J-A21019-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

UNITED SERVICES AUTOMOBILE 

ASSOCIATION 

IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 Appellee 

v.

GAYLE HUDSON 

 Appellant No. 224 EDA 2014 

Appeal from the Judgment Entered January 6, 2014

In the Court of Common Pleas of Delaware County 

Civil Division at No(s): 2012-001132 

BEFORE: LAZARUS, J., OTT, J., and STRASSBURGER, J.*

 

MEMORANDUM BY OTT, J.: FILED SEPTEMBER 24, 2014 

Gayle Hudson appeals from the judgment entered against her in the 

Court of Common Pleas of Delaware County on January 6, 2014 following a 

non-jury trial.1

 United Services Automobile Association (U.S.A.A.) filed a 

declaratory judgment action to determine its duty to provide underinsured 

motorist benefits to its insured, Hudson. U.S.A.A. claimed benefits were not 

required as Hudson was prevented from re-litigating the issue of damages 

under the doctrine of collateral estoppel. The trial court agreed with 

____________________________________________ 

*

 Retired Senior Judge assigned to the Superior Court.

1

 Pursuant to the civil docket supplied by the Court of Common Pleas of 

Delaware County, a verdict in favor of U.S.A.A. was entered on November 

26, 2013. Hudson’s motion for post-trial relief was denied on December 17, 

2013 and judgment was entered by praecipe in favor of U.S.A.A. on January 

6, 2014. 
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U.S.A.A. and entered judgment in its favor. In this timely appeal, Hudson 

argues the trial court’s determination that collateral estoppel applied was 

against both the weight and sufficiency of the evidence. She further argues 

the trial court’s determination that Hudson had been fully compensated in 

her prior UIM arbitration was against the weight of the evidence. After a 

thorough review of the submissions by the parties, certified record, and 

relevant law, we affirm. 

 We adopt the facts as related by the trial court in its Pa.R.A.P. 1925(a) 

Opinion, dated February 21, 2014, and authored by the Honorable Chad F. 

Kenney, Sr., President Judge. 

 

[Hudson] was a passenger in a vehicle involved in a motor 

vehicle accident on June 9, 2007 and sustained a rotator cuff 

injury to her left shoulder for which surgery was recommended. 

[Hudson] recovered the maximum $15,000 from the at-fault 

driver’s liability insurance and proceeded to present a claim for 

UIM [underinsured motorist] coverage to Allstate Insurance 

Company, the insurance carrier that provided UIM coverage for 

the vehicle in which [Hudson] was a passenger. The Allstate 

policy carried UIM limits of $100,000. [Hudson’s] UIM claim 

proceeded to arbitration and, on December 18, 2009, the 

arbitration panel rendered an award in favor [of Hudson], who 

was then the plaintiff, of $75,000. The award took into account 

the $15,000 for the at-fault driver’s limits and, thus, provided a 

net award of $60,000 out of a potential $100,000. At the 

arbitration hearing, counsel for Allstate presented medical 

records which he had subpoenaed and the sworn statement of 

Gayle Hudson. (Testimony of Gerard Bradley, trial date 

November 8, 2013). The medical records noted the tear in 

[Hudson’s] left shoulder and recommended surgery. (Letter 

dated January 15, 2008, marked as Plaintiff’s Exhibit 2). In 

[Hudson’s] sworn statement, she states that her left shoulder 

has a full tear and that the doctors told her it would definitely 

need to be operated on. (Sworn Statement of Gayle Hudson, 

marked as Plaintiff’s Exhibit 1).
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The Plaintiff, [U.S.A.A.], is [Hudson’s] personal automobile 

insurance carrier.[2]

 On July 26, 2011, [U.S.A.A.] received notice 

from counsel for [Hudson] that [Hudson] was demanding UIM 

coverage from [U.S.A.A.] pursuant to her insurance policy. 

[Hudson’s] demand was based on the fact that [Hudson] had 

undergone subsequent rotator cuff surgery and follow up 

physical therapy which [Hudson’s] attorney contended created a

value for her claim far in excess of the amount awarded by the 

arbitration panel from the Allstate policy. 

Trial Court Opinion, 2/21/2014, at 2-3.

In response to Hudson’s demand for UIM coverage, U.S.A.A. filed the 

underlying declaratory judgment action claiming Hudson was collaterally 

estopped from seeking further damages as she had a full and fair 

opportunity to litigate the issue of her damages in the UIM arbitration with 

Allstate. Motions for summary judgment were ultimately filed by both 

parties, and were denied. A non-jury trial was held before Judge Kenney, on 

November 8, 2013. After hearing testimony from counsel for Allstate who 

had participated in the prior UIM arbitration, and considering the submitted 

documentary evidence, the trial judge ruled in favor of U.S.A.A. 

The relevant standard of review of a court’s decision in a nonjury trial is as follows: 

[We are] limited to a determination of whether the findings 

of the trial court are supported by competent evidence and 

whether the trial court committed error in the application 

of law. Findings of the trial judge in a non-jury case must 

be given the same weight and effect on appeal as a verdict 

____________________________________________ 

2

 Pursuant to statute, the first priority of payment of UIM benefits was from 

the policy covering the vehicle in which Hudson was a passenger. Her policy 

with U.S.A.A. was second priority. See 75 Pa.C.S. § 1733(a)(1)-(2). 
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of a jury and will not be disturbed on appeal absent error 

of law or abuse of discretion. When this Court reviews the 

findings of the trial judge, the evidence is viewed in the 

light most favorable to the victorious party below and all 

evidence and proper inferences favorable to that party

must be taken as true and all unfavorable inferences 

rejected. 

Croyle v. Dellape, 832 A.2d 466, 470 (Pa. Super. 2003) (citing 

Behar v. Frazier, 724 A.2d 943, 946 (Pa. Super. 1999)). The 

court's findings are especially binding on appeal, where they are 

based upon the credibility of the witnesses, “unless it appears 

that the court abused its discretion or that the court’s findings 

lack evidentiary support or that the court capriciously disbelieved 

the evidence.” Fudula v. Keystone Wire & Iron Works, Inc., 

283 Pa. Super. 502, 424 A.2d 921, 927 (1981). 

Judicial discretion requires action in conformity with law on 

facts and circumstances before the trial court after hearing 

and consideration. Consequently, the court abuses its 

discretion if, in resolving the issue for decision, it 

misapplies the law or exercises its discretion in a manner 

lacking reason. 

Miller v. Sacred Heart Hosp., 753 A.2d 829, 832 (Pa. Super. 

2000) (internal citations omitted). “To the extent that the trial 

court’s findings are predicated on errors of law, we review the 

court’s findings de novo.” John B. Conomos, Inc., v. Sun Co., 

Inc. (R & M), 831 A.2d 696, 704 (Pa. Super. 2003), appeal 

denied, 577 Pa. 697, 845 A.2d 818 (2004). 

Hart v. Arnold, 884 A.2d 316, 330-31 (Pa. Super. 2005). 

 Further, 

“Collateral estoppel, or issue preclusion, is a doctrine which 

prevents re-litigation of an issue in a later action, despite the 

fact that it is based on a cause of action different from the one 

previously litigated.” Balent v. City of Wilkes-Barre, 542 Pa. 

555, 669 A.2d 309, 313 (1995). 

Collateral estoppel applies if (1) the issue decided in the 

prior case is identical to one presented in the later case; 
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(2) there was a final judgment on the merits; (3) the party 

against whom the plea is asserted was a party or in privity 

with a party in the prior case; (4) the party or person privy 

to the party against whom the doctrine is asserted had a 

full and fair opportunity to litigate the issue in the prior 

proceeding and (5) the determination in the prior 

proceeding was essential to the judgment. 

Catroppa v. Carlton, 998 A.2d 643, 646 (Pa. Super. 2010) 

(citation omitted). Furthermore, “[t]he judgments of the federal 

courts are owed their due force and full effect in state courts.” 

In re Stevenson, 615 Pa. 50, 40 A.3d 1212, 1222 (2012); see 

also Atiyeh v. Bear, 456 Pa. Super. 548, 690 A.2d 1245, 1249-

50 (1997) (applying the collateral estoppel doctrine to a decision 

of bankruptcy courts, and precluding the relitigation of the same 

issue in this Court). 

Weissberger v. Myers, 90 A.3d 730, 733-34 (Pa. Super. 2014). 

With these standards in mind, we examine the trial court’s 

determination that Hudson was collaterally estopped from re-litigating the 

issue of damages.3

Hudson’s first two issues are related and we will address them 

together. Hudson argues the trial court’s determination she was collaterally 

____________________________________________ 

3 Hudson’s appeal only challenges the application of the first and fourth 

elements of collateral estoppel. Because there are no questions regarding 

the applicability of elements (2) existence of a final judgment, (3) identity of 

the party, or (5) determination that the prior proceeding was essential to the 

judgment, we will not discuss those. 
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estopped from pursuing additional damages was against both the sufficiency 

and weight of the evidence.4

 

 Initially, we note that a claim that a judgment is against the weight of 

the evidence is a claim that certain evidence was not credible on its own or 

that otherwise credible evidence was overwhelmed by other credible 

evidence. “A motion for new trial on the grounds that the verdict is contrary 

to the weight of the evidence, concedes that there is sufficient evidence to 

sustain the verdict.” Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 

2000). While a sufficiency claim argues a required element of proof is 

missing, the weight claim argues, “notwithstanding all the facts, certain facts 

are so clearly of greater weight that to ignore them or to give them equal 

weight with all the facts is to deny justice.” Id. 

Assessing weight of the evidence is commonly stated in terms that the 

fact finder, in passing upon the credibility of witnesses and the weight of the 

evidence is free to believe all, part or none of the evidence. See 

Commonwealth v. Phillips, 93 A.3d 847 (Pa. 2014). A judgment is 

against the weight of the evidence if it is so contrary to the evidence as to 

shock one’s sense of justice. Joseph v. Scranton Times, L.P., 89 A.3d 

251, 274 (Pa. Super. 2014). Such determinations are the exclusive province 

____________________________________________ 

4

 Hudson argues her issues in a different order in the body of her brief. We 

refer to the order of the issues as they were listed in the statement of 

questions involved. See Appellant’s Brief at 5.
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of the fact finder and will not be overturned absent a showing the trial court 

“acted capriciously or palpably abused its discretion.” Hatwood v. Hospital 

of the University of Pennsylvania, 55 A.3d 1229, 1238 (Pa. Super. 

2012). Here, Hudson’s argument regarding the weight of the evidence does 

not address credibility or the relative weight of the totality of the evidence. 

The argument as presented in the Appellant’s brief is that “there was no 

evidence introduced at trial establishing that the issue of ... damages related 

to her shoulder surgery was actually presented to the Allstate UIM 

Arbitration Panel and litigated.” See Appellant’s Brief at 30 (emphasis 

added). Accordingly, we read the argument as a restatement of the 

sufficiency claim. Therefore, the weight of the evidence argument has not 

been developed and the issue has been waived.5

 Piston v. Hughes, 63 

A.3d 440, 444 (Pa. Super. 2013) (undeveloped arguments are waived). 

 As to insufficiency of the evidence, Hudson argues she did not present 

any evidence of her shoulder surgery and resulting scarring, recovery, etc. 

to the arbitration panel; therefore, the issue was never litigated. 

Accordingly, she claims, collateral estoppel cannot apply. Hudson has 

framed this argument as a failure to meet the first requirement of collateral 

estoppel – the necessity that the issue to be decided be identical to the issue 

previously decided. However, the trial court determined the “issue” in 

____________________________________________ 

5

 Even so, our review of the certified record leads to the conclusion that the 

judgment is not against the weight of the evidence. 
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question was the broader concept of the damages suffered by Hudson 

because of the automobile accident. As a result, the trial court essentially 

reframed Hudson’s argument in terms of the fourth requirement – a 

question of whether Hudson was afforded the opportunity to fully and fairly 

litigate the issue. See Trial Court Opinion at 6 (“[Hudson] had a full and fair 

opportunity to litigate the extent of her damages...”). We believe the trial 

court’s approach was correct.

Rather, Hudson has claimed: “The issue of the damages related to the 

surgery entails a number of elements. These include the cost of the 

surgery, the actual scar from the surgery, months of post-operative therapy, 

lost wages, and pain and suffering.” See Appellant’s Brief at 30. This 

argument concerns the continuation of treatment, and concurrent claim of 

continuing damages, arising from a known injury. This is simply a claim for 

future damages. The argument is essentially an assertion that future 

damages are a different issue from damages. 

However, other than Hudson’s assertion, she has put forth no 

compelling argument why future damages should be considered separately 

from general damages. While past and future damages are likely to be 
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calculated differently, they are both elements of damages, not separate 

issues.6

 

The issue of Hudson’s damages was clearly before the arbitration 

panel, which considered the evidence presented, including the doctor’s 

opinion that surgery would be necessary7and Gerard Bradley’s testimony 

that Hudson testified consistently with her sworn statement,8 and 

determined her injuries were compensable to the total amount of 

$75,000.00. Therefore, Hudson cannot credibly claim that the general issue 

of damages was not presented to the prior arbitration panel, and we find no 

____________________________________________ 

6

 In the context of collateral estoppel, past and future damages are no more 

a question of separate issues that is the question of physical injury and wage 

loss. One could not credibly argue one was entitled to separate arbitrations 

to determine physical injury and wage loss. The trial court aptly noted: 

The fact that [Hudson] decided to wait to undergo surgery at a 

time that was more convenient for her does not magically make 

the injury anything different than the one that was sustained in 

the motor vehicle accident and for which she was compensated 

by the arbitration panel. [Hudson] had not chosen surgery at 

the time of arbitration but it was clear at the arbitration that 

surgery was recommended and would most likely be necessary 

in the future – therefore, the panel took it into account. 

Trial Court Opinion at 6. 

7 See Plaintiff’s Exhibit 2, Letter from Dr. Trevlyn to Dr. Weiner, 1/15/2008. 

Dr. Trevlyn appears to have been Hudson’s orthopedic specialist, and Dr. 

Weiner, her primary treating physician. 

8 Gerard Bradley was arbitration counsel for Allstate. Hudson’s sworn 

statement included her admission that she believed her shoulder would 

require surgery. See N.T. Trial, 11/8/2013, at 11. 
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abuse of discretion or error of law in the trial court’s determination that the 

first requirement of collateral estoppel, issue identity, had been met. 

 However, the trial court addressed future damages in terms of the 

fourth element of collateral estoppel, addressing the opportunity to fully and 

fairly litigate the claim, and Hudson’s argument can be fairly read to 

encompass that concept. Therefore, despite not being labeled as a 

challenge to the sufficiency of the fourth element of collateral estoppel, we 

will address her claims in those terms. 

 The fourth requirement for application of collateral estoppel is whether 

the party was given the opportunity to fully and fairly litigate the issue. The 

salient word here is opportunity. The trial court found that the arbitration 

panel was presented with medical records, doctor’s statements, treatment 

records, Hudson’s statement that she believed she would need surgery, as 

well as the report from the defense medical examination. The certified 

record in this matter does not contain Hudson’s medical or treatment

records, so we cannot consider either of those.9

 However, we have Hudson’s 

statement and Dr. Trevlyn’s letter, both of which clearly indicate the injury 

to the shoulder and the recommendation of surgery. Hudson claimed then 

and claims now that those injuries were a result of the automobile accident. 

____________________________________________ 

9

 Hudson has not specifically argued that the medical/treatment records do 

not include the shoulder injury. If Hudson believed those records supported 

her argument, it was incumbent on her to provide them. 

 
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She knew about the injuries then and related those injuries to the arbitration 

panelists.10

 

 Further, at the non-jury trial, counsel for Hudson admitted that 

nothing prevented her from joining U.S.A.A. in the original arbitration. 

THE COURT: What would stop you from bringing that [secondary 

UIM coverage policy] to the table? 

____________________________________________ 

10 Hudson’s reliance on McNally v. Dagney, 510 A.2d 722 (Pa. Super. 

1986), to support this aspect of her claim is unavailing. In McNally, the 

plaintiff was injured in a car accident with a phantom vehicle. That claim 

was submitted to McNally’s uninsured motorist (UM) carrier. Subsequent to 

that accident, McNally was involved in an accident with Dagney. While the 

UM claim was pending, McNally filed an action against Dagney, who 

subsequently sought dismissal of the action claiming McNally was collaterally 

estopped from seeking the same damages from two accidents. While the 

trial court agreed with Dagney, a panel of our court determined that 

collateral estoppel would prevent collecting duplicate damages, but that 

based on the record it was unclear to which accident McNally was ascribing 

the specific injuries. In footnote eight of the decision, it was noted that 

McNally claimed to have specifically limited the claim of damages 

“from the time of the accident to the day before accident two, 

one year, and about seven months later” and had “different 

injuries, continuing injuries [, and] lost wages that were not 

compensated by the first award.”

McNally, 510 A.2d at 725, n. 8. 

 Initially, we agree with the general principle that collateral estoppel 

cannot prevent a party from claiming “new” damages. However, a 

significant difference between McNally and the instant matter is that in 

McNally, the claimant argued he had specifically limited the damages 

submitted in the first claim, while that argument has not been raised here. 
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[Counsel]: One thing that might stop someone from bringing it is 

that they feel that the $100,000 adequately compensates the 

Plaintiff. So, there’s no need to go any further than that. That 

based on the evidence or the injuries at the time of the hearing 

that’s adequate in terms of compensation. Two, the hearing is 

scheduled and testimony was that it’s recommended, but I don’t 

really want to move forward with surgery, so we’ll just present 

the case as recommended surgery. But I’m not going to have it.

N.T. Trial, 11/8/2013, at 42. 

Counsel’s comments indicate that any decision not to fully present the 

claim of damages was strategic or practical. Neither the arbitration panel 

nor defendant precluded Hudson from presenting such evidence. 

 We also examine the language of the relevant statute, 75 Pa.C.S. § 

1733, addressing the priority of recovery. The statute reads, in relevant 

part: 

(a) General rule. – Where multiple policies apply, payment shall 

be made in the following order of priority: 

(1) A policy covering a motor vehicle occupied by the 

injured person at the time of the accident. 

(2) A policy covering a motor vehicle not involved in the 

accident with respect to which the injured person is an 

insured. 

75 Pa.C.S. § 1733 (a) (1)-(2).11

 To the extent that Hudson relies on this statute, the statute addresses 

only the order of payment; it does not explicitly allow for multiple 

____________________________________________ 

11 We note this language is mirrored in the relevant insurance policies. 
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adjudications and serial determinations of the amount of damages suffered 

by the injured person.12

 In light of the foregoing, we find no abuse of discretion or error of law 

in the trial court’s determination that Hudson was afforded a full and fair 

opportunity to present her entire case for damages.13

____________________________________________ 

12 Indeed, without that explicit allowance, the general policy of the 

Commonwealth of Pennsylvania frowns upon piecemeal litigation as being 

wasteful, expensive and as unnecessarily protracting litigation. See 

generally, Pennsylvania Turnpike Commission v. Atlantic Richfield, 

394 A.2d 491 (Pa. 1978). While Section 1733 does not forbid serial 

litigation, we believe we should not unnecessarily encourage it. As noted, in 

the instant matter there was nothing preventing Hudson from fully 

presenting her claim for future damages or from joining U.S.A.A. in the 

original arbitration. Therefore, there is no particular reason to endorse serial 

litigation under the facts before us. 

Prior to 2005, piecemeal litigation involving the alleged tortfeasor and UIM 

coverage was not only encouraged, it was virtually mandated by the 

Department of Insurance, which required insurance policies to provide for 

UIM arbitration. The third-party negligence matter would typically be 

brought before the Court of Common Pleas (including statutory arbitration as 

applicable) while the UIM claim was presented to a private arbitration panel. 

This mandatory separation of third party and UIM claims no longer exists. 

See Insurance Federation of Pennsylvania, Inc. v. Koken, 889 A.2d 

550 (Pa. 2005). 

 

13 Hudson has also argued that the amount of the award, $75,000.00 is 

proof that she did not present her case for future surgery. Whether she did 

or did not present specific numbers for the cost of surgery and wage loss, 

etc., is immaterial to whether she had the opportunity to do so. In addition, 

the defense in the prior arbitration presented a medical report from a 

defense medical examination that opined the shoulder injury was not 

causally related to the accident. See Report of Dr. Stuart Gordon, M.D., 

7/20/2009. Therefore, the amount of the award might also indicate the 

arbitration panel accepted the defense position regarding the shoulder 

injury. 
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 In her final argument, Hudson claims the trial court erred in 

determining that the award of the prior arbitration panel, for less than the 

primary UIM policy limits, demonstrates that she was fully compensated for 

her damages. This claim is moot in light of the fact that Hudson has been 

properly precluded from further litigating the issue of damages. We agree 

with the proposition that had Hudson settled her claim against the primary 

UIM policy for $60,000, she would not be precluded from seeking further 

coverage from her own policy based on the failure to exhaust prior levels of 

coverage. See Nationwide Ins. Co. v. Schneider, 960 A.2d 442 (Pa. 

2008). However, Schneider did not address the concurrent issue of 

collateral estoppel. Schneider settled the claim with the primary UIM carrier. 

Therefore, there was no prior adjudication determining the amount of 

damages. 

 Because collateral estoppel has prevented Hudson from seeking 

another determination of damages, the issue of exhaustion of the prior 

policy is moot. Accordingly, Hudson is not entitled to relief on this issue. 

 Judgment affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 9/24/2014