intense passion
resulting from serious provocation by:
(1) the individual killed; or
(2) another whom the actor endeavors to kill, but he negligently
or accidentally causes the death of the individual killed.
(b) Unreasonable belief killing justifiable.--A person who
intentionally or knowingly kills an individual commits voluntary
manslaughter if at the time of the killing he believes the
circumstances to be such that, if they existed, would justify the
killing under Chapter 5 of this title (relating to general principles
of justification), but his belief is unreasonable.
(c) Grading.--Voluntary manslaughter is a felony of the first
degree.
18 Pa.C.S.A. § 2503. At his criminal trial Lloyd claimed self-defense as
justification for the killings. According to the Lackawanna County Court, the
trial court in Lloyd’s criminal case submitted to the jury the elements of
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voluntary manslaughter and the issues of “Self Defense and Justification.”
Lackawanna County Court Opinion, 10/1/14, at 1 (unpaginated). Once self-
defense and justification were raised as defenses to the charge of voluntary
manslaughter, the Commonwealth had the burden of proof to demonstrate
beyond a reasonable doubt that Lloyd’s belief that he had justification to use
deadly force was “unreasonable.” See Commonwealth v. Rivera, 983 A.2d
1211, 1221 (Pa. 2009) (“When a defendant introduces evidence of self-
defense, the Commonwealth bears the burden of disproving such a defense
beyond a reasonable doubt.”). Lloyd’s defense, also known as imperfect self-
defense, “is imperfect in only one respect—an unreasonable rather than a
reasonable belief that deadly force was required to save the actor’s life.” Id.
at 1224 (citing Commonwealth v. Tilley, 595 A.2d 575, 582 (Pa. 1991)).
The Commonwealth met its burden, and thus, as applied to these civil cases,
collateral estoppel conclusively established both that Lloyd’s conviction for
voluntary manslaughter evidenced an intentional killing and that he acted
“unreasonably” in his belief that he was justified in the use of deadly force.
These were the essential facts found that were necessary to arrive at Lloyd’s
conviction. The jury in these civil actions was entitled to have been informed
of Lloyd’s conviction and, equally as important, that Lloyd was found to have
acted unreasonably and therefore negligently, because the sine quo non to
find that a person acted negligently in a civil action is a finding that the person
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acted unreasonably.”14 See Rutter v. Northeastern Beaver County
School District, 437 A.2d 1198, 1212 (Pa. 1981) (Nix, J. dissenting) (“The
benchmark of negligence is conduct expected of the proverbial reasonable
man.”); Lanni v. Pennsylvania R. Co., 88 A.2d 887, 888 (Pa. 1952)
(“Negligence is the absence or want of care which a reasonable man would
exercise under the circumstances.”); Martin v. Evans, 711 A.2d 458, 461
(Pa. 1998) (negligence is the absence of ordinary care that a reasonably
prudent person would exercise in the same or similar circumstances); see
also Pa. Standard Suggested Jury Instruction (Civil) 13.10 (“A person who
fails to do something a reasonably careful person would do under the
circumstances is negligent.”). However, while Lloyd’s conviction for voluntary
manslaughter established under collateral estoppel that he acted negligently,
it did not conclusively establish that he was liable for civil damages. Damages
only could be awarded after establishing causation, and then only if Decedents
were not more than 50 percent casually negligent for bringing about their
harm.
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14 We do not equate criminal negligence with the civil tort of negligence. A
person acts “negligently” with respect to a material element of a criminal
offense if their conduct, inter alia, involves a gross deviation from the standard
of care that a reasonable person would observe in the actor’s situation. 18
Pa.C.S.A. § 302(b)(4). Negligence, however, is not a term used under Section
2503(b)’s justification provision. Rather, Section 2503(b) speaks in terms of
a person’s belief being “unreasonable” that we deem analogous for our present
purposes to acting negligently in these civil actions. See Commonwealth v.
Carter, 466 A.2d 1328 (Pa. 1983) (under Section 2503(b), a defendant’s
belief, sincere though unreasonable, negates malice).
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The principal error in Appellants’ argument that Lloyd’s conviction
conclusively established his “liability” and therefore, entitled them to a new
trial on damages, ignores that all elements of a negligence cause of action
must be satisfied to permit a recovery. Appellants fail to recognize the limits
of collateral estoppel. All that Lloyd’s criminal conviction collaterally
established in these actions is that he committed the crime of voluntary
manslaughter, an intentional killing, and that he did so under the
unreasonable belief he was justified in so doing. Appellants are not entitled
to relief on this issue.15
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15 In declining to join our analysis in Parts III.A and III.B, our Learned
Colleague in her concurrence believes that we erred by concluding that the
crime of voluntary manslaughter conclusively establishes two elements of the
tort of negligence—the existence of a duty and a breach of that duty. To
clarify, what we have determined is that under principles of collateral estoppel,
certain facts established during Lloyd’s criminal trial for voluntary
manslaughter were deemed to be conclusively established for purposes of
these civil actions. Those facts being that he committed an intentional killing
but under an unreasonable belief that his actions were justified. With these
facts conclusively established, Lloyd’s actions must be considered negligent
per se. The Legislature has specified that under these circumstances the
standard of conduct justifying the use of lethal force in self-defense was not
met, because Lloyd’s belief was unreasonable, thus rendering his actions
negligent per se. See Cabiroy v. Scipione, 767 A.2d 1078, 1079 (Pa. Super.
2001) (citation omitted), appeal denied, 782 A.2d 541 (Pa. 2001);
Restatement (Second) Torts § 288B. A finding of negligence per se, however,
does no more than satisfy a plaintiff’s burden of establishing that a defendant’s
conduct was negligent. The burden remains upon a plaintiff to establish still
that his complained of injuries were proximately caused by the statutory
violations. Congini v. Portersville Valve Co., 470 A.2d 515, 518 n.4 (Pa.
1983).
The Concurrence opines that any analysis of negligence concepts here is
misplaced because Lloyd’s conviction for voluntary manslaughter was in
(Footnote Continued Next Page)
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B. Comparative Negligence
In the second question presented, Appellants argue that the trial court
committed error by permitting the jury to consider the issue of comparative
negligence. They argue that comparative negligence does not apply where
the defendant’s conduct is “reckless, wanton, or willful” and the conduct of
the plaintiff only negligent.16 They contend comparative negligence should
not have been applied where Lloyd’s criminal conviction established that the
killings were intentional, a standard well above recklessness. Appellants
therefore argue that none of the evidence introduced to demonstrate
____________________________________________
essence a battery, or an intentional tort that does not permit consideration of
negligence principles. We accept the well-settled proposition that “negligence
principles generally do not apply” to an intentional tort such as battery. Isaac
v. Jameson Mem’l Hosp., 932 A.2d 924, 929 (Pa. Super. 2007) (citation
omitted); see also Martin v. Yeoham, 419 S.W.2d 937, 944-45 (Mo. App.
1967) (distinguishing between the right of action for injury caused by an
intentional shooting and that arising from an unintentional, negligent
shooting). That general principle, however, must yield here where the crime
of voluntary manslaughter, as provided by our Legislature, allows for a
conviction when a person does not act reasonably (the standard for civil
negligence), see Rutter, Lanni, and Martin, supra, thus casting an
admittedly intentional act as one done negligently. Although there cannot be
any dispute Lloyd intentionally shot the decedents, the finding of the jury in
his criminal case determined that his belief was unreasonable and hence his
actions the result of negligence. While our Learned Colleague focuses on the
intentional aspects of a battery, she fails to consider the unreasonable or
negligent components of the crime of voluntary manslaughter that cast Lloyd’s
actions as negligent thereby rendering her analysis flawed.
16Arguably, Appellants may have waived any right to raise this issue, because
the special verdict slip submitted by them to the trial court asked the jury both
to find that Lloyd intentionally and/or recklessly killed Decedents and to find
whether any of the defendants were negligent, a point they now contend was
error. See Verdict Slips, 4/26/18, at 1-4.
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comparative negligence on the parts of Decedents was relevant or admissible.
We disagree.
Although our Supreme Court has not addressed the issue, both this
Court and our sister court, the Commonwealth Court, have held that the
Comparative Negligence Act17 does not apply in a situation where a plaintiff
may be guilty of negligence, but a defendant has acted recklessly. See Straw
v. Fair, 187 A.3d 966, 1000 (Pa. Super. 2018) (citing Johnson v. City of
Philadelphia, 808 A.2d 978, 983 (Pa. Cmwlth. 2002) (“[u]nder the
Comparative Negligence Act, the only conduct that is statutorily authorized to
be compared is negligent conduct”)).18,19 Negligence and recklessness are
different in kind. See id. at 1002; see also Restatement (Second) Torts
§ 500 (1965), cmt. g.; Tayar v. Camelback Ski Corp., 47 A.3d 1190, 1201-
02 (Pa. 2012) (noting that the “conceptualization of recklessness as requiring
conscious action or inaction not only distinguishes recklessness from ordinary
negligence, but aligns it more closely with intentional conduct.”). Lloyd argues
in response that Appellants’ argument is flawed because there never has been
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17 42 Pa.C.S.A. § 7102.
18Cases cited by Appellants pre-date the Comparative Negligence Act.
Appellants’ Brief at 51-52.
19 See also Krivijanski v. Union R. Co., 515 A. 2d 933, 936-37 (Pa. Super.
1986) (comparative negligence does not apply to willful and wanton conduct
which exists where the danger to the plaintiff, though realized, is so recklessly
disregarded that, even though there be no actual intent, there is at least a
willingness to inflict injury, a conscious indifference to the perpetration of the
wrong).
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any type of determination by any court, in any proceeding, that any conduct
on the part of Lloyd was “willful, wanton, or reckless”. Corrected Brief of Lloyd
at 16. We agree. Lloyd was convicted of intentional killings under an
unreasonable belief he was justified in doing so. Nowhere in the plain
language of Section 2503 that defines the crime of voluntary manslaughter is
there a requirement that a person be found to have acted “recklessly” to be
guilty of that crime.20 Instead, the statute criminalizes an intentional killing
committed under an “unreasonable” belief, the standard for negligence, that
deadly force was justified—otherwise known as “imperfect self-defense.”
Rivera, 983 A.2d at 1224.
Appellants insist that because Lloyd was found to have intentionally
killed Decedents, even under an unreasonable belief, that it was error to
submit comparative negligence to the jury because intentional conduct is more
egregious than reckless conduct. The flaw in Appellants’ reasoning is that in
arguing culpability greater than recklessness, they attempt to divorce Lloyd’s
volitional act from his state of mind—an unreasonable belief—by focusing only
upon the intentional aspect of voluntary manslaughter. To claim only that
Lloyd was found guilty of intentional killings inaccurately represents the crime
for which he was convicted. Although accurate that the act of shooting
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20Cf. 18 Pa.C.S.A. § 2504(a) (“A person is guilty of involuntary manslaughter
when as a direct result of the doing of an unlawful act in a reckless or grossly
negligent manner, or the doing of a lawful act in a reckless or grossly negligent
manner, he causes the death of another person.”).
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Decedents was done volitionally, and therefore in that sense intentionally, the
crime was committed without malice21 and under a belief, albeit unreasonable,
that the act was justified as self-defense. It is this state of mind that was
conclusively established under Lloyd’s conviction, a state different in kind from
recklessness. A person may be found to have acted intentionally, but that
does not necessarily mean that they also acted recklessly. Although not the
case here, in fact, it very well is possible that a person may act intentionally
and not negligently. Appellants are incorrect to assert that intentional conduct
also must include reckless conduct. The trial court did not err in charging the
jury on comparative negligence. Accordingly, Appellants’ argument fails.
C. Nonsuit as to Defendant Hayden Thomas
Appellants’ third issue in non-specific fashion challenges “[w]hether
nonsuit should have been denied when there was sufficient evidence of record
to establish liability.” Rule 2116 of our Rules of Appellate Procedure requires
that the statement of the questions involved must state concisely the issues
to be resolved, expressed in the terms and circumstances of the case but
without unnecessary detail. Pa.R.A.P. 2116(a). Appellants’ statement of this
third issue violates this rule and leaves us to guess as the substance of this
issue. Appellants’ opening brief reveals that this issue pertains to the nonsuit
granted in favor of Hayden. In a discussion spanning approximately ten
pages, Appellants fail to cite a single authority that identifies the legal basis
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21Voluntary manslaughter is an intentional killing committed without malice.
Commonwealth v. Heatherington, 385 A. 2d 338, 341 (Pa. 1978).
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upon which liability was sought against Hayden. Instead, Appellants’ brief
provides approximately four pages of boilerplate citation to cases discussing
the standard for the granting of a compulsory nonsuit. See Appellants’ Brief
at 46-49. The remainder of Appellants’ argument does nothing more than
recite to us trial evidence22 as to why the gun used by Lloyd should have been
restricted by Hayden and the Outdoorsman.
In lieu of disclosing to us the legal basis as to why these facts may
impose liability, Appellants simply “urge” us to read the July 18, 2016
Lackawanna County Court Opinion, that apparently details the evidence
adduced during discovery that led that court to deny summary judgment to
Hayden. Id. at 41. Appellants argue, again, without authority, that it logically
follows that if those facts were adduced at trial, nonsuit should have been
denied to Hayden. Id. Presenting argument to us without citation to legal
authority may result in waiver. See Pa.R.A.P. 2119 (setting forth argument
briefing requirements, including “discussion and citation of authorities” and
“reference to the place in the record where the matter refers to appears”);
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22 Insofar as Appellants reference the “Wolfe Report” in their brief, we decline
to consider the report because it was excluded as evidence during trial and,
critically, Appellants failed to preserve any challenge to its exclusion in their
Rule 1925(b) statement. It is black letter law in Pennsylvania that issues not
included in a Rule 1925(b) statement or fairly suggested by the issue(s) stated
are deemed waived. See Pa.R.A.P. 1925(b)(4)(v) and (vii), see also Greater
Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc., 88 A.3d 222, 224
(Pa. Super. 2014) (en banc) (noting that our Supreme Court will not
countenance anything less than strict application of waiver pursuant to Rule
1925(b)).
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see also Giant Food Stores, LLC v. THF Silver Spring Development, L.P.,
959 A.2d 438, 444 (Pa. Super. 2008) (holding that failure to support an
argument with citation to authority results in waiver), appeal denied, 972
A.2d 522 (Pa. 2009). Urging this Court to investigate another court’s opinion
to discern Appellants’ arguments improperly requests that we scour the record
for ourselves and act as counsel to Appellants, something this Court will not
and cannot do. See Hayward v. Hayward, 868 A.2d 554, 558 (Pa. Super.
2005) (observing it is not the duty of this Court to “scour the record” and “act
as the appellant’s counsel” and declining to do so). Arguing that the denial of
summary judgment should somehow control whether a nonsuit should be
granted at trial is clearly erroneous. As Appellees correctly point out,
consideration of a compulsory nonsuit motion at trial must be based upon the
evidence introduced at trial. See Pa.R.Civ.P. 230.1. A trial court only may
consider the trial evidence introduced by the plaintiff(s) and any favorable
evidence introduced by the defendant(s) when passing upon a motion for
compulsory nonsuit. Id. The evidence considered under a summary
judgment motion may or may not be the same as that admitted at trial.
Our consideration of this third issue further is complicated by the fact
that Appellants’ supplemental brief, prepared for en banc consideration, does
not discuss the claimed error that a nonsuit was improperly entered in favor
of Hayden. Instead, the supplemental brief urges us to vacate the judgment
entered in favor of the Outdoorsman and remand for a new trial so that the
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issue of the Outdoorsman’s vicarious liability may be considered. See
Appellants’ Supplemental Brief at 16-20.
Once again, several problems are present that preclude us from
considering this request. First and foremost, this issue was not raised or
preserved in Appellants’ Rule 1925(b) statement. On this basis alone the issue
is waived. See Pa.R.A.P. 1925(b)(4)(v) and (vii). Second, the statement of
questions presented in Appellants’ brief does not include this issue.23 This
constitutes a second basis for waiver. See Pa.R.A.P. 2116(a) (stating that
“[n]o question will be considered unless it is stated in the statement of
questions involved or is fairly suggested thereby”). Lastly, to the extent
Appellants rely upon this Court’s prior panel decision (that has been
withdrawn) that also granted a new trial as to the Outdoorsman, that reliance
is misplaced. Our prior panel concluded that the trial court erred in failing to
instruct the jury it had to find Lloyd negligent. A new trial would have had to
include the Outdoorsman given the vicarious liability claim. Here, however,
where we now conclude that Appellants are not entitled to a new trial, no
independent basis has been preserved for us to review any error now claimed
that the Outdoorsman is entitled to a new trial.
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23 The granting of reargument does not permit a litigant to introduce new
issues that have not already been preserved. See Pa.R.A.P. 302(a) (“Issues
not raised in the trial court are waived and cannot be raised for the first time
on appeal.”).
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While we have identified sufficient bases upon which we could find
waiver of Appellants’ third issue, out of an abundance of caution we choose
not to do so. We will however only address the argument(s) properly
preserved to the extent appellate review is not impeded. To that end, our
review of Appellants’ Rule 1925(b) statement discloses that with respect to
this third issue, under the heading “DIRECTED VERDICT FOR DEFENDANT”,
Appellants state:
59) A review of the facts adduced during trial clearly will reveal
that Hayden Thomas should not have had a directed verdict
entered against Plaintiffs as to him.
60) Based on the facts, there was direct and circumstantial
evidence that Lloyd Thomas was a “feeble minded adult” as
defined by the case law of the Commonwealth.
61) In addition, there were numerous other counts and claims that
would apply to Defendant Hayden Thomas based upon the facts,
law, and Restatements.
62) As objected to, the trial court dismissed Hayden Thomas in
total, despite the Defense Attorneys only moving to have him
dismissed on the “feebleminded issue.”
Appellants’ Rule 1925(b) Statement, 1/15/19, at ¶¶ 59-62 (unpaginated).
Appellants’ Rule 1925(b) statement has misstated the basis upon which
Hayden was dismissed from these actions. Hayden was not dismissed upon a
motion for directed verdict that properly only may be made upon the close of
all trial evidence. See Pa.R.Civ.P. 226(b) (“At the close of all the evidence,
the trial judge may direct a verdict upon the oral or written motion of any
party.”). Hayden was dismissed from these actions upon a motion for
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compulsory nonsuit. See Pa.R.Civ.P. 230.1. While the standard for granting
a compulsory nonsuit and that for directed verdict share similarities, in that
both demurrer to the evidence, the scope of review under each is different.
“A motion for compulsory nonsuit allows a defendant to test the sufficiency of
a plaintiff’s evidence” and is made at the close of the plaintiff’s case. Atlantic
Richfield Co. v. Razumic, 390 A. 2d 736, 744 (Pa. 1978). A motion for
directed verdict, like a motion seeking judgment notwithstanding the verdict
(“JNOV”), requires a court to test the sufficiency of all evidence at the close
of a case. Reading Radio, Inc. v. Fink, 833 A.2d 199, 210 (Pa. Super.
2003), appeal denied, 847 A.2d 128 (Pa. 2004). Regardless, given the
similarities between our review of a compulsory nonsuit and that of a directed
verdict, and that Appellants’ reference in their Rule 1925(b) statement and
brief speak in terms of when the trial court dismissed Hayden from this case,
we will consider Appellants’ reference to a “directed verdict” in their Rule
1925(b) statement as mere misspeak, and treat the issue as challenging the
granting of a compulsory nonsuit.24
Our willingness to overlook this misstep, however, does not resolve what
issue has been preserved. Upon review, we conclude that the only basis
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24 Some of this confusion could have been avoided if Appellants had seen fit
to include in their brief, as required by our appellate rules, the verbatim text
of the court’s order granting the motion for compulsory nonsuit. See
Pa.R.A.P. 2115. Instead, in their brief, in lieu of a verbatim text of the order,
Appellants simply state that the trial transcript demonstrates the trial court
granted the nonsuit as to Hayden. Appellants’ Brief at 6. Within the certified
record, however, is a written order dated April 24, 2018, granting the motion
for nonsuit.
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preserved by Appellants upon which to challenge the nonsuit granted in favor
of Hayden, is their argument that they produced enough evidence to
demonstrate that Hayden knew Lloyd was “feebleminded.” Appellants’
statement that there were numerous other counts and claims that would apply
to Hayden based upon the “facts, law, and [r]estatements,” is flagrantly too
general to preserve any issue that might be contained within that statement.
Nor do Appellants’ briefs provide any further clue as to the plethora of laws or
theories that might be encompassed within this overly broad claim. The
purpose of a Rule 1925(b) statement is to clarify the errors complained of on
appeal. Pa.R.A.P. 1925(b). Therefore, we consider anything beyond the issue
of feeblemindedness to be waived.
On the merits of this third issue, we consider whether sufficient trial
evidence was introduced by Appellants to establish that Hayden knew Lloyd
to be a feebleminded adult so as to make him responsible for Lloyd’s use of a
gun at the Outdoorsman. Although no authority is found in Appellants’ brief
that addresses this proposition, Hayden and the Outdoorsman reference the
case of Wittrien v. Burkholder, 965 A.2d 1229 (Pa. Super. 2009) and the
Restatement (Second) Torts § 308, as the relevant law on this issue. So too
did the Lackawanna County Court when deciding whether to grant summary
judgment to Hayden and the Outdoorsman.
In Wittrein, the parents of Gary M Burkholder, a 20-year-old adult,
were sued by the plaintiff when Gary shot him with a 12 gauge shotgun. Gary
lived with his parents and legally purchased the shotgun when he was 18 years
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old. The plaintiff had gone to the Burkholder residence to pick up his daughter
after he was told that Gary was drinking and in a violent state. When plaintiff
arrived, he was shot by Gary. The gun was kept by Gary in a locked cabinet
in his room. Prior to the incident, Gary’s father took the shotgun and hid it
because Gary was threatening suicide. Some five to seven months prior to
the incident Gary took possession of the gun again. As of the time of the
incident Gary’s parents knew that Gary had violent propensities, became
violent when drunk, and had a history of violent behavior. Gary’s father feared
for his son’s safety two years prior to the shooting and realized Gary should
not have a shotgun. He described Gary as a ticking time bomb and knew of
Gary’s communications with hate groups, a prior conviction for assault,
drinking problems, and violent propensities. Gary also was into white
supremacy and had to attend anger management and pay a fine. He had
anger problems since he was in about 11th grade. The father also indicated
that Gary had been listening to bad tapes, was arrested for assault on a black
man at work, and was in jail for 10 days for that offense. Despite this history,
Gary’s parents moved for summary judgment. The resolution of that motion
turned upon the proper application of the Restatement (Second) of Torts §
308. That section provides:
Permitting Improper Persons to Use Things or Engage in Activities
It is negligence to permit a third person to use a thing or to engage
in an activity which is under the control of the actor, if the actor
knows or should know that such person intends or is likely to use
the thing or to conduct himself in the activity in such a manner as
to create an unreasonable risk of harm to others.
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COMMENTS AND ILLUSTRATIONS: Comment:
a. The words “under the control of the actor” are used to indicate
that the third person is entitled to possess or use the thing or
engage in the activity only by the consent of the actor, and that
the actor has reason to believe that by withholding consent he can
prevent the third person from using the thing or engaging in the
activity.
Wittrein, 965 A.2d at 1232 (citations omitted). Noting that Pennsylvania had
expressly adopted Section 308, the court canvassed decisions finding only
three Pennsylvania cases applying that section to the negligent entrustment
of a gun, all of which involved minor children. See Frey v. Smith, 685 A.2d
169 (Pa. Super. 1996), appeal denied, 700 A.2d 441 (Pa. 1997); Johnson
v. Johnson, 600 A.2d 965 (Pa. Super. 1991); Mendola v. Sambol, 71 A.2d
827 (Pa. Super. 1970). In Mendola we concluded the defendant father was
subject to liability for leaving a gun out where his 11-year-old son was able to
use it in the shooting of another child. We noted that “it is negligent to place
loaded firearms or poisons within reach of young children or feebleminded
adults.” Mendola, 71 A.2d at 829 (emphasis added).
One out-of-state case was found by the Wittrein Court involving
negligent entrustment of a gun to a defendant’s adult son: Tissicino v.
Peterson, 121 P.3d 1286 (Ariz. 2005). The record in Tissicino revealed that
the adult son had a below average intelligence quotient, a drinking problem,
brain damage, and cognitive disorder. The court noted that it is the right to
control the chattel in question, rather than legal ownership, that is necessary
to prove a negligence entrustment claim under Section 308. The court
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concluded the plaintiff had the right to proceed to trial on the issue of whether
the defendant’s mother had the right to control the gun in that case.
Ultimately, we affirmed the granting of summary judgment in Wittrein
despite evidence that Gary’s parents had confiscated the gun—nine months
prior to the shooting—after Gary threatened suicide. The gun, however, was
returned to Gary approximately five to seven months prior to the shooting.
We concluded that the record failed to reflect evidence that Gary’s parents
had the right to control the gun on the day of the shooting. The temporary
confiscation of the gun in an emergency situation failed to support a conclusion
that Gary had the right to use the gun only by the consent of his parents.
While the record also reflected evidence of Gary’s violent propensities and
bigotry, significantly, there was no evidence of any cognitive disability that
rendered him a “feebleminded adult” whose mental capacity was
commensurate with that of a young child at the time of the incident. Plaintiff
failed to establish that the parents had the right to control the firearm of their
adult son. Summary judgment was properly granted.
Presently, we likewise conclude that the trial court correctly granted a
compulsory nonsuit in favor of Hayden because Appellants failed to carry their
burden of proving that Hayden had the right to control the gun used by Lloyd
as a feebleminded adult son.
In their brief, Appellants point to trial evidence they claim established
that Hayden owned the weapon used by Lloyd. They cite a Department of
Justice Firearm Trace Summary revealing that, as of the time of the killings,
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the gun was in the name of the person who traded it to the Outdoorsman.
They claim testimony from Hayden and Lloyd established the gun belonged to
the Outdoorsman until its transfer to another individual. Appellants then
address witness testimony. They point to the testimony of a Jeffrey Gunn who
testified that Lloyd previously chased him with his vehicle for no reason. They
refer to another witness, John Touch, who testified Lloyd became paranoid
around the time of the shootings and that he relayed this to Hayden on, at
least, two occasions prior to the shootings. Another witness, Brian Griffiths
testified that Lloyd one day grabbed an American flag, threw it on the ground,
and jumped on it. Still another, Alphonso Troianello, testified that before the
shooting he went to the Outdoorsman and after he parked his truck, Lloyd’s
vehicle came up behind him whereupon Lloyd exited his vehicle and began to
yell and scream for no reason. Charles Pettinato testified that before the
shooting he noticed Lloyd would act erratically. Kathryn Chesnick, a nurse
anesthetist, testified that shortly before the killings she felt it necessary to call
911 and report that Lloyd was acting a little bit aggressive and cursing.
Appellants claim that she stated she called the police and told them Lloyd was
off his rocker and not acting like himself and fearing he was going to kill
himself or somebody. She further acknowledged she relayed that Lloyd was
like a schizophrenic in crisis and believed something bad was going to happen.
Ms. Chesnick relayed she believed Lloyd was going crazy. See Appellants’
Brief at 40-45.
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In response, Hayden and the Outdoorsman dispute much of Appellants’
recitation and characterization of trial testimony. They argue that there was
no evidence that either Hayden or the Outdoorsman owned the gun. The so-
called uncontroverted evidence that the Outdoorsman owned the weapon
consisted of the Firearm Trace Summary that showed only the last purchaser
of the gun, but did not identify any ownership by the Outdoorsman. Further,
they point to Lloyd’s testimony where he admitted he owned the gun. They
claim there was no evidence whatsoever that Hayden or the Outdoorsman had
the ability to control access to Lloyd’s personal weapon. With respect to
witness testimony, they point out that Jeffrey Gunn’s testimony related to an
incident that happened in approximately 2008 or 2009, and that Gunn never
spoke to Hayden about the incident. Likewise, they point out that the incident
relayed by Brian Griffis occurred 10 to 11 years before the shootings and that
Griffis also never spoke to Hayden about the prior incident. They claim the
same also was true with respect to the incident described by Alfonso Troianello
in that he too never spoke to Hayden about his incident. With respect to
Kathryn Chesnick’s 911 call, they claim her statement Lloyd was going to kill
someone was actually found in a police report authored a year and a half after
the shootings and was not found in the police report prepared following the
911 call. They further point out that Ms. Chesnick disputed the statement
attributed to her in the police report that she and several other people had
been telling Hayden that Lloyd needs help. Appellees claimed that Ms.
Chesnick noted she never spoke to Hayden about his son. In addition,
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Corporeal Scott Walck of the Pennsylvania State Police testified that when he
spoke to Ms. Chesnick on the 911 call, she indicated she did not see or hear
anything that would make her believe Lloyd was a danger to himself or others
and did not tell him she believed Lloyd was going to kill someone. Corporeal
Walck testified further that he did call Hayden to ask him to check on his son
and explained how to get a 302 warrant for an involuntary commitment if
things were not all right. Appellees further maintain that the testimony of
John Touch and Charles Pettinato that Lloyd may have acted erratically at
some unspecified times in the past does not establish a cognitive disability
rendering him feebleminded or with the mental capacity of a child. See
Hayden and The Outdoorsman’s Brief at 37-42. During argument on the
motion for compulsory nonsuit, counsel argued the inconsistency in
Appellants’ position. On the one hand, Appellants produced evidence that
Lloyd attended Penn State University for three and a half years and had a lot
of ability, as evidenced by the fact that Lloyd was Vice President of the
Outdoorsman all day and every year, even after the shooting, and that Lloyd
also was responsible for taking care of the paperwork. Yet, in the same
breath, Appellants argued that Lloyd was feebleminded. See N.T., Trial,
4/24/18, at 164-65.
While we find it disconcerting that counsel would differ in so many
respects as to what was testified to at trial, we need not resolve any of these
disparities because, giving Appellants the benefit of all the evidence existing
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as of the time compulsory nonsuit was granted, Appellants are not entitled to
relief.25
To establish liability under Section 308, Appellants had to prove that
Hayden had the right to control Lloyd’s use of the gun, or in other words, that
Lloyd only could use the gun with Hayden’s permission. Wittrein, supra
(citing Section 308 and cmt. A). This is established in the case of a parent(s)
permitting a minor child to use a weapon. In the case of an adult child, the
right to control the gun must rest upon evidence that the adult child has a
cognitive disability that would render the adult child “feebleminded” whose
mental capacity is commensurate with that of a young child. Wittrein, supra.
It is the right to control the weapon, rather than ownership that satisfies the
control element under Section 308. Id. at 1233 (citation omitted). Our review
of the evidence does not demonstrate that Appellants produced sufficient
evidence to prove that Lloyd could possess the gun used in these shootings
only with Hayden’s permission. Ownership alone does not answer the
question. Id. More important, Appellants failed to produce sufficient evidence
that Lloyd was subject to Hayden’s control as a feebleminded adult child
suffering from a cognitive disability rendering him with a mental capacity of
____________________________________________
25 The standard for reviewing the validity of a compulsory nonsuit requires
that the plaintiff be given the benefit of every fact and reasonable inference
arising from the evidence. All conflicts in the testimony must be resolved in
plaintiff's favor and the entry of the compulsory nonsuit is only supportable in
a clear case where the facts and circumstances have as the only conclusion
the absence of liability. Rutter, 437 A. 2d at 1200 (citations and quotation
marks omitted).
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that of a young child. As Wittrien amply demonstrates, antidotal evidence
merely implicating mental health concerns of an adult child, does not suffice
to establish a cause of action under Section 308. Appellants produced nothing
more at trial. The trial court did not err in granting the compulsory nonsuit in
favor of Hayden. No relief is due on this issue.
D. Quashing the Trial Subpoena for Dr. Shovlin
In their fourth issue, Appellants contend the trial court erred when it
granted the motion to quash and/or for a protective order not to compel Dr.
Michael Shovlin’s appearance at trial.26
Appellants’ counsel, Michael J. Pisanchyn, subpoenaed Dr. Michael
Shovlin, a psychiatrist, neighbor, and friend of Lloyd and Hayden Thomas, to
testify at trial commencing on April 16, 2018. Prior to receiving this subpoena,
Dr. Shovlin, without counsel, provided testimony in a May 23, 2017 discovery
deposition in response to a subpoena served by counsel for Hayden and the
Outdoorsman. At the outset of that deposition with Dr. Shovlin uncounseled
and present at the insistence of Appellants’ counsel, Appellants’ counsel voiced
objections to the deposition proceeding under the procedural posture of these
____________________________________________
26The standard of review regarding a motion to quash a subpoena is whether
the trial court abused its discretion. However, if the questions raised are
purely questions of law, this Court’s standard of review is de novo, and its
scope of review is plenary. Leber v. Stretton, 928 A.2d 262, 266 (Pa. Super.
2007) (citations omitted), appeal denied, 945 A.2d 172 (Pa. 2008).
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cases. N.T., Deposition of Dr. Michael Shovlin, 5/23/17, at 4-6.27 Appellants’
counsel then proceeded to threaten Dr. Shovlin with a civil lawsuit if he was
going to testify that he ever treated Lloyd, given that Lloyd previously testified
Dr. Shovlin never provided any treatment to him. Id. at 5-6. He further
threatened a suit for fraud against Lloyd if that was to be the case. Id. (noting
that he would “raise fraud on behalf of your client for lying”). Appellants’
counsel then announced Dr. Shovlin had the right to have an attorney present
in the event he wanted to plead the Fifth due to potential exposure resulting
from what he did in this case. Id. at 6.28 Appellants’ counsel then demanded
to know whether Dr. Shovlin intended to proceed with the deposition without
counsel and if he was going to testify without pleading the Fifth. Id. At the
opening of questioning by defense counsel, Appellants’ counsel interrupted to
emphasize that if Dr. Shovlin was to be sued, that it would be by a suit
commenced by Appellants’ counsel. Id. at 9. He then asked once again if the
witness should be present with counsel. Id. Dr. Shovlin’s only response was
that he was appearing as a fact witness and not as an expert, and that he
would not agree to be deposed as an expert witness. Id. at 10. He then
testified that he was never a doctor to Lloyd, never treated him, never
____________________________________________
27It appears Appellants’ counsel did not think the discovery deposition was
proper, because the Rogers Estate case already was listed for trial. It was his
contention that a deposition would have been proper only if noticed under the
Benet case. Id.
28It is entirely unclear from this record on what basis Appellants’ counsel
would make this statement.
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maintained a record, never performed any examination, Lloyd never came to
his office, and that there was never any exchange of payment for any type of
treatment. Id. He offered advice to Lloyd’s father, Hayden, who sought him
out in 2005-06, as a result of an incident in South Carolina, to suggest some
referral sources to get help for Lloyd. Id. at 19-23. He had a conversation
with Lloyd that same day wherein he provided the same referral sources for
help. Id. at 23. The deposition continued until it was time for Appellants’
counsel to examine the witness. Immediately upon examining the witness,
argument broke out regarding any advice defense counsel may have given
the witness and thereafter, banter began between counsel and the witness
over whether there was a doctor-patient relationship with Dr. Shovlin and
whether the questions being asked were more appropriate for an expert
witness. Id. at 32-37. Dr. Shovlin then excused himself from the deposition
before its completion indicating that he felt the process was too adversarial.
Id. at 38.
Pursuant to a February 2, 2018 order, Dr. Shovlin was directed to
resume his deposition. At the opening of the deposition proceeding on April
6, 2018, Appellants’ counsel served Dr. Shovlin a trial subpoena to appear the
first day of trial scheduled for April 16, 2018. N.T., Deposition of Dr. Michael
Shovlin, 4/6/18, at 9-10. During the course of the deposition, Appellants’
counsel explored with Dr. Shovlin his relationship with Lloyd, whether he ever
had a doctor-patient relationship with Lloyd, other people that knew Lloyd,
the 2005-06 South Carolina incident, the shootings in this case, and in detail
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his knowledge of any mental health issues experienced by Lloyd or his
observations of any bizarre behavior by Lloyd.
On April 12, 2018, counsel for Dr. Shovlin filed a “Motion to Quash Trial
Subpoena and/or Motion for Protective Order” (“Motion”) pursuant to
Pa.R.Civ.P. 234.4, to excuse Dr. Shovlin from appearing at trial. In his motion,
Dr. Shovlin relayed that the May 23, 2017 deposition proceeding was
inappropriate, unprofessional, abusive, belligerent, hostile, intimidating and
disrespectful, including threatening, without justification or substantiation, to
personally sue Dr. Shovlin and to have him criminally prosecuted. 29 Motion,
4/12/18, at ¶ 5. Dr. Shovlin also relayed that Appellants’ counsel repeatedly
sparred with and verbally attacked defense counsel, further engendering an
intolerable hostile atmosphere in the deposition room, causing him at that
point to be in a state of confusion, fear, exasperation, alone and unprotected
without legal representation, and causing him to then abruptly depart from
the deposition. Id. Dr. Shovlin relayed Appellants’ counsel’s attempt, without
apparent success, to elicit from him admissible testimony that would support
a theory of the case that Lloyd suffered from a mental illness or emotional
____________________________________________
29The basis upon which Appellants’ counsel made the intimidating statements
to Dr. Shovlin is not clear, but doing so potentially raises serious concerns
about the propriety of counsel’s conduct. See Pennsylvania Rules of
Professional Conduct 3.1, 4.1, 4.4, and ABA Formal Opinion 92-363 (1992).
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disturbance. Id. at ¶ 8. Dr. Shovlin advised that he and his wife30 are suffering
severe and debilitating medical conditions that would render it impossible for
them to appear and testify at trial without exposing them to a risk of grave
harm to their physical and emotional health. Id. at ¶ 15. In particular, Dr.
Shovlin advised that he is suffering from post-traumatic stress disorder
(“PTSD”) and that he is in active treatment under the care of his primary
health care provider who has provided him medication therapy and has
referred him for psychiatric treatment in connection with his disabling PTSD
condition. Id. at ¶ 16. Attached to his motion was an April 11, 2018 letter
from his treating physician. The letter confirmed that, at that time, Dr. Shovlin
was suffering from an acute decompensated form of post-traumatic stress
disorder in direct relation to a set of circumstances involving his requirement
to participate in legal depositions that resulted in severe and life-altering
effects on his psychological state. Id. at Exhibit A. The letter further advised
that Dr. Shovlin was close to experiencing a nervous breakdown as a result of
the pressure he was experiencing. The doctor stated, without equivocation,
his opinion that if Dr. Shovlin were compelled to appear in court, he may suffer
permanent and irreversible harm through the additive effects of that exposure
on top of his prior psychological trauma and brittle psychiatric state. This
opinion was offered with an “absolute degree of medical certainty” and
____________________________________________
30 While the trial subpoena sought to compel the attendance of both Dr.
Shovlin and his wife, Appellants have alleged error only as to the trial court's
grant of relief to Dr. Shovlin. Therefore, we limit our discussion to the doctor
and do not discuss his wife.
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expressed the doctor’s hope that unless the issue is of importance greater
than that of the man’s life, Dr. Shovlin should not be compelled to appear, at
that time or in the foreseeable future. Id.
Against this background, Appellants contend that it was error for the
trial court to grant the motion for a protective order, because Dr. Shovlin’s
testimony went directly to the heart of Appellants’ cases. Appellants’ Brief at
56. During argument on the Motion, Appellants’ counsel revealed he was in
possession of an August 29, 2013 state police report31 that contained a
summary of an interview with Dr. Shovlin. Appellants state that Dr. Shovlin
is a very close friend of the Thomases and, without providing this Court any
detailed comparison, claimed that Dr. Shovlin’s deposition testimony is the
exact opposite of almost everything he stated to the state police. Id. at 57.
Counsel argued that this testimony went to the very issue of what Hayden
knew about Lloyd, N.T., Trial, 4/16/18, at 8, and that Dr. Shovlin told Hayden
many times about Lloyd’s bizarre, paranoid and other behavior, proving
Hayden and the Outdoorsman knew of the necessity to control Lloyd’s
behavior. Id. at 26. Counsel admitted—and the court quickly surmised—that
he had a copy of this report at the time of Dr. Shovlin’s second deposition, but
he did not use it, as he was saving it for trial cross-examination. Id. at 7, 11.
Defense counsel stated that they had not seen this exhibit until one hour
____________________________________________
31 As stated, the shootings in this case occurred on February 11, 2012.
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before argument that day and that it was not produced in discovery.32 Id. at
17-18. After argument, the trial court, on the record, granted the motion for
a protective order, finding that the doctor was medically unable to attend trial.
Id. at 28.
Under Rule of Civil Procedure 234.4, a court may quash a subpoena to
attend trial if, after hearing, the court determines an order is necessary to
protect a party, witness or other person from unreasonable annoyance,
embarrassment, oppression, burden or expense. This court will “affirm a trial
court’s decision to quash a subpoena unless we find that the court abused its
discretion or committed an error of law.” Commonwealth v. Simmons, 719
A.2d 336, 340 (Pa. Super. 1998).
We conclude the trial court did not abuse its discretion in granting the
motion for a protective order for Dr. Shovlin not to appear at trial based upon
medical necessity. Foremost, we reject Appellants’ claim because Appellants’
argument focuses only on the loss of counsel’s ability to cross-examine
Dr. Shovlin at trial with the police report, and mentions nothing about the
basis for the trial court’s decision to excuse Dr. Shovlin based upon medical
necessity. Counsel has failed to address the basis of the trial court’s exercise
of discretion. Appellants’ counsel also cannot now complain about the loss of
this witness at trial due to his own abusive and intimidating conduct during
____________________________________________
32 Counsel is under a continuing obligation under our discovery rules to
promptly supplement discovery answers respecting persons having knowledge
of discoverable matters and to immediately produce copies of any witness
statements. See Pa.R.Civ.P. 4007.4, 4003.4.
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the deposition that exacerbated Dr. Shovlin’s medical condition, precluding
him from appearing at trial. The loss of counsel’s ability to cross-examine
Dr. Shovlin at trial with the police report was the result of his own strategic
decision not to examine the witness with this document during the deposition
when the document was available to him.
We also conclude that the loss of the opportunity to cross-examine on
the report did not prejudice Appellants’ cases. From what we can discern from
Appellants’ brief, counsel believes that testimony by Dr. Shovlin—that he may
have told Hayden about Lloyd’s bizarre or paranoid conduct—would have
provided the proof necessary to find Hayden liable for his son’s actions.
Assuming for the moment that Dr. Shovlin, through either direct or cross-
examination, would have testified he informed Hayden of such behavior, that
evidence alone would not have been enough to establish liability upon Hayden
for his son’s actions. To establish Hayden’s liability for his son’s actions, as
stated, it was incumbent upon Appellants to prove that Hayden had the right
to control the firearm that was in the possession of Lloyd and that Lloyd
possessed the mental capacity of a feebleminded adult or that of a young
child. See Wittrien, supra; Restatement (Second) of Torts § 308.
Appellants’ claim against Hayden fails at the outset because they did not
produce any evidence that Hayden had the right to control the firearm used
by Lloyd. Further, it was not possible for Appellants to sustain their burden
of proof by merely establishing that Lloyd possessed violent and other
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propensities, without any evidence that he was a feebleminded adult with
the mental capacity commensurate with that of a young child. Wittrien.
E. Evidence of Prior Bad Acts
Pretrial, Appellants filed motions in limine seeking, inter alia, to preclude
introduction into evidence chronic drug use by the respective Decedents and
evidence of any of their violent propensities, criminal records, protection from
abuse orders, vehicle violations, and other bad acts. Citing Kraus v. Taylor,
710 A.2d 1142 (Pa. Super. 1998), the trial court denied the motion to preclude
evidence of chronic drug use, finding that evidence was relevant to future loss
of earnings, but granted the motion as to other prior bad acts. Trial Court
Order, 4/5/18, at 3 n. 3 and n. 4. It was the trial court’s conclusion that any
evidence as to these prior bad acts would not be probative on the issue of the
contributory negligence of either decedent, where Lloyd had no knowledge of
any prior bad acts of either of them at the time of the shooting incident. Id.
Appellants argue that it was error for the trial court to allow defendants
to cross-examine the mothers of Decedents concerning the previously
excluded prior bad acts, parroting the trial court’s pre-trial ruling that these
prior acts were irrelevant, because Lloyd did not know Decedents before he
shot them to death. Appellants, however, ignore the reason provided by the
trial court as to why it permitted this previously-excluded evidence to be
introduced: Appellants opened the door after introducing testimony that
Decedents were upstanding individuals. Trial Court Opinion, 2/8/19, at 6 n.
7 (citing Commonwealth v. Nypaver, 69 A.3d 708, 717 (Pa. Super. 2013)
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(a litigant opens the door to inadmissible evidence by presenting proof that
creates a false impression refuted by the otherwise prohibited evidence)). As
Appellants have not seen fit to address the basis upon which the trial court
allowed this previously excluded evidence, we see no need to venture further
into the issue. We conclude that the trial court did not abuse its discretion in
admitting this prior bad acts evidence after Appellants opened the door for its
introduction into evidence. Commonwealth v. Stallworth, 781 A.2d 110,
117 (Pa. 2001) (admission of evidence is within the sound discretion of the
trial court and will be reversed only upon a showing that the trial court clearly
abused its discretion). Appellants obtain no relief.
F. The Jury Verdict Slip
Appellants in their sixth issue argue that the trial court erred in refusing
to have proper questions included on the jury slip, allowing impermissible
questions on the jury slip, and failing to include questions in proper order
on the jury verdict slip. Appellants’ brief, that purports to address this
multitude of issues, spans little over two pages and provides little additional
clarification on the numerous questions suggested. Appellants further
contend that the trial court erred by not instructing the jury on the verdict
slip that negligence and recklessness were proven because of Lloyd’s
conviction, and that the verdict slip did not contain questions mandated by
the restatement on torts, as well as the duties of the Outdoorsman under
the factual scenarios in this case. Appellants’ Brief at 65-67.
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We already addressed the issue of negligence. See Section A, supra.
We also have addressed the issue of recklessness in our discussion
concluding that the jury properly considered comparative negligence, since
Lloyd’s conviction did not establish that he acted recklessly. See Section B,
supra. We refuse to, and in fact cannot, address Appellants’ remaining
claims regarding questions mandated by the restatement and duties owed
by the Outdoorsman, and any others that might be suggested, as we deem
them all waived. Appellants’ violations of our appellate rules respecting
issue preservation and the obligation to properly develop claims in a brief
with legal authority are so blatant that extended discussion is not warranted.
See Pa.R.A.P. 1925, Pa.R.A.P. 2116, Pa.R.A.P. 2117, and Pa.R.A.P. 2119.
Appellants are not entitled to any relief on this sixth issue.
G. Jury Instructions
Appellants fare no better on their seventh issue that the trial court
erred in refusing to give and/or include certain jury instructions. They claim
to have submitted a comprehensive list of instructions, some of which they
say the trial court gave in modified form, while failing to give “quite a few of
the other applicable instructions requested by [Appellants].” Appellants’ Brief
at 67. To be sure, Appellants claim:
Some of these instructions include: adverse inference/spoliation;
negligence per se in light of 18 U.S.C. § 922(g)(3)[sic]; Section
219 of Restatements and other Agency instructions; Section 231
of Restatements and/or subsection b and/or c; Section 321 of
Restatements; Section 317 and/or 318 and/or 319 and/or 320
and/or 324 of Restatements and/or subsection b and/or c; Section
321 of Restatements; Section 323 of Restatements; Section 308
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of Restatements . . . . The trial transcript will demonstrate other
instructions that were objected to and ones that were requested
by [Appellants], but were not given, all of which was objected to
on the record and submitting [Appellants’] own jury instructions
Wherefore, [Appellants’] respectfully request Your Court to find
that the trial court was in error regarding its handling of the jury
instructions and as such remand this matter to the trial court with
directions to conduct a new trial as to all Defendants and more so
only in regard to damages.
Id. at 67-68 (internal string cite omitted).
Given our rules establishing the procedures necessary to raise and
preserve exceptions to requested jury instructions, see Pa.R.Civ.P. 226, 227,
227.1; Pa.R.A.P. 302(b); Jones v. Ott, 191 A.3d 782, 791 n.13 (Pa. 2018), it
is almost incomprehensible to consider the task Appellants desire this Court to
engage in to identify, advocate, and address this seventh issue, not to mention
the numerous rule violations in presenting their claim in this manner. Suffice
it to say, Appellants waived all issues as to jury instructions. See
Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa. Super. 2007)
(finding waiver where appellant presented no argument or citation to the
record to support the argument), appeal denied, 982 A.2d 509 (Pa. 2008).
Although Appellants provide some additional detail in their reply brief, such
detail does not save claims from waiver. See Commonwealth v. Collins,
957 A.2d 237, 259 (Pa. 2008) (stating “[a] claim is waived if it is raised for
the first time in a reply brief”). No relief is due.
H. Denial of Motion for Directed Verdict
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In their eighth issue, Appellants claim that the court erred when it did
not grant their motion for directed verdict. They request that we remand this
matter to the trial court with instructions that liability be admitted as to all
defendants and that trial be conducted solely in reference to damages.
Appellants’ Brief at 68-70. Continuing in the same summary form as their
issue on jury instructions, Appellants state:
Here, a review of the record and evidence demonstrates that
the law requires a verdict in Plaintiffs [sic] favor. This includes,
but is not limited to: (1) Defendant VP being in the course and
scope of his employment; (2) Defendant Hayden Thomas, the
President of The Outdoorsman Inc., having knowledge of
Defendant VP’s violent propensities: (3) Defendant VP, the Vice
President of The Outdoorsman Inc., using illegal drugs for the
past 10 years and also on the date of the subject incident; (4)
Defendant VP’s mental health issues: (5) Defendant Hayden
Thomas, the President of The Outdoorsman Inc., having rank
and control over Defendant VP, as Vice President; (6) Defendant
The Outdoorsman Inc. owning the firearm used in the subject
incident and having the right and duty to control that firearm;
(7) Restatement of Torts Sections 231, 317, 316, 318, 321, 322,
323, 308, 319, 320, and/or 324.
Id. at 69. Appellants further invite this Court to review pages from the
reproduced record which they claim clearly detail the reasons, including the
specific statutes and the specific cases that the trial court recited which
would mandate a verdict in their favor. Id. They offer nothing more in
their brief, devoting only approximately two pages to this issue, to support
their request for relief. Once again, Appellants’ complete failure to properly
preserve and argue this issue constitutes waiver. No relief is due.
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Nonetheless, we observe in passing, that a directed verdict may be
granted only where the facts are clear and there is no room for doubt.
Fetherolf v. Torosian, 759 A.2d 391, 393 (Pa. Super. 2000), appeal
denied, 796 A.2d 983 (Pa. 2001). One would expect that arguing for a direct
verdict (or JNOV) on appeal would require a detailed exposition of the trial
evidence to demonstrate that no material questions exist such that the entry
of a directed verdict could be made as a matter of law. That detailed exposition
obviously is missing from Appellants’ brief.
I. Coordination and Consolidation of the Cases
In their final issue, Appellants claim their respective cases should not
have been coordinated in Susquehanna County and should not have been
consolidated.
1. Coordination
Appellants claim that the Rogers Estate case was properly initiated in
Lackawanna County, where it had been for over three years before it was
coordinated with the Alvarez Estate case, which had been filed in Susquehanna
County a year after the Rogers Estate filed its case. They claim the cases
should have been coordinated in Lackawanna County, rather than
Susquehanna County, as Lackawanna County would have promoted economy
to the litigants and the judicial system.
Appellants waived their challenge to the coordination order.
Pennsylvania Rule of Appellate Procedure 311(c) allows a party in a civil action
to take an interlocutory appeal as of right from an order “changing venue,
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transferring the matter to another court of coordinate jurisdiction, or declining
to proceed in the matter on the basis of forum non conveniens or analogous
principles.” Pa.R.A.P. 311(c). The right to an interlocutory appeal under Rule
311(c) includes appeals from orders coordinating cases pursuant to Pa.R.Civ.P.
213.1, as such an order effects a change of venue in at least one case. See
Washington v. FedEx Ground Package Sys., Inc., 995 A.2d 1271, 1275
n.3 (Pa. Super. 2010).33 The failure to lodge an interlocutory appeal
constitutes waiver in any subsequent appeal of any challenge “to jurisdiction
over the person or over the property involved or to venue, etc.” Pa.R.A.P.
311(g)(1)(ii). The order at issue here changed venue because it transferred
the Rogers Estate case to Susquehanna County, and Appellants’ challenge on
appeal goes to venue because they claim Lackawanna County was a more
appropriate forum for consolidation. Because Appellants did not file a Rule
311(c) appeal from the order coordinating the cases, they waived this issue.
No relief is due.
2. Consolidation
Appellants lastly contend the cases should not have been consolidated
because certain evidence—such as Rogers’ drug use and the shotgun, the
placement of the vehicle and Rogers’ lack of a license—was properly
____________________________________________
33 See also Wohlsen/Crow v. Pettinato Assoc. Contractors &
Engineers, Inc., 666 A.2d 701, 703 (1995) (“[A]n order directing
coordination of actions in different counties [pursuant to Rule 213.1] is an
interlocutory order appealable as of right.”); DARLINGTON, MCKEON, SCHUCKERS
& BROWN, 20 West’s Pa. Prac., APPELLATE PRACTICE § 311:104 (2021).
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admissible in the Rogers Estate’s case, but not in the Alvarez Estate’s case,
and was in evidence in the Alvarez case only because the cases were
consolidated.
We review an order consolidating cases for an abuse of discretion or
error of law. Moore v. Ericsson, Inc., 7 A.3d 820, 828 (Pa. Super. 2010).
Rule 213 provides:
(a) In actions pending in a county which involve a common
question of law or fact or which arise from the same transaction
or occurrence, the court on its own motion or on the motion of any
party may order a joint hearing or trial of any matter in issue in
the actions, may order the actions consolidated, and may make
orders that avoid unnecessary cost or delay.
Pa.R.Civ.P. 213(a).
Here, the trial court concluded that it “[could not] agree that any
prejudice has occurred to either [Appellant] by consolidating the cases for
trial. Only a very small amount of evidence differed between the two cases,
and then only in the damages portion of trial.” Trial Court Opinion, 2/8/19, at
9. We agree. This was not an abuse of discretion or error of law. The
operative facts were the same in both cases, and no undue prejudice resulted.
Accordingly, Appellants are not entitled to relief.
IV. CONCLUSION
In sum, we first conclude that the trial court committed a harmless error
when it failed to instruct the jury that Lloyd was negligent in light of the fact
Appellants failed to satisfy the element of causation. The jury determined that
the conduct of Decedents caused their harm, i.e., death. Second, the trial
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court did not err in permitting the jury to consider the issue of comparative
negligence. Third, to the extent Appellants challenge the nonsuit entered in
favor Hayden, they preserved for our review only the claim that sufficient
evidence was presented to establish that Hayden knew Lloyd was
feebleminded. In this regard, we conclude that Appellants are not entitled to
review because they did not produce sufficient evidence to prove that Lloyd
could possess the gun used in the shootings only with Hayden’s permission or
that Lloyd was under Hayden’s control as a feebleminded adult suffering from
a cognitive disability rendering him with a mental capacity of that of a young
child. With respect to their fourth issue, challenging the trial court’s grant of
Dr. Shovlin’s motion to quash, Appellants obtain no relief. The trial court did
not abuse its discretion in granting the Motion based upon medical necessity,
which was exacerbated by the conduct of Appellants’ counsel at Dr. Shovlin’s
deposition. Fifth, the trial court did not abuse its discretion in admitting prior
bad acts evidence after Appellants opened the door for such evidence by
introducing testimony that Decedents were upstanding individuals. We decline
to address the merits of Appellants’ sixth, seventh and eighth issues, because
Appellants failed to preserve them for our review. As a result, the issues are
waived. Finally, Appellants are not entitled to relief on their claim that the trial
court erred in coordinating these cases because they did not timely file an
interlocutory appeal under Rule 311(c). Thus, this issue is waived. Relatedly,
Appellants’ claim that their respective cases should not have been consolidated
also lacks merit. The operative facts in both cases were the same and no
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undue prejudice resulted. Accordingly, the trial court did not abuse its
discretion. We, therefore, affirm the trial court’s November 21, 2018 judgment
in favor of Appellees and against Appellants.
Judgment affirmed.34 Application to strike denied. Application to expand
word limited granted. Jurisdiction relinquished.
President Judge Panella, President Judge Emeritus Bender, Judge
Bowes, Judge Olson, Judge Nichols, Judge King, and Judge McCaffery join the
Opinion.
Judge Kunselman files a Concurring Opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/02/2023
____________________________________________
34 Appellees filled an application to strike Appellants’ reply brief to which
Appellants filed an answer and an application to expand the word limit. We
deny the application to strike and grant the application to expand the word
limit.
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