Sheard v. J.J. Deluca Co.

• Decision Date: 07 May 2014
• Citation: 92 A.3d 68,2014 PA Super 98
• Parties: Nicholas SHEARD, Appellee v. J.J. DeLUCA COMPANY, INC., Appellant.
• Court: Pennsylvania Superior Court

92 A.3d 68

2014 PA Super 98

Nicholas SHEARD, Appellee

v.J.J. DeLUCA COMPANY, INC., Appellant.

Superior Court of Pennsylvania.

Argued March 19, 2013.

Filed May 7, 2014.

Edward M. Koch, Philadelphia, for appellant.

Patrick J. Connors, Public Defender, Media, for appellee.

BEFORE: GANTMAN, J., ALLEN, J., and OTT, J.

OPINION BY GANTMAN, J.:

Appellant, J.J. DeLuca Company, Inc., appeals from the judgment entered in the Philadelphia County Court of Common Pleas in favor of Appellee, Nicholas Sheard, in this personal injury action. We reverse and remand with instructions.

The trial court opinion set forth the relevant facts as follows:

Based upon the totality of relevant evidence presented, it is reasonable to infer that the jury considered the following evidence when rendering its verdict:

Sometime in late 2007, [Appellee] was hired as a laborer at Delta Drywall (“Delta”). On the day of the incident, January 10, 2008, [Delta] was a subcontractor and [Appellant] was the general contractor of a construction project site located in Justison Landing, Wilmington, Delaware. [Appellee]'s duties included, inter alia, gathering and distributing supplies to areas where paper and Sheetrock/drywall was being installed, and cleaning up for the next contractor. [Appellee] testified that neither [Delta] nor [Appellant] provided him with any safety training or information pertaining to any safety policies or programs regarding his duties.

On the day of the incident, [Appellee] testified that a portion of the drywall project was near completion but for certain areas on the third floor that had to be redone. This entailed demolishing the drywall, breaking it down into scrap, discarding it, and cleaning the area before the new drywall could be installed.

At the time, [Appellee] and his partner, Jamar Williams, were told to remove all the construction debris on the third floor. Together, they loaded the drywall scraps onto a trash cart (a box on wheels) and a handcart (an apparatus that vertically holds up the drywall), and pushed these carts down the hallway into an apartment that had an opened balcony door. It was their intention to dispose of the debris through the open balcony door. With that in mind, Mr. Williams went outside to serve as the lookout person to ensure that no one walked into the debris being thrown out the overhead opened balcony door.

[Appellee] further testified that within 10 or 15 minutes after he commenced discarding the debris, [Appellant]'s site superintendent and job safety officer, Arthur Paquin, noticed him throwing debris, yelled up at him, and cautioned him not to throw the drywall onto the newly poured sidewalk. Mr. Paquin, however, recalls the event differently, and testified that he did not yell up to [Appellee] but, instead, went up to the third floor and repeated to [Appellee] that [Appellee] “can't be doing this,” and left. [Appellee] denies that Mr. Paquin went to the third floor and personally told him to stop throwing drywall out the opening.

Notwithstanding, whether [Appellee] was admonished from the ground or personally on the third floor, [Appellee] testified that he responded that it would require more effort to throw the drywall out the balcony, miss the sidewalk below and land on the grass. Nevertheless, [Appellee] continued throwing the drywall out the balcony in a harder fashion to avoid the sidewalk. As he was attempting to throw a piece of drywall measuring three feet by five feet, a screw caught his sweatshirt. Somehow, the momentum of [Appellee] hurling the drywall and his sweatshirt being caught by the screw propelled him out through the balcony opening, causing him to fall 22 feet and land partially on the sidewalk, on his right side. Following his fall, [Appellee] momentarily stood up, attempted to walk, but fell back down. He was still conscious when people rushed to assist him.

[Appellee] was rushed via ambulance to Christiana Hospital in Wilmington, Delaware, where he was admitted through the trauma unit. He remained hospitalized until January 13, 2008. [Appellee] was diagnosed with significant injuries to his pelvis and lower back area.

(Trial Court Opinion, filed September 5, 2012, at 1–4).

On December 29, 2009, Appellee sued Appellant for negligence. Appellant filed its answer and new matter on March 31, 2010, which it endorsed with a notice to plead. In its new matter, Appellant asserted the Pennsylvania Workers' Compensation Act precluded Appellee's action. On April 28, 2010, Appellee filed a reply in the nature of a general denial to all averments in the new matter. ( See Plaintiff's Reply to Defendant's New Matter, 4/18/10, at 1; R.R. at 42a) (stating: “All allegations in paragraphs 18 through 40 are denied as conclusions of law to which no response is necessary under the Pennsylvania Rules of Civil Procedure. To the extent that a response may be necessary, the allegations are denied and strict proof is demanded at time of trial”).

The case ultimately proceeded to a jury trial. On November 3, 2011, the jury rendered a verdict in favor of Appellee, awarding $2,004,001.00 in damages and apportioning 80% of the fault to Appellant and 20% to Appellee. Appellee filed a post-trial motion for delay damages on November 9, 2011. On November 14, 2011, Appellant filed its post-trial motion for a new trial, a new trial only on damages, or remittitur, reserving the right to supplement the motion with new bases for relief upon receipt and review of the notes of testimony.

Appellant moved to amend its post-trial motion to request judgment notwithstanding the verdict (“JNOV”) on January 11, 2012, and filed a supporting memorandum of law. In its motion, Appellant re-asserted statutory employer immunity under the Workers' Compensation Act, contending its objection was viable and non-waivable. Appellant sought leave to amend its post-trial motion to seek JNOV.

Appellee filed an answer in opposition to Appellant's post-trial motion. In its answer Appellee admitted Appellant “characterizeditself” as a general contractor and also admitted there was testimony that Delta was Appellant's subcontractor. Appellee denied any evidence was introduced “to establish what that title entailed or what its exact relationship was with [Appellant].” ( See Plaintiff's Answer to Defendant's Motion to Amend its Post–Trial Motion, 1/20/12, at 2; R.R. at 1040a). Appellee contended the trial court should ignore the “subcontract between DeLuca and Delta” attached to Appellant's motion to amend its post-trial motion because “it was never introduced into evidence at trial and was never considered by the jury.” ( Id.). Additionally, Appellee averred Appellant's reliance on Pennsylvania's statutory employer immunity is misplaced, because Delaware law applied to the claim of statutory employer immunity. In its accompanying memorandum of law, Appellee claimed “there is no provision for a ‘statutory employer’ defense” under Delaware law. ( See Memorandum of Law, 1/26/12, at 5; R.R. at 1053a). The court held oral arguments on January 27, 2012. At that time, the court denied Appellant's January 2012 motion to amend the post-trial motion. The court stated:

Very well. Having heard the arguments on this motion from this court's perspective it appears to either have been a strateg[ic] decision not to have argued statutory employer, or a complete oversight on counsel's—on counsel, period. Therefore, this motion is denied. It's deemed to have been waived by failure to have presented evidence on this issue.

(N.T. Post–Trial Motions, 1/27/12, at 12–13; R.R. at 1106a). On February 2, 2012, the court entered separate orders (1) granting Appellee's motion for delay damages and (2) denying Appellant's earlier November 2011 motion for post-trial relief. Subsequently, the court entered judgment on the verdict in favor of Appellee as a final molded award of $1,684,511.63 on February 8, 2012.

Appellant timely filed a notice of appeal on March 7, 2012. On March 8, 2012, the court ordered Appellant to file a concise statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Appellant timely filed a Rule 1925(b) statement on March 26, 2012.

Appellant raises seven issues for our review:

SHOULD [APPELLANT] HAVE BEEN PERMITTED TO AMEND ITS MOTION FOR POST–TRIAL RELIEF TO REQUEST JUDGMENT NOTWITHSTANDING THE VERDICT ON STATUTORY EMPLOYER IMMUNITY BECAUSE SUCH IMMUNITY DEFENSES ARE NOT WAIVABLE?

SHOULD [APPELLANT] BE AWARDED JUDGMENT NOTWITHSTANDING THE VERDICT ON THE STATUTORY EMPLOYER DEFENSE WHERE IT IS APPARENT FROM THE RECORD THAT THE STATUTORY EMPLOYER DEFENSE IS APPLICABLE OR, IN THE ALTERNATIVE, A REMAND FOR A SHORT EVIDENTIARY HEARING IS NECESSARY TO PREVENT THE IMPROPER EXECUTION OF A TORT JUDGMENT UPON AN EMPLOYER IMMUNE FOR TORT SUIT UNDER THE WORKER'S COMPENSATION ACT?

SHOULD [APPELLANT] BE AWARDED A NEW TRIAL WHEN THE TRIAL COURT ABUSED ITS DISCRETION BY ALLOWING [APPELLEE'S] COUNSEL TO ARGUE TO THE JURY THAT OSHA CITATIONS AGAINST [APPELLANT] WERE DELETED AS A RESULT OF SOME “DEAL,” WHEN SUCH AN ARGUMENT WAS FALSE AND CREATED FROM WHOLE CLOTH?

SHOULD [APPELLANT] BE AWARDED A NEW TRIAL WHEN THE TRIAL COURT FAILED TO CHARGE THE JURY ON [APPELLANT'S] DEFENSE OF ASSUMPTION OF THE RISK WHERE THERE WAS EVIDENCE THAT [APPELLEE] WAS AWARE OF THE RISKS OF THROWING DRYWALL OUT OF A THIRD–STORY BUILDING UNDER CONSTRUCTION?

SHOULD [APPELLANT] BE AWARDED A NEW TRIAL WHEN THE TRIAL COURT FAILED TO CHARGE THE JURY THAT [APPELLANT] CANNOT BE LIABLE FOR FAILING TO GUARD AGAINST AN OPEN AND OBVIOUS DANGER THAT WAS PRESENTED BY THROWING DRYWALL OUT OF A THIRD–STORY BUILDING UNDER CONSTRUCTION?

SHOULD [APPELLANT] BE AWARDED A NEW TRIAL WHEN THE JURY'S APPORTIONMENT OF ONLY 20% NEGLIGENCE TO [APPELLEE] WAS AGAINST THE CLEAR WEIGHT OF THE EVIDENCE?

SHOULD THE COURT ORDER REMITTITUR OR A NEW TRIAL AS TO DAMAGES ONLY BECAUSE THE JURY'S TWO–MILLION DOLLAR VERDICT AWARD IS CONTRARY TO THE EVIDENCE, AS THE EVIDENCE ADDUCED...