SEPTA bus in Philadelphia. Credit: tupungato/iStockphoto.com

Failure to object to a verdict before the jury’s dismissal has resulted in the loss of several arguments a bus-maker raised in an effort to overturn a $5 million award, the Commonwealth Court has ruled. However, the appellate court remanded the case on a single remaining issue, after determining the trial court rejected that argument too soon.

A unanimous three-judge panel of the Commonwealth Court on Aug. 24 remanded the case Chin v. New Flyer of America to the Philadelphia Court of Common Pleas for further examination of the defendant’s argument that the $5 million verdict was against the weight of the evidence. The trial court determined that issue had also been waived, but Commonwealth Court Judge Renee Cohn Jubelirer disagreed and said the court needed to provide further reasoning.

“Without knowing whether the trial court considered New Flyer’s weight of the evidence argument or found the argument to be without merit, and what the grounds for that decision were, it is difficult to determine whether the trial court abused its discretion,” Jubelirer said. “Our review of the trial court’s decision is thus hampered by the lack of the trial court’s reasoning both in its Rule 1925(a) opinion and elsewhere in the record on this issue.”

According to Jubelirer, plaintiff Steven Chin was hit by a Southeastern Pennsylvania Transit Authority bus that had been manufactured by New Flyer. The bus had been making a left turn, and Chin suffered a permanent ankle injury that he contended may require future surgeries.

Chin had brought products liability and negligence claims against both SEPTA and New Flyer. According to Jubelirer, SEPTA settled out of the suit before trial.

Chin’s claims came before a jury in 2016. The trial ended with a finding that, while the bus was not defective, the defendants had been negligent. The jury found New Flyer 25 percent liable, and SEPTA 75 percent liable for the collision. The bus-maker appealed, contending that the verdict was inconsistent, the jury’s finding went against the weight of the evidence, the award was excessive and the court should have given a different jury charge.

However, much of Jubelirer’s opinion focused on whether New Flyer failed to preserve its appellate rights, since the bus-maker’s counsel did not object to the verdict slip, or at the time the verdict was rendered.

New Flyer contended that it had not waived its issues, arguing that the objections were not necessary since the verdict slip did not compel an inconsistent verdict and the judge would not have been able to cure any defect immediately after the verdict without telling the jury to change the verdict, which is improper.

Jubelirer turned to case law from the Pennsylvania Supreme Court holding that parties appealing an allegedly inconsistent verdict needed to object at the time the verdict was rendered. Parties challenging the weight of the evidence, however, did not need to object so quickly and could preserve their arguments in post-verdict motions, so that meant New Flyer’s failure to object before the jury was discharged only waived the arguments over the allegedly inconsistent verdict, Jubelirer said.

However, since New Flyer also did not seek a nonsuit, or a directed verdict at the close of the plaintiff’s case, it also failed to preserve any challenges regarding the sufficiency of the evidence, and only the weight of the evidence argument survived for the appellate court to consider, she said.

Jubelirer also denied the arguments over the jury charge, and the allegedly excessive amount of the verdict.

Wesley Payne of White and Williams, who represented New Flyer, and Raynes McCarty attorney Martin Brigham, who represented Chin, both did not return a call for comment.