*1 Armbruster, Appellants, v. Charles ARMBRUSTER Barbara HOROWITZ, DDS, Individually Trading David Pennsylvania Implant
as Northeastern Dentistry, Appellee. General Supreme Pennsylvania. Court of
Argued Dec. 2000.
Decided Dec. *3 Fanelli, Pottsville, Riley, Frederick J. James J. for Charles Armbruster. Patel, Pottsville,
Sudhir Raman Norman Namey, David Kingston, for David Horowitz. FLAHERTY, C.J., ZAPPALA, CAPPY,
Before CASTILLE, NIGRO, SAYLOR, NEWMAN and JJ.
OPINION Justice CASTILLE.
The issue in this an appellate may a properly preserved review of the evidence claim from resigned presided over the where reasons, following the claim. For the without on bench exception an this circumstance is we hold that not that an rule instance, first and that еvidence claim the claim the appellants’ weight merits. properly denied Court order, which af- we affirm the Accordingly, appellee. in favor firmed brought January action in Appellants negligence the instant implants of dental alleging appellee’s that insertion subsequent mouth and course treat- Armbruster’s Charles The matter acceptable practices. from dental ment deviated week-long jury trial before the Honorable proceeded to Munley, M. of Lacka- of the Court Common Pleas James 20, 1997, jury On returned County. wanna November negli- but that his finding appellee negligent, verdict about Mr. bringing factor in gence was substantial harm. Armbruster’s motion, 1, 1997, appellants December filed
On against verdict was arguing length at some motion, appellants Within also the evidence. appellant requested transcription testimony Armbruster, appellee, and two other witnesses. On Charles directing Judge Munley entered order December testimony of those wit- stenographer to transcribe preparation “to aid the Plaintiff in the of his Brief nesses post-verdict motion. The order further di- Support” of two that “Plaintiffs brief shall due weeks after rected *4 Prothonotary with and the testimony transcribed is filed responsive shall have two weeks thereafter file Defendant addition, argument post- that on Brief.” In the order stated upon motions would be scheduled the Court’s consider- verdict “plaintiffs request ation of formal written therefore.” 1997, 10, objected request to the for appellee On December transcription, arguing testimony that of a fifth witness 16, By dated should also be transcribed. order December Munley request. Judge granted docket reflects latеr, i.e., activity no further until over ten months ordered filed, transcript plaintiffs argu- was not request did not ment, responsive did pleading the defendant not file a to the motion, post-verdict the trial court no on issued motion, pending party entry and praeciped neither of judgment under the Rules of Civil In Procedure. late October 1998, however, of flurry activity; there was a of predictably enough, upon Judge this activity Munley’s resignation followed from the Common Pleas bench on October to assume a seat on the U.S. District Court for the Middle District of Pennsylvania. 28, 1998, appellee
On October simultaneously filed two pleadings (1) in the Court of Common Pleas: an answer to Plaintiffs’ Motion for Post-Trial requested Relief which he denied; (2) praecipe relief be entry of on judgment jury pursuant 227.4, verdict to Pa.R.C.P. days because more than one hundred twenty elapsed had filing appellants’ since the of post-trial motion.1 The trial prothonotary administratively judgment entered in favor appellee of day. 29, 1998, the same On October transcript days for two of the of trial was filed. Appellants timely appeal then filed a Court. аppeal,
On appellants again alleged jury verdict contrary panel evidence. A divided Court denied the claim on the merits. The panel majority noted that it was many “aware cases in provides, pertinent part: Pa.R.C.P. 227.4 In provisions any addition to the Rule Civil Act Procedure or Assembly authorizing prothonotary judgment upon to enter shall, praecipe party, prothonotary praecipe party: aof (1) judgment upon enter the verdict aof or the decision
judge following jury, a trial without or enter the decree nisi as the finаl decree, if (b) timely post-trial one or more motions are and the filed court does disposing enter an order all motions within one hundred and twenty days filing after of the first motion. A entered pursuant subparagraph parties to this shall be final as all all subject issues and shall not be to reconsideration. A emphasizes Comment optional the Rule it "is with the or, parties,” parties allows along,” either “move the if case time is not of negotiations the essence or continuing, settlement are parties may simply await the decision of the cоurt.
6 weight a of the jurisprudence
our that hold review of exclusively judge for the trial court claim is reserved evidence Horowitz, presided the trial.” Armbruster v. 744 who over noted, 285, (Pa.Super.1999). The court further how- A.2d 286 ever, supporting position “no case law that had found presiding trial court had left the bench where the claim.” on such a Id. The court held without exception warranted an this unusual situation rule that an not review “In excep- claim “on a ‘cold’record.” these of the evidence circumstances,” reasoned, majority “the inter- panel tional claim be justice require that the the evidence ests vacating by tribunal than reviewed rather Id. remanding new trial.” at The explained that: [tjhere why judge may not be are a host of reasons claim. To available review a evidence cases would require a new each those litigants unnecessary and an burden on the disservice judicial process. Turning appellants’ weight
Id.
the court
the merits
negligence
found that
did not
appellee’s
noted that
injuries.
cause Charles Armbruster’s
The court further noted
those
presented
injuries
had
evidence thát
were
apрellee
poor oral
by
hygiene.
caused
Armbruster’s own
Since there
theory obviously accept-
for the
adequate support
was
defense
concluded,
jury,
panel majority
the verdict did
ed
not “shock the conscience”
relief
unwarranted.
Citing
Judge
The late former President
Cirillo dissented.
(1994)
Brown,
to Commonwealth
Pa.Super.
Tapper,
and Commonwealth v.
450
(1996),
argued
that an
court cannot
dissent
address a
evidence issue based
witness
“Rather,
first
must first
credibility
instance.
issue
present
over
presided
be considered
Munley.”
Judge
Id. at
Appellants argue that has long been the in this law Commonwealth that judge the roles of and tribunal respect challenge are distinct with to a of question evidentiary the evidence. This is so because the of function, uniquely suited to while an appellate court sits in of only trial court’s exercise of they acknowledge discretion the claim. While has, Superior instances, that the Court in certain addressed post-trial claims where trial court failed to rule on the claims did not file an opinion рursuant Pa.R.A.P. and/or 1925(a),2appellants precedents note these do not involve jury’s claims that against verdict was of the they evidence and that distinguishable. are therefore Finally, appellants argue that the Superior Court’s concerns that remand for a new trial would parties be disservice to the judicial process burdensome to the do not warrant the court’s departure from precedent respective our recognizing the roles of the trial and They courts. contend that far “it is better that long-standing precedents [this Court’s] rulеs and followed, if, instances, even in a few rare cases must be retried as preserve so of roles our trial courts and the scope of review.” for at Appellants Brief 21. Ac- 1925(a) provides: 2. Pa.R.A.P. Upon receipt notice who entered the order from, appealed if the already reasons for the appear order do not record, statement, shall forthwith file of at record least brief in the order, opinion, form an rulings the reasons or or of, complained other specify writing matters or place shall
the record where such reasons be found. urge this Court to reverse cordingly, appellants matter for a new trial. and remand this Court any there are number Appellee counters may be unavailable to that a trial rendered reasons death, illness, motion,' including retire entertain ment, require trial in each of resignation, or and to a new justice. In would not serve interests these instances instances, economy dictate argues, equity judicial he such trial court stand in the shoes that the automatically award a rather than and rule addition, appellee notes that the trial. In 1925(a) Rule variety appeals where a has entertained thus, trial court below opinion was filed *7 here, views on often-discre deprived was of trial court’s appellee jury’s that tionary Finally, *8 by appellee cases cited in which our appellate intermediate courts have reached the though merits claims even the trial court 1925(a) failed to file opinion strictly a Rule point; are not on as note, appellants none involved arguably requiring review of claims credibility, trial court's assessment of such as the instant claim that the against weight verdict was of the evidence. See Perkins v. Desipio, (sole (Pa.Super.1999) 736 A.2d presented 608 issue for deter mination was whether dentist must obtain patient informed consent of canal); prior Herman, performing 432, root Gibbs v. 714 A.2d 435- (sole (Pa.Super.1998) 36 issue testimony on was whether was 5930); in Duquesne § admitted violation 42 Light Pa.C.S. Co. v. Dist., 1038, (Pa.Cmwlth.1997) Woodland Hills Sch. 700 A.2d 1045 (weight of evidence claim not appeal); one of eleven issues on raised Wood, 183, 1335, v. Pa.Super. Commonwealth 432 1342 alia, (1994) (raising, sufficiency inter weight of evidence claim but not issue). 10 award, right may is so that imperative a new trial (emphasis origi- Id. prevail.” given opportunity another
nal). that, appel- an consistently recognized while
This also Court its may the trial court abused court late claim, its is not to consider deciding weight in a role discretion Id. at 1191. in the first instance. underlying question regard cabined in this because generally Appellate review appellate vantage trial and points” in between “disparity courts: a plane stands on different
An court its nature court’s decision Whereas than that of a trial court. by an deny a trial is aided on-the-scene grant or new evidеnce, an court’s review rests of the evaluation solely cold record. upon the Thus, explained at as we
11 i.e., here, presented tion is barred reviewing judge from such a claim who presided where the permanently over the trial never ruled on the claim is now do Upon unavailable to so. careful consideration of this issue with impression, agree majority first we exception circumstance warrants an to the barring appellate rule claims in the first instance.
If were that an totally we to conclude entertaining weight instance, barred from in claim the first then, in a such judice, situation as the case sub where the judge actual trial is unavailable to rule upon the we would be left choose between two and unpalatable extreme (1) a automatically grant courses: requiring rule of a new claim; (2) trial for any properly preserved weight or a rule claims rendering automatically parties such unavailable to the in these instances.5 former extremely course would be disruptive integrity judicial to the verdicts and process. above, As we have there is noted some obvious settled, broad, tension between the role of the fact- exclusive assessing findеr in credibility power and the limited trial judges, circumstances, in narrowly circumscribed to overturn judicial those assessments when the merely conscience uncomfortable, disappointed, or but “shocked.” To automati require cally new trial all instances judge where the trial becomes post-verdict challenge unavailable rule of the evidence presumption reverses the In addition to review court and remand for trial, option a third theoretical would remand for be consideration of judge. claim a A successor sucсessor trial case, however, prior no with connection to the would be in the same claim; position appellate judge as an both would proceedings conducting confined "cold record” their review. As the Court has noted: cold "[a] record does any prior not become warmer in the hands of a no has connection with the case than does in the hands of an judge.” (Pa.Su Upshur, A.2d Commonwealth 73 n. 3 appeal 143(Pa.), per.2000), granted, Pa. improvidently (2001). granted, dismissed as *10 12 fact-finder, extraordinary the for makes the
credibility is the the function.6 ordinary, wrongly upon intrudes be occa- judiсial process that would upon The burden judge a trial requiring a rule new whenever sioned challenging motion upon post-verdict to rule a unavailable is weight Weight is no the evidence evidentiary less extreme. course, are are, practice in trial often common claims Brown, in of terms. by rote and the sketchiest See articulated it “all in 1191 is too common” trial (noting A.2d at 648 a litigants present to in motions boiler- practice challenge “sufficiency evi- plate dence”). Moreover, a trial there are numerous reasons sincе rule on such a claim— may become unavailable to judge retirement, illness, death, appointment resignation, including requiring rule new court and election defeat—a to another could lead scores of re- trials on undecided claims heavily already our bur- every year, unduly burdening trials 586, v. Pa. judiciary. Geyer, Commonwealth 546 dened See (1996) (“[T]he 815, economy judicial interests of 818 relieving system repetitious litiga- the court are served nature.”). rule, an contemplate To such extreme any tion only extremely an nar- already exist as where сlaims credibility exclusively rule that is exception row fact-finder, and claims are articulable where the often fashion, might ultimately force Court to only boilerplate at reposed should all be trial power reconsider judges.7 particularly inappropriate given presumption
6. To reverse grant sponte power a new if he trial has the trial sua require. justice See that the interests of so Commonwealth determines 1240, ("A Powell, (1991) A.2d 1242 trial court has v. 590 trial, whenever, right opinion, grant a in its new 'immemor[able] ”) requires.' (quoting justice particular сase March so Co., Philadelphia 285 A. 356 & West Chester Traction Pa. Where, here, omitted)). (1926) (further does not so citations act, automatically require inappropriate in the be extreme to would assumption judge's grounds upon trial on conscience "shocked.” regard, indulge all In we note that not courts notion that upset jury credibility able to determinations courts should be course—ie., The second extreme that appellate rule first, pass upon weight courts cannot claim the instance unavailable, where the trial and thus clаim cannot pursued appeal—is not a fair accommodation competing Litigants not, either. through interests should no own, fault their have arsenal of appellate claims avail- entirely able to them diminished beyond due factors their control.
Given the obvious deficiencies in either the extreme courses, agree we with majority below *11 that, a properly preserved weight where of the claim evidence presided raised on and the at trial failed to rule the claim and is now permanently unavailable to do so, thе claim must be reviewed the tribunal the first instance. We are ability confident our appellate apply courts to exception this appropriately, eye with an delicate balance that exists jury’s between the exclusive role in assessing credibility, and longstanding recognition our power in justice courts to allow opportunity prevail another to when verdict judicial nevertheless shocks the conscience. In regard, this we note that our courts are well-familiar Although with claims. appellate review has been confined to an assessment trial judge’s exercise discretion, it obviously necessary has been to consider the proper and role contours of the weight of the evidence doc- trine, in evaluating that exercise of holding discretion. This exists as an exception to our rule. grounds. Ridge, Austin See Pa. 124-25 (1969). Pomeroy As Justice noted in Austin: (he problem [T]he central [is] what does freedom trial court have to jury review and set aside a verdict presented where the evidence to jury legally sufficient to sustain that verdict? discretion, delimiting In adopted this our has Court an intermediate position virtually between those states which leave trial courts unfet- permit jury tered and to review determinations as a thirteenth hand, those, hand,
juror, on the one and on the other which restrict where, ordering discretion only trial court newa on the it, presented evidence reasonably could not have reached its hewing verdict. In path, adopted to this intermediate our Court has prevailing rule in the federal widely courts and one which is followed in the state courts. (footnotes omitted). Id. properly Court
Having thаt concluded we turn of appellants’ reached the merits correctly denied the claim. the court question than position was in no better Superior Court Since the instance, our review is claim in the first Court to review the plenary. appellee “presented]
Appellants concede that poor suggest Mr. Armbruster’s jury with evidence Appellants implants to fail.” Brief for at hygiene caused his however, they to a They are entitled argue, presented the evidence “the substantial because both of testimony and concessions of jury, including the finding that Dr. Horo experts, supported Dr. Horowitz’s causing Mr. was a substantial factor negligence witz’s failures, pain suffering, implant substantial Armbruster’s agree Id. at 6. with permanent disfigurement.” oral We verdict here does shock one’s justice. sense of experts.” Appel- prototypical
This case “battle testimony of Dr. Charles Musto Dr. presented lants appellant Charles Arm- Anthony Captline, who testified that appellee negligently failed implants bruster’s dental because Appellee mouth. placed them into diseased areas his *12 own, experts of his Drs. Theodore Paladi- with two countered Heller, poor who testified that Armbruster’s no and Alfred and habits—all smoking drinking well as his hygiene, oral as of admitted—were the true cause facts to which Armbruster observing the the wit- injuries. Upon hearing testimony, his demeanors, judging credibility, their the nesses’ experts. cannot con- obviously appellee’s chose to credit We so permissible a choice two views was clude that such between as to shock one’s sense contrary weight of the evidence Indeed, granted a justice. had trial court on of the record, of grounds this would have been an abuse such Superior Court Accordingly, discretion. we hold the appellants’ weight of the evidence claim. properly denied reasons, of For we affirm the order foregoing appellee. favor of affirming Court participate Former FLAHERTY did not Chief Justice the decision of this case. dissenting Z opinion
Chief APPAL A files a in which Justice joins. Justice NEWMAN ZAPPALA, dissenting.
Chief Justice I would reverse the order of the remand pleas this matter to the common I for new trial. apply would appellate rule that an weight initial of conduct the review of a the evidence claim cases, this, judge such as where the trial is not available to address the claim. litigant
A of of seeking review evidence claim disadvantaged by should not of judge, the absence the trial litigant. not within of circumstance the control When an appellate intermediate court conducts the initial of review the litigant’s weight of the claim evidence under such circum- stances, litigant effectively of deprived right is his or her of review. Where the trial who presided over the trial to disрose litigant’s weight available litigant evidence initial is assured of review of the right claim as well as the of that claim. here, Where, available, is not litigant deprived opportunity first review the jurist evidence proceedings, observed the deprived right then is review of the litigants evidence claim. Such petition will have to file a Court, allowance of discretionary with which is rather than automatic.
In balancing competing interests addressed I majority, would litigant strike the balance so that a will receive review of initially by evidence claims а trial presided judge who has thorough over the case and disposition review of preserve those claims. This would *13 the distinct roles that the trial courts appellate courts serve, explained as in Thompson we v. City Philadelphia, of (1985). on a by court its nature stands different appellate
An a trial court’s decision to plane than a trial court. Whereas trial an on-the-scene grant deny or a new is aided evidence, of an court’s review rests appellate evaluation disparity upon a cold Because of solely record. empowered is not vantage points appellate an court of its merely opinion concerning substitute judge. trial court has for that of the Rather our evidence consistently appellate review of the trial court’s held trial grant of a trial is to focus on whether the new discretion, as opposed has abused his palpably find in the record support court can regard must jury’s verdict. In that a new trial grant a trial court’s decision required denial of a manner as we have review the same new trial. propriety
In the entire record determine reviewing trial, an court must first determine can reasons factual basis judge’s whether the trial are facts inferences record supported. Unless there discretion, the trial palpable judge’s abuse of disclose place It is not the an prevail. reasons should any than a judge’s the trial discretion more invade province jury, of a unless both or judge may trial invade the function. palpably have abused their either court’s constituted To determine whether decision discretion, must palpable abuse evidеnce; and assess the “examine record not, however, judge, the trial to determine whether the verdict, opposes the but preponderance of the evidence finding court below in so to determine whether the rather judicial plainly the limits discretion and invaded exceeded jury.” ade- domain of the Where record exclusive court, the court has acted quately supports its judicial within the limits of discretion. (citations omitted; emphasis supplied).
Id. at 672-73 n by the trial court and separate functions served reviewing weight appellаte court when intermediate *14 merged, especially evidence claim should not be to do where so deprive litigant would review of the claim. reason, For this I dissent. joins NEWMAN dissenting opinion.
Justice Pennsylvania, Appellant, v. COMMONWEALTH of Anthony SPETZER, Appellee. Jon Supreme Pennsylvania. April
Submitted 2000.
Decided Dec. notes verdict issues. that of testimony with his entirely consistent questions that is well-settled experts. defense Since fact-finder, argues, credibility appellee for the there solely are a court or an court to justification no for is second-guess that dеtermination.3 is a general rule in this Commonwealth The primarily claim weight of the evidence is addressed See, actually at trial. presided of the discretion argues provides judg- Appellee that since Pa.R.C.P. 227.4 also parties all pursuant be final as to all ment entered thereto ‘‘shall reconsideration,” subject for a new not be remand issues and shall permissible because this would amount to a "reconsidera- trial is not language by appellee judgment. disagree. We noted tion” pursu- only entered on the docket means that oncе has been 227.4, strictly [by is court] ant to Rule “[reconsideration entirety ready in its prohibited and the case is 230, (Pa.Su- Hosp., A.2d 231 process.” v. Univ. 707 Conte Hahnemann denied, 731, curiam), appeal (per Pa. per.1998) 555 (1998). way power 227.4 in no circumscribes the Rule 42 dispose appeal. matter on or otherwise See remand vacate, affirm, ("An modify, may § aside appellate court set Pa.C.S. 706 review, brought may before it for remand or reverse an order order, require entry appropriate of such or such matter and direct the just proceedings under the circum- further to be had Indeed, correct, stances.”). appellee’s position a trial court if were through right deprive party of its certain issues could inaction. 9 Widmer, e.g., 308, 745, Commonwealth v. 744 560 Pa. A.2d Brown, (2000); 1190; Commonwealth v. 751-52 648 A.2d at Karkaria, 412, 1167, (1993); 533 Pa. 625 A.2d 1170 n. 3 Nelson, v. Commonwealth 262, 728, 514 Pa. 523 A.2d 733 n. 3 v. (1987); Thompson City Philadelphia, 592, 507 Pa. 493 Pronkoskie, 669, (1985); Commonwealth v. A.2d 672-73 498 245, 1203, v. Farqu (1982); Pa. Commonwealth 445 A.2d 1206 harson, 50, (1976).4 545, is, 467 Pa. 354 A.2d 549 There course, power some tension between the of trial courts to jury claims, overturn premised upon weight verdicts and the questions credibility bedrock principle exclusively are See, Simmons, e.g., Commonwealth v. the fact-finder. 541 621, (1995) (“LA] 211, Pa. 662 A.2d credibility witness’s is Davis, solely determine.”); for the Commonwealth (1988) (“As 541 A.2d phenomenon lying within ordinary capacity jurors assess, question of a credibility witness’s is reserved exclusively for the jury.”). Accordingly, authority of the trial judge to upset premised a verdict upon weight narrowly claim is circumscribed. A grant cannot a new trial “be cause of in testimony mere conflict or because trial judge on the same facts would have arrived at a different conclu Brown, sion.” 648 A.2d at quoting Thompson, Instead, at 672. granted new trial only should be in truly i.e., extraordinary circumstances, the jury’s “when verdict so contrary to the evidence as to shock justice one’s sense of