text:
    Davis v. Fidelity National Insurance Co.

      Carl J. Guagliardo, for plaintiffs.

      Scott M. Rothman, for defendants.
    March 28, 2014
   MINORA, J.,

Before the court is defendant Fidelity National Insurance Company (hereinafter “defendant”)’s motion for post-trial relief seeking reconsideration of this honorable court’s August 15, 2013 memorandum and order. For the reasons that follow, defendant’s motion is denied and dismissed, and the court’s non-jury decision filed August 15, 2013 is affirmed in all respects.

PROCEDURAL HISTORY

This honorable court’s August 15, 2013 memorandum and order entered judgment in favor of plaintiffs and against defendant in the amount of $2,062,746.59 pursuant to our finding of defendant’s breach of contract and statutory insurance bad faith. Both parties filed motions for post-trial relief to the August 15,2013 order. Plaintiff’s motion, filed September 12, 2013, was denied and dismissed by this court on September 16, 2013.

Defendant’s motion for post-trial relief was filed September 2, 2013. While defendant’s motion was pending in the trial court. Defendant filed a notice of appeal of the order on September 12, 2013, the same day that plaintiffs filed their motion for post-trial relief. On January 17, 2014, the appeal was quashed by the Pennsylvania Superior Court since defendant’s post-trial motion remained pending before our court.

Defendant’s brief in support of its motion for post-trial relief and plaintiffs’ brief in opposition to defendants’ motion were both filed December 23, 2013. Argument on defendant’s motion was held January 14, 2014.

DEFENDANTS’ LEGAL ARGUMENT

Defendant moves for an order granting a new trial with respect to all issues pursuant to Pa.R.C.P. 2227.1(a)(1), (2), (4), and (5), or in the alternative, for an order entering judgment in defendant’s favor, or an order modifying or changing the August 15, 2013 order. Defendant alleges that the court’s damages award of $2,062,746.59 is not supported by Pennsylvania law. Specifically, defendant argues that the trial court applied the wrong standard in assessing plaintiffs’ claim of defendants’ bad faith and erred in awarding lost profits and punitive damages. Defendant’s arguments are further described in the legal analysis section of this opinion below.

LEGAL STANDARD

Post-Trial Motions Regarding Request for a New Trial

The filing and disposition of defendant’s post-trial motion is governed by Pa.R.C.P. 227.1 entitled “post-trial relief.” The rule indicates at Pa.R.C.P. 227.1(a):

“After trial and upon the written motions for post-trial relief filed by any party, the court may:
(1) Order a new trial as to all or any of the issues; or
(2) Direct the entry of judgment in favor of any party;
or
(3) Remove a non-suit; or
(4) Affirm, modify, or change the decision, or
(5) Enter any other appropriate order.

Pa.R.C.R 227.1(c) states that post-trial motions shall be filed within ten days after...(2) notice of nonsuit or the filing of the decision in the case of a trial without a jury. See Covalesky v. Covalesky, 2003-EQ-60069 at 2-3, (Lacka. Co. Jan. 14, 2014).

Regarding post-trial motions, trial courts possess broad discretion to grant or deny a new trial. Covalesky, 2003-EQ-60069 at 7; Harman v. Board, 562 Pa. 455, 465, 755 A.2d 1116 (2000). The granting or denial of a new trial can be an effective instrumentality for seeking and achieving justice in those instances where the original trial is proven to have failed to produce a just and fair result. Covalesky, 2003-EQ-60069 at 7 (citing Dornan v. McCarthy, 412 Pa. 595, 195 A.2d 520, 522 (1963); Harman, 562 Pa. at 466). Review of a denial of a new trial request requires the same analysis as a review of a grant of new trial. Covalesky, supra at 13 (citing Luzerne County Flood Protection Authority, 825 A.2d at 783-84). If support for a trial court’s decision is found in the record, its order must be affirmed. Randt v. Abex Corp., 671 A.2d 228, 448 Pa. 224 (Pa. Super. 1996).

In reviewing post-trial motions seeking a new trial, a court must begin with an analysis of the alleged underlying conduct or omission by the trial court that forms the basis for the request or motion. This analysis involves a two-step process. First, the court must decide whether one or more mistakes that implicate factual, legal or discretionary matters may have occurred during trial. Second, if the court determines that an error or mistake did occur, it must determine if the alleged mistake or error was so grievous as to provide a sufficient basis for granting a new trial. See Covalesky, supra at 8 (citing Harman, 562 Pa. at 467; Bey v. Sacks, 789 A.2d 232, 236 (Pa. Super. 2001); Luzerne Co. Flood Protection Authority v. Reilly, 825 A.2d 779 (Pa. Cmwlth. 2003).

A new trial is not warranted simply because an error may have occurred at trial or because another judge may have ruled differently. Covalesky, 2003-EQ-60069 supra, at 8. The moving party must prove they suffered some prejudice as a result of the error. Id. (citing Bey, 789 A.2d at 236). This analysis implicates the hannless error doctrine, which underlies every decision to grant or deny a new trial. Id. This is so because the court, being a human institution, cannot ever guarantee a perfect trial. Id. What it seeks to do is provide a trial free of reversible error concluding with a fair result. Id.

In our review of defendant’s motion for post-trial relief, we are guided by the law we followed in Covalesky, 2003-EQ-60069 (Jan. 14, 2014) at 9, which states:

In performing the first stage of analysis, the court is guided by two scopes of review. Where a mistake or series of mistakes are alleged to have occurred, which is our case, the court is to apply a narrow scope of review using the applicable standards for factual, legal, or discretionary matters alleged to be in error.
Conversely, if allegations are made that a new trial is appropriate “in the interests of justice” or in the name of justice then a broad scope of review implicating the entire trial record is in order. Harman, 562 Pa. at 467-68; Divilly v. Port Authority of Allegheny County, 810 A.2d 755 (Pa. Cmwlth. 2000), appeal denied, 829 A.2d 1158, 574 Pa. 749.
Using the narrow scope of review, we look to the type of error alleged. If the error alleged is factual, then factual error analysis of a narrow scope must be conducted. Id. In our case, the court acted as the finder of fact. A jury, like any other factfinder, “...may accept all, none, or part of any expert’s testimony...” (emphasis added) (citing Donoughe v. Lincoln Electric Co., 936 A.2d 52 (Pa. Super. 2007)). Even un-contradicted testimony need not be accepted as true or accurate, especially opinion evidence. Taliaferro v. Darky Twp. Zoning Hearing Bd., 873 A.2d 807 (Pa. Cmwlth. 2005).
Therefore, the court’s findings of fact must be tested under an abuse of discretion layer of analysis. If the mistake alleged involves a discretionary act, it should be tested for abuse of the exercise of that discretion in order to detennine if error has occurred. The standard of review of a trial court’s decision post-trial is whether the trial court palpably and clearly abused its discretion or committed an error of law which controlled the outcome of the case. Coker v. Flickinger Co., 553 Pa. 441, 445, 625 A.2d 1181 (Pa. 1993).... “Abuse of discretion is not a mere error of judgment; one must show that the law was misapplied or overridden, or that the judgment exercised was manifestly unreasonable or the result of bias, prejudice or partiality.” Covalesky, supra at 13 (citing Cacurak v. St. Francis Medical Center, 823 A.2d 159 (Pa. Super. 2003).

Covalesky v. Covalesky, 2003-EQ-60069, supra at 9, 13.

In Covalesky, we also noted “a narrow scope of review is appropriate to apply when specific reasons are raised as the only basis for a new trial.” Id. at 10. Since specific reasons were the only reasons raised as the basis for a new trial in Covalesky, a narrow scope of review was performed. Id. Likewise, in the matter before us, defendant Davis has raised specific issues on their respective motion for a new trial. Therefore the narrow scope of review is required in the present case.

LEGAL ANALYSIS

To assess defendants’ claims, we must first examine whether we believe a mistake was made at the trial court. Covalesky, supra at 8-9; this opinion at 3-4. If the court concludes a mistake was made, we must analyze whether that error so prejudiced the moving party that it rose beyond harmless error to the point of being reversible error. Covalesky, supra at 13 (internal citations omitted).

I. The Trial Court Properly Found That Defendants Breached the Bad Faith Statute, 42 Pa.C.S. § 8371

Defendant first argues that the court’s finding that defendants breached the Bad Faith Statute, 42 Pa.C.S. § 8371, is erroneous because plaintiffs did not meet their burden of proving bad faith by the standard of clear and convincing evidence.

We find no error was made in our determination of defendants’bad faith pursuant to 42 Pa.C.S. § 8371. Support for defendants’ bad faith by clear and convincing evidence exists in the record in the form of correspondence between plaintiff-insureds and defendant-insurer; correspondence between defendants’ claims attorney and claim manager; testimony of witnesses of plaintiff and defendant; and in the form of admissions by defendant-insurer, as noted in our August 15, 2013 opinion at pp. 8-9. See also defendant’s proposed conclusions of law nos. 3-4.

Accordingly, since the record supports our factual conclusion, the relief requested by defendants with respect to the trial court’s finding of defendant’s bad faith is denied and dismissed.

II. The Trial Court’s Lost Profits Award Was Proper

Defendant next argues the trial court’s award of lost profits was erroneous because the lost profits award did not follow from an application of the standard of clear and convincing evidence. Specifically, defendant argues that although the trial court acknowledged this standard, there was no showing that 1. Plaintiffs’ damages were proximately caused by defendants’ wrong, 2. there was no reasonably certain proof of the damages, and 3. the damages were not foreseeable. See defendant’s brief in support of its motion for post-trial relief at pp. 4, 20, and 24. Built into defendant’s argument is their claim that plaintiffs did not establish lost profits with reasonable certainty since the projected profit was speculative with respect to increased construction costs and depreciation of the townhomes. Id. at pp. 6, 9, and 17.

As we did in our review of our finding of defendant’s § 8371 bad faith above, if the court must review whether a mistake was made in its determination of lost profits, and if we conclude there was such mistake, we must analyze whether that error so prejudiced the moving party that it rose beyond harmless error. See this opinion at 3-4, citing Covalesky, supra, at 8-9, 13; Harman, 562 Pa. at 467; Bey, 789 A.2d at 236; and Luzerne Co. Flood Protection Auth., 825 A.2d 779. With respect to the court’s analysis of lost profits, we find no mistake was made. Our conclusion is supported by discussion of the 3 elements on this page above with respect to plaintiffs’ increased construction costs and depreciation damages due to defendant’s conduct.

1. There was a Showing that Plaintiffs’ Damages Were Proximately Caused by Defendants’ Wrong

Defendants allege that the court did not prove by clear and convincing evidence that plaintiffs’ damages were proximately caused by defendant’s wrong. See defendant’s brief in support of its motion for post-trial relief at 20. As discussed in our August 15, 2013 opinion, this court, as finder of fact and assessor of credibility, properly found defendant’s bad faith, breach of contract, and breach of the covenants of good faith and fair dealing were the cause of the delay in construction of plaintiffs’ twelve townhomes. See Davis v. Fidelity National Ins. Co., memorandum and order, 2010-CV-8868, (Aug. 15, 2013) at pp. 12-18 (hereinafter "Davis, 2010-CV-8868”). The trial court properly assessed its award of primary lost profits, based on its review of the record. The court found credible the evidence presented by plaintiff and defendant appraisers and plaintiffs’ contractor regarding depreciation of home values and increased construction costs of the homes as a result of the delay in their construction.

Accordingly, since the record supports our factual conclusion, we find no error that plaintiffs’ damages were proximately caused by defendant’s wrong.

2. Plaintiffs Lost Profit Damages (As Laid Out By the Court With Respect to The Depreciation and Increased Construction Cost Damages, Included in the Court’s Determination of Lost Profits) Were Established with Reasonable Certainty

Defendants also argue the trial court’s lost profits award flows from a misapplication of the correct legal standard requiring “reasonably certain proof.” Defendants allege that the lost profits award was precluded by the trial court’s own findings concerning the lack of evidence for any timeframe for development and construction and the unreliability of hypothetical valuations, and specifically in the court’s assessment of depreciation damages and increased construction costs. See defendant’s brief in support of its motion for post-trial relief at pp. 17-18.

As we did above in our review of the August 15, 2013 findings of defendant’s bad faith and defendant’s wrong causing plaintiff harm, we again note that to whether there was a mistake, a court must begin with an analysis of the alleged underlying conduct or omission by the trial court that forms the basis for the request or motion for new trial. Next, the court must also decide whether there are one or more mistakes that implicate factual, legal, or discretionary matters, that may have occurred during trial. See this opinion at 3-4 (citing Covalesky, 2003-EQ-60069 at 8-9, 13; Harman, 562 Pa. at 467; Bey, 789 A.2d at 236; Luzerne Co. Flood Protection Auth., 825 A.2d 779). As set forth below in sections a and b below, we hold that based on the record there was no mistake in our finding of lost profits. We also hold lost profits were established with a reasonable certainty.

a. The Trial Court Properly Determined Depreciation Damages

This court made no mistake in its analysis of depreciation damages. The trial court, as sole assessor of credibility, may believe all part, or none of the evidence presented. Lou Botti Construction v. Harbulak, 2000 Pa. Super. 287, 760 A.2d 896, 898 (2000). This court found the evidence offered by plaintiff and defendants’ licensed real estate appraisers “to be competent, credible, relevant, and admissible.” See Davis, 2010-CV-8868, introduction at p. 2, and conclusions of law at p. 21 ¶ 20. The court, in properly exercising its discretion as fact finder, determined a depreciation value of the townhomes was somewhere in between the timelines asserted by plaintiff and defendants’ expert real estate appraisers, and allowed for $135,000 for depreciation, half of what plaintiff’s expert appraised for depreciation. See Davis, 2010-CV-8868 at p. 21. Where the amount of damages can be fairly estimated from the evidence, the recovery will be sustained even though such amount cannot be determined with complete accuracy. Kaczkowski v. Bolubasz, 491 Pa. 561, 567, 421 A.2d 1027 (1980).

Accordingly, since the trial court’s determination of depreciation damages are supported in the record in the form of the testimony of plaintiff and defendant’s appraisers, depreciation damages were established with a reasonable certainty. As such, we find no mistake made by the trial court in its calculation of depreciation damages.

b. The Trial Court Properly Determined Increased Construction Costs

Likewise, in performing the same review of whether the court made a mistake in its finding of plaintiff’s increased construction costs of the townhomes, the trial court made no such mistake. See Covalesky, 2003-EQ-60069 at 8-9, 13; Harman, 562 Pa. at 467; Bey, 789 A.2d at 236; Luzerne Co. Flood Protection Auth. 825 A.2d 779. The trial court found plaintiffs’ building contractor’s testimony and evidence with regard to increased construction costs to be “competent, credible, relevant, and admissible.” See Davis, 2010-CV-8868, introduction atp. 2 and conclusions of law at p. 21. The court’s determination as to increased construction costs is therefore supported by testimony in the record. We find no error in the calculation of increased construction costs.

Accordingly, since the trial court’s findings of depreciation and increased construction costs are both supported in the record, the trial court made no mistake in its findings as to lost profits. Lost profits were established with reasonable certainty.

3. The Trial Court Properly Found That Plaintiffs’ Lost Profits Were Foreseeable

Finally, in our review of the trial court’s determination of lost profits, we must assess whether the court made a mistake in its detennination that plaintiffs’ lost profits were foreseeable. See this opinion at 3-4; Covalesky, 2003-EQ-60069 at 8-9. The trial court properly found that plaintiffs’ lost profits were foreseeable. This determination is supported by the record. See Davis, 2010-CV-8868, findings of fact at pp. 2-8.

This court, using its discretion as fact finder, found credible plaintiffs’ evidence at trial that defendant had knowledge that plaintiffs’ title insurance policy was for residential development, including the construction of townhomes. The court found defendant had this knowledge both before and at the time the policy was issued.

We also found credible evidence in the record showing that defendants were aware of the delay they had caused in the construction. See N.T. Vol. I, p. 33-34 (hereinafter “N.T.”); Davis, 2010-CV-8868, non-jury trial (Lacka. Co.) (Jan. 29-31, 2013). In addition, the record supports that it was reasonable for defendant to have known or should have known market conditions change from year to year and delay would affect the value of plaintiffs ’ development. Defendants’ appraiser Mr. Yuter, acknowledged at trial how market conditions can change drastically from year to year. See N.T. Vol. III p. 69 line 24-25.

Therefore, we made no mistake in finding plaintiffs’ damages for lost profits in the form of increased cost of construction and depreciation were reasonably foreseeable.

As this court properly exercised its discretion as fact finder to determine that 1. Plaintiffs’ lost profits were caused by defendant’s wrong; 2. the lost profits were established with reasonable certainty; and 3. the lost profits were reasonably foreseeable, as supported by the record, there was no mistake in the court’s determination of lost profits. Accordingly, the relief requested by defendants with respect to the trial court’s finding of lost profits is denied and dismissed.

III. Whether The Trial Court’s Award of Lost Profits Was “In Derogation of the Contractual Liability in the Title Insurance Policy” Is to No Avail

Defendant next argues that the trial court’s award of compensatory damages in the form of lost profits was trial court error because a lost profits award is precluded by the title insurance policy. See defendant’s brief in support of motion for post-trial relief at p. 21. Defendant’s argument is without merit. No mistake was made at the trial court. See Covalesky, 2003-CV-60069 at 8-9. As noted in our August 15, 2013 opinion at p. 16, in Pennsylvania, consequential damages may be awarded for bad faith. See Davis opinion, conclusions of law at p. 15 ¶ 1. As addressed both in the August 15, 2013 opinion at pp. 13-17 and p. 21 and in this opinion on p. 6, the trial court properly found that defendant engaged in bad faith conduct under 42 Pa.C.S. § 8371(a) and that plaintiffs endured lost profits. Finally, primary lost profits are a proper measure of consequential damages in this case. Davis, 2010-CV-8868 at p. 15 ¶ 2 and p. 16 ¶ 3.

In properly determining defendant’s bad faith and plaintiffs’ lost profits being caused by this bad faith, the trial court’s award of lost profits, supported by the record, was appropriate. Defendant’s requested relief with respect to a lost profits award “in derogation of the contractual liability in the...policy” is denied and dismissed.

IV. The Trial Court’s Punitive Damages Award of $1,572,909.24 Was Proper

Defendant also alleges that the trial court erred in awarding excessive punitive damages because there was no finding of ill-will, fraud, or dishonest purpose by defendant. We hold there was no mistake in the trial court’s conclusion of defendant’s ill-will and resulting calculation of punitive damages. See Davis, 2010-CV-8868 at p. 14 ¶22. The punitive damages award is based on the various factors set forth in detail in our August 15, 2013 opinion, all of which are supported in the record through stipulations, submissions of the parties, exhibits, and testimony. See Davis, 2010-CV-8868, at pp. 21-23. In addition the facts of our case follow case law on punitive damage multipliers. Id.; see also plaintiff’s brief in opposition to defendant’s motion for post trial relief at pp. 18-19 (and case law within). As the record supports the punitive damages award, no mistake has been made. See Covalesky, supra at 8-9. Therefore, the relief requested by defendants with regard to punitive damages is denied and dismissed.

Since the record supports the trial court’s decisions as to all components raised by defendant in defendant’s motion for post-trial relief, the trial court’s order must be affirmed. Randt v. Abex Corp., 671 A.2d 228, 448 Pa. 224 (Pa. Super. 1996) (emphasis added).

An appropriate final order and entry of judgment follows.

FINAL ORDER

And now, this 28th day of March 2014, upon this court’s thorough review of the pleadings, the answers thereto, the briefs in support and in opposition, the trial record transcript and arguments of able counsel, it is hereby held:

(1) Defendants’ motion for post-trial relief is denied and dismissed;
(2) The non-jury decision by the court filed August 15, 2013 is hereby affirmed in all respects per Pa.R.C.P. 227.1;
(3) The clerk of judicial records is directed to enter judgment in accordance with the non-jury decision and order filed August 15,2013;
(4) This order, in conjunction with our non-jury decision of August 15, 2013 and with our September 16, 2013 order denying and dismissing plaintiffs’ motion for post-trial relief represents a final order for appellate purposes and for Pa.R.C.P. 1925(b) purposes.


source: Caselaw Access Project

author: COX, J.,

license: Public Domain

text:
    Susa v. Ellwood City Hospital

      Josephs. Beilis simo and Scott M. Simon, for plaintiff.

      Kathryn M. Kenyon, for defendants Ellwood City Hospital and Ellwood City Hospital d/b/a Mary Evans Extended Care Center.

      Sean D. Callaghan, for defendant Valley Medical Facilities, Inc. d/b/a The Medical Center, Beaver, Pa.
    April 3, 2014
   COX, J.,

Before the court for disposition are the partial motions for summary judgment filed on behalf of the defendants Ellwood City Hospital, Ellwood City Hospital d/b/a Mary Evans Extended Care Center and Valley Medical Facilities, Inc. d/b/a the Medical Center, Beaver, PA, (hereinafter “defendant Valley Medical”) which argues that the expert testimony fails to establish a causal connection between the worsening of the decedent’s pressure wounds and the failure to properly assess the decedent’s nutritional status, failure to accurately document the decedent’s skin condition, improper staffing and failure to properly educate their staffs.

On April 24, 2008, the decedent George Susa was admitted to the Medical Center, Beaver, PA (hereinafter “Medical Center”) to have a transurethral prostatectomy to treat his benign prostatic hyperplasia. Prior to the surgery, a Braden Pressure Ulcer Risk Assessment was performed on the decedent, which revealed he had a score of 6 indicating he was at high risk for developing pressure wounds. The decedent underwent the surgery that lasted for approximately one hour and fifteen minutes, in which he was placed in the dorsal lithotomy position that put direct pressure on his sacral region. The decedent was not repositioned while in the Post-Anesthesia Care Unit or “PACU,” even though he was considered a high risk for the development of pressure related skin ulcers. On April 25, 2008, a nurse employed by Valley Medical Facilities, Inc. (hereinafter “defendant Valley Medical”) noted a change in the decedent’s skin condition, marking his chart with the note “post op meatus & coccyx.” He was repositioned every two hours. The next day, the decedent was moved to a recliner where he spent six and one-half hours without being repositioned and no pressure relieving devices were utilized. Over the next few days, there were notes relating to changes in the decedent’s skin condition, but no physician was contacted nor was a wound care assessment performed at that time. On April 28, 2008, nutrition services indicated that the decedent was 90 percent of his ideal body weight and he was a high nutritional risk. At the time, he was too lethargic to eat properly. His original weight upon entering the medical center was 135 pounds. On May 1,2008, nutrition services recommended tube feeding if he continued to be unable to orally ingest nutrition. On that day, the decedent’s daughter expressed concern over her father’s deteriorating health. On May 4, 2008, a specialty bed was ordered for the decedent, but there is no indication the specialty bed was provided to the decedent.

It was noted that the decedent’s appetite increased on May 5, 2008, when he was admitted to Providence Care Center and his weight was recorded as 136.4 pounds. However, on May 7, 2008, the decedent’s weight decreased to 131.4 pounds. The decedent was then transferred to Katera’s Kove on May 12, 2008, and his weight was recorded as 131.4 pounds. It was documented that the decedent had two pressure ulcers, a Stage II and a Stage III wound, near his coccyx. On May 12,2008, the decedent was taken to the emergency room at Ellwood City Hospital and it was noted that he was “thinly built and poorly nourished.” His weight at that time was 122 pounds and 11.2 ounces. Defendant Ellwood City Hospital was unable to obtain a specialty mattress for the decedent at that time. Dr. James L. Gardner, Jr., provided a wound consultation upon the decedent’s admission to Ellwood City Hospital. There does not appear to be any evidence that a plan of care was created for the decedent’s skin breakdown. Also, while at Ellwood City Hospital, his nutritional status began to decline. He had an oral intake of 38 percent of meals with a fluid intake of not more than 960 cc daily and the plan was to continue the present plan of care. On May 18,2008, it was ordered that the decedent be given a can of Boost 1 three times daily.

On May 20,2008, the decedent was transferred to Mary Evans Extended Care Unit (hereinafter “Mary Evans”), which is the skilled nursing section of Ellwood City Hospital. At that time, the decedent underwent a pressure ulcer assessment that revealed he had three pressure ulcers near his coccyx, a Stage IV wound and two Stage II wounds. The decedent’s weight was 137 pounds upon admission at Mary Evans, It was also ordered that the decedent be given a can of Boost 1 twice daily, which was reduced from one can of Boost 1 three times daily. Another pressure ulcer assessment was conducted on May 28, 2008, which indicated that the decedent developed a fourth pressure ulcer and two other wounds had deteriorated. The records demonstrated that the decedent had a Stage IV wound, two Stage III wounds and a Stage III wound. However, a minimum data set was completed several days later that indicated the decedent had three pressure ulcers. There is no indication that the employees of Mary Evans walked the decedent to relieve pressure from the wounds, even though the records demonstrate that he was able to ambulate for 20 feet with a wheeled walker.

On June 4,2008, the decedent was discharged to Kindred Hospital for management of his pressure ulcers. At that time, he had three pressure ulcers, which included a Stage IV wound, a Stage III wound and a Stage II wound, near his coccyx. Upon being admitted to Kindred Hospital, it was determined that the decedent had an additional Stage II pressure ulcer on his coccyx. After extensive treatment at Kindred Hospital, the decedent’s wounds began to heal. He was then transferred to Beaver Valley Nursing Center for rehabilitation on July 1,2008. By August 22,2008, the decedent completed his rehabilitation and was transferred to Katera’s Kove. The decedent’s pressure ulcers, were healed by December of 2008. The decedent continued to live at Katera’s Kove until he died on March 3, 2012.

On April 7, 2010, the plaintiff filed suit seeking damages based upon claims for medical malpractice by the defendants based upon their alleged failure to provide adequate care for the decedent’s pressure ulcers and his malnutrition. In support of these claims, the plaintiff has presented the expert reports of Mary Arnold Long, who has expertise in the field of nursing, and Thomas E. Serena, M.D., a surgeon, to provide his opinion in the field of wound care. In response, the defendants have now filed their motions for partial summary judgment contending that the expert reports presented by the plaintiff fail to establish the essential element of causation.

The purpose of the summary judgment rule is to eliminate cases prior to trial where a party cannot make out a claim or defense after the relevant discovery has been completed. Miller v. Sacred Heart Hospital, 753 A.2d 829 (Pa. Super. 2000). Summary judgment may be granted only in cases where it is clear and free from doubt that there is no genuine issue as to any material fact and that the moving party is entitled to a summary judgment as a matter of law. Kafando v. Erie Ceramic Arts Co., 764 A.2d 59, 61 (Pa. Super. 2000) (citing Rush v. Philadelphia Newspapers, Inc., 732 A.2d 648, 650-651 (Pa. Super. 1999)). A material fact, for summary judgment purposes, is one that directly affects the outcome of the case. Gerrow v. Shincor Silicones, Inc., 756 A.2d 697 (Pa. Super. 2000). When determining whether to grant a motion for summary judgment, the court must view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 752 A.2d 339 (2000). Thus, a proper grant of summary judgment depends upon an evidentiary record that either (1) shows the material facts are undisputed or (2) contains insufficient evidence of facts to make out a prima facie cause of action or defense. Rauch v. Mike-Mayer, 783 A.2d 815 (Pa. Super. 2001). The trial court must confine its inquiry when confronted with a motion for summary judgment to questions of whether material factual disputes exist. Township of Bensalem v. Moore, 152 Pa. Cmwlth. 540, 620 A.2d 76 (1993). It is not the function of the court ruling on a motion for summary judgment to weigh evidence and to determine the truth of the matter. Keenheel v. Pennsylvania Securities Commission, 143 Pa. Cmwlth. 494, 579 A.2d 1358 (1990).

In order to establish a claim for negligence, a plaintiff must prove the following elements: “(1) the defendant owed a duty to the plaintiff; (2) the defendant breached that duty; (3) a causal relationship between the breach and the resulting injury suffered by the plaintiff; and (4) actual loss suffered by the plaintiff.” Reeves v. Middletown Athletic Ass’n, 866 A.2d 1115, 1126 (Pa. Super. 2004) (citing Burman v. Golay & Co., Inc., 420 Pa. Super. 209, 616 A.2d 657 (1992)). Under Pennsylvania law, a plaintiff must establish that the defendant’s action was a substantial factor in bringing about the harm incurred. Mahon v. W.C.A.B. (Expert Window Cleaning and State Workers’ Insurance Fund), 835 A.2d 420, 428 (Pa. Cmwlth. 2003) (citing Smith v. Philadelphia Transportation Co., 202 Pa. Super. 278, 195 A.2d 168, 170(1963)). “In detennining whether a factual cause is a legal cause, the jury must consider many elements, including intervening natural events, the passage of time, intervening actors, and the conduct of the injured party.” Van Buskirk v. Carey Canadian Mines, Ltd., 760 F.2d 481, 494 (3d Cir. 1985). It is important to note that determining causation is an issue for the jury to decide, unless the evidence is such that reasonable people cannot disagree. Kirschner v. K & L Gates LLP, 46 A.3d 737, 754 (Pa. Super. 2012) (citing Curran v. Stradley, Ronon, Stevens & Young, 361 Pa. Super. 17, 521 A.2d 451, 455 (1987)). “Because the negligence of a physician encompasses matters not within the ordinary knowledge and experience of laypersons a medical malpractice plaintiff must present expert testimony to establish the applicable standard of care, the deviation from that standard, causation and the extent of the injury.” Toogood v. Owen J. Rogal, D.D.S., PC., 573 Pa. 245, 255, 824 A.2d 1140, 1145 (2003) (citing Hightower-Warren v. Silk, 548 Pa. 459, 698 A.2d 52, 54 (1997)).

In her expert report, Ms. Long identified several issues with the care provided by the defendants, which included the lack of repositioning of the decedent following his surgeiy, failing to provide a more suitable resting surface for him, such as a chair cushion or a different mattress, the failure to notify a physician of changes to the decedent’s skin condition, failing to perform a wound care consultation and a failure to adequately treat the decedent’s skin condition. Ms. Long also stated that there was a failure by the defendants to address the decedent’s nutritional issues. However, her report is devoid of any reference as to whether the decedent’s malnutrition actually caused or attributed to the harm suffered by the decedent. Ms. Long states, “lack of attention to Mr. Susa’s nutritional status may have affected Mr. Susa’s long term outcome” and “Mr. Susa’s stage IV pressure ulcer was the result of an avoidable suspected deep tissue injury suffered at Beaver Valley Hospital following Mr. Susa’s admission 4/24/08.” Concerning defendant Valley Medical, Ms. Long emphasizes that there were issues with the medical care provided to the decedent, such as failure to provide a pressure dispersion surface or table, there was no evidence of repositioning of the decedent, failure to reposition the decedent on April 26, 2008, infrequent repositioning, failure to provide an alternative support surface for the decedent’s bed, failure to inform a physician of changes to the decedent’s skin condition and there is no evidence of treatment initiated to sacrococcygeal area when impairment to skin integrity was recognized. These statements seem to indicate that defendant Valley Medical breached its standard of care in those areas. In addition, Ms. Long cited to the following issues with the care provided by defendant Ellwood City Hospital and Mary Evans: the air mattress not placed for four days, no plan of care created for potential or actual skin impairment and the transfer form was silent on any order for a mattress or chair cushion. Ms. Long did not provide a causal connection between the decedent’s pressure wounds and the actions or inactions of the defendants concerning nutritional issues, failure to document changes in the decedent’s skin condition, lack of training for their staffs, failure to provide a sufficient number of personnel and their failure to provide timely medical attention.

The plaintiff also provided the expert report of Thomas E. Serena, M.D., who specializes in wound treatment and hyperbaric medicine. He provided an explanation of causation in relation to the pressure wounds and the treatment the decedent received from the defendants. He explained that the pressure ulcers developed as a result of inattention during the peri-operative period at Beaver Valley Hospital. In addition, the pressure ulcers worsened and another pressure ulcer developed due to inattention during the decedent’s stay at Ellwood City Hospital and Mary Evans. Dr. Serena also stated, “Further, the breaches were causes in fact and substantially contributed to the development and progression of the pressure ulcers.” Therefore, the plaintiffs have presented sufficient evidence to establish the element of causation for the claims involving the development and progression of the decedent’s pressure ulcers. Conversely, the plaintiffs have failed to demonstrate that the lack of diagnosis and inattention or mistreatment of the decedent’s malnutrition contributed to any harm or injury sustained by the decedent.

For the reasons set forth in this opinion, the court grants the defendants’ motions for partial summary judgment in part and denies the motions in part. The plaintiff did not demonstrate that the defendants’ lack of staffing, lack of documentation concerning the decedent’s skin condition, failure to properly train their staffs and failure to address the decedent’s nutritional issues contributed to the worsening of the decedent’s pressure wounds. Paragraph 175 subparagraphs A through C, G, N, S, V through Z, paragraph 177 subparagraphs A through M, O through Q, paragraph 197 subparagraphs A through C, the portion of subparagraph F concerning defendant Ellwood City Hospital’s failure to notify the decedent’s family of his changes in condition, H through N, P through T, V, Y, AA through DD, FF, GG and paragraph 199 subparagraphs A through M, O through LL and NN through SS of the complaint are stricken. These paragraphs contain allegations stemming from the decedent’s malnutrition as well as the defendant’s lack of staffing, failure to provide nursing protocols, failure to properly train their nursing staffs, failure of the defendant’s employees to document the decedent’s condition and failure to properly supervise their staffs for which there is no expert testimony establishing causation. The plaintiff may proceed to trial on all other allegations in his complaint.

ORDER OF COURT

Now this 3rd day of April, 2014, this case being before the court on January 27, 2014, for oral argument on the partial motions for summary judgment filed by the defendants Ellwood City Hospital, Ellwood City Hospital d/b/a Mary Evans Extended Care Center and Valley Medical Facilities, Inc. d/b/a The Medical Center, Beaver, PA, with the parties appearing through their counsel, Thomas Susa, as administrator of the estate of George Susa, deceased, represented by counsel, Joseph S. Bellissimo, Esquire and Scott M. Simon, Esquire and the defendant Ellwood City Hospital and Ellwood City Hospital d/b/a Mary Evans Extended Care Center represented through counsel, Kathryn M. Kenyon, Esquire and the defendant Valley Medical Facilities, Inc., d/b/a The Medical Center, Beaver, PA, represented through counsel, Sean D. Callaghan, Esquire and after consideration of the arguments and briefs presented and submitted by counsel and a complete and thorough review of the applicable record, the court enters the following order and it is hereby ordered, adjudged and decreed as follows:

1. In accordance with the attached opinion, the partial motions for summary judgment filed by the defendant are granted as follows. Paragraph 175 subparagraphs A through C, G, N, S, V through Z, paragraph 177 subparagraphs A through M, O through Q. Paragraph 197 subparagraphs A through C, the portion of subparagraph F concerning defendant Ellwood City Hospital’s failure to notify the decedent’s family of his changes in condition, H through N, P through T, V, Y, AA through DD, FF, GG and paragraph 199 subparagraphs A through M,0 through LL and NN through SS of the complaint are hereby stricken from the complaint and dismissed with prejudice.

2. The court enters summary judgment on the subparagraphs set forth above.

3. The prothonotary is directed to serve a copy of this order of court upon counsel of record.

      . Katera’s Kove is a personal care and secured dementia community, which provides 24-hour care for its residents.

      . It must be noted that the plaintiff’s expert Mary Arnold Long, MSN, RN, CRRN, CWOCN-AP and ACNS-BC, stated that it was likely this weight was an estimate and the decedent was not actually weighed as it is improbable that he would have gained 14 pounds based upon his limited diet.

      . Kindred Hospital is a transitional care hospital, which provides long-term acute care to patients needing continued care or extended recovery time.


author: YOUNGE, J.,

text:
    Hennessy v. Robertson

      Matthew A. Casey and Roberta A. Golden, for plaintiff.

      Sharon L. Steingard, for defendant Shawn Robertson.

      Joseph M. Toddy and Patricia W. Holden for defendant Bruce Reikow.

      Daniel J. Divis, for defendants Ryan Caruso, Frank D. Caruso and Rosetta L. Caruso.
    April 10, 2014
   YOUNGE, J.,

Procedure:

The plaintiff, Patrick L. Hennessy, sued the operators and owners of the vehicles involved in two automobile accidents that occurred in the northbound lanes of the Roosevelt Boulevard, in the City and County of Philadelphia at approximately 2:30 a.m. on the morning of July 26, 2009. In a series of separate actions that were consolidated for trial, the plaintiff also filed medical malpractice actions against various physicians who treated him following the automobile accidents. Prior to trial, the plaintiff settled with the physician defendants resulting in termination of the medical malpractice actions that were consolidated with this case. This case then proceeded as an ordinary negligence action against the above-captioned automobile liability defendants. This case was tried before a jury between May 20, 2013 and May 23, 2013. The plaintiff voluntarily withdrew his case against the defendants, Shawn Robertson, Frank D. Caruso, and Rosetta L. Caruso. On May 21, 2013, this court granted a motion for non-suit in favor of defendant, Bruce Reikow. On May 23, 2013, the jury returned a verdict for the plaintiff and against the defendants, Ryan Caruso and Shawn Robertson, Jr., in the amount of $19,145,904.17. The jury found 45% of the causal negligence attributable to Mr. Caruso. Mr. Caruso then filed a motion for post-trial relief and an appeal following the denial of his post-trial motion.

Facts:

This case arises from two automobile accidents that resulted in the above-the-knee amputation of the plaintiff’s right leg. In the early morning hours of July 26, 2009, the plaintiff was a passenger in a vehicle operated by Ryan Caruso and owned by Frank Caruso and Rosetta Caruso. They were traveling northbound on the Roosevelt Boulevard when Mr. Caruso struck the rear end of a vehicle operated by the defendant, Bruce Reikow, while Mr. Reikow was sitting stationary at a red traffic signal. As a result of this collision, defendant’s vehicle was rendered inoperable. Following this accident, the plaintiff and a passenger in the Reikow vehicle began to push the Caruso vehicle to the shoulder of the Roosevelt Boulevard. At approximately the same time, the defendant, Shawn Robertson, Jr., was traveling northbound on the Roosevelt Boulevard. While in the process of pushing the Carusos’ disabled vehicle from the roadway, the vehicle operated by Mr. Robertson struck the rear end of Mr. Reikow’s vehicle and spun or careened into the left rear comer of the Carusos’ vehicle crashing the plaintiff. On August 24, 2009, after several weeks of medical treatment, the plaintiff’s leg was amputated above the right knee.

Issues Averred in Defendant’s Motion for Post-Trial Relief:

This court ruled against the defendant, Ryan Caruso, on his argument that two separate accidents had occurred and that he was not liable for injuries caused by Shawn Robertson, Jr., when he struck the rear of the two vehicles and crashed the plaintiff. This court submitted a verdict slip that allowed the jury to apportion liability between the parties, and it instructed the jury on how to apportion harm between joint tortfeasors.

On June 3, 2013, Mr. Caruso filed his motion for post-trial relief. This court requested a briefing schedule and following production of the trial transcripts, the parties submitted briefs. Mr. Caruso’s brief addressed seven separate issues under the following headings:

A. Defendant Ryan Caruso is entitled to a new trial based on the prejudice resulting from the trial court erroneously ruling that defendant Caruso was a joint tortfeasor with defendant, Shawn Robertson, Jr...
B. Defendant Ryan Caruso is entitled to a new trial based on the prejudice resulting from the trial court’s failure to give standard jury charge 7.8, its use of an improvised charge that was incomplete and biased against Caruso and its use of a verdict slip that was confusing and misrepresented the law...
C. Defendant Ryan Caruso is entitled to a new trial based on the prejudice resulting from the trial court erroneously permitting plaintiff’s accident reconstruction expert to testify...
D. Defendant is entitled to a new trial based on defendant Shawn Robertson’s conduct and sole liability for the plaintiff’s injuries...
E. Defendant is entitled to a new trial on all issues because the issue of liability and damages are inextricably intertwined...
F.The verdict in plaintiff’s favor was contrary to the facts and the law and against the weight of the wvidence...
G. The jury award is clearly excessive and exorbitant and should be reduced...

(Defendant, Ryan Caruso’s, brief in support of his motion for post-trial relief (September 16, 2013).)

Discussion:

A. This Court Properly Ruled that the Jury Should Consider Whether Defendant, Ryan Caruso, and Defendant, Shawn Robertson, Jr., Were Joint Tortfeasors.

In the first section of his motion for post-trial relief, Mr. Caruso did not accurately portray what occurred at trial when he argued that this court erroneously ruled that he and Mr. Robertson were joint tortfeasors. This court did not rule that Mr. Caruso and Mr. Robertson were joint tortfeasors. On the contrary, this court allowed the status of the two defendants to be determined by the jury. In addition to misstating this issue in his motion for post-trial relief, Mr. Caruso made a fatally flawed argument when he argued that the jury should not have been permitted to consider him a joint tortfeasor with Mr. Robertson. He argued that this court committed reversible error when it failed to intervene and rule that two separate accidents occurred with damages that were capable of apportionment. In fact, Mr. Caruso suggested that this court was obligated to rule that the defendants were not joint tortfeasors and that the failure to so rule was error. In support of this bald contention, Mr. Caruso points to the fact that no evidence was presented to show that the plaintiff’s leg was injured prior to the second collision with Mr. Robertson. The fact that the plaintiff was able to help push the Carusos’ vehicle following the first collision was critical under this argument. From this fact, Mr. Caruso infers that the plaintiff could only have lost his leg as a result of the second collision for which he argued he was not responsible.

Mr. Caruso wrongly contended that the jury should not have been permitted to assess his responsibility for the plaintiff’s above-the-knee right leg amputation and apportion liability accordingly. Despite his erroneous phrasing, this first issue averred by Mr. Caruso is, in reality, a question of proximate causation or legal causation, and his argument failed because it is hornbook law that a tortfeasor is responsible for the consequences of his tort. Spangler v. Helm’s New York-Pittsburgh Motor Exp., 396 Pa. 482, 153 A.2d 490 (1959); Boggavarapu v. Ponist, 18 Pa. 162, 165 (1988).

Pennsylvania has adopted the substantial factor test for determining whether a party’s negligence is the proximate or legal cause of a plaintiff’s harm. Pursuant to the Restatement (Second) of Torts §433(b), a defendant’s negligent conduct will be found to be a substantial factor if it has “created a force or series of forces which are in continuous and active operation up to the time of the harm, or has created a situation harmless unless acted upon by other forces for which the actor is not responsible.” Restatement (Second) of Torts § 433 (1965).

The test for proximate cause is:

Even where harm to a particular plaintiff may be reasonably forseeable from the defendant’s conduct, and that conduct is the cause-in-fact of the plaintiff’s harm, the law makes a determination that, at some point along the causal chain, liability will be limited. The term “proximate cause”, or “legal cause” is applied by courts to those considerations which limit liability, even where the fact of causation can be demonstrated. Because of convenience, public policy, or a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point, as no longer a “proximate” or “legal” consequence naturally flowing from the wrongdoer’s misconduct... To put it simply, at a certain point, negligent conduct will be viewed as too remote from the harm arising to the plaintiff and thus not a substantial factor in bringing about the plaintiff’s harm.

Alumni Ass’n v. Sullivan, 369 Pa. Super. 596, 535 A.2d 1095 (1987).

Pennsylvania has also adopted the definition of proximate cause set forth in the Restatement (Second) of Torts § 431 (1965), which reads, “The actor’s negligent conduct is a legal cause of harm to another if (a) his conduct is a substantial factor in bringing about the harm, and (b) there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm.” The Restatement (Second) of Torts § 433 establishes a tripartite tests for determining whether an actor’s conduct is a substantial factor in bring about harm to another. The three relevant factors under this tripartite test are, “(a) the number of other factors that contribute to producing the harm and the extent of the effect which they have in producing it, (b) whether the actor’s conduct created a force or series of forces which are in continuous and active operation up to the time of the harm, or has created a situation harmless unless acted upon by other forces for which the actor is not responsible; and (c) the lapse of time.” Restatement (Second) of Torts § 433 (emphasis added); See also Ford v. Jeffries, 474 Pa. 588, 379 A.2d 111 (1977); Hicks v. Metropolitan Co., 665 A.2d 529 (Pa. Cmwlth. 1995) (for a general discussion of these issues). By the very definition of proximate cause contained in the restatement, a tortfeasor’s conduct is considered a cause of harm if he has created a series of forces which are in continuous operation up to the time of the harm. In the case sub judice, there was a clear issue for the jury to resolve as to whether Mr. Caruso set forces in motion which were continuous and resulted in the amputation of plaintiff’s leg when he negligently rear ended Mr. Reikow’s vehicle and disabled both vehicles in the middle of the Roosevelt Boulevard — one of the biggest and busiest thoroughfares in the City of Philadelphia, having its own history of major high-speed automobile accidents involving motor vehicles and even the death of pedestrians. Mr. Camso admitted that he negligently disabled the vehicle that he was operating; therefore, it had to be moved to safety from the Roosevelt Boulevard. The fact that the second accident occurred while the plaintiff was in the process of moving the Carusos’ disabled vehicle clearly illustrated that the jury was within its rights to assign responsibility for the ultimate harm to both defendants Mr. Caruso and Mr. Robertson.

In Taylor v. Jackson, 643 A.2d 771 (Pa. Commw. 1994), the Commonwealth Court addressed the issue of proximate cause and the substantial factor test in the context of a summary judgment motion that had been granted by a trial judge in the Northumberland County Court of Common Pleas. That case was factually similar to the case sub judice in that it involved a series of automobile accidents. In Taylor, a tractor-trailer jackknifed on Interstate 80 blocking both lanes of travel. Id. at 773. About five minutes later, a second automobile accident occurred between vehicles that were caught in a traffic jam created by the jackknifed tractor-trailer. Two hours later and about one-half mile away from the second accident a third accident occurred in traffic that had accumulated behind the jackknifed tractor-trailer. The parties involved in this third accident sued, among other parties, the drivers of the vehicles involved in the first and second accidents. Id. at 775. The trial court concluded that the two hour lapse rendered any negligent conduct on the part of the drivers in the first and second accidents not continuous and not active up to the time of the harm suffered by the drivers in the third accident. The court entered summary judgment because it held no reasonable jury could find proximate cause between the drivers conduct and the harm suffered by the plaintiff in the third accident.

The Commonwealth Court reversed the award of summary judgment and concluded that the trial court’s determination was in error because the issue of causation should have been submitted to the jury. The court wrote:

Comment (f) of Restatement (Second) of Torts § 433(c) provides that “where it is evident that the influence of the actor’s negligence is still a substantial factor, mere lapse of time, no matter how long it is, is not sufficient to prevent it from being the legal cause of the other harm.” Moreover, our [S]upreme [C]ourt in Ford v. Jeffries, 474 Pa. 588, 379 A.2d 111 (1977), observed that the determination of whether an actor’s conduct was a substantial cause of the injuries complained of should not be taken from the jury if the jury may reasonable differ about whether the conduct of the actor has been a substantial factor in causing the harm. Since we believe that reasonable individuals can differ regarding the question of whether a two hour period should insulate a negligent actor from suit given the particular and unique facts of the instant matter, we hold that the trial court erred in granting summaiy judgment.

Id. at 777.

The Superior Court discussed what is known as proximate or legal cause and the substantial factor test in the context of a summary judgment motion in Eckroth v. Pennsylvania Elec. Inc., 12 A.3d 422 (Pa. Super. 2010). In Eckroth the Cambria County Court of Common Pleas, sitting en banc, granted summary judgment in favor of Pennsylvania Electric in a wrongful death action that was brought following a fire that occurred when residents used candles to illuminate their home after Pennsylvania Electric turned off their power for chronic nonpayment of bills. Id. at 425-426. Evidence presented in Eckroth suggested that Pennsylvania Electric violated certain provisions of the Public Utility Code and regulations of the Pennsylvania Public Utility Commission when it turned off the decedents’ power; however, the fire occurred almost two days after termination of the decedents’ power. Id. at 425-426 n1.

In Eckroth, the Superior Court affirmed the trial courts’ grant of summary judgment, and applied the Restatement of Torts (Second) §433. The court held that summary judgment was appropriate because of the greatly attenuated nexus between Pennsylvania Electric’s negligence and the tragic fire that occurred which meant that the decedents’ representatives could not establish legal or proximate cause. The court reasoned that the lapse of two days between the termination of electric service and the tragic fire was sufficient time to secure safe lighting equipment. Critical, was the decision to bum candles in an area that could ignite surroundings home furnishings. The Superior Court held, as a matter of law, that the negligence of Pennsylvania Electric was not a substantial factor in the tragic house fire. Id. at 429-430.

In the case sub judice, this court declined to hold as a matter of law that Mr. Caruso’s negligence was not a substantial factor in bringing about the above-the-knee right leg amputation suffered by the plaintiff. The plaintiff came forward with evidence to show that Mr. Caruso, by his negligent acts, not only struck the vehicle operated by Mr. Reikow, but he also created the highly unsafe situation that disabled both vehicles in the northbound lanes of the Roosevelt Boulevard — a major artery through Northeast Philadelphia on which vehicles routinely travel well in excess of the posted speed limit. While the unsafe condition caused by Mr. Caruso’s negligence remained, the vehicle operated by Mr. Robertson struck both the Reikow and Caruso vehicles crushing the plaintiff.

This court allowed the jury to determine that the second collision, regardless of Mr. Robertson’s own negligence, would not have happened but for Mr. Caruso’s negligent act of striking the Reikow vehicle. Based on the verdict, the jury found that Mr. Caruso’s negligence was a substantial factor in both impacts. The fact that the plaintiff’s right leg was not injured in the first accident did not relieve Mr. Caruso of responsibility for the hann his negligent conduct created. Therefore, the extent of the plaintiff’s injury in the first accident was irrelevant.

B. Defendant Presented No Grounds for a New Trial Based on the Court’s Jury Charge or the Verdict Slip.

The second group of issues raised by Mr. Caruso in his brief in support of his motion for post-trial relief were closely related to issues that were previously discussed above in § A of this opinion. Mr. Caruso argued that this court should have instructed the jury in accordance with Pennsylvania Standard Civil Jury Instruction 7.80 entitled apportionment of damages (two or more defendants)district damages. Mr. Caruso also found fault with the verdict sheet submitted by this court that permitted the jury to apportion damages between the defendants. Mr. Caruso submitted a proposed verdict sheet that did not allow for the jury to apportion damages. The verdict sheet proposed by Mr. Caruso would have removed the issue of apportionment from the juiy.

There was absolutely nothing wrong with the jury charge read by this court or the verdict sheet that was ultimately submitted to the jury. This court did not read suggested standard jury instruction 7.80; however, a select portion of its jury charge accurately explained the relevant principles encompassed by standard charge 7.80 as proposed by Mr. Caruso. This court instructed the jury:

Members of the jury, the defendant, Ryan Caruso, contends in this matter that although he is negligent for rear-ending the vehicle operated by Bruce Reikow, he is not liable for injuries sustained by the Plaintiff, Patrick L. Hennessy, because he did not cause the specific harm suffered by Mr. Hennessy. That is Mr. Caruso’s contention.
Mr. Caruso argues that Mr. Hennessy’s leg amputation was caused by factors set in motion by the negligence of defendant, Shawn Robertson, when he rear-ended Mr. Reikow’s vehicle in a separate collision sometime after the initial collision.
For purposes of this case, however, jurors, you are allowed although not required, to consider, to consider the events that unfolded on the night of July 26, 2009 to constitute one single incident or accident.
The law in Pennsylvania is that if two or more causes combine to produce a single harm which is incapable of being divided on any logical, reasonable or practicable basis, and each cause is a factual cause in bringing about harm, an arbitrary apportionment should not be made.

(Tr. Transen 104-105 (5/22/13).)

A plain reading of this tailor made charge, in conjunction with suggested standard civil jury charge 7.80, illustrates how the tailor made portion of this court’s charge accurately explained relevant law and the jury’s role in interpreting the disputed facts. There was nothing improper about this court instructing the jury with a tailor made charge that specifically explained the issues in this case. The jury charge, taken as a whole, explained the verdict sheet and the questions that the jury would need to answer on the verdict sheet. The instructions given by this court in conjunction with the verdict sheet permitted the jury to apportion harm between joint tortfeasors. However, the jury was never required to find that Mr. Caruso’s negligent conduct caused injury to the plaintiff. The instruction and the verdict sheet permitted the jury to find that Mr. Caruso was not liable for the plaintiff’s leg amputation.

The relevant law was thoroughly discussed above in § A of this opinion. As previously discussed, it would have been improper to remove the issue of causation from the jury. The charge given by this court accurately explained the relevant law including the proposed standard charge 7.80.

C. There Was No Error in Allowing the Expert Testimony of Steven M. Schorr, P.E. on the Issue of Accident Reconstruction.

In his brief in support of his motion for post-trial relief, Mr. Caruso argued that this court erred when it permitted the plaintiffs accident reconstruction expert, Steven Schorr, P.E. to testify at trial. He argued that expert testimony was unnecessary because this case arose from a simple two car motor vehicle accident with witnesses who testified as to what occurred. Along these same lines, he argued that the average member of society possessed sufficient experience with motor vehicles, and motor vehicle accidents, to determine responsibility. In addition to arguing that expert testimony was unnecessary, the plaintiff also argued that Mr. Schorr improperly usurped the function of the jury when he offered his opinion on causation — that Mr. Caruso was a substantial contributing factor in the collision that resulted in injury to the plaintiff.

The expert testimony provided by Steven M. Shorr was clearly admissible. This court has presided over numerous cases arising from automobile accidents in which expert biomechanical or accident reconstruction testimony was offered to enable the jury to understand how and what occurred in an accident. The plaintiff suffered an extremely serious injury in this series of automobile accidents and was entitled to present expert testimony in support of his case.

Mr. Caruso’s argument that Mr. Schorr offered improper testimony on the issue of causation contradicts the plain language of Pennsylvania Rule of Evidence 704 found in the chapter of the rules of evidence entitled opinions and expert testimony. Pennsylvania Rule of Evidence 704 reads in relevant part, “[Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” The question of whether an accident reconstruction expert can testify on the issue of causation has been squarely addressed by the appellate court system in Pennsylvania in the context of police officer testimony. It is well established law that “an investigating police officer who did not witness an accident may not render an opinion at trial as to its cause unless he or she has been qualified as an expert. Smith v. Clark, 411 Pa. 142, 190 A.2d 441 (1963); Reed v. Hutchinson, 331 Pa. Super. 404, 480 A.2d 1096 (1984); Lesher v. Henning, 302 Pa. Super. 508, 449 A.2d 32 (1982); Anderson v. Russell, 33 Pa. D. & C.3d 308 (1983). In McManamon v. Washko, 906 A.2d 1259 (Pa. Super. 2006), the court specifically held that a police officer who had not witnessed an accident, but was qualified as an accident reconstruct expert could render an opinion on causation. The Superior Court wrote, “[the officer was presented] as a qualified expert accident reconstructionist. His opinion on how the accident occurred encompassed what caused the accident. The testimony [elicited was] permissible as expert opinion.” Id. at 1280. The general rule is that experts are not entitled to make credibility determination. Kozak v. Struth, 531 A.2d 420, 422 (Pa. 1987). However, Mr. Schorr did not attack Mr. Caruso’s credibility or discount his version of the events. In reality, the key facts of this case were not really in dispute. The parties agreed that the accident arose from a rear end automobile accident on the Roosevelt Boulevard.

In addition to attacking Mr. Schorr’s ability to testify and his ability to testify on the issue of causation, Mr. Caruso piggybacked his argument that Mr. Schorr should not have been permitted to testify that Mr. Robertson was traveling at a high rate of speed but under 50 to 60 miles an hour at the time of this accident. Mr. Caruso argued that this testimony was particularly prejudicial because this court instructed the jury to disregard his own speed estimate that placed Mr. Robertson traveling around 50 to 60 miles an hour just prior to the accident. In his brief in support of his motion for post-trial relief, Mr. Caruso provided little legal or factual support for his erroneous argument. Nothing in the record suggested that Mr. Caruso was standing in an appropriate vantage point to adequately view and estimate the speed that Mr. Robertson was traveling just prior to the accident — an accident which occurred in the dark at 2:30 a.m. in the morning. Mr. Schorr, on the other hand, was a qualified expert who based his opinion on a thorough investigation of the accident. He openly admitted that Mr. Robertson was traveling at a high rate of speed, and, in that regard, he agreed with Mr. Caruso. However, he contradicted Mr. Caruso’s stricken testimony that definitively placed Mr. Robertson traveling at 50 to 60 miles an hour. Since he was a qualified expert who conducted an investigation, his testimony was entirely appropriate on this matter.

D. This Court Committed No Error When It Declined to Rule as a Matter of Law that the Defendant, Shawn Robertson, Jr., Was Solely Responsible for Plaintiff’s injuries.

In the fourth section of Mr. Caruso’s brief in support of his motion for post-trial relief, he argued that he was entitled to a new trial because this court should have held that the negligence of Mr. Robertson constituted an intervening superseding cause. He argued that this court should have ruled that Mr. Robertson was solely liable to the plaintiff for his negligent conduct that resulted in plaintiff’s above-the-knee right leg amputation. While discussing his entitlement to a judgment in his favor based on intervening superseding cause, Mr. Caruso rehashed his argument that he should have been permitted to testify that Mr. Robertson was traveling between 50 — 60 miles an hour prior to the accident. This was the same argument that he piggybacked on to his discussion of alleged errors that occurred when plaintiff’s accident reconstruction expert, Steven M. Schorr, was permitted to testify at trial. As previously discussed, nothing in the record supported Mr. Caruso’s ability to definitively testify that Mr. Robertson was traveling at 50 to 60 miles an hour just prior to the accident.

Mr. Caruso is not entitled to a new trial based on this court’s refusal to enter judgment in his favor on the issue of intervening superseding cause. As previously discussed in the first section of the discussion portion of this opinion (herein § A) to such an extent that it is not necessary to reiterate the law again, it is hornbook law that one is responsible for all of the consequences of his tort. Mr. Caruso placed the plaintiff in harm’s way when he negligently struck the vehicle operated by Mr. Reikow in the rear thereby disabling his own vehicle. Therefore, it was appropriate to allow the Jury to assess Mr. Caruso’s responsible for the leg amputation ultimately suffered by the plaintiff. Regardless of the rate of speed that Mr. Robertson was traveling, this court would not have found that his actions constituted an intervening superseding cause as a matter of law thereby removing the question of causation from the Jury.

E. Mr. Caruso Was Not Entitled to a New Trial on Any Issue Averred In His Motion for Post-Trial Relief.

Mr. Caruso made a fatally flawed argument when he argued that he was entitled to a new trial on all issues. His argument was flawed because it assumed that a prejudicial error occurred at trial that was sufficient to gain the award of a new trial on at least one issue thereby assuming that this court erred when it denied his motion for post-trial relief. Simply put, Mr. Caruso was not entitled to a new trial on any issue.

F. The Weight of the Evidence Overwhelmingly Supported the Verdict in Plaintiff’s Favor.

Mr. Caruso was not entitled to a new trial on weight of the evidence grounds because a new trial may be awarded based on the a jury’s verdict being against the weight of the evidence only when the verdict is so contrary to the undisputed evidence as to shock one’s sense of justice. Davis v. Mullen, 565 Pa. 386, 390,773 A.2d 764,766 (2001). The verdict must be so shocking as “to make the award of a new trial imperative, so that right may be given another opportunity to prevail.” Vattimo v. Eaborn Truck Service, 777 A.2d 1163, 1165 (Pa. Super. 2001). The evidence supporting the verdict must be “so inherently improbable or at variance with admitted or proven facts or with ordinary experience as to render the verdict shocking to the court’s sense of justice.” Rittenhouse v. Hanks, 777 A.2d 1113, 1119 (Pa. Super. 2001). A litigant “is not entitled to a new trial where the evidence is conflicting and the finder of fact could have decided either way.” Fanning v. Davne, 795 A.2d 388, 393 (Pa. Super. 2002). Nor should a new trial be granted simply because the trial judge, on the same facts, would have arrived at a different conclusion. Davis, 565 Pa. 386 (2001). Rather, it is axiomatic that questions of credibility are to be decided by the jury, which “is entitled to believe all, part, or none of the evidence presented.” Pioneer Commercial Funding Corp. v. American Financial Mortgage Corp., 797 A.2d 269, 279 (Pa. Super. 2002). A weight of the evidence challenge concedes that there was sufficient evidence to sustain the verdict, but asserts that the verdict was against the weight of the evidence. Fanning v. Davne, 795 A.2d 388, 393 (Pa. Super. 2002).

The verdict was not against the weight of the plaintiff’s evidence. The plaintiff presented evidence to establish that Mr. Caruso rendered his vehicle inoperable in the northbound lanes of the Roosevelt Boulevard after striking the rear of the vehicle operated by Mr. Reikow. The plaintiff, who was a passenger in the Carusos’ vehicle, argued that this conduct placed him in harm’s way and ultimately resulted in the amputation of his right leg. The jury accepted the plaintiff’s argument. It assessed liability and awarded damages as it was entitled to do under applicable common law negligence theories.

G. This Court Did Not Err When It Denied the Motion for Remittitur Filed by Ryan Caruso.

The Superior Court has stated, “the granting or refusing of a motion for a new trial because of excessiveness is particularly within the discretion of a trial court and will not be interfered with by this court unless the record discloses a clear abuse of discretion.” Hawthorne v. Dravo Corp., Keystone Division, 352 Pa. Super. 359, 376, 508 A.2d 298, 306 (1986) citing Connolly v. Philadelphia Transportation Co., 420 Pa. 280, 287, 216 A.2d 60, 64 (1966). Remittitur is proper when “the verdict so shocks the sense of justice as to suggest the jury was influenced by partiality, prejudice, mistake or corruption.” Haines v. Raven Arms, 536 Pa. 452,620 A.2d 367 (1994). In Haines, the court wrote:

Judicial reduction of a jury ward is appropriate only when the award is plainly excessive and exorbitant. The question is whether the award of damages falls within the uncertain limits of fair and reasonable compensation or whether the verdict so shocks the sense of justice as to suggest that the jury was influenced by partiality, prejudice, mistake, or corruption. Carminati v. Philadelphia Transportation Co., 405 Pa. 500, 509, 176 A.2d 440, 445 (1962)... In this area of law we begin with the well-recognized principle that the grant or refusal of a new trial [or remittitur] because of the excessiveness of the verdict is peculiarly within the discretion of the trial court and will not be reversed unless an abuse of discretion or an error of law has been committed. Recognizing the difficult task encountered by an appellate court in reviewing the record when a trial court merely assigns conclusory statements [“interest of justice,” “shocks the court’s conscience” and “substantial justice”] we have attempted to discourage this practice.

Haines v. Raven Arms, 536 Pa. 452,640 A.2d 367 (1994).

The Superior Court has explained that six factors are critical to the assessment of whether a jury verdict is excessive in the context of remittitur. The court has written:

In determining whether a verdict is excessive a court may consider the following factors: (1) the severity of the injury; (2) whether the injury is manifested by objective physical evidence or whether it is only revealed by the subjective testimony; (3) whether the injury is permanent; (4) whether the plaintiff can continue with his or her employment; (5) the size of out-of-poclcet expenses; (6) the amount of compensation demanded in the original complaint.

Harding v. Consolidation Rail Corp., 423 Pa. Super. 208, 226-227, 620 A.2d 1185, 1193-1194 (1993).

This court denied Mr. Caruso’s motion for post-trial relief to the extent that it alleged that the jury verdict was excessive and necessitated remittitur because the ward of $19,145,904.17 simply was not excessive. The plaintiff was a young man who suffered an extremely painful above-the-knee amputation that will almost certainly cause complications in the future. He testified to continuous phantom pain and an inability to ambulate properly, which will continue to plague him for the remainder of his life, estimated at over forty years. Viewed from this perspective, the jury’s award was not excessive. For this reason, remittitur was not appropriate.

Conclusion:

For the above reasons, this court denied the motion for post-trial relief filed by the defendant, Ryan Caruso.

      . Restatement of Torts (Second) § 433 reads, “The following considerations are in themselves or in combination with one another important in determining whether the actor’s conduct is a substantial factor in bringing about harm to another: (a) the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it; (b) whether the actor’s conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm, or has created a situation harmless unless acted upon by other forces for which the actor is not responsible; (c) lapse of time.”

      . Pennsylvania Suggested Standard Jury Instruction §7.80 reads, “The plaintiff claims that each of the defendants’ negligence has contributed to [his] [her] damages. As I have told you, in order to recover in this case against one or more of the defendants, you must find that the conduct of the defendant whom you have found negligent was a factual cause in bringing about the plaintiff’s damages. If you find that a defendant caused distinct damages from those of another defendant, you must decide what percentage of the plaintiffs damages was caused by that defendant’s negligence. The verdict slip will have a space in which you can write in the percentage figures.”

      . The law in Pennsylvania is clear, “A trial judge has wide latitude in his or her choice of language when charging the jury, provided that the judge folly and adequately conveys the applicable law.” Jeter v. Owens — Corning Fiberglas Corp., 716 A.2d 633, 635 (Pa. Super. 1998). The trial judge when instructing the jury does not need to follow jury charges recommended by counsel and may omit certain points of charge. No error occurs when the trial judge omits certain points of charge in the general charge provided that the general charge is sufficient to apprize the jury of the applicable law. Salameh v. Spossey, 731 A.2d 649, 659-660; Strickler v. Huffine, 421 Pa. Super. 463, 618 A.2d 430 (1992). Ajury charge will be found adequate unless “the issues are not made clear to the jury or the jury was palpably misled by what the trial judge said or unless there is an omission in the charge which amounts to fundamental error.” Stewart v. Motts, 539 Pa. 596, 606, 654 A.2d 535, 540 citing Voiyasefski v. Pittsburgh Rys. Co., 363 Pa. 220, 226, 69 A.2d 370, 373 (1949). A reviewing court will not grant a new trial on the ground of inadequacy of the charge unless there is a prejudicial omission of something basic or fundamental. Sweeney v. Bonafiglia, 403 Pa. 217, 221, 169 A.2d 292, 293 (1961); Giorgianni v. DiSanzo, 392 Pa. 350, 356, 140 A.2d 802, 805 (1958).

      . The Pennsylvania Supreme Court has written: “A new trial is warranted on weight of the evidence grounds only ‘in truly extraordinary circumstances i.e., when the jury’s verdict is ‘so contrary to the evidence that it shocks one’s sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail.’ Armbruster v. Horowitz, 572 Pa. 1,813 A.2d 698, 703 (2002)... This court has also noted that one of the reasons that the power and duty to upset a verdict on weight grounds is so narrowly circumscribed is because of the obvious tension between the broad, settled, exclusive role of the fact-finder in assessing credibility and the limited power of trial judges, in narrowly circumscribed circumstances, to overturn those assessments when the judicial conscience is not merely disappointed, or uncomfortable, but shocked. Id. at 704.” Criswell v. King, 575 Pa. 34, 834 A.2d 505 (2003).


author: O’KEEFE, J,

text:
    Estate of Stevenson

      Michael Yanoff for appellant.

      Allison Bell Rayer, for appellee.
    February 20, 2014
   O’KEEFE, J,

— On April 22, 2013, Raquel Stevenson, mother of Desiree Stevenson (decedent) and the administratrix of her estate (appellee), filed a motion to approve a wrongful death and survival action naming herself as the only beneficiary of decedent’s estate. Jesse Evans, decedent’s father, (appellant) filed an answer on May 13, 2013, claiming that he was also a beneficiary of decedent’s estate. After a full evidentiary hearing on August 19, 2013, as well as written briefs submitted by both parties, on November 25, 2013, this court granted appellee’s motion with the allocations she requested. On December 3,2013, appellant filed a motion for reconsideration that was denied on December 13, 2013. Appellant now appeals the November 25, 2013, order granting appellee’s wrongful death/survival action motion.

Facts and Procedural History

The decedent died on March 9, 2009, at the age of 10, from alleged medical malpractice stemming from the failure of Albert Einstein Medical Center staff to diagnose and treat her viral myocarditis (heart infection). Decedent presented to the hospital with vital signs consistent with a serious heart problem but was left waiting in the emergency room for over an hour after being seen by the attending physician. After being placed on a monitor and having an IV started, lidocaine was ordered but was not administered for another half-hour. After decedent was finally given the lidocaine, she coded five minutes later and died after attempts at CPR were unsuccessful.

After the lawsuit was filed, appellee filed for bankruptcy. The Bankruptcy Trustee filed a petition to have Teresa Colleran-Quinn, Esquire, appointed to prosecute the litigation and she obtained a $1.9 million settlement.

Appellee claims that she is the only wrongful death beneficiary because appellant, decedent’s father, was never involved in decedent’s life. Appellant responded in his answer that appellee told him that decedent was not his child. Appellee claims that appellant denied paternity.

Legal Analysis

The following standard of review applies to the orphans’ court:

In reviewing the orphans’ court’s findings, our task is to ensure that the record is free from legal error and to determine if the orphans’ court’s findings are supported by competent and adequate evidence and are not predicated upon capricious disbelief of competent and credible evidence.
When the trial court has come to a conclusion through the exercise of its discretion, the party complaining on appeal has a heavy burden. Paden v. Baker Concrete Construction, Inc., 540 Pa. 409, 412, 658 A.2d 341, 343 (1995). “It is not sufficient to persuade the appellate court that it might have reached a different conclusion if, in the first place, charged with the duty imposed on the court below; it is necessary to go further and show an abuse of the discretionary power.” Id. “An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence [of] record, discretion is abused.” Id. A conclusion or judgment constitutes an abuse of discretion if it is so lacking in support as to be clearly erroneous. Id.
[...]
We will reverse any decree based on “palpably wrong or clearly inapplicable” rules of law. Horner by Peoples National Bank of Central Pennsylvania v. Horner, 719 A.2d 1101, 1103 (Pa. Super. 1998). Moreover, we are not bound by the chancellor’s findings of fact if there has been an abuse of discretion, a capricious disregard of evidence, or a lack of evidentiary support on the record. Id. If the lack of evidentiaiy support is apparent, “reviewing tribunals have the power to draw their own inferences and make their own deductions from facts and conclusions of law.” Id. (quoting Union Trust Company of New Castle v. Cwynar, 388 Pa. 644, 649, 131 A.2d 133, 135 (1957)). Nevertheless, we will not lightly find reversible error and will reverse an orphans’ court decree only if the orphans’ court applied an incorrect rule of law or reached its decision on the basis of factual conclusions unsupported by the record. Estate of Harrison, 745 A.2d at 681.

In re Paxson Trust I, 893 A.2d 99, 112-113 (Pa. Super. 2006).

The instant dispute involves whether decedent’s father is entitled to receive a share of decedent’s estate or, as appellee asserts, is ineligible due to forfeiture under 20 Pa.C.S.A. §2106(b)(l). The relevant portion of the forfeiture statute reads as follows:

(b) Parent’s share. Any parent who, for one year or upwards previous to the death of the parent’s minor or dependent child, has:
(1) failed to perform the duty to support the minor or dependent child or who, for one year, has deserted the minor or dependent child...shall have no right or interest under this chapter in the real or personal estate of the minor or dependent child.

20 Pa.C.S.A. §2106(b). This statute is in place to prevent someone who has failed to live up to his or her responsibilities as a parent from gaining a “windfall” from the child’s death. In re: Kistner, 858 A.2d. 1226, 1229. Therefore, in order to successfully prove forfeiture, the child must have been a minor or dependent child at the time of their death and the potentially forfeiting parent, in the last year of the child’s life, must have owed a duty to support and either failed to perform the duty to support the child or deserted the child.

The seminal opinion in this matter was provided by the Pennsylvania Superior Court in In re Estate of Teaschenko, 574 A.2d 649 (Pa. Super. 1990). The Teaschenko court held that the party alleging forfeiture has the burden of producing evidence sufficient to establish a prima facie case of forfeiture. Id. at 651. Further, “...the parent must completely fail to perform any duty of support before a court will find á forfeiture under this statute.” Id. at 651-652. Finally, the court defined willfully for the purposes of the forfeiture statute as “...the parent is aware of the duty to support, has the capacity to perform that duty, and makes no attempt to do so.” Id. at 652.

At the start of the July 23, 2013, evidentiary hearing, the parties stipulated to the first two requirements; that is, they agreed that decedent was a minor and that appellant owed decedent a duty to support her. (N.T. Aug. 19, 2013, 3:9-19). They did not agree that appellant did not support decedent in the last year of her life or that the lack of support was willful. Id.

Duty to Support

In his answer to the motion for approval and, by his own testimony, appellant admitted that he had failed to provide “any” duty of support to decedent in the last year of her life. In his answer, appellant claimed that he had not seen decedent since she was three months old. Appellant’s answer, May 13, 2013, p. 2-3. During the hearing, he admitted the same thing. (N.T. Aug. 19, 2013, 69:18 - 71:13). It is, therefore, undisputed that appellant provided absolutely no support during the last year of decedent’s life.

Additionally, it appears that appellant is attempting to combat this prong of the statute by claiming certain purchases for decedent including a crib, playpen and diapers. (N.T. Aug. 19,2013,48:2 - 49:3). These purchases were disputed by appellee’s mother who testified that it was her who made the purchases. Id. at 83:16 - 84:11. However, as the forfeiture statute is only concerned with support provided during the last year of the decedent’s life, these claims are immaterial.

Willfulness

With three out of the four requirements for forfeiture met, appellant’s entire case rests on whether his failure to support decedent was willful. Appellant posits that his failure to support decedent during her lifetime should not be considered willful because appellee told him that decedent was not his child. Appellant gave no compelling reason for believing that he was not decedent’s father. At the hearing, the following testimony was elicited:

Q: So what made you believe this wasn’t your daughter?
A: Because she [appellee] kept playing with me, like, she kept playing with me like I was a nut. She was saying things like, Well, she is your daughter, she is not your daughter, she is your daughter, she is not your daughter. I said, Well, which one is it, is she my daughter, is she not.

(N.T. Aug. 19, 2013, 50:12-19).

When asked why he never attempted to have decedent’s paternity determined, even though he was familiar with family court, appellant provided the following explanation:

Well, the reason why I didn’t ask for no paternity test because I thought that that was my child at the time. Until she started denying that she wasn’t my child. When she said that it wasn’t my child I stopped coming to her parents’ house. And then she told me I wasn’t on her birth certificate. I felt - I was convinced that the child wasn’t mine. So I went on about my business.

Id., at 51:6-13.

Going on about your business does not seem to be the proper response for a parent who is losing a child that he once thought was his. This is especially so given the mixed messages from the person alternately claiming that the child is and isn’t his. It does not appear to this court that appellant’s failure to take even one step to find out if the child he claimed he cared for was actually his cannot be called anything but willful neglect of his duty as a parent. This ceding of any responsibility throughout the child’s life and then looking to benefit after the child’s death is the exact type of windfall the forfeiture statute was designed to prevent.

This court a granted appellee’s motion with the allocations she requested because appellant statutorily forfeited decedent and was not entitled to receive a share of decedent’s estate.

Conclusion

Therefore, for all of the above stated reasons, this court did not err or abuse its discretion when it granted appellee’s motion to approve a wrongful death and survival action on November 25, 2013.