J-A10016-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CAROLINE KUSHNER

v.

CONEX FREIGHT, INC. AND RODNEY 

BEGGS AND JAMES D. MORRISSEY, 

INC., ESTABLISHED TRAFFIC 

CONTROL, INC.; ARMOUR & SONS 

ELECTRIC CO.

APPEAL OF: JAMES D. MORRISSEY, 

INC.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 662 EDA 2018

Appeal from the Order Entered January 23, 2018

In the Court of Common Pleas of Philadelphia County 

Civil Division at No(s): No. 150702642

CAROLINE KUSHNER

v.

CONEX FREIGHT, INC. AND RODNEY 

BEGGS AND JAMES D. MORRISSEY, 

INC., ESTABLISHED TRAFFIC 

CONTROL, INC.; ARMOUR & SONS 

ELECTRIC CO.

APPEAL OF: ARMOUR & SONS 

ELECTRIC CO.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 664 EDA 2018

Appeal from the Order Entered January 23, 2018

In the Court of Common Pleas of Philadelphia County 

Civil Division at No(s): July Term, 2015 No.: 2642
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CAROLINE KUSHNER 

Appellant

v.

CONEX FREIGHT, INC. AND RODNEY 

BEGGS, JAMES D. MORRISSEY, INC.

v.

ESTABLISHED TRAFFIC CONTROL, 

INC. AND ARMOUR & SONS 

ELECTRIC CO.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 678 EDA 2018

Appeal from the Order Entered January 23, 2018

In the Court of Common Pleas of Philadelphia County 

Civil Division at No(s): 2642 July Term, 2015

BEFORE: GANTMAN, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY OTT, J.: FILED AUGUST 19, 2019

Caroline Kushner appeals from the Order entered on January 23, 2018, 

in the Court of Common Pleas of Philadelphia County denying her Post-Trial 

Motion for Relief and finalizing the judgment.1 Defendants Armour & Sons 

Electric (Armour) and James D. Morrissey, Inc. (Morrissey), have filed crossappeals. After a thorough review of the submissions by the parties, relevant 

law, and the certified record, we affirm in part, vacate in part, and remand for 

an order in conformance with this decision.

____________________________________________

1 Technically, the appeal lies from the entry of judgment upon the resolution 

of the post-trial motions. The verdict of $150,000.00 was reduced to 

$75,000.00 pursuant to comparative negligence. Armour was ordered to 

indemnify Morrissey for the $22,500.00 that represented its portion of the 

damages.
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We relate the factual and procedural history of this matter as stated in 

the trial court’s October 31, 2018, Pa.R.A.P. 1925(a) opinion.

On July 23, 2015, Plaintiff Caroline Kushner filed a complaint 

against Defendant James D. Morrissey, Inc. (“Morrissey”), 

Defendant Rodney Beggs (“Beggs”), and Defendant Conex 

Freight, Inc. (“Conex”).[2] [Kushner] claimed injuries from a 

motor vehicle incident on July 30, 2014. [Kushner] alleged that a 

semi-trailer truck operated by [] Beggs, during the course of his 

employment for [Conex], rear-ended [Kushner’s] motor vehicle at 

the intersection of Route 13 and Beaver Street (the “Intersection”) 

in Bristol Township, Montgomery County, Pennsylvania. 

[Kushner] alleged that [] Beggs was liable for negligent operation 

of the semi-trailer truck and that his employer, Conex, was 

vicariously liable. At the time of the motor vehicle incident, [] 

Morrissey was performing construction and renovation work at the 

Intersection. [Kushner] alleged that Morrissey was negligent in 

this construction and renovation work, that this negligence led to 

the intersection’s inherent danger and contributed to the motor 

vehicle incident, and therefore, that Morrissey was additionally 

liable to [Kushner] for damages.

On May 3, 2016, Morrissey filed a Motion to Join Additional 

Defendant Armour & Sons Electric, Co. (“Armour”) alleging that 

Morrissey had sub-contracted with Armour to install traffic signals 

at the Intersection in order to redirect new traffic patterns. On 

June 27, 2016, the Honorable John M. Younge granted Morrissey’s 

Motion and on June 30, 2016, Morrissey filed a joinder complaint 

against Armour alleging contractual indemnification for damages 

and costs arising out of [Kushner’s] complaint.

Jury trial was held from December 10, 2017 to December 15, 

2017, whereupon the jury returned a verdict for [Kushner]. The 

jury awarded [Kushner] $150,000.00 in damages, but reduced the 

actual compensation to $75,000.00 due to [Kushner’s] 

comparative negligence. The jury found [Kushner] 50%

____________________________________________

2 Throughout the certified record this defendant, not a part of this appeal, is 

referred to as Conex Freight and Canex Freight. Both appear to be names of 

trucking companies. We will use Conex as that is the name found in the official 

docket of the First Judicial District as well as the name used in the complaint.
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comparatively negligent, [] Beggs and Conex 35% jointly 

negligent, [] Morrissey 15% negligent, and [] Armour 0% 

negligent.

Morrissey filed a Motion for Post Trial Relief on December 28, 

2017, seeking to compel Armour’s indemnification in the amount 

of $22,500.00 for the verdict, and $99,468.75 for attorney’s fees 

and costs. On January 22, 2018, Armour filed a response alleging 

indemnification improper because Armour was not found 

negligent. On January 18, 2018 (docketed January 23), this Court 

granted Morrissey’s motion in part, compelling Armour to pay 

Morrissey $22,500.00 for the verdict, but denied the $99,468.75 

amount for attorney’s fees and costs.

On January 8, 2018, [Kushner] filed a Motion for Judgment 

Notwithstanding the Verdict arguing for a new trial as to liability 

and damages against Morrissey only. On January 18, 2018, this 

Court denied [Kushner’s] motion.

On February 20, 2018, [Kushner] appealed this Court’s Order 

dated January 18, 2018, to the Superior Court of Pennsylvania, 

and on February 27, 2018, this Court ordered [Kushner] to file a 

Concise Statement of Matters Complained of on Appeal pursuant 

to Pa.R.A.P.1925(b). [Kushner] filed a timely Statement of 

Matters Complained of on March 21, 2018.

On February 15, 2018, Morrissey appealed this Court’s Order 

dated January 18, 2018 (docketed January 23), to the Superior 

Court of Pennsylvania, and on February 27, 2018, this Court 

ordered Morrissey to file a Concise Statement of Matters 

Complained of on Appeal pursuant to Pa.R.A.P. 1925(b). 

Morrissey filed a timely Statement of Matters Complained of on 

March 20, 2018.

On February 20, 2018, Armour appealed this Court’s Order dated 

January 18, 2018 (docketed January 23), to the Superior Court of 

Pennsylvania, and on February 27, 2018 this Court ordered 

Armour to file a Concise Statement of Matters Complained of on 

Appeal pursuant to Pa.R.A.P. 1925(b). [Armour] filed a timely 

Statement of Matters Complained of on March 14, 2018.

Trial Court Opinion, October 31, 3018, at 1-3.
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Our review of the record indicates that Kushner was stopped at a red 

light, behind a truck. The Conex truck was stopped behind Kushner. The light 

changed to green, the first truck went through the intersection, Kushner 

started to move into the intersection but then stopped. The Conex truck 

started to move into the intersection and struck the rear of the Kushner 

vehicle. See N.T. Trial, Testimony of Caroline Kushner and Rodney Beggs; 

video of accident.

Kushner now raises four issues for our review. She claims the trial court 

erred: (1) in precluding expert testimony of neuropsychologist Dr. Biester; (2) 

by overruling the objection made during closing arguments when counsel for 

Morrissey informed the jury Kushner had settled her claim against Beggs and 

Conex; (3) in giving an impermissible charge regarding Kushner’s failure to 

mitigate her damages; and (4) in denying Kushner’s motion for JNOV despite 

the dashcam video showing the semi-truck rear-ending Kushner’s vehicle.

In its cross-appeal, Morrissey raises a single claim; it argues the trial 

court erred in failing to award it attorney’s fees and costs from Armour, in 

addition to the award of indemnification for damages.

In its cross appeal, Armour raises a claim that is essentially the mirror 

of Morrissey’s claim. Armour argues the trial court erred in awarding 

Morrissey indemnification for damages where the jury determined it had 

committed no negligent acts.

We will address the Morrissey/Armour issues first. Morrissey offers two

contractual rationales for its claim. 
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Our standard of review for these issues is as follows:

“[T]he interpretation of the terms of a contract is a question of 

law for which our standard of review is de novo, and our scope of 

review is plenary.” McMullen v. Kutz, 603 Pa. 602, 985 A.2d 769, 

773 (2009) (citation omitted). Furthermore, it is well established

that:

[w]hen the parties have reduced their agreement to 

writing, the writing is to be taken to be the final expression 

of their intention. Where the contract evidences care in its 

preparation, it will be presumed that its words were 

employed deliberately and with intention. In determining 

what the parties intended by their contract, the law must 

look to what they clearly expressed. Courts in interpreting 

a contract do not assume that its language was chosen 

carelessly. Neither can it be assumed that the parties were 

ignorant of the meaning of the language employed.

Steuert v. McChesney, 498 Pa. 45, 444 A.2d 659, 662 

(1982) (citations and quotation marks omitted).

Andrews v. Cross Atlantic Capital Partners, Inc., 158 A.3d 123, 131 (Pa. 

Super. 2017).

First, Morrissey argues that its contract with Armour required Armour to 

provide primary insurance coverage for any claims arising from the 

subcontract. In support of its argument, Morrissey points to this clause in the 

addendum to the sub-contract:

E: The Sub-Contractor further covenants and agrees to provide 

adequate insurance coverage for all liability which may arise from 

this Subcontract and to indemnify and save harmless the 

Contractor, its officers, agents, servants and workmen from the 

aforesaid liability, including workman’s compensation claims; it 

being understood that the insurance certificate evidencing such 

coverage are attached hereto and made part thereof.

Morrissey Motion for Post Trial Relief, Exhibit A, Addendum, ¶ E.
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The addendum does not require Armour provide a defense to Morrissey; 

it requires Armour to provide adequate liability insurance. However, no 

insurance certificate was attached. Further, no specific detail or clauses from 

an insurance policy have been referred to by Morrissey nor has the insurance 

policy been entered into evidence. While Morrissey claims the requirement 

to provide a defense is greater than the requirement to indemnify against 

damages, that requirement depends upon the language of the policy, which is 

not in evidence. The addendum clause provides no reference, much less 

requirement, to provide a primary defense to Morrissey for any claims of 

negligence levied against Morrissey. Indeed, Morrissey does not claim it 

tendered its defense to Armour and was refused.3 Moreover, this aspect of 

Morrissey’s argument is not developed in the motion for post trial relief, which 

contains only a passing reference to Armour’s insurance policy.4 As such, 

undeveloped arguments are generally considered waived.5 Because the 

clause does not make reference to providing Morrissey a defense, and no 

insurance policy is in evidence requiring Armour to provide Morrissey a 

____________________________________________

3 The joinder complaint filed by Morrissey’s counsel demanded “full and 

immediate defense and indemnification including attorney’s fees.” See

Complaint, Count IV, ¶ 28. We assume Morrissey’s counsel was not 

demanding to be replaced by Armour’s counsel of choice, but rather was 

seeking to be paid by Armour.

4 See Paragraph 12, Morrissey’s Motion for Post Trial Relief.

5 The trial court opinion does not address this aspect of Morrissey’s claim, 

presumably because it was not properly developed and presented to the trial 

court.
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defense, or reimbursement for defense costs, this aspect of Morrissey’s 

argument must fail.

The second aspect of Morrissey’s argument involves the “Hold Harmless 

Agreement” found in the subcontract between Morrissey and Armour. 

Specifically, Morrissey refers to the introductory paragraph which states:

To the fullest extent permitted by law, the Subcontractor shall 

indemnify and hold harmless and defend James D. Morrissey, Inc. 

and their agents and employees against all claims, damages, 

losses and expenses, including but not limited to attorney’s fees, 

arising out of or resulting from the performance of the Work, 

provided that any such claim, damage, loss or expense (1) is 

attributable to bodily injury, sickness, disease or death, or to 

injury to or destruction of tangible property, including the loss of 

use resulting therefrom, and (2) is caused in whole or in part by 

any negligent act or omission of the Subcontractor, or anyone 

directly or indirectly employed by any of them or anyone for whose 

acts any of them may be liable, regardless of whether or not it is 

caused by James D. Morrissey, Inc.

Morrissey Motion for Post Trial Relief, Exhibit A.

Here, Morrissey argues the trial evidence showed that Armour hung the 

left turn signal sign and Kushner claimed that was a negligent act. 

Accordingly, Morrissey contends the conditions of the Hold Harmless

Agreement have been met, and the agreement requires Armour pay 

Morrissey’s attorney fees when the injury suffered was caused in any part by 

Armour’s negligence. 

The fatal flaw in this argument is that the jury did not accept Kushner’s 

and Morrissey’s proposition that Armour acted negligently. The jury 

determined that Armour was free from negligence. The second numbered 
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condition of the Hold Harmless Agreement requires a negligent act or omission 

from the subcontractor before indemnification is triggered. When the jury 

determined no such act or omission occurred, it also negated the second 

numbered condition. Accordingly, Armour is not required to reimburse 

Morrissey for their attorneys’ fees and costs.

We next address Armour’s argument that the trial court erred in 

requiring it to indemnify Morrissey $22,500.00 for the damage award against 

it. As discussed above, the Hold Harmless Agreement requires indemnity from 

the subcontractor, Armour, in the event that the damages are caused, in 

whole or in part, by any negligent act or omission committed by Armour. 

When the jury determined Armour was not negligent, it absolved Armour from 

any requirement to indemnify Morrissey. Because the Hold Harmless 

Agreement, presumably drafted by Morrissey, required a negligent act or 

omission by Armour to trigger its implementation, and no such act or omission 

took place, it was error for the trial court to impose indemnity upon Armour. 

Accordingly, we vacate the $22,500.00 award from Armour to Morrissey.

We now look to Kushner’s arguments.

Kushner’s first claim is the trial court erred in precluding the expert 

testimony of neuropsychologist Dr. Rosette Biester, Ph.D. Immediately prior 

to trial, the defense sought to preclude Dr. Biester’s testimony because it was 

based, in part, on psychological records that had been requested by the 
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defense, but never delivered to them.6 The defense claimed their 

neuropsychological experts had been denied access to the documents and, 

therefore, were placed at a disadvantage and would be unable to respond to 

Kushner’s proposed expert testimony. The trial court agreed with the 

defenses’ argument and precluded Dr. Biester’s testimony.

Our standard of review for an evidentiary issue is well settled:

The admission or exclusion of evidence is within the sound 

discretion of the trial court, and in reviewing a challenge to the 

admissibility of evidence, we will only reverse a ruling by the trial 

court upon a showing that it abused its discretion or committed 

an error of law. Thus our standard of review is very narrow.... To 

constitute reversible error, an evidentiary ruling must not only be 

erroneous, but also harmful or prejudicial to the complaining 

party.

Croyle v. Smith, 918 A.2d 142, 147 (Pa. Super. 2007) (citation omitted).

In arguing for preclusion, counsel for Morrissey posited the following:

Your Honor, the motion we filed was a motion to preclude both 

Biester and Cohen primarily for the same reasons, but to 

piggyback on what Mr. Schaefer [counsel for Conex] was saying, 

it’s not just the prejudice of our expert not being permitted to 

review the records that were relied upon by plaintiff’s experts. In 

this case, it’s not – that wasn’t the limitation of the prejudice.

Not only was our neuropsychologist, Dr. Minniti, not only was she 

precluded from reviewing the records that were relied upon by 

plaintiff’s expert, but she was denied an interview into those areas 

of inquiry to which the plaintiff’s expert was able to inquire.

____________________________________________

6 Kushner had originally claimed to have suffered post traumatic stress from 

the accident. However, when psychological records were not turned over to 

the defense, on May 4, 2016, Judge John M. Younge entered an order 

precluding Kushner from seeking psychological damages. Apparently, as part 

of this order, the defense agreed not to seek the records. Dr. Biester’s report 

was not produced to defendants until after the May 4, 2016 order.
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The plaintiff’s expert was able to review the records. The plaintiff’s 

expert, actually, Dr. Biester in a list of items that she reviewed for 

purposes of preparing her report, No. 10 was the records of Dr. 

Biju Basil. That’s listed as one of the records that Dr. Biester relied 

upon. Not just reviewed, but relied upon.

Now the case law is very, very clear. Expert opinions are not 

permitted when they rely on facts that are not of record.

On three separate occasions, the defendants tried to obtain the 

records of Dr. Basil, three times. They were precluded three times

based on, relying on the May 4th, 2016 order. 

It was the reliance on that that precluded us from getting the 

records. But plaintiff’s expert not only got them, but relied on 

them.

N.T. Trial, 12/11/2017, at 133-134.

In her 1925(a) opinion, the trial judge wrote:

Admitting the testimony [of Dr. Biester] would have unfairly 

prejudiced Defendants because none of the psychologist’s records 

relied upon by Dr. Biester were disclosed during discovery. Thus, 

Defendants’ experts were not able to review any of these 

documents when forming their opinions or drafting their reports. 

Further, by Plaintiff’s own admission her psychological conditions 

were not relevant at trial.

Pa.R.A.P. 1925(a) Opinion, 10/31/2018, at 10.

Our review of Dr. Biester’s report7 shows Dr. Biester did list the records 

of Dr. Basil as having been reviewed. The substance of the report makes only 

passing reference to Dr. Basil’s treatment. However, two of the four 

recommendations that conclude Dr. Biester’s report address the need for 

ongoing psychiatric treatment and psychotherapy. Both of these 

____________________________________________

7 See Morrissey’s Motion in Limine, Exhibit “G”.
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recommendations address subjects that were precluded and apparently are 

derived from the review of documents the defense was not allowed to see. It 

is unclear, based on our review of the certified record, if or how Dr. Biester 

could parse her conclusions from those areas which had not been made 

available to the defense. Accordingly, we cannot conclude that the trial court 

erred in precluding the testimony of Dr. Biester. Kushner is not entitled to 

relief on this issue.

Next, Kushner claims the trial court erred in overruling the objection 

raised in closing argument when counsel for Morrissey “improperly 

communicated and inferred”8that Kushner had settled her claim against 

Conex and Beggs.

Counsel for Morrissey was the second defendant to present closing 

argument.9 Counsel’s first remarks were:

. . . I don’t know what’s changed in this case. I heard on Monday 

like you all did that the plaintiff [sic], Mr. Beggs, was recklessly in 

disregard of the law, recklessly in disregard of the law. I heard it 

two or three times, these horrible things. And now I’m going to 

ask you to do the same thing I asked you on Monday and apply 

your common sense to all those things plaintiff just argued. Why 

did things change? Why is Mr. Beggs just maybe negligent in the 

case and James D. Morrissey is to blame for everything? Use your 

common sense and I think you will get to the right answer.

N.T. Trial, 12/15/2017, at 115.

____________________________________________

8 See Kushner’s brief at 31.

9 Counsel for Conex/Beggs was the first defendant to present closing 

argument.
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Kushner argues the reference to the change in tactics was a “winking”10

reference to the settlement of her claim against Conex and Beggs. Further, 

Kushner asserts that such reference to a settlement is a violation of 42 Pa.C.S. 

§ 6141, which rules settlement of a personal injury claim “shall not be 

admissible in evidence on the trial of any matter.” 42 Pa.C.S. § 6141(c).11

This issue has been waived for failure to raise a timely objection at trial. 

No objection to this comment was raised when the comment was made.12 

Rather, Kushner waited until all closing arguments had been made and then, 

additionally waited until the jury had been charged and had retired to begin 

deliberations. Only then did Kushner’s counsel mention the perceived 

transgression. Counsel said:

. . . The other point, Your Honor, is just to state for the record, 

what Mr. Donovan did in his closing is very, very improper. He 

did a few things. The first thing he did was he insinuated to this 

jury that there was a settlement between the plaintiff and Canex

[sic] and Rodney Beggs. And I can get the transcript and point to 

it, Your Honor. That is incredibly improper and we object to it.

N.T. Trial, 12/15/2017, at 178.

____________________________________________

10 See Kushner’s Brief at 33.

11 Technically, section 6141(c) would not apply because closing argument by 

counsel is not evidence.

12 Kushner did immediately object to another comment made during 

Morrissey’s closing argument. See N.T. Trial, 12/15/2017, at 117.
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This comment, made 63 pages of transcript after the allegedly offending 

argument and after the jury had retired to deliberate, cannot be considered a 

timely objection. Accordingly, this argument has been waived.13

Kushner’s next claims the trial court erred in charging the jury regarding 

mitigation of damages. Kushner argues the defense withdrew its request for 

the charge yet the trial court still gave the charge, and also argues a timely 

objection was raised to the charge. Both arguments are a misrepresentation 

of the record. We quote the relevant portion of the charging conference:

The Court: Okay. 7.10, any objection to Mitigation of Damages?

Mr. Pansini [Plaintiff’s Counsel]: I can’t even find where we are.

The Court: 7.10, Number 15 on the Defense C[o]nex.

____________________________________________

13 We also note the trial court did not even address this issue in its Pa.R.A.P. 

1925(a) opinion. Further, Kushner has not attempted to explain the delay in 

raising the objection. 

See Commonwealth v. Gilman, 368 A.2d 253, 256 (Pa. 1977) (untimely 

objection to closing argument waives objection). The latest objection we have 

found that was considered timely was immediately after the closing argument 

in question. Morrissey cited Commonwealth v. Myrick, 118 A.3d 449 (Pa. 

Super. 2015) to support this point. See Morrissey Appellee Brief at 40. 

Myrick is an unpublished memorandum decision that cites Gilman. Counsel 

for Morrissey failed to note they were relying upon a non-precedential 

decision. (A May 1, 2019, amendment to Pa.R.A.P. 126 allows a party to cite 

to unpublished memorandum for persuasive value, but only if said decision 

was issued after May 1, 2019. Morrissey’s brief was filed on December 10, 

2018, more than five months prior to the rule change. Myrick was decided 

in 2015, approximately 4 years prior to the rule change. Accordingly, the 

citation to Myrick is improper for multiple reasons.)
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Mr. Pansini: Which one of the two are we, first alternative or 

second alternative?

The Court: Which one do you want me to use, first or second 

alternative?

Mr. Schaefer [Counsel for Conex]: I’ll withdraw the whole charge.

The Court: Withdrawn.

N.T. Trial 12/15/2017, at 25.

Approximately 20 lines of transcription later, the following exchange 

took place:

Mr. Schaefer: Judge, I apologize, I did misspeak, and I would hate 

to bring us back to 7.1.

The Court: 7.1

Mr. Schaefer: When I read it I read the bottom which is surgery,

but we do need the second alternative, which is the standard 

charge 7.1

The Court: Number 15?

Mr. Pansini: Number 15?

Mr. Schaefer: Number 15, Your Honor.

The Court: Okay, the second alternative, okay.

Id. at 26-27.

This exchange clearly demonstrates that counsel for Conex did not 

actually withdraw the standard charge for mitigation of damages and that 

Kushner’s counsel acknowledged that fact and did not object.

On page 152 of the notes of testimony, the trial judge charged the jury 

regarding mitigation of damages. As noted above, on page 176, the trial judge 
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sent the jury to deliberate. On page 177, after the jury left the courtroom to 

begin deliberation, Kushner’s counsel objected to the mitigation of damages 

charge. Just as with the prior claim, this delayed objection is not timely.14 

Therefore, Kushner is not entitled to relief on this claim. 

Kushner’s final argument is that the trial court erred in failing to grant 

JNOV against Morrissey where the dashcam video of the accident clearly 

shows the semi-truck rear-ending the Kushner car. Kushner argues that the 

nature of the accident represents negligence per se and so the jury’s 

apportionment of negligence was inappropriate. Specifically, Kushner argues, 

“Indeed, we have the benefit of a video depicting the entire incident and there 

is no doubt that the negligence of C[o]nex Freight’s tractor trailer operator far 

outweighs that of Ms. Kushner and that a judgment finding Caroline Kushner 

more negligent that C[o]nex and Co-defendant James D. Morrissey, Inc. 

cannot be reasonably explained.” Appellant’s Brief at 43-44.

Our standard of review for the denial of a motion for JNOV is as follows:

We will reverse a trial court's grant or denial of a [JNOV] only 

when we find an abuse of discretion or an error of law that 

controlled the outcome of the case. Further, the standard of 

review for an appellate court is the same as that for a trial court.

There are two bases upon which a [JNOV] can be entered; 

one, the movant is entitled to judgment as a matter of law 

and/or two, the evidence is such that no two reasonable 

minds could disagree that the outcome should have been 

rendered in favor of the movant. With the first, the court 

reviews the record and concludes that, even with all factual 

____________________________________________

14 See Pa.R.C.P. 227(b) – “Unless specially allowed by the court, all exceptions 

to the charge to the jury shall be taken before the jury retires.”
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inferences decided adverse to the movant, the law 

nonetheless requires a verdict in his 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.

United Envtl. Grp., Inc. v. GKK McKnight, 176 A.3d 946, 959 

(Pa. Super. 2017) (quotation omitted). Furthermore, we note:

The proper standard of review for an appellate court when 

examining the lower court's refusal to grant a [JNOV] is 

whether, when reading the record in the light most 

favorable to the verdict winner and granting that party 

every favorable inference therefrom, there was sufficient 

competent evidence to sustain the verdict. Questions of 

credibility and conflicts in the evidence are for the trial 

court to resolve and the reviewing court should not reweigh 

the evidence.

Shamnoski v. PG Energy, Div. of S. Union Co., 579 Pa. 652, 

858 A.2d 589, 593 (2004) (internal citations omitted).

Greco v. Myers Coach Lines, Inc., 199 A.3d 426, 430 (Pa. Super. 2018).

After a thorough review of the certified record, we agree with the trial 

court’s analysis.

[...] [Kushner’s] motion for JNOV was without merit because the 

jury actually returned a favorable verdict [to Kushner].

In her January 8th, 2018, post-trial motion for JNOV, [Kushner] 

alleged:

“26. As the crash at issue is memorialized by a dashcam 

video which shows [Kushner] slowing down and stopping 

and then being forcefully rear-ended by a tractor[-]trailer 

who was accelerating at the point of impact, [Kushner] files 

for judgment notwithstanding the verdict and asks for a 

new trial with respect to liability and damages as against 

Defendant, James D. Morrissey, Inc.”

[Kushner] further alleged:
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“28. [Kushner] asserts that, pursuant to Pa.R.C.P. 227.1, 

in this rear-end accident, [Kushner] was entitled to 

judgment on liability as a matter of law and/or the 

evidence was such that no two reasonable minds files [sic] 

for judgment notwithstanding the verdict and asks for a 

new trial with respect to liability and damages as against 

Defendant, James D. Morrissey, Inc.”

In this case, the facts were not so obvious that no two minds could 

disagree as to Morrissey’s negligence. While the dashcam video 

footage from Beggs’ semi-trial tuck did record the motor vehicle 

incident, the footage could not have conclusively apportioned out 

negligence among the Defendants; thus, the jury acted as fact 

finder and deliberated. In fact, [Kushner] received a favorable 

verdict as the jury found Morrissey 15% negligent. Therefore, 

[Kushner’s] argument in favor of JNOV is unclear. Further, 

[Kushner] does not cite to any evidence or conduct [on the part 

of Morrissey] that would warrant entry of JNOV. Accordingly, 

denial of [Kushner’s] request for JNOV against Morrissey was not 

an abuse of discretion or error of law because [Kushner] actually 

prevailed against Morrissey.

Assuming, arguendo, that [Kushner] contends JNOV would have 

been entered because Morrissey should have been found more 

than 15% negligent, denial was still proper. JNOV would not have 

been proper simply because [Kushner] did not recover what she

believed to be appropriate compensation. That is not the standard 

for JNOV. Here, there were material issues of fact with respect to 

Morrissey’s negligence that reasonable minds could disagree upon 

and the Court was not entitled to act as a fact finder to apportion 

out negligence and damages. The jury properly deliberated based 

upon the evidence in the record and concluded that Morrissey was 

15% negligent, returning a favorable verdict for [Kushner]. 

Therefore, denial was proper and [Kushner’s] claim must fail.

Trial Court Opinion, 10/31/2018, at 14-15.

The trial court has appropriately noted that Kushner has referenced no 

evidence regarding Morrissey’s negligence that supports a claim the jury 
J-A10016-19

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improperly apportioned liability against Morrissey.15 We agree with Morrissey 

that Kushner did not object to the comparative negligence charge being given 

to the jury and so agreed that the issue was to be decided by the jury. 

Accordingly, we find no abuse of discretion or error of law by the trial court’s 

denial of JNOV. Kushner is not entitled to relief on this issue.16 

In light of the foregoing, we vacate that portion of the judgment 

awarding indemnity to Morrissey from Armour, and affirm the judgment in all 

other regards. We remand this matter to the trial court for entry of judgment 

in conformity with this decision. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/19/19

____________________________________________

15 Relevant to this, Paragraph 27 of Kushner’s motion for post-trial relief 

states, in toto, “Notwithstanding this, the jury asserted [Kushner], was 

stopped at a red light when she was rear-ended, with 50% liability.” Kushner’s 

Post-Trial Motion for Relief, at 5, ¶ 27. However, the evidence showed 

Kushner was not actually stopped at a red light, the light was green, the truck 

in front of her had moved through the intersection, and she stopped in the 

mistaken belief her light was red. In any event, paragraph 27 clearly 

references the prior paragraph that detailed only Beggs’ and Conex’s

negligence.

16 We have already determined that the evidentiary issues raised by Kushner 

were without merit. These claims were the basis of a request for a new trial 

regarding damages. Therefore, even if a new trial had been warranted on 

liability, damages would not be at issue.