J-A33007-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

RUICK L. ROLLAND AND HOLLY 

ROLLAND, H/W

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

STEVEN SENN, SENN LANDSCAPING, 

INC., BRUCE IRRGANG, UNITED 

CONSTRUCTION SERVICES, INC., 

MODERN EQUIPMENT SALES & RENTAL 

CO., AND MODERN GROUP, LTD.

Appellees No. 2695 EDA 2013

Appeal from the Order Entered August 6, 2013

In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): 091203110

*****

RUICK L. ROLLAND AND HOLLY 

ROLLAND, H/W

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

STEVEN SENN, SENN LANDSCAPING, 

INC., BRUCE IRRGANG, UNITED 

CONSTRUCTION SERVICES, INC., 

MODERN EQUIPMENT SALES & RENTAL 

CO., AND MODERN GROUP, LTD.

APPEAL OF: BRUCE IRRGANG AND 

UNITED CONSTRUCTION SERVICES, 

INC.

No. 2697 EDA 2013

Appeal from the Order Entered August 6, 2013

In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): 091203110
J-A33007-14

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RUICK L. ROLLAND AND HOLLY 

ROLLAND, H/W

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

STEVEN SENN, SENN LANDSCAPING, 

INC., BRUCE IRRGANG, UNITED 

CONSTRUCTION SERVICES, INC., 

MODERN EQUIPMENT SALES & RENTAL 

CO., AND MODERN GROUP, LTD.

APPEAL OF: MODERN EQUIPMENT 

SALES & RENTAL CO., AND MODERN 

GROUP, LTD.

No. 2699 EDA 2013

Appeal from the Order Entered August 6, 2013

In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): 091203110

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

MEMORANDUM BY LAZARUS, J.: FILED JULY 02, 2015

Ruick L. Rolland (Ruick) and Holly Rolland (h/w) (collectively “the 

Rollands” or “Plaintiffs”) appeal and Modern Equipment Sales & Rental Co. 

and Modern Group, Ltd. (collectively “Modern Defendants”) and Bruce 

Irrgang and United Construction Service, Inc. (“UCS” or collectively “Irrgang 

Defendants”) cross appeal from the trial court’s order granting Irrgang 

Defendants’ post-trial motions and ordering a new trial1 with regard to all 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 See Pa.R.A.P. 311(a)(6) (“[a]n appeal may be taken as of right and 

without reference to Pa.R.A.P. 341(c) from . . . [a]n order in a civil action or 

proceeding awarding a new trial[.]”).
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Defendants in the underlying personal injury action instituted by the 

Rollands. After careful review, we affirm. 

In 2009, Bruce Irrgang, hired Defendants to create a replica of the 

Hogan Bridge2on one of his personal estates located in Wayne, 

Pennsylvania. At the time, Irrgang owned UCS. Irrgang contracted with 

Ruick3to complete the electrical work on the project. Defendant Stephen 

Senn of Senn Landscaping was hired to remove silt from a pond that was 

under the replica. To carry out the dredging, a 10,000 pound track loader 

was leased by UCS from the Modern Defendants. Ruick, at the request of 

Irrgang, ordered and signed the lease for the track loader when it was 

delivered to the work site. The Modern Defendants, in turn, loaned the 

loader to the Senn Defendants.

Upon its delivery to the work site, Stephen Senn’s ten-year-old son, 

Stephen Senn, Jr. (Stevie), climbed into the loader, drove it to the pond on 

the Irrgang property, and operated the loader intermittently for a total of an 

hour that day. Senn told Ruick and the Modern employee who delivered the 

____________________________________________

2 The Hogan Bridge is located at the famous Augusta National Golf Club, in 

Augusta, Georgia, the site of the Masters tournament. It is a footbridge that 

takes golfers to the 12th green at Augusta and is named in honor of Ben 

Hogan, a legendary golfer, who won the Masters in 1953. 

3

In 1999, Ruick began working primarily for Irrgang on his property 

projects, was paid an hourly wage, talked multiple times a day on the phone 

with Irrgang, and had weekly meetings with Irrgang to coordinate his work 

schedule. Prior to the instant job, Ruick was working exclusively for Irrgang.
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loader that his son was a competent operator of the machinery. A few days 

later, on August 14th, while Stevie was again operating the heavy 

equipment, the child lost control of the track loader, striking and injuring 

Ruick Rolland. As a result, Ruick required an above-the-knee amputation on 

his left leg.4

In December 2009, the Rollands filed this personal injury action 

against the Senn Defendants, the Modern Defendants and the Irrgang 

Defendants alleging numerous acts and omissions of negligence (i.e., 

negligent entrustment), recklessness, and strict liability and seeking both 

compensatory and punitive damages.5 Plaintiffs moved for partial summary 

judgment against Modern and Senn on their negligent entrustment claims.6 

On April, 11, 2012, Judge Gary DiVito issued an order entering partial 

____________________________________________

4 The amputation was a result of an unsuccessful bypass procedure to save 

the leg immediately following the accident.

5

In October 2011, Modern commenced a declaratory judgment action 

against USC and its insurer, Main Street America Assurance Company, after 

USC and Main Street declined to contribute to Modern’s defense in Rolland’s 

action against the Defendants. In 2014, our Court quashed Modern’s appeal 

from the trial court’s order denying it partial summary judgment where 

Modern’s alternative request for relief was not addressed by the trial court. 

See Modern Equip. Sales v. Main Street Am. Assurance Co., 106 A.3d 

784 (Pa. Super. 2014) (en banc).

6 Modern unsuccessfully moved for reconsideration of the court’s summary 

judgment order. Although the trial court stayed the trial, pending review of 

Modern’s petition for interlocutory appeal of the summary judgment order, 

our Court ultimately denied the petition and the Supreme Court denied a 

petition for review.
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summary judgment with regard to liability, in favor of Plaintiffs and against 

Modern and Senn, leaving the amount of damages and relative 

responsibilities of the other parties as issues to be decided at trial. On May 

24, 2012, the trial court modified its April 11th order to specifically state that 

summary judgment had not been granted with respect to Plaintiffs’ claims 

for punitive damages.

A three-week jury trial commenced on March 12, 2013, before the 

Honorable John M. Younge. One of the main issues at trial involved the 

extent to which Ruick was in a supervisory capacity at the job site. Modern 

maintained that Ruick was the supervisor at the jobsite; Irrgang testified at 

his deposition that he specifically asked Ruick to get the boy off the jobsite 

and that Ruick agreed “to take care of it.” Bruce E. Irrgang Deposition, 

5/17/11, at 110:13-16, 113:15-20. Conversely, Ruick testified that he was 

an independent contractor who possessed no authority on the jobsite to 

remove the ten-year-old from the track loader and that he, himself, was 

inexperienced with track loaders. Ruick Rolland Deposition, 5/23/11, at 

197:5-8 & 18-22, 202:18-19; N.T. Jury Trial, 3/21/13, at 99:14-23, 111-14; 

125-28.

At trial, Irrgang chose not to testify; however, during his deposition, 

Irrgang testified that he had known Ruick Rolland for approximately 20 

years, had been using him to complete various projects on his properties 

over the years, but that Ruick was never his employee. Bruce E. Irrgang 

Deposition, 5/17/11, at 36:14, 37:5-24, 38:1-9, 42:3-9. Irrgang testified 
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that in August 2009, Ruick was in charge of work being done at his Wayne 

property, stating that Ruick would do “96 percent of everything,” and that 

Ruick “handle[d] everything except the masonry work in regard to the 

bridge [project].” Id. at 30:15-24, 56:6-12, 58:6-24. Irrgang stated that 

both he and Ruick “explicitly understood” that Ruick was “in charge” as he 

had “the keys to the job[,] [h]ad the keys to the house[,] had the keys to 

the equipment [and] was the one that ran every job.” Id. at 58:21-24,

59:1-7. According to Irrgang, “Ruick was, quote-unquote, the man. 

Everybody that stepped on to any one of my properties knew that they had 

to report to Ruick first” and that “Ruick knew that he could make the 

decisions” and had unfettered discretion to “do whatever he wanted.” Id. at 

59:11-14, 59:19-20, 60:10-12. Irrgang approved, through Ruick, Senn 

having an experienced relative come to the site to help him remove the silt 

from the pond. Id. at 120:21-24, 121:1-7. Irrgang, however, had no idea 

that Stevie was operating any machinery at the site until three weeks after 

the accident, id. at 141:12-16, was surprised that Ruick did not discuss 

Stevie operating equipment at the site with him, id. at 142:16-19, and when 

Irrgang confronted Ruick with the issue after the accident, Ruick admitted he 

“messed up.” Id. at 143:2-3. Irrgang also testified that the masons on the 

job site had approached Ruick prior to the accident and told him that they 

did not think that Stevie should be operating the heavy equipment at the 

site. Id. at 221:15-24. Finally, Irrgang testified that initially Ruick told him 

Senn’s nephew was operating the track loader at the time of the accident 
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because he “didn’t want to upset [Irrgang]”, id. at 191:7, 193:13-16, but 

then a couple weeks later admitted that it was Stevie. Id. at 193:1-7.

Defendant Senn invoked his Fifth Amendment rights and refused to 

take the stand for fear of being exposed to criminal liability for allegedly 

giving false information to the police following the accident.7 In lieu of live 

testimony, Plaintiffs played for the jury designated portions of Senn’s 

videotaped deposition, which consisted of testimony that Ruick was the site 

supervisor who would instruct Senn where to put things and where to do 

things, and was in charge of loading and moving operations. See Steven T. 

Senn Deposition, 11/24/10, at 57:4-24 & 440:4-12 (“But Ruick was in 

charge.” “If Ruick asked Stevie [Senn, Jr.] to do something then he was to 

do it.”); id. at 61:1-24; id. at 131:20-23 (Ruick would “[o]verse[] 

everything” with regard to the bridge work); id. at 440:13-18 (it was Senn’s 

understanding that “Mr. Rolland was in charge at the site and if he gave you 

direction you should follow it.”); id. at 507 (“He told me he was – he 

oversees what goes on on all – Bruce [Irrgang’s] houses.”). Senn also 

stated that Ruick was never his employee during the Irrgang project. 

Steven T. Senn Deposition, 11/22/10, at 340:9-16. 

____________________________________________

7 Senn allegedly collaborated with Ruick to tell police officers responding to 

the accident that his nephew, Matt, had been operating the track loader 

when the accident occurred so as not to implicate his young son, Stevie. 

Steven T. Senn Deposition, 11/22/10, at 294-95; 344:8-14.
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More than one week into trial, counsel for plaintiffs requested that 

Defendants produce Senn’s recorded statement, taken by an adjuster 

working for Senn’s workers’ compensation carrier. Notes in the related 

worker’s compensation file also included a phone interview between Ruick 

and an adjuster in which Ruick claimed that Senn was his superior, that he 

had been hired by Senn Landscaping as a W-2 employee, and that he was 

supervising the construction project on the Irrgang property. Specifically, 

the adjustor’s notes indicated that Ruick: (1) made sure there was no 

property damage by other workers on the job; (2) made sure the job was

being completed; (3) supervised the Senn employees’ work; (4) shared the 

supervising and physical work on the job with Senn, and (5) checked in with 

Irrgang on the status of the job. This statement directly contradicted Ruick’s 

trial testimony that he was an independent contractor at the worksite who 

never supervised, directed, instructed or acted as though he was in charge 

of Senn or Senn’s employees. 

The trial court ordered a partial production of the workers’ 

compensation file for in camera review. Portions of the file were redacted. 

The Rollands, Senn Defendants and Irrgang Defendants objected to its 

admission, claiming that the notes had not been timely produced, could not 

be cross-examined, and were of dubious reliability. The trial court ultimately 

ruled the entire file inadmissible, concluding that it was more unfairly 
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prejudicial than probative under Pa.R.E. 403.8 N.T. Jury Trial, 3/15/13, at 

15. In response, Modern moved for a mistrial, which the trial court denied, 

concluding that because summary judgment with regard to liability had 

already been entered against Modern, it would not be prejudiced by the 

failure to admit the file.9 Id. at 26-27.

Ultimately, the jury returned a verdict in favor of the Rollands, finding 

no contributory negligence10 and apportioning liability as follows: 

Senn/Senn Landscaping (47%), Irrgang Defendants (32%), and the Modern 

Defendants (21%). The jury awarded $20 million in compensatory damages 

____________________________________________

8 See Pa.R.E. 403 (court may exclude relevant evidence it its probative 

value is outweighed by danger of one or more of following: unfair prejudice, 

confusing issues, misleading jury, undue delay, wasting time, or needlessly 

presenting cumulative evidence).

9 Modern also attempted to subpoena the carrier’s claims representative that 

took the alleged statements from plaintiff; however, the court precluded her 

from testifying. 

10 Our Commonwealth’s comparative negligence statute states:

(a) General rule. --In all actions brought to recover damages for 

negligence resulting in death or injury to person or property, the 

fact that the plaintiff may have been guilty of contributory 

negligence shall not bar a recovery by the plaintiff or his 

legal representative where such negligence was not greater 

than the causal negligence of the defendant or defendants 

against whom recovery is sought, but any damages 

sustained by the plaintiff shall be diminished in proportion to 

the amount of negligence attributed to the plaintiff.

42 Pa.C.S. § 7102 (Comparative negligence) (emphasis added).
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to the Rollands (which includes $2 million for loss of consortium) and 

$16,000 in punitive damages against Senn, individually, due to his 

recklessness in the underlying accident.

All Defendants and Plaintiffs filed post-trial motions. In their motions, 

Defendants sought a judgment n.o.v dismissing the complaint, or, 

alternatively, a new trial. Modern specifically took issue with the trial 

court’s ruling on excluding the workers’ compensation file from trial. 

Plaintiffs, post-trial, sought to set aside the order dismissing their claim for 

punitive damages as against the Modern and Irrgang Defendants. On 

August 6, 2013, the trial court denied Plaintiffs’ motion, but granted the 

Defendants’ motions, ordering a new trial on all issues. In its Pa.R.A.P. 

1925(a) opinion, the trial court listed the following, specific reasons for 

granting a new trial: (1) the court committed prejudicial error when it 

denied Modern Defendant’s motion for a mistrial following the production of 

the Senn Defendant’s workers’ compensation carrier’s file; and (2) the 

verdict was against the weight of the evidence and shocked the court’s 

conscience, where the jury found no comparative negligence/liability on the 

part of Ruick.11 Trial Court Opinion, 1/31/14, at 14. The court also clarified 

that its post-trial rulings “were never meant to overturn or overrule the 

____________________________________________

11 The court further expounds upon this reason, stating that “superseding 

cause was intertwined with this Court’s decision to award a new trial based 

on the inconsistent nature of the [v]erdict that failed to assess comparative 

negligence on the part of Mr. Rolland.” Trial Court Opinion, 1/31/14, at 26. 
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Motion Court’s award of summary judgment in favor of Plaintiffs.” Id. at 15. 

Rather, the court explained that the ruling had just contributed to the 

problematic verdict. Id. at 20. The court determined that because the jury 

apportioned negligence among multiple defendants, the grant of a new trial 

should be held as to all defendants so that a new jury could hear all of the 

evidence and re-apportion fault. 

Plaintiffs filed a timely notice of appeal from the August 6, 2013 order; 

the Modern Defendants and Irrgang Defendants filed timely notices of crossappeal. On appeal, the Appellants, Plaintiffs/the Rollands, raise the following 

issues:

(1) Did the trial court err as a matter of law, or otherwise 

abuse its discretion, when it ruled that a new trial was 

necessary based on the trial judge’s conclusion, stemming 

from his failure to consider the evidence in a light most 

favorable to the plaintiffs, that the jury’s finding that 

plaintiff was not liable to any extent whatsoever for his 

own injuries “shocked the conscience” of the trial judge?

(2) Did the trial judge err as a matter of law, or otherwise 

abuse his discretion, in concluding that a predecessor 

judge’s entry of summary judgment in favor of plaintiffs as 

to liability against the Modern and Senn defendants 

somehow prejudiced defendants UCS and Irrgang’s right to 

a fair trial on the subject of their own liability, such that it 

was proper to order a new trial at which the jury would be 

required to adjudicate the liability of all defendants, where: 

(i) UCS and Irrgang were afforded a fair opportunity to 

fully litigate every aspect of their own liability, causation, 

damages and contributory negligence; and (ii) the Senn 

defendants have conceded their responsibility for Rolland’s 

injuries?

(3) Did the trial court err as a matter of law, or otherwise 

abuse its discretion, when it concluded that it should have 

granted a mistrial at the request of the Modern defendants 
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after the trial court improperly ordered, sua sponte, in the 

midst of trial, the production of a worker[s’] compensation 

file that none of the parties was then seeking, when the 

trial court’s contemporaneous decision to exclude the 

worker’s compensation file represented a proper exercise 

of that court’s discretion?

(4) Whether, if this Court were to affirm the trial court’s 

grant of a new trial, this Court should remand to the 

trial court for a ruling in the first instance on plaintiffs’ 

motion for post-trial relief seeking punitive damages 

against the Modern defendants, UCS, and Irrgang?

On cross-appeal, the Modern Defendants raise the following issue for our 

consideration:

Was Modern entitled to a judgment n.o.v. on the ground 

that plaintiff failed to demonstrate the existence of a 

legally-cognizable tort duty owed to him by Modern under 

the circumstances?12

Finally, on cross-appeal, the Irrgang Defendants present us with the 

following claims:

(1) Did the trial court err in not granting judgment 

notwithstanding the verdict to Irrgang and UCS where 

Plaintiffs failed to present evidence capable of establishing 

that these defendants were negligent, or that their 

____________________________________________

12 While Modern raises three additional issues in its appellate brief (was 

Modern prejudiced and denied right to fair trial in presenting its defense due 

to mid-trial production of workers’ compensation file; was jury’s no 

contributory negligence verdict with regard to plaintiff against weight of 

evidence; and was Modern unfairly prejudiced and denied right to fair trial in 

presenting its defense due to erroneous summary judgment orders), those 

issues were all answered in the affirmative by the trial court and were the 

bases of the trial court’s order granting a new trial. Therefore, they are not 

“cross-appeal” issues, but rather counterstatements of Appellants’ issues, or, 

most correctly termed “Appellees’ issues.”
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negligence was a substantial cause of the [sic] Rolland’s 

accident and injury?

(2) Were Irrgang and UCS entitled to judgment because the 

evidence established that Rolland was reckless as a matter 

of law?

(3) Were Irrgang and UCS entitled to judgment because the 

evidence established that Rolland’s comparative negligence 

exceeded any possible negligence of the defendants as a 

matter of law?

(4) Alternatively, did the court err in failing to find that 

judgment would have been granted Irrgang and UCS 

because the Senn defendants were 100 percent liable for 

Plaintiffs’ harm?

In Morrison v. Dep’t of Pub. Welfare, 646 A.2d 565, 570 (Pa. 

1994), our Supreme Court set forth the proper appellate standard and scope 

of review for a trial court’s decision to grant a new trial:

[T]he decision to order a new trial is one that lies within the 

discretion of the trial court. [Coker v. S.M. Flickinger Co., 

Inc.], 533 Pa. [441,] 447, 625 A.2d [1181,] 1184 [Pa. 1993]. 

Thus, the standard for appellate review of such a decision is 

always an abuse of discretion standard. In contrast, the scope of 

the appellate court's review of the trial court's decision varies: It 

is determined by whether the trial court cites a finite set of 

reasons for its decision, indicating that but for the cited reasons 

it would not have granted a new trial, or "leaves open the 

possibility that it would have ordered a new trial for reasons 

other than those it specified. Id. at 446, 625 A.2d at 1184. If 

the trial court leaves open the possibility that reasons additional 

to those specifically mentioned might warrant a new trial, or 

orders a new trial "in the interests of justice," the appellate court 

applies a broad scope of review, examining the entire record for 

any reason sufficient to justify a new trial. Id. at 448, 625 A.2d 

at 1185. However, if, as in this case, the trial court 

"indicates that the reasons it gives are the only basis for 

which it ordered a new trial[,] . . . an appellate court can 

only examine the stated reasons. Id. at 449, 625 A.2d at 

1185. 
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Id. at 570 (emphasis added). Moreover, our Court is to focus on whether 

the trial court's stated reasons and factual basis are supported in the record. 

Coker, 625 A.2d at 1187. "Where the record adequately supports the trial 

court's reasons and factual basis, the court did not abuse its discretion." Id. 

In considering whether the record supports the trial court's decision, “the 

appellate court is to defer to the judgment of the trial court, for the trial 

court is uniquely qualified to determine factual matters.” Morrison, 646 

A.2d at 571. An abuse of discretion does not occur when the trial court 

reaches a different decision than the appellate court would have reached. 

Id.

Instantly, Judge Younge explicitly listed the two reasons why he 

granted a new trial in the underlying action. Accordingly, we are constrained 

to confine our review on appeal to those stated reasons. Morrison, supra. 

We note that a new trial is not warranted merely because an 

irregularity occurred at trial or because another judge may have ruled 

differently. Bey v. Sacks, 789 A.2d 232, 236 (Pa. Super. 2001). Rather, 

the moving party must prove they suffered some prejudice as a result of the 

error. Id. 

Here, the trial court determined that it erred in failing to grant a 

mistrial following plaintiff’s production of the workers’ compensation file. 

This error amounted to a mistake of a discretionary matter. At the time the 

trial court was faced with making the decision regarding whether the file 

would be admissible at trial, the court was not aware that Senn had actually 
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submitted a claim to his carrier on Ruick’s behalf and that Ruick, Senn and 

Irrgang had actually given a statement supporting that claim to Senn’s 

insurer. These unknown facts13 raised the possibility that all the 

Defendants, excluding Modern, had collaborated to defraud the insurance 

company.14 The fact that the workers’ compensation file was not admitted 

at trial effectively precluded Modern from cross-examining Ruick on whether 

he, in fact, was in a supervisory position at the work site when the accident 

occurred, which would have contradicted Ruick’s own deposition and trial 

testimony, as well as the testimony of his witnesses at trial. See Ruick 

Rolland Deposition, 5/23/11 at 48:4-7; N.T. Jury Trial, 3/13/13, at 40, 48, 

52.; N.T. Jury Trial, 3/21/13, at 125-28. If the file had been admitted, 

____________________________________________

13 Counsel for Modern best expressed the impact that the failure to admit 

the contents of the file had on the trial:

The evidence that came up during trial involving the workers’ 

compensation file, Judge, is not in and of itself necessarily an 

issue that didn’t come into the trial as much as that 

information is a substantial change in the facts and 

circumstances of this case where Mr. Rolland had made 

statements to another party that directly contradicted his 

testimony both at deposition and here on the stand.

N.T. Post-Trial Motions, 8/5/13, at 8-9 (emphasis added).

14 Ruick testified that while he was in the hospital, following the accident, 

Senn asked him to say that Ruick was his employee so he could collect 

worker’s compensation benefits. See Deposition of Ruick Rolland, 5/23/11, 

at 137:10-13. The insurance claim, however, was denied by Senn’s workers’ 

compensation carrier after it determined that Ruick was not employed by 

Senn.
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statements made to the insurance carrier could have bolstered Modern’s 

defense, which largely consisted of Ruick’s status as site supervisor who 

failed to exercise his authority and intervene when he witnessed a 10-yearold operating heavy machinery. The file’s admission could also have 

materially affected the pre-trial ruling on Ruick’s summary judgment motion, 

as well as the ultimate outcome of trial by exposing Ruick’s participation in 

an attempted fraud, and most importantly, called into question the 

credibility of the other defendants who maintained that Ruick was a 

supervisor on the job site. Most critical, however, is the fact that if the jury 

were to have believed that Ruick was a supervisor at the site, it would have 

had a direct bearing on whether Ruick was contributorily negligent in the 

accident. 

Admission of Workers’ Compensation File

Our review of a trial court’s decision to admit or exclude evidence is 

well-settled:

When we review a trial court ruling on admission of evidence, we 

must acknowledge that decisions on admissibility are within the 

sound discretion of the trial court and will not be overturned 

absent an abuse of discretion or misapplication of the law. In 

addition, in order for a ruling on evidence to constitute reversible 

error, it must have been harmful or prejudicial to the 

complaining party.

Geise v. Nationwide Life & Annuity Co. of Am., 939 A.2d 409, 417 (Pa. 

Super. 2007)

Here, Defendants failed to produce statements made by Ruick and 

Senn to Senn’s insurance carrier regarding the accident. The content of 
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those alleged statements concerned the extent to which Ruick was involved 

in supervising the worksite. During trial, the judge concluded that admission 

of the file would be more prejudicial than probative and excluded the 

evidence. However, upon further consideration, the court discovered that 

the file contained additional statements that could have been a source of 

impeachment evidence against Ruick and helped bolster Modern’s defense at 

trial. Post-trial, the trial judge concluded that the contents of the file, 

specifically the notes regarding Ruick’s statements, should have been 

admitted, as they were directly relevant to the issue of Ruick’s potential 

contributory negligence in the underlying accident. See Pa.R.E. 401 

(evidence is relevant if it tends to make fact more or less probable than it 

would be without evidence and fact is of consequence in determining 

action); see also Pa.R.E. 402 (all relevant evidence is admissible). 

Pursuant to Pa.R.E. 803(25), an opposing party’s statement is an 

exception to the hearsay rule when it is offered against an opposing party 

and was made by the party in an individual or representative capacity. 

Pa.R.E. 803(25)(A). Here, the court neither abused its discretion nor 

committed an error of law in finding that it erred by failing to admit the 

workers’ compensation file where its contents were admissible under Pa.R.E. 

803(25) and relevant to the issue of Ruick’s contributory negligence. 

Accordingly, we now review its decision to grant a new trial by applying an 

abuse of discretion standard and focusing on whether the trial court’s stated 

reasons and factual basis are supported in the record. Morrison, 646 A.2d 
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at 571. We accomplish this by deferring to the judgment of the trial court, 

as the trial court is uniquely qualified to determine factual matters. Id.

In Morrison, supra, a trial court granted a new trial based on its 

decision to deny defendant’s motion in limine to preclude plaintiff from 

introducing evidence that the defendant’s ambulance crew failed to stay at 

the scene of the victim’s accident. Because no evidence had been presented 

to show that the victim could have survived the accident, and, in fact, that 

the evidence supported a finding to the contrary, the court found that “it had 

committed very serious trial court error in permitting the evidence and 

argument regarding the [defendant ambulance crew’s] conduct following the 

accident.” Id. at 658. 

Here, we find that the content of the workers’ compensation file, which 

called into question Ruick’s supervisory capacity at the worksite, was 

relevant to the issue of his contributory negligence. The issue of Ruick’s 

status at the accident site bore directly on the issue of his potential liability 

in openly permitting a ten-year-old child to operate the track loader and any 

inconsistent testimony he may have given went directly to its weight and 

Ruick’s credibility. Because Modern was unable to cross-examine Ruick with 

his contradictory statement regarding his involvement in the operations of 

the work site, the court properly determined that a new trial was warranted 

as a result of its failure to admit the evidence which had a direct bearing on 

Modern’s defense. Id. Thus, the trial court’s determination that the failure 

to admit the evidence prejudiced Modern, and thus necessitated the grant of 
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a new trial, is supported in the record. Morrison, supra. Therefore, the 

trial court did not abuse its discretion.

15

Was verdict against the weight of the evidence requiring a new trial?

Here, the trial court granted a new trial “because the [v]erdict 

assessing no comparative negligence against Mr. Rolland was against the 

sheer weight of the evidence to such an extent that it shocked the 

conscience of th[e] Court.” Trial Court Opinion, 1/31/14, at 14.

A new trial is granted on the basis that the verdict is against the 

weight of the evidence when the jury’s verdict is so contrary to the evidence 

as to shock one’s sense of justice and a new trial is necessary to rectify this 

situation. Folger v. Dugan, 876 A.2d 1049, 1053 (Pa. Super. 2005) 

(citation omitted). However, a new trial will not be granted on the ground 

that the verdict was against the weight of the evidence where the evidence 

is conflicting and the fact-finder could have decided in favor of either party. 

Lanning v. West, 803 A.2d 753, 765-66 (Pa. Super. 2002).

____________________________________________

15 The trial court’s original premise, that because Modern had conceded 

liability prior to trial the failure to admit the workers’ compensation file had 

not impacted [Modern’s negligence] one bit” is incorrect. This is highlighted 

by the fact that Modern’s counsel was not even made aware of the existence 

of the worker’s compensation file, and any accompanying party statements, 

until the afternoon of March 14, 2013 – already two days into trial. Had this 

file been available prior to Plaintiffs’ partial summary judgment motion, it 

most likely would not have conceded liability. Accordingly, the issue of all 

parties’ negligence would have been before the jury, including any evidence 

to discredit Ruick’s trial testimony that he did not act in a supervisory 

capacity at the jobsite. 
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Instantly, the trial court found that a new trial was warranted based on 

the fact that the jury found no comparative negligence on the part of Ruick. 

In Columbia Med. Group Inc. v. Herring & Roll, P.C., 829 A.2d 1184 

(Pa. Super. 2003), our Court defined contributory negligence as:

[C]onduct on the part of a plaintiff which falls below the standard 

of care to which he should conform for his own protection and 

which is a legally contributing cause, cooperating with the 

negligence of the defendant, in bringing about the plaintiff's 

harm. Contributory fault may stem either from a plaintiff's 

careless exposure of himself to danger or from his failure to 

exercise reasonable diligence for his own protection.

Id. at 1192 (quotation omitted). 

Here, the trial court determined that the jury’s verdict of 0% 

negligence on the part of Ruick was “extremely suspect given the posture of 

this case as presented to the [j]ury.” Trial Court Opinion, 1/31/14, at 23. 

Essentially the court below concluded that the evidence showed that Ruick 

was to some degree at fault. In essence, the verdict did not bear a 

relationship to the evidence had the jury been given the opportunity to 

consider the workers’ compensation file. 

The court noted that, at trial, Ruick testified that he was an 

independent contractor, heavily involved in construction at the subject work 

site, who signed for the delivery of the track loader. By contrast, in his 

statement to Senn’s insurance carrier, Ruick represented that he was not 

only the supervisor on the job, but also operated the track loader at the site. 

In fact, both Irrgang’s and Senn’s deposition testimony corroborates the 

statement that Ruick was responsible for supervising all of the workers at 
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the jobsite, and that he was “running everything that was going on on the 

property.” See Deposition Steven T. Senn, 11/22/10, at 272-73; see also 

Deposition of Bruce E. Irrgang, 5/17/11, at 59:11-14, 59:19-20, 85:1 

(“Ruick supervised everybody.”). Irrgang testified at his deposition that 

Ruick admitted he messed up and that it was Ruick’s responsibility to make 

sure all operations at the site were being carried out safely. Id. at 182:9-

20; 183:1-2. Moreover, Senn testified in his deposition that, at the moment 

immediately preceding the accident, Ruick had stopped Stevie on the 

roadway and told him where to redirect the track loader to avoid going over 

a hose, Deposition of Steven Senn, 11/22/10, at 270-72, and that at that 

point Ruick was supervising Stevie and was in charge of Stevie’s actions on 

the jobsite.16 Finally, Senn testified at his deposition that when he ran to 

the accident site, finding Ruick severely injured, Ruick told Senn that he had 

been “in the wrong place at the wrong time” and that Ruick “had [his] foot in 

the wrong place.” Id. at 284, 308 (“[Rolland said] he had his foot in front of 

the track, where it shouldn’t have been.”). 

Jerry L. Purswell, Ph.D., a doctor of engineering and an expert in 

teaching safety in the field of engineering and ergonomics,17 testified as a 

____________________________________________

16 In fact, Senn testified at his deposition that Ruick was supervising 

everyone on the jobsite. Id. at 272.

17 Ergonomics is the study of people's efficiency in their working 

environment. Ergonomists have attempted to define postures which 

minimize unnecessary static work and reduce the forces acting on the body. 
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witness for Modern, stating that it was unreasonable for Ruick to be closer 

than 10 feet from a running track loader while he tried to flip a hose over 

the top of the machine as it moved forward towards him. N.T. Jury Trial, 

3/22/13, at 62-63. Doctor Purswell also opined that even if the track loader 

were slowly proceeding towards Ruick (to the left) at the time of the 

accident, it would have been impossible for Ruick’s leg to have been sucked 

under the loader unless Ruick’s foot was actually in front of the tread. Id. at 

70-74.

Based upon this evidence we agree with the trial court that the jury’s 

zero contributory negligence verdict was inconsistent with the fact that Ruick 

was personally responsible for his own voluntary actions and decision to 

closely approach the running track loader and give operating directions to a 

ten-year-old. 

“[O]ne of the least assailable grounds upon which a new trial is 

granted is the trial court's conclusion that the verdict is against the weight of 

the evidence and, under such circumstances, an appellate court usually is 

reluctant to interfere.” Heffernan v. Rosser, 215 A.2d 655, 657 (Pa. 

1966). Moreover, upon an appeal from the grant of a new trial, an appellate 

court recognizes the burden which the appellant has to establish that the 

action of the court below constituted a clear and palpable abuse of discretion 

or an error of law which controls the case. Id. 
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Here, where the issue of contributory negligence bore upon the 

ultimate apportioning of liability among the parties, the court properly 

granted a new trial on the basis of the weight of the evidence. 

J.N.O.V. Ruling for Modern and Irrgang Defendants

Both Modern and Irrgang Defendants assert on appeal that even 

though the trial court properly granted a new trial, they are entitled to a 

judgment notwithstanding the verdict (JNOV). Modern specifically claims 

that it did not owe a legal duty to Ruick and, therefore, cannot be liable for 

negligence as a matter of law. Irrgang Defendants argue that Ruick failed to 

present evidence that it was negligent or that its negligence was a 

substantial cause of Ruick’s accident and injuries.

There are two bases upon which a court may enter a judgment 

n.o.v.: (1) the movant is entitled to judgment as a matter of 

law, Moure v. Raeuchle, [] 604 A.2d 1003, 1007 (Pa. 1992) 

(quoting Tremaine v. H.K. Mulford Co., [] 176 A. 212 (Pa. 

1935)), or (2), the evidence was such that no two reasonable 

minds could disagree that the outcome should have been 

rendered in favor of the movant, id. (quoting Cummings v. 

Nazareth Borough, [] 233 A.2d 874 (Pa. 1967)). With the first, 

a court reviews the record and concludes that even with all 

factual inferences decided adverse to the movant, the law 

nonetheless requires a verdict in their favor; whereas with the 

second, the court reviews the evidentiary record and concludes 

that the evidence was such that a verdict for the movant was 

beyond peradventure. Id.

Quinby v. Plumsteadville Family Practice, 907 A.2d 1061, 1074 (Pa. 

2006).

Modern asserts that once it delivered the track loader to the work site 

and entrusted it to Ruick and UCS, via a lease agreement, it no longer owed 
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a legal duty to Ruick or had any obligation to control the conduct of third 

persons who might operate the machine. 

Instantly, Plaintiffs sued Modern under the theory of negligent 

entrustment which states that “[i]t is negligence to permit a third person to 

use a thing or to engage in an activity which is under the control of the 

actor, if the actor knows or should know that such person intends or is likely 

to use the thing or to conduct himself in the activity in such a manner as to 

create an unreasonable risk of harm to others.” Restatement (Second) of 

Torts, § 308 (Permitting Improper Persons to Use Things or Engage in 

Activities). At trial, Plaintiffs and Defendant Senn put forth evidence that the 

Modern employee who delivered the track loader to the work site saw Stevie 

operate the machine on two occasions. The employee expressed his 

astonishment to workers at the site with regard to seeing such a young child 

operate the track loader and, as a result, subsequently reported the incident 

to a Modern rental manager. With Modern on notice that its machine was 

being operated by a minor, Plaintiff posited that it was Modern’s obligation to 

confront Irrgang or Ruick, who signed for the machine, to advise them that 

the equipment was only to be used by “competent operators” as per the 

lease agreement. Plaintiffs also argued that Modern could have exercised its 

right to repossess the equipment if it believed it was being used by 

incompetent operators. Because Modern failed to take either action, the 

court properly chose to deny Modern’s motion for JNOV where there was a 
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legitimate issue of the company’s negligent entrustment of the track loader 

to the other Defendants and Plaintiff.

Irrgang Defendants claim that j.n.o.v should have been granted in its 

favor because Ruick failed to establish that Irrgang Defendants owed Ruick a 

duty or exercised any control over the means and methods of the work 

performed by the independent contractors involved in the pond-dredging 

and bridge project on Irrgang’s property. We disagree.

At trial, Ruick testified that Bruce Irrgang not only owned the property, 

but hired and paid the salaries of each laborer on the job, and most 

importantly, that those workers reported directly to Irrgang with regard to 

the work that they were to perform on the property. Moreover, Irrgang, 

through his company, UCS, ordered and rented the track loader from 

Modern for Senn’s use at his worksite. Ruick testified that Irrgang 

“micromanaged” all of the activities at the site and had ultimate authority 

over the workers. Accordingly, the court correctly denied Irrgang 

Defendants’ motion for a JNOV where it was not entitled to judgment as a 

matter of law on the issue of Irrgang’s duty and where two reasonable 

minds could disagree that a decision should have been rendered in favor of 

the movant. Quinby, supra. 

Conclusion

Because the trial court’s stated reasons to grant a new trial are 

supported in the record, and because the trial court was in the best position 

to assess the effect on the jury of the evidence and argument, we conclude 
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that the trial court did not abuse its discretion.18 Armbruster v. Horowitz, 

813 A.2d 698 (Pa. 2002) (new trial should be granted only in truly 

extraordinary circumstances, i.e., when jury's verdict is so contrary to 

evidence as to shock one's sense of justice and award of new trial is 

imperative so that right may be given another opportunity to prevail).19

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/2/2015

____________________________________________

18 Because we affirm the trial court’s order granting a new trial, we need not 

address cross-appellants’ issues that relate to rulings in the now-nullified 

trial. Chiaverini v. Sewickley Valley Hosp., 598 A.2d 1021, 1024 n.3 

(Pa. Super. 1991).

19 Having determined that a new trial was properly granted, we need not 

revisit the issue of punitive damages which will, presumably, be presented at 

the conclusion of the new trial.