J-A26011-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

JOSUE PEREZ LOPEZ AND MAYELI 

HERNANDEZ

v.

CROWN EQUIPMENT CORPORATION 

OMNILIFT, INC., LIFT, INC., 

CLEMENS FOOD GROUP, LLC, 

CLEMENS FAMILY CORPORATION, 

HATFIELD QUALITY MEATS, INC., 

HATFIELD QUALITY MEATS, LLC.

APPEAL OF: CROWN EQUIPMENT 

CORPORATION

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3146 EDA 2022

Appeal from the Order Entered November 22, 2022

In the Court of Common Pleas of Philadelphia County Civil Division at 

No(s): 171204161

BEFORE: DUBOW, J., McLAUGHLIN, J., and KING, J.

MEMORANDUM BY DUBOW, J.: FILED MAY 21, 2024

Appellant, Crown Equipment Corporation, appeals from the November 

22, 2022 Order granting the motion for post-trial relief filed by Appellees, 

Josue Perez Lopez and Mayeli Hernandez, and ordering a new trial in this 

products liability action. After careful review, we affirm.

1

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1 Following oral argument of this appeal, the parties submitted several filings. 

Addressing Appellant’s filings, we grant Appellant’s December 11, 2023 

Application for Leave to File Post Submission Communication and accept as 

filed Appellant’s “Motion to Strike [Appellees’ December 4, 2023 PostArgument Submission] or, in the Alternative, Response to Post-Argument 

(Footnote Continued Next Page)
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The relevant facts and procedural history are as follows. On January 

14, 2016, Mr. Lopez was injured in the course of his employment with Clemens 

Food Group while operating an electric pallet jack manufactured and 

distributed by Appellant. On December 28, 2017, Appellees filed a complaint

raising Negligence, Strict Liability, Breach of Implied Warranties, 

Recklessness/Punitive Damages, and Loss of Consortium against Appellant2

asserting, inter alia, that the pallet jack was defective and/or defectively 

designed.

The case proceeded through discovery. Shortly before the 

commencement of trial, Appellees filed fifteen motions in limine seeking to 

preclude the admission of certain evidence including evidence regarding 

industry standards, Mr. Lopez’s or his employer’s negligence, and evidence 

related to the operator manuals and warnings Appellant provides to users who 

purchase the pallet jack at issue. The trial court denied each of Appellees’ 

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Submission of Appellee” appended thereto. We deny Appellant’s Motion to 

Strike. 

With respect to Appellees’ filings, we grant Appellees’ December 19, 2023 

Application for Leave to File a Post-Argument Submission and accept as filed 

Appellees’ Post-Argument Submission appended thereto. In addition, we 

grant Appellees’ January 9, 2024 Application for Leave to File a Supplemental 

Notice of Authority and accept as filed Appellees’ Notice of Supplemental 

Authority appended thereto.

2 Appellant also asserted claims against the other captioned defendants, each 

of whom the court dismissed from the case prior to trial.
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motions without prejudice to raise the objections again at the appropriate time 

during trial. 

Immediately prior to trial, Appellees filed a praecipe to withdraw their

negligence claim against Appellant, indicating that they wished to proceed to 

trial only on their strict liability claim.

3

 Trial commenced on September 22, 

2022, and ended in a mistrial seven days later when the number of available 

jurors fell below the threshold required to continue. Thereafter, the court 

ordered the immediate empanelment of a new jury and directed that all 

evidentiary rulings made thus far would remain in place, and all evidence in 

the record would be read to the new jury following presentation of counsel’s 

new opening statements. The second trial began with jury selection on 

September 30, 2022. 

During both the first and second trials, Appellees reasserted certain 

issues raised in their motions in limine. Ultimately, the trial court precluded

the admission of evidence of (1) industry standards; (2) Mr. Lopez’s or his 

employer’s negligence, including the employer’s failure to train; (3) the 

purported ubiquity or preference of customers in the marketplace for the 

product; (4) the instruction manual and warnings that Mr. Lopez never saw; 

and (5) lack of prior incidents. 

Appellees made numerous objections during both the first and second 

trials to what it characterized as Appellant’s counsels’ violations of the trial 

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3 The trial court had dismissed, or Appellees had discontinued or settled, all 

other claims against all other parties prior to the commencement of trial. 
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court’s evidentiary rulings and, in three instances, requested that the court 

grant a mistrial. In response, the trial court sustained the objections and 

issued numerous warnings and admonitions to counsel to comply with its 

rulings. The court, however, declined to grant a mistrial. 

On October 7, 2022, the jury returned a verdict for Appellant. On 

October 17, 2022, Appellees filed a post-trial motion for a new trial alleging 

that Appellant’s counsel’s conduct in repeatedly violating the court’s 

evidentiary orders during trial prejudiced the jury to the extent that it was not 

capable of fairly weighing the evidence and entering an objective verdict. 

Post-Trial Motion, 10/17/22, at ¶ 68. Appellees argued that Appellant’s 

counsel’s repeated transgressions of the court’s evidentiary rulings resulted in 

counsel eliciting impermissible testimony regarding: (1) employer negligence; 

(2) the comparative negligence of Mr. Lopez; (3) industry standards; (4) 

product warnings and instructions; (5) collateral source; and (6) lack of prior 

incidents. Id. at ¶ 77. Appellees argued that the “cumulative nature of all of 

[Appellant’s] counsel’s violations most certainly warrant a new trial [because] 

each violation was improper and prejudicial [and] the cumulative effect 

insurmountably prejudiced [Appellees].” Id. at ¶ 78.

On October 27, 2022, Appellant filed a response to Appellees’ post-trial 

motion in which it argued that Appellees did not present a proper basis for a 

new trial because Appellees did not identify in the motion any evidence that 

the court improperly admitted at trial. Appellant asserted that Appellees 

instead merely argued that the jury’s verdict was tainted by counsel’s 
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questions to various witnesses; however, Appellees objected to those 

questions and the trial court sustained the objections. Thus, according to 

Appellant, the court prevented the admission of any evidence to the jury that 

may have prejudiced the outcome of the trial and, thus, the court did not 

commit any errors warranting a new trial.

4

 

Following its review of the motion and based on its conclusion that 

Appellant’s counsel engaged in “persistent and demonstrated intentional 

efforts to mislead the jury and confuse the issues in this case[,]” the trial court 

granted Appellees’ motion for a new trial. Trial Ct. Op., 5/22/23, at 1. Noting 

that Appellant “persistently sought to shift the issues in the trial to defenses 

prejudicial, unrelated[,] and unavailable to a defendant in a strict product 

liability action, defenses that are not permitted under Pennsylvania law[,]” id. 

at 4, the trial court explained that it found that Appellant’s “misconduct, 

whether intentional or not, polluted the jury and had sufficiently violated the 

court’s directives and repeated admonishments to have infected the 

proceedings and prejudiced” Appellees. Id. Accordingly, the court found that 

the only “just and proper remedy” to “cure the profound and pervasive taint 

of [Appellant’s] efforts to end run around the court’s trial rulings” was to grant 

Appellees a new trial. Id.

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4 Appellant also denied that the questions counsel posed sought to elicit 

inadmissible evidence and asserted in the alternative that even if the court 

had not sustained Appellees’ objections, the evidence elicited by those 

questions was not the type that the court ruled inadmissible. 
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This timely appeal followed. Both Appellant and the trial court complied 

with Pa.R.A.P. 1925.

Appellant raises the following issues on appeal:

I. Whether the [t]rial [c]ourt erred in granting the [m]otion for 

[p]ost-[tr]rial [r]elief and [n]ew [t]rial[] because it failed to 

identify a single mistake or error that was made during the 

trial?

II. Whether the [t]rial [c]ourt erred in granting a new trial 

without identifying any inadmissible evidence or conduct of 

counsel that was actually presented to the jury and which 

unfairly prejudiced [Appellees]?

III. Whether the [t]rial [c]ourt erred in granting a new trial 

because its [o]rder was an abuse of discretion, manifestly 

unreasonable[,] and based upon a misapplication of the law 

and the [t]rial [c]ourt’s partiality and bias?[5]

Appellant’s Brief at 6.

A.

Appellant challenges the trial court’s order awarding a new trial to 

Appellees. “The grant of a new trial is an effective instrumentality for seeking 

and achieving justice in those instances where the original trial, because of 

taint, unfairness or error, produces something other than a just and fair 

result[.]” Harman ex rel. Harman v. Borah, 756 A.2d 1116, 1121 (Pa. 

2000) (citation omitted). “Trial courts have broad discretion to grant or deny 

a new trial[.]” Id. Absent a clear abuse of discretion, we will not overturn an 

order granting a new trial. Id. at 1122. “A trial court commits an abuse of 

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5 Appellant did not include this issue in its Rule 1925(b) Statement of Errors

Complained of on Appeal. It is, therefore, waived. See Pa.R.A.P. 

1925(b)(4)(vii) (“Issues not included in the Statement . . . are waived.”).
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discretion when it rendered a judgment that is manifestly unreasonable, 

arbitrary, capricious, has failed to apply the law, or was motivated by 

partiality, prejudice, bias, or ill will.” Mirabel v. Morales, 57 A.3d 144, 150 

(Pa. Super. 2012) (citation and internal quotation marks omitted). With 

respect to our review of the trial court’s exercise of its discretion, we are 

mindful that, “[a] trial judge is in the best position to observe the atmosphere 

in which a trial is being conducted and to determine whether a statement in 

the heat of trial by counsel or a witness has had a prejudicial effect on the 

jury.” Clark v. Hoerner, 525 A.2d 377, 381 (Pa. Super. 1987).

This court has explained that a new trial is appropriate where:

the unavoidable effect of [counsel’s] conduct or language was to 

prejudice the factfinder to the extent that the factfinder was 

rendered incapable of fairly weighing the evidence and entering 

an objective verdict. If [counsel’s] misconduct contributed 

to the verdict, it will be deemed prejudicial and a new trial 

will be required.

Poust v. Hylton, 940 A.2d 380, 385 (Pa. Super. 2007) (citation omitted, 

emphasis in original). 

Moreover, where an attorney or party engages in conduct that judicial 

instruction cannot cure, “the only remedy is a new trial, in order to promote 

fundamental fairness, to ensure professional respect for the rulings of the trial 

court, to guarantee the orderly administration of justice, and to preserve the 

sanctity of the rule of law.” Mirabel, 57 A.3d at 151 (citation and internal 

quotation marks omitted).
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Where the trial court orders a new trial “in the interests of justice,” we 

apply a “broad scope of review, examining the entire record for any reason 

sufficient to justify a new trial.” Harman, 756 A.2d at 1123 (citation omitted).

B.

In its first two issues, Appellant raises numerous grounds for its 

conclusion that the trial court erred in granting Appellees a new trial. Initially, 

Appellant asserts that the trial court erred because the court failed to identify 

a single specific, factual, legal, or discretionary mistake at trial that would 

warrant a new trial and, instead, awarded a new trial based on its 

“unsupported and generalized conclusion that [Appellant] repeatedly violated 

its orders in an attempt to ‘bombard’ the jury with inadmissible evidence.” 

Appellant’s Brief at 26. Appellant argues, in particular, that the trial court 

properly ruled on Appellees’ requests for mistrials and motions for curative 

instruction and that, therefore, these rulings were not grounds for a new trial. 

Id. at 27-31. It also argues that the court did not, in fact, improperly admit 

any evidence at trial that resulted in unfair prejudice to Appellees and that

Appellant’s counsel did not, through its examination or argument, present any

unfairly prejudicial evidence to the jury. Id. at 31-33. 

In the alternative, Appellant asserts that the court’s curative instructions 

prevented any prejudicial conduct resulting from its examination or argument, 

because “Pennsylvania courts have routinely held that juries are presumed to 

follow the trial court’s instructions, including its curative instructions following 

an improper question.” Id. at 34 (citation omitted). Appellant adds that its 
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conduct was not “so offense or egregious” that the curative instructions issued 

here would be insufficient to “obliterate the taint” to the jury. Id. at 41.

C.

The trial judge, an experienced and impartial jurist, presided over both 

the first and second trials in this matter and, thus, had the opportunity to 

twice observe the atmosphere of the trial and to determine whether counsel’s 

conduct had a prejudicial effect on the jury. Following its observations of 

counsel’s conduct, the court concluded that a new trial was warranted. As 

noted above, the court explained that it reached this conclusion based on

Appellant’s counsel’s: (1) “persistent and demonstrated intentional efforts to 

mislead the jury and confuse the issues in this case”; (2) “substantial and 

prejudicial violations of the court’s rulings on admissible evidence” which 

“suggest[ed] purposeful attempts to evade the court’s rulings despite 

admonitions to counsel”; and (3) persistent attempts to “shift the issues in 

the trial to defenses prejudicial, unrelated[,] and unavailable to a defendant 

in a strict product liability action.” Trial Ct. Op. at 1, 3, 4. Following its 

consideration of the verdict and the record as a whole, the court concluded 

that Appellant’s counsel’s misconduct “infected the proceedings and 

prejudiced [Appellees]” by “profound[ly] and pervasive[ly] tainting” the 

proceedings.” Id. at 4. The court in its discretion, thus, determined that “the 

only just and proper remedy” was to grant Appellees a new trial. Id.

Following our review of the record, we find no abuse of discretion. In 

light of the unique circumstances of this case, the trial court’s decision to grant 
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Appellees’ motion for a new trial was based on careful observation of the 

proceedings and thoughtful consideration of the parties’ interests and their 

arguments. Appellant has not persuaded this Court that the trial court failed 

to apply the law or rendered a decision that was manifestly unreasonable, 

arbitrary, or capricious. Accordingly, we affirm the trial court’s order awarding 

Appellees a new trial.

Order affirmed.

Date: 5/21/2024