J-A32041-16

2017 PA Super 226

KHAALID AMIR WILSON AND GABRIEL 

DESHAWN WILSON, COADMINISTRATORS OF THE ESTATE OF 

TANYA RENEE WILSON, DECEASED

IN THE SUPERIOR COURT OF

PENNSYLVANIA

 v.

U.S. SECURITY ASSOCIATES, INC. AND 

YVONNE HILLER

APPEAL OF: U.S. SECURITY 

ASSOCIATES, INC.

No. 12 EDA 2016

Appeal from the Judgment Entered November 16, 2015

in the Court of Common Pleas of Philadelphia County

Civil Division at No.: 0971 Oct. Term 2011

KHAALID AMIR WILSON AND GABRIEL 

DESHAWN WILSON, COADMINISTRATORS OF THE ESTATE OF 

TANYA RENEE WILSON, DECEASED

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellants

 v.

U.S. SECURITY ASSOCIATES, INC. AND 

YVONNE HILLER

Appellees No. 16 EDA 2016

Appeal from the Judgment Entered November 16, 2015

in the Court of Common Pleas of Philadelphia County

Civil Division at No.: 0971 Oct. Term 2011
J-A32041-16

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PAUL MASCIANTONIO, ESQUIRE, 

ADMINISTRATOR OF THE ESTATE OF 

LATONYA BROWN, DECEASED

IN THE SUPERIOR COURT OF

PENNSYLVANIA

 v.

U.S. SECURITY ASSOCIATES, INC. AND 

YVONNE HILLER

APPEAL OF: U.S. SECURITY 

ASSOCIATES, INC.

No. 26 EDA 2016

Appeal from the Judgment Entered November 16, 2015

in the Court of Common Pleas of Philadelphia County

Civil Division at No.: 0653 Dec. Term 2011

PAUL MASCIANTONIO, ESQUIRE, 

ADMINISTRATOR OF THE ESTATE OF 

LATONYA BROWN, DECEASED

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

 v.

U.S. SECURITY ASSOCIATES, INC. AND 

YVONNE HILLER

 Appellees No. 30 EDA 2016

Appeal from the Judgment Entered November 16, 2015

in the Court of Common Pleas of Philadelphia County

Civil Division at No.: 111200653
J-A32041-16

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BEFORE: DUBOW, J., RANSOM, J., and PLATT, J.*

OPINION BY PLATT, J.: FILED JULY 18, 2017

These consolidated appeals arise out of jury verdicts finding civil 

liability, including punitive damages, against Appellant, U.S. Security 

Associates, Inc. (USSA), and Yvonne Hiller.1 USSA provided security guard 

services under contract at the bakery plant where Hiller, a suspended 

worker, shot and killed two co-workers, and seriously wounded a third. The 

underlying complaints asserted Wrongful Death and Survival Acts claims 

against USSA. The parties challenge various aspects of the verdicts, and 

assert trial court error in evidentiary and related rulings. USSA raises 

numerous claims, most notably several challenges to the punitive damages 

award of thirty-eight-and-a-half million dollars. Appellees2 generally seek to 

uphold the verdicts. However, they also challenge the denial of their motion 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 Although a named co-defendant in this litigation, Yvonne Hiller, the 

shooter, did not actually participate in the trial or this appeal. (See N.T. 

Trial, 2/20/15, at 25-27). She is incarcerated, following her conviction for 

the murders underlying this case. (See infra at 8 n.9). For ease of 

reference, we use “Appellant” to mean USSA only, unless differently 

specified, or as otherwise reasonably indicated by the context. 

2 Appellees, Khaalid Amir Wilson and Gabriel Deshawn Wilson, are coadministrators of the estate of Tanya Renee Wilson, one of the victims. Paul 

Masciantonio, Esquire is the administrator of the estate of LaTonya Brown, 

the other decedent victim. A third victim, Bryant Dalton, was also shot and 

seriously wounded, but fortunately survived, and testified at trial. He is not 

a party in this appeal. 
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to mold the verdict to make USSA liable for pre-shooting “fear and fright” 

damages.3 We affirm in part and reverse in part. 

We take the facts of the case from the findings of the trial court which 

find support in the record, and our independent review of the certified 

record. As already noted, this case arises out of the tragic murder of two 

employees of Kraft Foods Global Inc., and the serious but non-fatal shooting 

of a third, at the Nabisco bakery plant then operated by Kraft in Northeast 

Philadelphia.4 The three victims were shot by Hiller, a disgruntled coworker, in the disastrous climax of an ongoing series of disputes. While the 

testimony and arguments differ in some material details, the basic facts 

underlying the case are not in substantial dispute, except as noted. 

Yvonne Hiller was a dough maker at the Kraft bakery. She had 

continuing disagreements with co-workers Tanya Renee Wilson, LaTonya 

Brown, and Bryant Dalton, claiming among other things that they threw deer 

urine on her car, and that they threw toxic chemicals (including pesticides) 

at her. 

____________________________________________

3

In addition to the briefs of the parties, we also have the benefit of several 

amicus curiae briefs. Barbara R. Axelrod, Esq. provided a brief on behalf of 

the Pennsylvania Association for Justice. Nicholas A. Cummins, Esq. 

provided a brief on behalf of The Pennsylvania Defense Institute.

4 Appellees settled separately with Kraft, which is not a party in this appeal. 

(See Appellees’ Brief, at 8). 
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On the evening of September 9, 2010, at about 8:30 p.m., Kraft 

supervisor (in Kraft’s terminology, business unit leader) Carl Rivers 

suspended Hiller for her role in a verbal altercation that evening, including 

threats, against Ms. Wilson, Ms. Brown, and Mr. Dalton. Mr. Rivers directed 

senior USSA security officer (and USSA site supervisor), Damon Harris, to 

escort Hiller while she left the premises.5 

Mr. Harris parted company with Hiller at the guard shack and left her 

to return to her car by herself. In fact, contrary to some testimony of 

Harris, implying that Hiller got directly into her car, (see N.T. Trial, 2/18/15 

A.M., at 11), she stopped for a few minutes to smoke a cigarette with an 

acquaintance in the designated smoking area before leaving. (See N.T. 

Trial, 2/23/15 P.M., at 71-73). 

The parties dispute whether the failure to escort Hiller all the way to 

her car was a breach of required procedure under “post orders,” the rules 

set by Kraft for the performance of USSA’s services on its premises under 

the security contract. (N.T. Trial, 2/18/15 A.M., at 94). 

Appellees claim it was. Appellant denies any such requirement, even 

though its designated corporate representative, Michael Donapel, in 

____________________________________________

5 USSA provided security services at the facility, under contract, since 2003, 

when it acquired the operation of the previous security contractor, Day & 

Zimmerman. Mr. Harris had worked at the location since 2000, at first with 

Day & Zimmerman. Harris testified that he became a USSA supervisor 

“around about 2004.” (N.T. Trial, 2/17/15 P.M., at 14).
J-A32041-16

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deposition testimony, appeared to assume a walkout to the car was the 

standard procedure for a disciplinary escort. In any event, Hiller proceeded 

to the parking lot alone. Once she arrived there she got into her car, but 

instead of leaving the premises, she decided to drive back to the guard 

station. 

Brandishing a .357 Magnum revolver she had retrieved from her car, 

Hiller confronted the two USSA security guards, and pointed the gun at the 

junior guard, Marc Bentley. Using forthright street language, she demanded 

to be let back in. Although Bentley had nine years of experience as a prison 

guard, he had only been on the Kraft job for a few weeks. He let Hiller in, 

and fell to the floor. Harris ran out of the guard shack, fell, spraining his 

ankle, and got back up and began to make his way to a boiler room some 

seventy feet away. (See N.T. Trial, 2/17/15 P.M., at 86; see also Trial 

Court Memorandum in Support of Orders Denying Motions for Post-Trial 

Relief, 11/16/15, [Trial Court Memorandum], at 1). 

About this time, David Ciarlante, a mechanic on a smoke break who 

knew Hiller as a fellow smoker, noticed her returning to the building after he 

had seen her previously depart. Ciarlante testified that Harris and Bentley 

both came running out of the guard shack. They warned him that Hiller had 

entered the building, with a gun. Ciarlante ran back into the building to 

warn other employees. He also called Kraft’s security supervisor, Ms. 

Rhonda Mowday, on his two-way radio. Mowday asked Ciarlante to confirm 

with USSA security that Hiller had re-entered the building and had a gun. 
J-A32041-16

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When he did, Mowday told Ciarlante to tell the guards to call 9-1-1.6 

Ciarlante testified that he pursued Hiller and tried to get her to stop. She 

shot at him and told him to go away. She shot at several other employees 

as well.

The trial court found that both USSA guards called 9-1-1 

(independently) after several minutes, but that neither ever called Kraft 

management.7 (See Trial Court Memorandum, at 1; see also Appellant’s 

brief, at 27; Appellees Brief, at 7). 

The parties vigorously disputed the exact timeline and sequence of 

events, as well as whether the various clocks on the multiple video 

surveillance tapes were accurately synchronized. There does not appear to 

have been a definitive resolution of these questions on the evidence or 

testimony. The trial court states, without citation to the record, that the 

parties “agree that approximately eight minutes elapsed” from the time 

beginning with Hiller’s re-entry into the guard shack (8:41 P.M.) to her 

____________________________________________

6 There appears to be a difference of opinion (and testimony) about whether 

each of the guards had already called 9-1-1 by then on their own. 

7 To the contrary, Kraft Business Unit Leader Jeffrey Smith, on hearing 

sporadic reports that Hiller had returned to the building with a gun, called 

the USSA guard shack. He asked if Yvonne Hiller was back on the premises. 

Bentley said, “Yes.” But when Smith asked, “Where is she?” Bentley replied, 

“I can’t talk” and put the phone down. Smith could hear Bentley “almost 

sobbing,” say “I can’t believe she pointed a gun at my face[.]” (Deposition 

of Jeffrey Smith, 2/16/15, at 54-55; see also id. at 42-55). 
J-A32041-16

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appearance on the third floor surveillance video (8:49 P.M.). (Trial Court 

Memorandum, at 17). Appellant does not agree. (See Appellant’s Brief, at 

72-73) (“The trial court misunderstood the timeline[.]”). 

At any rate, after gaining entry at gunpoint Hiller proceeded upstairs 

to the third floor break room where she confronted the three co-workers, 

and blamed them for losing her job.8 Then she shot them. She shot at 

several other employees and missed. A Philadelphia police SWAT team 

arrived. Using Ciarlante as a guide to the building lay-out, they approached 

Hiller. She shot at them, too, before they captured and arrested her.9 

Appellees filed separate complaints, which included claims for punitive 

damages. The two cases were eventually consolidated.10 (See Order, 

5/21/12). Appellant USSA filed preliminary objections. On June 7, 2012, 

the parties jointly stipulated to the dismissal of the punitive damages count. 

(See Stipulation to Withdraw, 6/07/12). The parties also agreed to strike 

the words “reckless, outrageous, intentional and/or wanton” from the 

____________________________________________

8 The surviving victim, Bryant Dalton, testified that Hiller entered the break 

room and said, “You motherfuckers costing me my job[,]” before shooting. 

(N.T. Trial, 2/18/15 P.M., at 20).

9 Heller was convicted for these crimes, sentenced to life imprisonment 

without parole, and her sentence was affirmed on appeal. (See 

Commonwealth v. Hiller, 93 A.3d 504 (Pa. Super. filed December 9, 

2013) (unpublished memorandum), appeal denied, 93 A.3d 462 (Pa. 2014)). 

She remains incarcerated. 

10 Accordingly, for ease of reference, we may refer to Appellees’ parallel 

complaints in the singular. 
J-A32041-16

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relevant paragraphs of the complaints “without prejudice as to Defendant, 

U.S. Security Associates, Inc. only.” (Id.) (emphasis added). 

On the same date, Appellant praeciped the trial court to withdraw its 

preliminary objections to Appellees’ complaints. The praecipe expressly 

noted that “[a s]tipulation for dismissal for punitive damages without 

prejudice has been executed by all parties and will be filed with the 

[c]ourt.” (Praecipe to Withdraw Defendant, U.S. Security Associates, Inc.’s 

Preliminary Objections to Plaintiff’s Complaint, 6/07/12) (emphasis added) 

(capitalization omitted). 

On October 31, 2014, over two years later, and four years after the 

shooting, successor (and present) counsel for Appellees filed a motion for 

leave to amend to add punitive damages to the plaintiffs’ complaint. (See

Plaintiffs’ Motion to Amend the Complaint to Add a Claim for Punitive 

Damages, 10/31/14) (most capitalization omitted). Appellant opposed the 

motion. (See Response of Defendant U.S. Security Associates, Inc. to 

Plaintiffs’ Motion to Amend Their Complaints to Add a Claim for Punitive 

Damages, 11/20/14) (most capitalization omitted). 

The first trial began on Tuesday, February 17, 2015.11 On Monday, 

February 23, 2015, the trial court granted Appellees’ October motion to add 

punitive damages. The trial had already been in progress for almost a week. 

____________________________________________

11 Appellees’ complaints originally included claims against USSA for negligent 

hiring, training, and supervision of its security guards. However, on 

(Footnote Continued Next Page)
J-A32041-16

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The parties initially disputed whether Harris called Kraft management. 

At trial, Mr. Harris testified (again) that he called Carl Rivers, the Kraft 

supervisor, from the boiler room. On cross-examination, Harris finally 

conceded that he had lied about calling Rivers, in an effort to protect his 

job.12 (See N.T. Trial, 2/17/15 P.M., at 98-99). In his testimony, Mr. Rivers 

denied that Mr. Harris had called him. (See N.T. Trial, 2/18/15 A.M., at 

89).13 

The trial court notes that Harris also signed and submitted a false 

police report (claiming he had called Kraft management), prepared a false 

Kraft incident report, and testified falsely at both of his pre-trial depositions. 

(See Trial Court Memorandum, at 13). 

(Footnote Continued) _______________________

February 13, 2015, the trial court granted USSA’s unopposed motion in 

limine to preclude any evidence, reference, or testimony regarding negligent 

hiring or retention of USSA employees. (See Order, 2/13/15). Also, USSA 

counsel denied any claim for comparative negligence. (See N.T. Motions in 

Limine, 2/11/15, at 6). Accordingly, the “only” claims at issue on trial were 

USSA’s respondeat superior liability for the actions of its security guard 

employees; Appellees also argued that the USSA guards were improperly 

trained. 

12 Both Harris and Bentley testified they were still USSA employees at the 

time of trial. 

13 The trial court found that both USSA security officers eventually called 

911, but did not call Kraft management (as provided in the security 

agreement and the post orders). (See Trial Court Memorandum, at 13-14; 

see also Rule 1925(a) Opinion, 2/03/16, at 1).
J-A32041-16

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Of note for other claims in this appeal, at trial Appellees also presented 

the expert testimony of Bennet Omalu, M.D., of Lodi, California. Dr. Omalu 

was the chief medical examiner of San Joaquin County, California, the 

president of Bennet Omalu Pathology, and an associate professor of 

pathology at the University of California-Davis. (See N.T. Trial, 2/20/15 

A.M., at 48). The trial court accepted Dr. Omalu “as a qualified expert as a 

forensic pathologist, a clinical pathologist, and a neuropathologist.” (Id.). 

Counsel for Appellant initially objected, but in the end declined to maintain 

the objection.14 

Based on his review of the medical records, Dr. Omalu testified about 

the physiological processes which would have occurred in the victims when 

confronted by Hiller with her handgun, as well as the physical effects of 

actually being shot. (See id. at 48-96).

On February 26, 2015, the first jury reached a verdict on 

compensatory damages. It awarded an aggregate amount of $8,020,000 to 

Appellees.15 The jury allocated seventy percent of the liability to Hiller and 

____________________________________________

14 Defense counsel initially objected to testimony from Dr. Omalu on 

damages from pre-impact fright of the two deceased victims, as nonrecoverable and, accordingly, confusing and misleading to the jury. (See

N.T. Trial, 2/20/15 A.M., at 24). Nevertheless, counsel later apparently 

acquiesced and declined to make a final objection to the trial court’s 

acceptance of Dr. Omalu as an expert witness. (See id. at 48). 

15 The jury allocated the award as follows: (a) $2,000,000 to the Brown 

estate under the Survival Act; $600,000 for Ms. Brown’s pre-shooting fright 

resulting from Hiller’s assault and USSA’s negligence; $2,000,000 to Ms. 

(Footnote Continued Next Page)
J-A32041-16

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thirty percent to USSA. (See Jury Verdict Slip, 2/26/15, at 1; see also N.T. 

Trial, 2/26/15, at 34). 

However, the first jury could not reach agreement on whether the 

USSA guards, Bentley and Harris, acted “outrageously,” precluding an award 

for punitive damages. (N.T. Trial, 3/03/15, at 3). The trial court dismissed 

the jury. (See id. at 15). 

A second trial began about three weeks later, on March 23, 2015. The 

issues presented to the second jury were whether the conduct of the 

security guards was outrageous, and if so, what amount of punitive damages 

should be awarded. The trial court informed the second jury that a 

compensatory award had been made by the first jury, but not the amount or 

any other details. (See N.T. Trial, 3/23/15 A.M., at 61). 

In the second trial, Appellant wanted to present testimony from Robert 

M. Toborowsky, M.D., a clinical and forensic psychiatrist,16 that the acute 

(Footnote Continued) _______________________

Brown’s beneficiaries under the Wrongful Death Act; (b) $1,500,000 to the 

Wilson estate under the Survival Act; $720,000 for Ms. Wilson’s pre-shooting 

fright resulting from Hiller’s assault and USSA’s negligence; and $1,200,000 

to Ms. Wilson’s beneficiaries under the Wrongful Death Act. The trial court’s 

explanation for including a special interrogatory on pre-impact (preshooting) fear and fright damages may be found in the Trial Court 

Memorandum, at 20-21. For further discussion of this issue, see this 

opinion, infra at *52-*55. 

16 Dr. Toborowsky also held a teaching position as a clinical associate 

professor in the psychiatric department of the Perelman School of Medicine 

at the University of Pennsylvania, among numerous other professional 

duties, publications, and recognition. 
J-A32041-16

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psychological stress of having a gun pointed at USSA guards Harris and 

Bentley likely interfered with their judgment and work performance. (See

Supplemental Answer to Expert Discovery, 3/20/15). 

The trial court did not permit Dr. Toborowsky to testify, ruling that the 

defense’s submission of him as an expert witness was too late. (See Order, 

3/24/15 (citing N.T. Hearing, 3/23/15)). However, the trial court did permit 

Appellant to re-present the testimony of Appellees/plaintiffs’ expert witness, 

Dr. Omalu, (about the physiological effects of having a gun pointed at the 

victims) in substitution for the precluded testimony of Dr. Toborowsky. 

The second jury returned a verdict of $38,512,600.00 in punitive 

damages against USSA. (See Punitive Damages Jury Verdict Slip, 3/30/15). 

This made the total award $46,532,600.00, plus interest. (See Trial 

Worksheet with Attachment, 3/31/15).17 

The parties filed various post-trial motions. Notably, Appellant filed a 

motion for post-trial relief, including a motion for judgment notwithstanding 

the verdict (JNOV) for both trials, and a motion to mold the verdict.18 The 

trial court declined both Appellant’s request for a JNOV and Appellees’ 

____________________________________________

17 The jury verdict worksheet was prepared and signed by the trial court 

judge herself. The worksheet combines the results of the two separate jury 

verdicts. 

18 JNOV is the acronym abbreviation for judgment notwithstanding the 

verdict, from the Latin-derived name, judgment non obstante veredicto. 
J-A32041-16

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request to mold the verdict to include “fear and fright” (pre-shooting) 

damages. These timely cross-appeals followed.19 

Appellant nominally presents six questions for our review.20

____________________________________________

19 Both parties filed timely court-ordered statements of error. The trial court 

filed an opinion on February 3, 2016, which referenced its Memorandum in 

Support of Orders Denying Motions for Post-Trial Relief and Granting 

Petitions for Delay Damages, filed 11/16/15. See Pa.R.A.P. 1925. 

20 In an expanded brief, counsel for Appellant proceeds to argue at least 

twenty-two, if not twenty-nine, claims, subsidiary questions, and various 

other inter-related issues. (See Appellant’s Brief, at 12-79). The arguments 

made are often unduly repetitive, in a meandering sequence which 

sometimes tracks the six questions presented and sometimes does not. See

Pa.R.A.P. 2119(a). Some of the twenty-two arguments are “fairly 

suggested” by the six nominal questions; some are not. Pa.R.A.P. 2116; 

(see also Appellees’ Brief at 34, describing “a scattershot of weak factual 

arguments”). 

Counsel cites the well-known maxim that an appellate brief containing 

ten or twelve points raises a presumption that none of them have any merit. 

(See Appellant’s Brief, at 15). Nevertheless, counsel proclaims that “[t]his 

case is an exception that proves the rule.” (Id.). It does, but not in the 

way counsel probably intended. 

We understand that a zealous advocate can be tempted to include 

every conceivable argument in an effort to leave no stone unturned. This is 

especially so in a high-profile case where multi-million dollar verdicts are at 

stake. Nevertheless, in reality, zealous representation does not require, or 

even benefit from, such all-inclusive “kitchen sink” advocacy. 

To the contrary, the indiscriminate introduction of numerous marginal 

arguments does not enhance appellate advocacy; it detracts from it. See 

J.J. DeLuca Co. Inc. v. Toll Naval Assocs., 56 A.3d 402, 410 (Pa. Super. 

2012) (“[T]he effectiveness of appellate advocacy may suffer when counsel 

raises numerous issues, to the point where a presumption arises that there 

is no merit to any of them.”) (citation omitted). This is true even in capital 

cases:

(Footnote Continued Next Page)
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1. Is [Appellant] entitled to JNOV in its favor on 

[Appellees’] claim for punitive damages, where the trial court 

allowed [Appellees] to add that claim two years after the statute 

of limitations expired, and halfway through the trial?

2. Is [Appellant] entitled to JNOV on punitive damages, 

where the conduct of the security officers under all of the 

circumstances was insufficient as a matter of law to justify 

imposing punitive damages against the officers, or vicariously 

against [Appellant]?

3. Is [Appellant] entitled to a new trial on [Appellees’] 

claim for punitive damages because of multiple trial errors that 

unfairly prejudiced [Appellant], including refusing to allow 

[Appellant] to present its expert on [Appellees’] newly-added 

claim?

(Footnote Continued) _______________________

[Our Supreme] Court is aware of the felt need to leave no 

stone unturned when counsel presents a capital appeal. 

However, we note that the quality of representation is not 

measured by the number of issues raised. It is not 

necessary to raise patently unavailing matters in order to 

ward off fears of a later finding of ineffectiveness; a good 

attorney will not disguise and thus weaken good points by 

camouflaging them in a flurry of makeweight issues which 

clearly have no merit.

Commonwealth v. Williams, 581 Pa. 57, 863 A.2d 505, 510 

n.5 (2004); see Commonwealth v. Robinson, 581 Pa. 154, 

864 A.2d 460, 479 n.28 (2004) (“While we certainly understand 

the duty of the attorney to be a zealous advocate, we pose that 

conduct such as what we presently encounter does not advance 

the interests of the parties and, if anything, is a disservice to the 

client.”); United States v. Hart, 693 F.2d 286, 287 n.1 (3d Cir. 

1982) (“Because of the inordinate number of meritless 

objections pressed on appeal, spotting the one bona fide issue 

was like finding a needle in a haystack.”).

Commonwealth v. Wright, 961 A.2d 119, 131 n.7 (Pa. 2008). 
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4. Is [Appellant] entitled to a remittitur or new trial on 

[Appellees’] claim for punitive damages because the punitive 

damages award was shockingly and unconstitutionally excessive, 

where the punitive damages were [thirty-six] times higher than 

[Appellant’s] portion of the relevant compensatory award, and 

USSA’s conduct was not reprehensible?

5. Is [Appellant] entitled to JNOV on all issues, because 

even if the jury could have found negligence, which [Appellant] 

denies, the evidence was inadequate as a matter of law to find 

causation?

6. Must the compensatory verdicts in favor of [Appellees] 

be molded to reflect their joint tortfeasor releases? 

(Appellant’s Brief, at 6). 

Appellees restate Appellant’s issues (albeit in opposition), and present 

their cross-appeal issues as follows:21 

USSA’s “JNOV” issues:

1. Did [Appellees] introduce sufficient evidence in 

the first trial that [Appellant] breached a duty of care that 

caused the deaths of Wilson and Brown?

2. Did [Appellees] introduce sufficient evidence in 

the second trial that [Appellant’s] conduct was outrageous 

so as to permit punitive damages?

3. Did the trial court act within its discretion by 

allowing [Appellees] to amend their complaints to seek 

punitive damages?

USSA’s “new trial” issues:

____________________________________________

21 Appellees present their issues (including their version of Appellant’s 

issues) in somewhat unorthodox fashion. To avoid unnecessary confusion, 

we reprint all the issues verbatim as reformulated by Appellees/CrossAppellants, except for bracketed insertions.
J-A32041-16

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4. Did the trial court permissibly decide that 

[Appellees] need not re[-]prove causation in the second 

trial, where causation already had been found by the first 

jury?

5. Did the trial court act permissibly by not informing 

the second jury about the first jury’s compensatory verdict 

and prophylactic apportionment of liability?

6. Did the trial court act within its discretion by not 

permitting expert testimony in the second trial from Dr. 

Toborowsky given the lateness of his identification?

7. Did the trial court act within its discretion when 

instructing the second jury on [Appellant’s] vicarious 

liability for its employees’ misconduct?

USSA’s “damages” issues:

8. Did the trial court properly decline to mold the 

verdict based either on common-law principles or 

[Appellees’] releases of Kraft?

9. Did the trial court permissibly decline to remit the 

verdict under due process principles or Pennsylvania law?

[Appellees’] cross-appeal issues:

10. Did the trial court improperly fail to mold the 

jury’s compensatory verdict so that [Appellant] was liable 

for the award for pre-shooting assault damages?

11. Did the trial court improperly strike 

correspondence confirming that [Appellant’s] insurance 

covered punitive damages?

(Appellees’ Brief, at 4-5).22

____________________________________________

22 It bears mentioning that our admonition against multiplication of marginal 

issues applies to the eleven questions in Appellees’ brief as well. (See 

supra at *14 n.20). 
J-A32041-16

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Our standard of review from the denial of JNOV is well-settled: 

A JNOV can be entered upon two bases: (1) where the 

movant is entitled to judgment as a matter of law; and/or, (2) 

the evidence was such that no two reasonable minds could 

disagree that the verdict should have been rendered for the 

movant. When reviewing a trial court’s denial of a motion for 

JNOV, we must consider all of the evidence admitted to decide if 

there was sufficient competent evidence to sustain the verdict. 

In so doing, we must also view this evidence in the light most 

favorable to the verdict winner, giving the victorious party the 

benefit of every reasonable inference arising from the evidence 

and rejecting all unfavorable testimony and inference. 

Concerning any questions of law, our scope of review is plenary. 

Concerning questions of credibility and weight accorded the 

evidence at trial, we will not substitute our judgment for that of 

the finder of fact. If any basis exists upon which the jury could 

have properly made its award, then we must affirm the trial 

court’s denial of the motion for JNOV. A JNOV should be entered 

only in a clear case.

Am. Future Sys., Inc. v. Better Bus. Bureau of E. Pa., 872 A.2d 1202, 

1215 (Pa. Super. 2005) (citation omitted), affirmed, 923 A.2d 389 (Pa. 

2007), cert. denied, 552 U.S. 1076 (2007). Similarly, 

Appellate review of a denial of JNOV is quite narrow. We 

may reverse only in the event the trial court abused its 

discretion or committed an error of law that controlled the 

outcome of the case. Abuse of discretion occurs if the trial court 

renders a judgment that is manifestly unreasonable, arbitrary or 

capricious; that fails to apply the law; or that is motivated by 

partiality, prejudice, bias or [i]ll-will. 

When reviewing an appeal from the denial of a request for 

judgment n.o.v., the appellate court must view the 

evidence in the light most favorable to the verdict[-]winner 

and give him or her the benefit of every reasonable 

inference arising therefrom while rejecting all unfavorable 

testimony and inferences . . . . Thus, the grant of a 

judgment n.o.v. should only be entered in a clear case and 

any doubts must be resolved in favor of the 

verdict[-]winner. Furthermore, [i]t is only when either the 
J-A32041-16

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movant is entitled to judgment as a matter of law or the 

evidence was such that no two reasonable minds could 

disagree that the outcome should have been rendered in 

favor of the movant that an appellate court may vacate a 

jury’s finding.

Thomas Jefferson Univ. v. Wapner, 903 A.2d 565, 569 (Pa. Super. 2006)

(citations and internal quotation marks omitted). For our review, we accept 

the trial court’s findings of fact which are supported by the record.23 

It is well-established that parties, by stipulation, may bind 

themselves on all matters except those affecting jurisdiction 

and prerogatives of the court. When interpreting a 

stipulation, courts employ the rules for construction of contracts, 

with the primary focus placed on ascertaining and giving effect 

to the intention of the parties. The language of a stipulation, like 

that of a contract, is construed against the drafter. In 

construing a stipulation, the court will adopt the interpretation 

that is the most reasonable and probable, bearing in mind the 

objects which the parties intended to accomplish through the 

agreement. The court will not extend the language by 

implication or enlarge the meaning of terms beyond what is 

expressed. 

____________________________________________

23 However, we may not defer to the trial court’s findings of fact which rely 

solely on the allegations of Appellees’ complaints. (See, e.g., Trial Court 

Memorandum, at 1-2). “Allegations are not evidence[.]” Commonwealth 

v. Delbridge, 859 A.2d 1254, 1258 (Pa. 2004). Without evidence there is 

no proof. See, e.g., Francis Gerard Janson, P.C. v. Frost, 618 A.2d 

1003, 1006 (Pa. Super. 1993) (appellees had no proof without evidence). 

“Where the evidence is insufficient to sustain the verdict or decision 

of the trial court, the remedy granted in civil cases is a judgment 

notwithstanding the verdict.” Lanning v. West, 803 A.2d 753, 759 (Pa. 

Super. 2002) (citing Lilley v. Johns-Manville Corp., 596 A.2d 203, 206 

(Pa. Super. 1991), appeal denied, 607 A.2d 254 (Pa. 1992) (emphasis 

added). 
J-A32041-16

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Cobbs v. Allied Chem. Corp., 661 A.2d 1375, 1377 (Pa. Super. 1995), 

appeal denied, 672 A.2d 303 (Pa. 1996) (citations and footnote omitted) 

(emphasis added). 

In this appeal, Appellant’s first issue asserts that the trial court erred 

and abused its discretion in allowing an amendment to the complaint, after 

the statute of limitations had expired, to add a claim for punitive damages in 

the middle of the first trial, notwithstanding the “without prejudice” 

stipulation of the parties, to its prejudice. (See Appellant’s Brief, at 12, 15-

25, and passim). We agree.

Our review of this issue is guided by the following legal principles: 

“Amendments to pleadings are freely allowed under the Pennsylvania 

Rules of Civil Procedure and it is within the trial court’s discretion whether to 

grant or deny permission to amend. An amendment, however, may not 

introduce a new cause of action after the applicable statute of 

limitations has run.” Beckner v. Copeland Corp., 785 A.2d 1003, 1005 

(Pa. Super. 2001), appeal denied, 805 A.2d 518 (Pa. 2002) (citations 

omitted) (emphasis added). 

Here, Appellees maintain that a party may amend a pleading at any 

time. (See Appellees’ Brief, at 36). They cite, inter alia, Daley v. John 

Wanamaker, Inc., 464 A.2d 355, 361 (Pa. Super. 1983). Nonetheless, the 

Daley court recognized that “[a]mendments to pleadings are freely allowed 

under the Rules of Civil Procedure. However, an amendment may not 
J-A32041-16

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introduce a new cause of action after the statute of limitations has 

run. The reason for this rule is to prevent prejudice to the adverse party.” 

Id. at 361 (emphasis added) (citations and footnote omitted). 

On independent review, we are constrained to conclude that the trial 

court’s decision to permit the addition of a claim for punitive damages in the 

middle of the first trial was legally incorrect. Quite plainly, and without 

factual dispute, the statute of limitations had expired. 

Nevertheless, Appellees, tracking the reasoning of the trial court, 

maintain that reinstatement of the punitive damages claim was not a new 

cause of action, but merely a revival of an element of damages incident to 

an existing cause of action. (See Appellees’ Brief, at 43) (citing Trial Court 

Memorandum, 11/16/15, at 52-53). We disagree. 

Appellant submits that her proposed amendments to her 

[c]omplaint would “amplify” and “specifically detail the original 

causes of action” while also adding a clause seeking 

punitive damages. These allegations, however, maintain that 

Appellees acted with “reckless indifference” to the life of 

Appellant’s son and made active “misrepresentations” concerning 

the program content of [Appellee] to Appellant and the staff of 

the facility where he was staying prior to his transfer. Such 

allegations differ greatly from those contained in her 

[c]omplaint which do no more than allege ordinary 

negligence. We do not agree that these amendments will act 

merely as an amplification of the claims Appellant has already 

made against Appellees, for which we have judged them to be 

immune. Rather, Appellant is seeking to allege facts which 

would . . . add another measure of damages.

Willett v. Evergreen Homes, Inc., 595 A.2d 164, 168–69 (Pa. Super. 

1991), appeal denied, 600 A.2d 539 (Pa. 1991) (emphases added).
J-A32041-16

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Although amendments to pleadings are freely allowed, an 

amendment may not introduce a new cause of action after the 

statute of limitations has run because such may cause prejudice 

to an adverse party. “A new cause of action does arise . . . if the 

amendment proposes a different theory or a different kind of 

negligence than the one previously raised or if the operative 

facts supporting the claim are changed.” Daley [supra at] 

361[.] 

Id. at 169 (two citations omitted). 

In this case, in a self-evident quid pro quo, the parties, through 

previous counsel, agreed to the withdrawal of Appellant’s preliminary 

objections to Appellees’ complaints in exchange for the withdrawal of their 

punitive damages claim. Counsel jointly stipulated that the words, 

“reckless, outrageous, intentional and/or wanton,” in paragraph 104 of 

Plaintiffs’ complaint, “are stricken without prejudice as to Defendant, U.S. 

Security Associates, Inc. only.” (Stipulation to Withdraw Specific Allegations 

in Plaintiff’s Complaint, 6/07/12). We remain mindful that:

In construing a stipulation, the court will adopt the interpretation 

that is the most reasonable and probable, bearing in mind the 

objects which the parties intended to accomplish through the 

agreement. The court will not extend the language by 

implication or enlarge the meaning of terms beyond what is 

expressed. 

Cobbs, supra at 1377 (citations and footnote omitted). 

Two years after the stipulation in this case, Appellees’ new counsel 

sought to introduce an amendment to their complaint, adding a claim for 

punitive damages. An amendment, however, may not introduce a new 
J-A32041-16

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cause of action after the applicable statute of limitations has run. See 

Beckner, supra at 1005; Daley, supra at 361; Willett, supra at 169. 

It is certainly true that the stipulation was “without prejudice.” 

However, it is well-settled that a party which takes a voluntary non-suit 

even without prejudice must still re-file within the statute of limitations. 

“[W]hen a plaintiff takes a voluntary nonsuit, it is as if the original suit 

was never initiated. Logically, since the original complaint is treated as if it 

never existed, the statute of limitations is not tolled by the filing of a 

complaint subsequently dismissed without prejudice.” Williams Studio 

Div. of Photography by Tallas, Inc. v. Nationwide Mut. Fire Ins. Co., 

550 A.2d 1333, 1335–36 (Pa. Super. 1988), appeal denied, 588 A.2d 510 

(Pa. 1990) (citation omitted). 

In this appeal, we discern no legal basis on which the strategic 

withdrawal of one significant cause of action, punitive damages, should be 

treated differently than our settled controlling authority treats the 

withdrawal of an entire lawsuit. See Willett, supra at 168–69; Williams 

Studio, supra at 1335–36. 

Nor does the phrase “without prejudice” mean that Appellees are free 

to disregard controlling case authority or the rules of civil procedure. “When 

interpreting a stipulation, courts employ the rules for construction of 

contracts[.]” Cobbs, supra at 1377 (citation omitted). Accordingly, absent 

contemporaneous indication of the intent of the parties to the contrary, we 
J-A32041-16

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give the stipulation the benefit of its plain meaning, but no more. Appellees 

were arguably able to reinstate their punitive damages claim within the 

limitations period, but not beyond. “The court will not extend the language 

by implication or enlarge the meaning of terms beyond what is expressed.” 

Id. (citation omitted). 

Appellees also contend that the reinsertion of punitive damages is 

merely an amendment to the ad damnum clause, incident to an underlying 

cause of action, rather than the cause of action itself. (See Appellees’ Brief, 

at 41) (citing Hutchison ex rel. Hutchison v. Luddy, 870 A.2d 766, 772 

(Pa. 2005) and Hilbert v. Roth, 149 A.2d 648, 652 (Pa. 1959)). We 

disagree.

First, most noticeably, neither of these two cases addresses the key 

question at issue here, namely, whether a claim for punitive damages, once 

voluntarily withdrawn by stipulation of counsel, can be unilaterally reinstated 

on mere request, after the statute of limitations has run. Nor does either of 

these cases present legal principles analogous to the issues raised in this 

appeal. 

Hutchison, supra, was a molestation case involving a Catholic priest 

and a minor boy. See id. at 767. On earlier review, a panel of this Court 

had reasoned that, because the sexual encounter at issue occurred in a hotel 
J-A32041-16

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room, outside of Church premises,24 the diocese of Altoona-Johnstown and 

related parties could not, as a matter of law, be liable for punitive damages

under the Restatement (Second) of Torts § 317 (1965) [master-servant 

liability], which the panel majority had read to require the tort to occur on 

the premises of the master.25 See Hutchison, 763 A.2d at 832. On 

remand from our Supreme Court, in a complex, and somewhat complicated 

opinion, the panel in this Court decided that “the cause of action for a 

practice or pattern was not cognizable as a basis for a claim for punitive 

damages and section 317 could not support a claim for punitive damages.” 

Id. at 837–38. 

____________________________________________

24 It appears that the statute of limitations had run out on a series of prior 

encounters in the rectory, or other church property. 

25 Section 317, in pertinent part, provided that:

A master is under a duty to exercise reasonable care so to 

control his servant while acting outside the scope of his 

employment as to prevent him from intentionally harming others 

or from so conducting himself as to create an unreasonable risk 

of bodily harm to them, if

(a) the servant

(i) is upon the premises in possession of the master 

or upon which the servant is privileged to enter only as his 

servant, or

(ii) is using a chattel of the master[.]

Restatement (Second) of Torts § 317(a) (1965) (emphasis added; original 

emphasis removed).
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Our Supreme Court vacated and remanded. Pertinent to the issues for 

which appeal was granted, it held that “there is no general proscription in 

law against pursuing punitive damages in the Section 317 context, where 

the facts so warrant.” Hutchison, 870 A.2d at 773. 

Our Supreme Court explained: “[W]e reject the Superior Court’s 

conclusion that punitive damages are unavailable, as a matter of law, in an 

action for negligent supervision. We remand the matter to the Superior 

Court to determine whether the jury’s award of punitive damages against 

the [d]iocesan [p]arties was properly supported by the evidence.” Id. 26

Therefore, aside from the recital of general principles not substantively 

at issue here, the holding in Hutchison on its face does not address the 

issue of reinstatement of a previously withdrawn claim for punitive 

damages, past the expiration of the statute of limitations. 

____________________________________________

26 The Court further explained:

In overturning the jury award of punitive damages in this 

case, the Superior Court panel did not view the question before 

it as requiring application of the settled punitive damages 

standard to the facts of the case. Instead, the panel concluded 

that, since the cause of action for negligent supervision may 

succeed upon a showing of ordinary negligence, and an award of 

punitive damages requires far more than ordinary negligence, 

negligent supervision causes of action can never be the basis for 

an award of punitive damages. In so holding, the panel 

conflated theories of liability with the distinct issue of damages, 

misconstrued this Court’s precedent, and thereby committed an 

error of law.

Hutchison, supra at 772 (emphases in original).
J-A32041-16

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Appellees’ reliance on Hilbert is also misplaced. We begin by noting

that Hilbert, a case principally involving contribution among joint 

tortfeasors, has long since been superseded by statute. See Baker v. 

AC&S, Inc., 729 A.2d 1140, 1147 (Pa. Super. 1999) (en banc), affirmed 

sub nom. Baker v. ACandS, 755 A.2d 664 (Pa. 2000). 

In any event, in Hilbert, our High Court denied punitive damages 

from a second tortfeasor to the claimant, who had already settled in full with 

the first tortfeasor under then-applicable law. The case does contain the 

exact phrase Appellees want for their argument, (“The right to punitive 

damages is a mere incident to a cause of action—an element which the jury 

may consider in making its determination—and not the subject of an action 

in itself.”). Hilbert, supra at 652 (citations omitted). Nevertheless, in full 

context, the actual holding in Hilbert offers scant support for Appellees’ 

claim in this appeal. The Supreme Court decided that because the 

compensatory damages claim was not available, the punitive damages claim 

failed: “Hence, since plaintiff no longer has a cause of action of which his 

claim for punitive damages may be an element, that claim must fail.” 

Id. at 652 (emphases added). 

The denial of punitive damages, because the predicate tort is no 

longer a viable cause of action, is the functional opposite of the claims at 

issue in this appeal. We discern no basis for extending the holding in 

Hilbert to support the opposite result.
J-A32041-16

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Accordingly, we conclude that the introduction of a claim for punitive 

damages, particularly after it had been previously withdrawn, improperly 

added a new cause of action after the statute of limitations had run. 

Appellees’ arguments (and those of the trial court) to the contrary are 

unpersuasive. We are constrained to conclude that the trial court erred in 

granting the amendment.27 

____________________________________________

27 Furthermore, for clarity and completeness, we are constrained to conclude 

that the grant of permission to add a punitive damages claim after the 

limitations period had expired was also an abuse of discretion. “When 

interpreting a stipulation, courts employ the rules for construction of 

contracts[.]” Cobbs, supra at 1377 (citation omitted). Here, the trial court 

deprived Appellant of the benefit of the bargain (elimination of the punitive 

damages claim) for withdrawing its preliminary objections to the complaint 

in exchange for the removal of the outrageous conduct allegations. So 

Appellant lost the benefit of its concession while Appellees gained a new 

cause of action with no additional cost or risk (save the burden of proof). 

Depriving Appellant of the benefit of the bargain, while preserving (if not 

enhancing) the benefit to Appellees, was a de facto act of partiality to 

Appellees, even if unintentional. Finally, again for the sake of completeness, 

we have no difficulty in concluding that the grant of the order to add a claim 

for punitive damages in the middle of the trial prejudiced Appellant by 

depriving it of a reasonable opportunity to develop and prepare an 

appropriate defense. Holding a second trial on the same issue only a few 

weeks later in such a prolonged, complex, and hard-fought case also 

prejudiced Appellant’s ability to prepare an adequate trial strategy for the 

new claim. We note that Appellant timely raised the issues of untimeliness 

and prejudice, and preserved its objection to the punitive damages 

amendment. (See Response of Defendant U.S. Security Associates, Inc. to 

Plaintiffs’ Motion to Amend Their Complaints to Add a Claim for Punitive 

Damages, 10/20/14, at 11 ¶28; Motion for Post-Trial Relief, 3/09/15, at 3 

¶3, ¶4). 
J-A32041-16

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For the same reasons, we are constrained to conclude that the second 

trial on punitive damages was also in error and an abuse of discretion. 

Appellant is entitled to a JNOV on the award of punitive damages. 

Because we find in favor of Appellant on its first claim, we need not 

decide its second, third, or fourth claims. They all seek relief from the award 

of punitive damages, on alternative grounds. (See Appellant’s Brief, at 6; 

25-65).28 Since we have already granted the relief sought, we need not 

review the merits of these alternate grounds, vel non, and we decline to do 

so. Similarly, in the interest of judicial economy we decline to review, as 

moot, the merits of the numerous subsidiary issues raised by Appellant in 

the second, third, and fourth arguments, whether or not they are fairly 

suggested by the questions presented. 

In its fifth question, Appellant claims that the evidence presented to 

prove its negligence was “inadequate as a matter of law to find causation[.]” 

(Appellant’s Brief, at 6; see also id. at 65-74).29 It maintains that it is 

entitled to JNOV “on all issues.” (Id. at 6).30 We disagree.

____________________________________________

28 Briefly summarized, Appellant claims that: (a) the security officers’ 

conduct was insufficient as a matter of law to impose punitive damages; (b) 

it was prejudiced by the trial court’s refusal to admit the testimony of its 

proposed expert witness; and (c) the punitive damages award was shocking 

and excessive. 

29 In the Statement of Questions Involved, Appellant characterizes the 

evidence as “inadequate.” (Appellant’s Brief, at 6). In the Argument 

section, Appellant calls the evidence “insufficient.” (Id. at 65). 

(Footnote Continued Next Page)
J-A32041-16

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Citing Feld v. Merriam, 485 A.2d 742, 747 (Pa. 1984),31 Appellant 

postulates that our Supreme Court has ruled that “the standard of care 

(Footnote Continued) _______________________

30 For preservation of its causation issues on appeal, Appellant presumably 

relies on the first claim asserted in its Rule 1925(b) statement of errors. 

(See Pa.R.A.P. Rule 1925(b) Statement, 1/22/16, at 2). The claim is merely 

a generalized boilerplate assertion denying “that any claimed breach was a 

legal cause of the harm[.]” (Id.). If this were all we had, we would find all 

causation claims waived for vagueness. However, the trial court responded 

to the claim with a considered analysis of the breach of duty claims. 

Appellant adopts the trial court’s framework on appeal. Because the trial 

court’s analysis enables meaningful review, we give Appellant the benefit of 

the doubt, and we decline to find waiver. 

However, it also bears noting for completeness and clarity that a 

statement of errors which incorporates by reference motions previously filed 

in the trial court, as Appellant does here, is not a proper Rule 1925 

statement. See Commonwealth v. Osteen, 552 A.2d 1124, 1126 (Pa. 

Super. 1989) (“incorporation by reference of appellant’s Motion for 

Reconsideration of Sentence in the purported Pa.R.A.P. 1925(b) statements 

failed to comply with the letter or spirit of Pa.R.A.P. 1925(b)”); see also

Commonwealth v. Rodgers, 605 A.2d 1228, 1239 (Pa. Super. 1992), 

appeal denied, 615 A.2d 1311 (Pa. 1992) (“[A]n appellate brief is simply not 

an appropriate vehicle for the incorporation by reference of matter appearing 

in previously filed legal documents.”). A 1925(b) statement should include a 

concise statement of each issue to be raised on appeal without reference to 

other documents. Pennsylvania Rule of Appellate Procedure 1925(b)(4)(ii) 

provides that: “The Statement shall concisely identify each ruling or error 

that the appellant intends to challenge with sufficient detail to identify all 

pertinent issues for the judge.” Failure of compliance is a sufficient basis for 

finding a violation of Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998), 

and its progeny: “Any issues not raised in a 1925(b) statement will be 

deemed waived.” Id. at 309; see also Pa.R.A.P. 1925(b)(4)(vii): (“Issues 

not included in the Statement and/or not raised in accordance with the 

provisions of this paragraph (b)(4) are waived.”). 

31 In its brief, Appellant repeatedly mis-cites Feld as “484 A.2d 742.” (See

e.g., Appellant’s Brief, at iii, 65). 
J-A32041-16

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applicable to a private security services company is limited to the express 

terms and conditions of the contracted-for program of security ─ no more, 

no less.” (Appellant’s Brief, at 65).32 Appellant’s reliance is misplaced.

Appellant’s causation claims challenge the sufficiency of the evidence. 

See Kennedy v. Sell, 816 A.2d 1153, 1159 (Pa. Super. 2003) (holding, 

inter alia, defendant properly challenged sufficiency of plaintiff’s evidence of 

injury by demonstrating lack of causation through evidence of multiple 

additional unrelated injuries); Farnese v. SEPTA, 487 A.2d 887, 889-90 

(Pa. Super. 1985) (bus passenger’s evidence of general rough street 

conditions insufficient for jury to infer City of Philadelphia’s road work 

causally created accident, jolt, and injury).

“When reviewing the sufficiency of the evidence . . . this Court must 

determine whether the evidence and all reasonable inferences therefrom, 

____________________________________________

32 In the brief, Appellant adds a bald citation to Kerns v. Methodist Hosp., 

574 A.2d 1068 (Pa. Super. 1990), with no further discussion. (See 

Appellant’s Brief, at 65). In Kerns, a pizza delivery man injured in an 

armed robbery by unknown assailants sued a hospital/landlord (of a nurses’ 

residence) and its private security firm, based on a theory of negligent 

undertaking to provide adequate security. Quoting Feld, this Court 

reasoned that if the landlord/hospital offered a program of security (through 

the engagement of the security firm) to the tenants of its nurses’ residence 

and their invitees, (as it indisputably did), “the Hospital and the Security 

Firm had a duty to exercise reasonable care with respect to that program 

of security.” Kerns, supra at 1077 (emphasis added). In other words, 

while the law does not mandate the establishment of, or a particular level of, 

security service, once a party undertakes to provide security, it must do so 

with reasonable care. Nevertheless, in Kerns, finding no evidence of 

negligence, this Court affirmed summary judgment in favor of the hospital 

and the security firm. See id. at 1078 (citing Feld, supra at 747). 
J-A32041-16

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viewed in the light most favorable to the verdict winner, was sufficient to 

enable the factfinder to find against the losing party.” Zeffiro v. Gillen, 

788 A.2d 1009, 1013 (Pa. Super. 2001) (citation omitted). We also remain 

mindful of the standard of review for a motion for JNOV, as previously noted. 

See Thomas Jefferson Univ., supra at 569 (evidence viewed in light most 

favorable to verdict-winner, with benefit of every reasonable inference; all 

unfavorable testimony and inferences rejected); see also Am. Future Sys., 

supra at 1215. 

Here, in a meandering argument which jumps back and forth between 

claims of de facto compliance and denials of causation despite noncompliance, (at the expense of developing meaningful support for any of the 

issues), Appellant presents three main points challenging the sufficiency of 

the evidence for causation. (See Appellant’s Brief, at 65-74). 

First, it maintains that the evidence did not establish a definition for 

“escort services” in the post orders or the other contractual documents.33 

(See id. at 67-68). From the lack of a contractual definition of escort 

services, and inconsistent evidence on whether the escort procedure 

____________________________________________

33 We note on independent review that the supplementary documents to the 

service agreement between Kraft and USSA mention “escort services” 

several times, mostly in lists of services which may be provided, and 

sometimes referring to it as one of the “core responsibilities.” (Service 

Agreement, 8/01/10, Exhibit A, at 10). Nevertheless, the term is never 

defined, nor are any specific procedures mandated or identified in the 

constituent documents. 
J-A32041-16

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required accompanying Hiller all the way to her car, Appellant posits that 

there was no breach of duty. In the alternative, Appellant argues that, even 

assuming there was a breach of duty, that breach was not a legal cause of 

the murders. (See id. at 70-71). 

Secondly, Appellant disputes that the guards failed to perform their 

duty to communicate a “threatening situation” to Kraft management. (Id. at 

68). It argues here, and repetitively throughout the brief, that Hiller’s 

threatening behavior frightened and panicked the USSA security guards.34 

Even so, Appellant notes, both guards called the police.35 (See, e.g., id. at 

69). They also told David Ciarlante, the mechanic on a smoke break, that 

Hiller was back with a gun. (See N.T. Trial, 2/23/15, P.M. at 75-76).36 

Thirdly, Appellant asserts generally that the evidence was insufficient 

to establish causation “as a matter of law[.]” (See Appellant’s Brief, at 71). 

In a brief but still opaque treatment, Appellant argues, in effect, that 

Appellees failed to meet their burden to prove proximate cause and actual 

cause, when both are required to prove legal causation. (See id. at 70-71). 

____________________________________________

34 We remain aware, as Appellant repeatedly reminds us, that the USSA 

guards, by contract, were unarmed. 

35 Apparently, even Hiller also called the police herself. (See Statement of 

Yvonne Hiller to Philadelphia Police Department, 9/09/10, at page 3).

36 Mr. Ciarlante immediately radioed a warning to Kraft management, and 

ran back into the building to try to stop Hiller. (See N.T. Trial, 2/23/15, 

P.M. at 77). 
J-A32041-16

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It posits that under the substantial factor test, the evidence was insufficient 

to find causation without impermissible speculation. (See id. at 71). 

We accept the first argument. However, we conclude there is no merit 

to either the second or the third claims. 

Proximate causation has been found where wrongful 

conduct is a substantial factor in bringing about the harm 

incurred. Proximate causation, which differs from causation-infact, is generally a question of law and depends on whether 

responsibility for the negligent conduct will extend to the harm 

which in fact occurred. When the harm which ultimately results 

appears to the court to be a remote and highly extraordinary 

consequence of the defendant’s conduct, legal causation will not 

be found and liability will not attach. 

Amarhanov v. Fassel, 658 A.2d 808, 810 (Pa. Super. 1995) (citations 

omitted). As with all questions of law, our standard of review is de novo and 

our scope of review is plenary. See In re Wilson, 879 A.2d 199, 214 (Pa. 

Super. 2005) (collecting cases). 

The relevant law on negligence is extensive, but well-settled:

In trying to recover for an action in negligence, a party 

must prove four elements. They are:

1. A duty or obligation recognized by law.

2. A breach of the duty.

3. Causal connection between the actor’s breach of 

the duty and the resulting injury.

4. Actual loss or damage suffered by complainant.

Reilly v. Tiergarten, Inc., 430 Pa. Super. 10, 633 A.2d 208, 

210 (1993), [appeal denied, 649 A.2d 675 (Pa. 1994)] 

(emphasis added [in original]).
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It is beyond question that the mere existence of 

negligence and the occurrence of injury are insufficient to 

impose liability upon anyone as there remains to be proved 

the link of causation. Furthermore, our Supreme Court 

has stated that “. . . even when it is established that the 

defendant breached some duty of care owed the plaintiff, it 

is incumbent on a plaintiff to establish a causal connection 

between defendant’s conduct, and it must be shown to 

have been the proximate cause of plaintiff’s injury.”

Proximate causation is defined as a wrongful act 

which was a substantial factor in bringing about the 

plaintiff’s harm. Proximate cause does not exist where the 

causal chain of events resulting in plaintiff’s injury is so 

remote as to appear highly extraordinary that the conduct 

could have brought about the harm. At issue here is 

whether or not Appellee’s negligence was a “substantial 

factor” in bringing about Appellant’s injuries to satisfy the 

element of causation.

In order to establish causation, the plaintiff must 

prove that the breach was both the proximate and 

actual cause of the injury. Proximate cause is a 

question of law to be determined by the court before the 

issue of actual cause may be put to the jury. A 

determination of legal causation[ ] essentially regards 

whether the negligence, if any, was so remote that as a 

matter of law, [the actor] cannot be held legally 

responsible for [the] harm which subsequently occurred. 

Therefore, the court must determine whether the injury 

would have been foreseen by an ordinary person as the 

natural and probable outcome of the act complained of.

The substantial factor test for determining whether a 

party’s negligence was the proximate or legal cause of another’s 

injury is set forth in Wisniewski v. Great Atlantic & Pacific 

Tea Co., 226 Pa. Super. 574, 323 A.2d 744, 748 (1974):

This test provides that 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
J-A32041-16

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(b) there is no rule of law relieving the actor from 

liability because of the manner in which his negligence 

has resulted in harm.

[Id.] (citing RESTATEMENT (SECOND) OF TORTS, § 431 

(1965)).

The method for determining whether negligent conduct is a 

substantial factor in producing the injury is set forth in Willard 

v. Interpool, Ltd., 758 A.2d 684, 688 (Pa. Super. 2000) [, 

appeal denied, 775 A.2d 808 (Pa. 2001)]:

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.

[Id.] (citing RESTATEMENT (SECOND) OF TORTS § 433 (1965)).

Lux v. Gerald E. Ort Trucking, Inc., 887 A.2d 1281, 1286–87 (Pa. Super. 

2005), appeal denied, 901 A.2d 499 (Pa. 2006) (some citations and internal 

quotation marks omitted).

For this appeal, we observe preliminarily that Appellant mis-reads the 

applicability of the decision in Feld, supra and misstates its holding. (See 

Appellant’s Brief, at 65, 68). Feld is, at its core, a landlord-tenant case: 

“The threshold question is whether a landlord has any duty to protect 
J-A32041-16

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tenants from the foreseeable criminal acts of third persons, and if so, under 

what circumstances.” Feld, supra at 745. 

Here, Appellant is not a landlord, and the victims were not tenants. 

Contrary to Appellant’s categorical assertion, our Supreme Court in Feld has 

nothing specific to say about the contractual standard of care for a private 

security services company.37 (See Appellant’s Brief, at 65). 

In any event, in stark contrast to Appellant’s purportedly contractbased “no more, no less” standard of care, (Appellant’s Brief, at 65), under 

both Feld and Kerns, when a party does offer a program of security, “he 

must perform the task in a reasonable manner and where a harm 

follows a reasonable expectation of that harm, he is liable. The duty 

is one of reasonable care under the circumstances.” Kerns, supra at 

1077 (quoting Feld, supra at 747) (first emphasis added here; second 

emphasis added in Kerns). Under the Restatement (Second) of Torts § 323 

(1965),38 adopted as law in Pennsylvania, (see Feld, supra at 746–47), one 

____________________________________________

37 In fact, in Feld, the jury found no liability for the security firm, leaving 

no issues about a security firm’s duty of care for review on appeal. See

Feld, supra at 745 (“The jury absolved Globe Security of any liability.”). 

The actual holding in Feld (for the apartment complex owners) is more 

analogous to Kraft’s situation in this case, not Appellant’s. 

38 § 323 Negligent Performance of Undertaking to Render Services

One who undertakes, gratuitously or for consideration, to render services 

to another which he should recognize as necessary for the protection of 

the other’s person or things, is subject to liability to the other for physical 

(Footnote Continued Next Page)
J-A32041-16

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who undertakes to render services to another may be held liable for doing so 

in a negligent fashion;39 (see also Trial Court Memorandum, at 9).40 As 

(Footnote Continued) _______________________

harm resulting from his failure to exercise reasonable care to perform his 

undertaking, if

(a) his failure to exercise such care increases the risk of such harm, 

or

(b) the harm is suffered because of the other’s reliance upon the 

undertaking.

Restatement (Second) of Torts § 323 (1965) (emphasis omitted).

39 Pertinent to the claims at issue here, the companion section, § 324A, 

addresses liability to third parties: 

§ 324A Liability to Third Person for Negligent 

Performance of Undertaking

One who undertakes, gratuitously or for consideration, to 

render services to another which he should recognize as 

necessary for the protection of a third person or his things, is 

subject to liability to the third person for physical harm resulting 

from his failure to exercise reasonable care to protect his 

undertaking, if

(a) his failure to exercise reasonable care increases the 

risk of such harm, or

(b) he has undertaken to perform a duty owed by the 

other to the third person, or

(c) the harm is suffered because of reliance of the other or 

the third person upon the undertaking.

Restatement (Second) of Torts § 324A (1965) (most emphasis omitted).

40 Even Appellant concedes the reasonable care standard, later in the brief. 

(See Appellant’s Brief, at 69). 
J-A32041-16

- 39 -

aptly summarized by the trial court, “where a program of security is offered 

it must be performed in a reasonable manner[.]” (Trial Court Memorandum, 

at 9). 

Applying these principles to the first causation argument (escort 

service liability), we agree with Appellant that the negligent performance of 

the escort service was not a legal cause of the murders. There was certainly 

sufficient evidence for the jury to conclude that Harris was supposed to 

escort Hiller all the way to her car.41 However, there is no evidence of 

record to support the proposition that a failure to provide an escort all the 

way to Hiller’s car was a proximate cause or a substantial factor in the 

shootings. 

We review the evidence in the light most favorable to the Appellees as 

verdict winners, but we cannot speculate where no evidence exists. The 

suggested causal link, that a walk all the way to the car would have 

discouraged or prevented Hiller from returning, is unsupported, speculative, 

and never rises above mere conjecture. It is too remote to establish legal 

causation. There was nothing to prevent Hiller from returning on her own. 

In fact, she did. There is no evidence to establish that a lengthier escort 

would have made any difference in the ultimate course of events. 

____________________________________________

41 Even Harris testified as much. (See N.T. Trial, 2/17/15 P.M., at 51 (“Carl 

[Rivers] said that we’re going to ─ that he needed me to come out and 

escort Ms. Yvonne, Ms. Hiller, to her car because she’s being terminated.”)) 

(emphasis added). 
J-A32041-16

- 40 -

Rather, in her statement to the police that night, Hiller confirmed that 

she originally intended to drive away, but changed her mind. (See

Statement of Hiller to Police, supra at 3) (“I planned on going right home, 

but I started to think about the fifteen years that I have spent there that 

somebody was just taking away from me. I started to drive out, but I 

turned and went back in.”) (emphasis added).

Therefore, even viewing the evidence in the light most favorable to 

Appellees, we find nothing in the record to establish that escorting Hiller to 

her car would have ensured her permanent departure from the property, or 

prevented her return. (See Appellees’ Brief, at 6-7, 15-16). Accordingly, 

there was no evidence that an escort to Hiller’s car would have prevented 

the shootings. We conclude that any breach of escort service procedures 

was not a proximate or legal cause of the murders. See Amarhanov, 

supra at 810. 

Nevertheless, the fifth claim merits no relief from the jury’s finding of 

negligence, because Appellant fails to disprove causation in its second and 

third arguments. 

In its second causation–related claim, Appellant asserts that any 

failure to call Kraft management was not a proximate cause of the 

shootings. (See Appellant’s Brief, at 72-74). Abandoning the claim that the 

guards did call Kraft, (disproved at trial), Appellant maintains on appeal that 

even if the guards had called, there was no evidence it would have made “a 
J-A32041-16

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bit of difference.” (Id. at 72; see also id. at 73 (“would have made no 

difference”)). We disagree.

Most notably, Appellant disregards our standard of review.42 

Complaining that the trial court opinion does not “fairly depict the evidence,” 

Appellant summarizes its own selected version of the facts. (Appellant’s 

Brief, at 68; see also id. at 68-69).43 Appellant’s effort at recharacterization of the evidence fails for two reasons. 

First, under both applicable standards of review (for JNOV as well as 

sufficiency of the evidence), we view the evidence in the light most favorable 

to the verdict winners, not the Appellant. Secondly, we do not re-weigh the 

evidence, as Appellant would have us do. To the contrary, we reject “all 

unfavorable testimony and inferences[.]” Thomas Jefferson Univ., supra 

at 569. JNOV is only proper when “no two reasonable minds could disagree 

____________________________________________

42 We continue to view the evidence in the light most favorable to the 

Appellees as verdict winners, together with the benefit of every reasonable 

inference, and rejecting all unfavorable testimony and inferences. See 

Thomas Jefferson Univ., supra at 569; Zeffiro, supra at 1013. 

43 Appellant’s arguments here, as elsewhere, are repetitive, jumbled, and 

undeveloped. (See Appellant’s Brief, at 68-70). Nevertheless, they may be 

summarized as follows: Harris and Bentley were “frightened and panicked” 

by Hiller; their fear caused a primitive reaction in the brain; nevertheless, 

despite the “cascade of physical and chemical changes” in their brains and 

bodies, the guards satisfied the contract/post order requirement of 

alternative notice (“get another person’s attention”) by warning Ciarlante 

that Hiller was back with a gun; both Harris and Bentley called 911; and the 

guards cooperated with the police when they arrived. (Id. at 69; see also 

id. at 68-70). 
J-A32041-16

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that the outcome should have been rendered in favor of the movant,” not 

merely when, as here, Appellant offers an alternative theory of the case. 

Id. 

For the same reasons we reject all adverse inferences, even if 

characterized as causation arguments, e.g., that “[notice] would [not] have 

made a bit of difference,” (Appellant’s Brief, at 72); and “[c]alling up to

Rivers would certainly have made no difference.” (Id. at 73).44 Assertions 

that taking the actions the guards were supposed to take by contract and 

post order would not have made any difference are not a disproof of 

causation. They are speculation and conjecture. 

Additionally, contrary to the argument of Appellant, the jury was free 

to find that the guards’ warning of Mr. Ciarlante was not the equivalent of 

giving notice to Kraft management. (See Appellant’s Brief, at 69) (citing 

N.T. Trial, 2/23/15, at 90). Notably, neither Bentley nor Harris asked 

Ciarlante to notify Kraft Management for them. (See N.T. Trial, 2/23/15, at 

90).45 

____________________________________________

44 Moreover, Appellant’s self-serving reformulation of the facts neither 

disproves negligence nor exonerates the security guards. For one thing it is 

demonstrably inaccurate. Harris did not “cooperate” with the police. He lied 

to the police to protect his job. (See N.T. Trial, 2/17/15 P.M., at 99). He 

provided a false written report to the police. He also filed a false report with 

Kraft. (See Trial Court Memorandum, at 13). 

45 It also bears noting that the jury was free to reject the various excuses 

offered by Harris and Bentley, e.g., that Harris dropped his radio, that 

(Footnote Continued Next Page)
J-A32041-16

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Appellant’s over-arching explanation is that Harris and Bentley failed 

to perform their duties because they were “frightened and panicked” by 

Hiller. (Appellant’s Brief, at 69). Even assuming for the sake of argument 

that Appellant’s claim is correct, that only explains why the guards were 

negligent. It does not undo their negligence, transform their obvious 

negligence into minimal compliance, or diminish its tragic consequences.46

Because the decision to evacuate rested with Kraft management, the 

first priority of response for the USSA guards was to notify Kraft 

management. Mr. Ciarlante was not Kraft’s “representative.” (Appellant’s 

Brief, at 69). He was a regular employee who appears to have acted 

heroically when an emergency situation called for an immediate response. 

The jury was free to find on the evidence presented that there was no 

reason the USSA guards could not or should not have notified Kraft 

(Footnote Continued) _______________________

Bentley gave his radio to Mr. Ciarlante (who testified that he already had his 

own Kraft-issued radio), that Bentley did not know how to operate the 

communications equipment, etc. The jury was free to find on the evidence 

that there was no serious obstacle to either USSA guard notifying Kraft 

management of the emergency situation directly. There was no need, or 

particular benefit, in having Ciarlante perform their contractual duties for 

them. 

46 Moreover, we observe that Appellant’s multiple excuses stand in stark 

contrast to Mr. Ciarlante’s spontaneous pro-active response, calling Kraft 

management (Ms. Mowday) and rushing back into the building to pursue 

Hiller himself. 
J-A32041-16

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management of the emergency situation themselves, not Mr. Ciarlante, 

saving precious moments when every second counted. 

The shootings were foreseeable. Indeed, it was the fear of being shot 

themselves that prompted the guards to let Hiller re-enter in the first place. 

There was evidence that the USSA guards had the same two-way radios as 

Kraft employees, and cell phones.47 Kraft also maintained landline 

telephones, and a public address system. Harris and Bentley failed to use 

any of these communication facilities.

“[W]hen a party offers a program of security, ‘he must perform the 

task in a reasonable manner and where a harm follows a reasonable 

expectation of that harm, he is liable. The duty is one of reasonable care 

under the circumstances.’” Kerns, supra at 1077 (quoting Feld, supra at 

747) (emphasis omitted). 

Proximate cause is a term of art, and may be established 

by evidence that a defendant’s negligent act or failure to act was 

a substantial factor in bringing about the harm inflicted upon a 

plaintiff. Pennsylvania law has long recognized that this 

substantial factor need not be . . . the only factor, i. e., “that 

cause which . . . produces the result.” A plaintiff need not 

exclude every possible explanation, and the fact that some other 

cause concurs with the negligence of the defendant in producing 

an injury does not relieve defendant from liability unless he can 

show that such other cause would have produced the injury 

independently of his negligence. 

____________________________________________

47 Harris testified that he dropped his radio when he fell while running to the 

boiler room. He did not go back to retrieve it. 
J-A32041-16

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In Hamil v. Bashline, [392 A.2d 1280, 1285 (Pa. 1978)], 

we noted that Section 323(a) of the Restatement (Second) of 

Torts (1965) has long been recognized as part of the law of 

Pennsylvania, and then held that the effect of that section was to 

relax the degree of certainty ordinarily required of a plaintiff’s 

evidence to provide a basis upon which a jury may find 

causation: 

(O)nce a plaintiff has demonstrated that defendant’s acts 

or omissions, in a situation to which Section 323(a) applies, have 

increased the risk of harm to another, such evidence furnishes a 

basis for the fact-finder to go further and find that such 

increased risk was in turn a substantial factor in bringing about 

the resultant harm; the necessary proximate case will have been 

made out if the jury sees fit to find cause in fact.

Jones v. Montefiore Hosp., 431 A.2d 920, 923–24 (Pa. 1981) (some 

citations omitted).

Viewing the evidence in the light most favorable to the Appellees as 

verdict winners, we conclude that the jury could properly find that failure to 

perform the “communication duty,” (Appellant’s brief, at 68), was a 

substantial factor, even if not the only factor, and one of the proximate 

causes of the shootings. The jury could have properly concluded that this 

failure to communicate an emergency threatening situation was a substantial 

factor in increasing the risk of harm, setting in operation the sequence of 

events by which Hiller could proceed unimpeded to the break room, where 

she shot her victims. See Lux, supra at 1286–87 (citing Willard, supra at 

688). 

We discern no abuse or other error in the finding of the jury and 

decline to disturb it. Appellant’s second causation claim fails. 
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Finally, we reject, as an incorrect reading of the applicable law, 

Appellant’s generalized third claim─that the evidence was insufficient to 

establish causation as a matter of law. (See Appellant’s Brief, at 70-71). In 

particular, Appellant’s reliance on Eckroth v. Pa. Elec., Inc., 12 A.3d 422 

(Pa. Super. 2010), appeal denied, 21 A.3d 678 (Pa. 2011) is misplaced and 

unavailing. 

In Eckroth, a utility shut off electric service for chronic non-payment. 

See id. at 425. Two days later, the utility customer left a lit candle in the 

bathroom next to highly flammable materials (towels and toilet tissue), on 

the same shelf, as a night light for family and guests, including several 

children. Somehow, the candle fell or was knocked over. Four people 

perished in the resulting fire. This Court concluded that a claim against the 

utility for the shut-off of electricity two days earlier was too remote to 

establish legal causation for the fire, finding the nexus between the facts too 

attenuated. See id. at 424-26, 429. 

Here, the facts are markedly different. The question of causation at 

issue is not that USSA withheld security services from Kraft for non-payment 

of its bills. There was no two-day gap between the cause and the effect. 

Appellant fails to identify any third party action to establish an intervening 

cause. In fact, there was no evidence of a superseding cause comparable to 

the placement of a lit candle in a dangerous location. 
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Rather, in this case, the jury heard evidence that the guards let Hiller 

in when she pointed her revolver at one of them. Once she was in, the 

guards scrambled in different directions. Senior USSA guard Damon Harris 

admitted that he did not perform his guard duties because he was looking 

out for himself. At trial he acknowledged that in his deposition he explained 

away his failure to act by saying, “I got Damon to look after.” (N.T. Trial, 

2/18/15 A.M., at 18). He conceded that he hid in the boiler room until the 

police arrived. (See id. at 19). 

The jury could have concluded that once the guards had let her in, 

reasonable care under the circumstances required that the guards 

immediately notify Kraft management (not merely a serendipitous passerby) 

of the threatening emergency situation. 

Even assuming (as counsel for Appellees did) that the guards had no 

practical choice at gunpoint but to let Hiller in,48 the jury was free to 

conclude from the evidence that the guards could have and should have 

notified Kraft management by cell phone, landline telephone, two-way radio, 

public address system, or some combination of these communications 

facilities. 

____________________________________________

48 (See N.T. Trial, 3/30/15, at 15) (“I don’t hold them to some Superman 

standard”). 
J-A32041-16

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The jury was also free to find from the evidence that they did not do 

so. We discern no meaningful comparison between the attenuated 

circumstances in Eckroth and the risks of an immediate shooting here. 

Appellant fails to demonstrate from general legal principles that inaction by 

its guards did not contribute to the set of circumstances which allowed Hiller 

to proceed unimpeded with her shooting rampage. Specifically, Appellant 

fails to prove by implied comparisons to Eckroth that there was no legal 

causation “as a matter of law.” We conclude as a matter of law that the jury 

was free to find that inaction of the USSA guards was “a substantial factor” 

in contributing to the resultant harm. Therefore, the jury was free to render 

a verdict that Appellant, through its employees, failed to exercise reasonable 

care. Appellant’s fifth claim fails. 

In its sixth, final claim, Appellant argues that the verdict should be 

molded “in accordance with the joint tortfeasor releases.” (Appellant’s Brief, 

at 74 (unnecessary capitalization omitted; see also id. at 74-79). We 

disagree. 

Notably, Appellant concedes that “[t]here was no dispute that if USSA 

had any liability, Hiller and USSA would be joint tortfeasors.” (Appellant’s 

Brief, at 74) (emphasis added).49 Appellant argues, in effect, that as a joint 

____________________________________________

49 “‘[J]oint tort-feasors’ means two or more persons jointly or severally liable 

in tort for the same injury to persons or property, whether or not judgment 

has been recovered against all or some of them.” 42 Pa.C.S.A. § 8322.

(Footnote Continued Next Page)
J-A32041-16

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tortfeasor with Hiller it is entitled to benefit from the release executed by 

Kraft on behalf of itself and its employees.50 

Appellant acknowledges that it was expressly excluded from the 

operation of the Kraft settlements. (See id. at 76). Nevertheless, it 

maintains that it is still entitled to a reduction of its liability pro rata because 

in the releases no rights were reserved against Hiller.51 (See id.). 

Appellant argues that “[t]he only reasonable interpretation of the releases” 

executed by the Appellees in favor of Kraft, “includes Hiller.” (Appellant’s 

Brief, at 75). Appellant posits that “Hiller is among those released” as one 

of Kraft’s “agents[,] servants[, or] employees.” (Id. at 76). We disagree.

The trial court concluded that, under controlling caselaw, as of 

September 9, 2010, Hiller’s employment with Kraft was terminated. (See 

Trial Court Memorandum, at 24). The court cited Powell v. Ret. Bd. of 

Allegheny Cty., 246 A.2d 110, 113 (Pa. 1968) (employee who murdered 

wife presumed to intend resignation, despite request for leave of 

absence, on continued failure to resume employment obligations after 

reasonable time; employee must demonstrate intention to remain member 

(Footnote Continued) _______________________

50 As previously noted, Kraft settled separately with Appellees. (See supra

at *4 n.4).

51 The first jury found that liability for the deaths of LaTonya Brown and 

Tanya Wilson was 70% attributable to Hiller and 30% attributable to 

Appellant. (See Verdict Slip, 2/26/15). 
J-A32041-16

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of labor force), and Becker v. Butler Cty. Mem'l Hosp., 378 A.2d 316, 318 

(Pa. Super. 1977) (employee who ignored request to return to work after 

brief disability constructively resigned employment despite employer’s 

failure to comply with administratively prescribed notice procedure). We 

agree.

Appellant argues, implausibly and with no pertinent citation of support 

from controlling authority or the evidence of record, that because there was 

no “continued failure” by Hiller to assume employment obligations after “a 

reasonable time ha[d] elapsed,” she was still a Kraft employee and the Kraft 

releases applied to her. (Appellant’s Brief, at 78).52 Appellant baldly asserts 

that both the Powell and the Becker decisions support its position, rather 

than that of the trial court (even though both cases conclude that the 

employment at issue was terminated). (See id.). We disagree. 

Appellant’s undeveloped argument misapprehends the proper standard 

of review. Questions of employment status are typically addressed to the 

Commonwealth Court. While decisions of the Commonwealth Court are not 

binding on this Court, we may elect to follow them if we find the rationale 

____________________________________________

52 Although technically suspended, Hiller’s own assessment that her job was 

forfeited is not in doubt. As already noted, when she returned to the break 

room she told the victims: “You motherfuckers costing me my job[.]” (N.T. 

Trial, 2/18/15 P.M., at 20). (See also Statement of Hiller to Police, supra

at 3) (“I started to think about the fifteen years that I have spent there that 

somebody was just taking away from me.”). 
J-A32041-16

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persuasive. See Beaston v. Ebersole, 986 A.2d 876, 881 (Pa. Super. 

2009). 

Whether an employee voluntarily quit employment is a question of law 

subject to appellate review as determined from the facts of the individual 

case. See Procyson v. Unemployment Comp. Bd. of Review, 4 A.3d

1124, 1127 (Pa. Commw. 2010). In determining whether an employee had 

a conscious intention to leave employment, appellate courts consider the 

totality of the circumstances surrounding the incident. See id. 

Here, we have no hesitancy in determining that in the totality of 

circumstances, Hiller understood herself not to be an employee of Kraft at 

the time she shot her victims. Even if she was only technically suspended, 

she knowingly took actions which irrevocably foreclosed her continued 

employment. She told the victims she blamed them for the loss of her job. 

She told the police she understood her fifteen year career to be at an end. 

Notably, neither in Powell nor in Becker did the appellant argue that he 

was no longer employed, as Hiller did here. 

Appellant resolutely asserts that there was no “continued failure” of 

Hiller to perform her employment duties. Nevertheless, it fails to offer a 

single example of what duty she continued, or could continue, to perform. 

Appellant’s assumption that Hiller intended to murder her co-workers and 

remain a Kraft employee (in flat contradiction of her own acts and 
J-A32041-16

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statements) is unsupported by the record and has no basis in the law or the 

facts. Accordingly, it is frivolous. 

Appellant fails to prove it had a claim for contribution from Kraft by 

virtue of Hiller’s continued employment. Appellant’s sixth claim fails.

The only claims remaining for review are Appellees’ two cross-appeal 

claims: 

Did the trial court improperly fail to mold the jury’s 

compensatory verdict so that USSA was liable for the 

award for pre-shooting assault damages?

Did the trial court improperly strike correspondence 

confirming that USSA’s insurance covered punitive 

damages?

(Appellees’ Brief, at 5).

In their first cross-claim, Appellees challenge the trial court’s decision 

not to mold the verdict to make Appellant liable for pre-impact (preshooting) damages. (See Appellees’ [Cross-Appellants’] Brief, at 89-94). 

The trial court explains that damages are proper only for conscious pain and 

suffering from the moment of injury to death. (See Trial Court

Memorandum, at 22-23) (citing, inter alia, Nye v. Commonwealth, Dep’t 

of Transp., 480 A.2d 318, 321 (Pa. Super. 1984)). We agree.

Appellees argue that the trial court erred by not awarding damages 

from Appellant for “pre-impact fear and fright.” (Appellees’ Brief, at 90). 

We disagree.

“The rule in Pennsylvania is that in survival actions the measure 

of damages is the decedent’s pain and suffering and loss of gross 
J-A32041-16

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earning power from the date of injury until death. . . .” 

Slaseman v. Myers, supra [ ], 455 A.2d 1213 at 1217 ([Pa. 

Super.] 1983) (emphasis added [in original]). Thus, we have 

always limited recovery to damages for pain and suffering and 

emotional distress occurring after the time of injury.

Nye, supra at 321 (emphases in original). 

Appellees dismiss this statement from Nye as dicta,

53 but the caselaw 

they offer as an alternative is not compelling. (See Appellees’ Brief, at 90-

94). They cite Renk v. City of Pittsburgh, 641 A.2d 289, 293 (Pa. 1994), 

a police indemnification case. It appears to be presented primarily if not 

solely for the proposition, not in dispute here, that civil assault is actionable. 

(See Appellees’ Brief, at 90). The principal issue for disposition in Renk was 

whether a police officer could be indemnified under The Political Subdivision 

Tort Claims Act for a civil judgment for assault, battery, and false 

imprisonment absent a judicial determination of willful misconduct. Its 

immediate applicability to the claim in this appeal is not readily apparent. 

Appellees also cite Commonwealth, [Pennsylvania Dep't of 

Transp.]. v. Phillips, 488 A.2d 77, 80 (Pa. Commw. 1985), (see Appellees’ 

Brief, at 91-92). The abrogation of Phillips was recognized in Osborne v. 

Cambridge Twp., 736 A.2d 715, 722 (Pa. Commw. 1999), appeal denied, 

759 A.2d 925 (Pa. 2000), cert. denied, 531 U.S. 1113 (2001). 

____________________________________________

53 The decedent in Nye apparently died instantaneously. See Nye, supra

at 321. 
J-A32041-16

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Appellees also cite decisions of the Courts of Common Pleas. (See

Appellees’ Brief, at 91-93). “[C]ommon pleas court decisions are not binding 

on appellate courts.” U.S. Bank Nat’l Ass'n v. Powers, 986 A.2d 1231, 

1234 n.3 (Pa. Super. 2009) (citing Makozy v. Makozy, 874 A.2d 1160, 

1172 n.7 (Pa. Super. 2005), appeal denied, 891 A.2d 733 (Pa. 2005)).

Even the cases otherwise cited by Appellees recognize the limitations 

correctly observed by the trial court. See Amato v. Bell & Gossett, 116 

A.3d 607, 625 (Pa. Super. 2015), appeal granted in part sub nom.

Vinciguerra v. Bayer CropScience Inc., 130 A.3d 1283 (Pa. 2016), 

appeal dismissed as improvidently granted sub nom. Vinciguerra v. Bayer 

CropScience Inc., 150 A.3d 956 (Pa. 2016) (survival damages are for pain 

and suffering endured by the decedent between the time of injury and 

death) (cited in Appellees’ Brief, at 91); Mecca v. Lukasik, 530 A.2d 1334, 

1344 (Pa. Super. 1987) (instruction properly charged jury that damages 

were compensable “from the moment of the accident until the moment of 

death”). (Appellees’ Brief, at 93) (emphases added).

In short, we discern no compelling authority which would require us to 

disturb the ruling of the trial court. Moreover, as an intermediate court of 

appellate review, this Court is an “error-correcting court.” Trach v. Fellin, 

817 A.2d 1102, 1119 (Pa. Super. 2003), appeal denied sub nom. Trach v. 

Thrift Drug, Inc., 847 A.2d 1288 (Pa. 2004) (citation omitted). 

As an intermediate appellate court, this Court is obligated to 

follow the precedent set down by our Supreme Court. It is not 
J-A32041-16

- 55 -

the prerogative of an intermediate appellate court to enunciate 

new precepts of law or to expand existing legal doctrines. Such 

is a province reserved to the Supreme Court. 

Moses v. T.N.T. Red Star Exp., 725 A.2d 792, 801 (Pa. Super. 1999), 

appeal denied, 739 A.2d 1058 (Pa. 1999) (citations omitted). Such a sea 

change in the computation and award of damages as advocated by Appellees 

and amicus should come from our Supreme Court, or the Legislature. 

In Appellees’ last issue, they challenge the trial court’s striking of 

correspondence involving the question of insurance coverage for punitive 

damages. (See Appellees’ Brief, at 94-95; see also Order, 11/16/15). 

Briefly, the trial court denied Appellees’ efforts to introduce 

correspondence of counsel involving insurance coverage for punitive 

damages, as evidence in refutation of Appellant’s claim that it was unaware 

that it could be subject to a large punitive damages verdict. 

“Evidence that a person was or was not insured against liability is not 

admissible to prove whether the person acted negligently or otherwise 

wrongfully. But the court may admit this evidence for another purpose, such 

as proving a witness’s bias or prejudice or proving agency, ownership, or 

control.” Pennsylvania Rule of Evidence 411. Generally, an appellate court’s 

standard of review of a trial court's evidentiary ruling is whether the trial 

court abused its discretion. See Zieber v. Bogert, 773 A.2d 758, 760 n.3 

(Pa. 2001). If the evidentiary ruling at issue turns on a question of law, 

however, our review is plenary. See id.
J-A32041-16

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However, the mootness doctrine requires an actual controversy to 

exist at all stages of litigation. See Commonwealth, Dep't of Envtl. Prot. 

v. Cromwell Twp., Huntingdon Cty., 32 A.3d 639, 651 (Pa. 2011). In 

this appeal, because we have decided that a claim for punitive damages 

improperly added a new cause of action after the statute of limitations had 

run, the amount of an award for punitive damages is no longer at issue. 

Accordingly, any issue regarding the admissibility of correspondence 

referencing insurance coverage for punitive damages is moot. 

Although our reasoning differs on occasion from that of the trial court, 

it is well-settled that we can affirm the trial court’s decision on any valid 

basis, as long as the court came to the correct result. See Wilson v. 

Transp. Ins. Co., 889 A.2d 563, 577 n.4 (Pa. Super. 2005) (citing, inter 

alia, Boyer v. Walker, 714 A.2d 458 (Pa. Super. 1998)). 

We reverse the trial court’s denial of JNOV as to punitive damages. In 

all other respects, we affirm the judgment of the trial court. 

Judgment affirmed in part and reversed in part.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/18/2017