The Legal Intelligencer

Authors: James M. Beck

Every attorney who regularly handles appeals will encounter this question sooner or later: What is the effect of a legally or factually unsupportable theory, when that theory was submitted to a jury along with one or more other, valid liability theories, and the jury returns a general verdict finding liability?

Gray-beard practitioners, such as myself, particularly need to pay attention to this point, because the law changed relatively recently. For many years, the answer to this question was an emphatic no. Numerous appellate decisions had held that a new trial was required whenever the verdict form was too vague to exclude the possibility that the jury might have based its verdict on an erroneous issue or instruction. The state Supreme Court, without giving the issue much thought, or at least ink, held in Izzi v. Philadelphia Transportation, 195 A.2d 784 (Pa. 1963), that a new trial was required because the trial court had submitted an inapplicable claim to the jury. The court held that, "since the [second theory] is inapplicable, this was basic error which necessitates a new trial."

More recently, in dictum, the court observed that a new trial was proper in the case of "a single, unallocated damage award from which [the trial court] could not ascertain the damages attributable to the claims that remained" valid, in Paves v. Corson, 801 A.2d 546, 549 (Pa. 2002).

Likewise, in Mendralla v. Weaver, 703 A.2d 480 (Pa. Super. 1997), the en banc Superior Court explained that where "the jury return[s] a general damages verdict," a court "would have had to speculate as to what portion ... of the total damage award represented that subset erroneously submitted," and therefore "the proper post-verdict remedy would have been a new trial."

In Ferguson v. Panzarella, 664 A.2d 989, 994 (Pa. Super. 1995), the verdict form "did not disclose which claim or claims served as the basis" of the verdict, meaning "the trial court was unable to gauge the impact of the improper submission of plaintiff's third claim" and properly awarded a new trial. In Smith v. Renaut, 564 A.2d 188, 193 (Pa. Super. 1989), the court held that "we cannot know how much was awarded for each. Therefore, a new trial is required." In Lupinski v. Heritage Homes, 535 A.2d 656, 658 (Pa. Super. 1988), the court held that the general verdict meant "we must remand the instant case for a new trial" due to an improperly submitted theory, although "the jury could have reached its verdicts on any one of the other instructions." In Gallo v. Yamaha Motor, 526 A.2d 359, 366 (Pa. Super. 1987), the court held that, "as with a general verdict, we can only speculate about the intent of the jury."

Without acknowledging any of this prior precedent, the Supreme Court, in Halper v. Jewish Family Children's Service of Greater Philadelphia, 963 A.2d 1282 (Pa. 2009), significantly limited the circumstances under which submission of invalid, along with valid, theories of liability requires a new trial, by adding a requirement that defendants previously have objected to submission of a general verdict. In Halper, the plaintiff parents sued on both wrongful adoption and negligent misrepresentation claims. On the merits, the court rejected the first but allowed the second theory. Since the jury had returned a general verdict, the valid/invalid basis question was squarely presented. The court held that "the verdict slip did not differentiate between the two theories, and no special verdict slip was requested; we cannot tell if the award to the parents was based on their first theory or their second."

Solely considering the weight of out-of-state precedent, Halper adopted a "general verdict rule" that put the onus on the defendant to challenge the use of a general verdict. The court said:

"A defendant who fails to request a special verdict form in a civil case will be barred on appeal from complaining that the jury may have relied on a factual theory unsupported by the evidence when there was sufficient evidence to support another theory properly before the jury. ... We adopt and apply the 'general-verdict rule' here because we will not shift the burden to the [plaintiffs] due to the [defendant's] failure to request a special verdict slip, and the evidence was clearly sufficient to support at least one of [the plaintiffs'] two theories of liability."

At least in the case of a factually unsupported—as opposed to a legally invalid—liability theory, a defendant cannot lie in the weeds and seek a new trial on appeal where another factually supported theory goes to the jury.

Under Halper, therefore, a defendant cannot take advantage of the prior precedent that would entitle it to a new trial in the case of a general verdict based on both supported and unsupported theories of liability unless it contemporaneously requests a special verdict form or otherwise preserves a timely objection to the submission of the invalid theory.

In products liability cases, in particular, Halper's adoption of the general verdict rule will almost surely be of heightened importance given the Supreme Court's recognition in Tincher v. Omega Flex, 104 A.3d 328 (Pa. 2014), of a "composite" strict liability test based on both "the negligence-derived risk-utility alternative" and "'risk/utility' and 'consumer expectations' ... as an independent source of liability."

If one or the other of the two Tincher strict liability theories is inapplicable, given the facts of a particular case, Tincher requires defendants to move to bar the inapplicable theory, holding that "[a] defendant may also seek to have dismissed any overreaching by the plaintiff via appropriate motion," and that a theory may "properly" be "removed ... via adjudication of a dispositive motion." Thus, counsel for both plaintiffs and defendants should be aware of the possibility that, unless the alternative Tincher theories are listed for the jury in the verdict form or winnowed to one by dispositive motion, the Halper general verdict rule might be applied to future products liability litigation where a verdict form does not expressly indicate on which theory of defect the jury's verdict is based.

Defense counsel, in particular, should take care to avoid unpleasant waiver-based surprises, since both Tincher and Halper place the burden of taking action against invalid theories on the defense side.

Reprinted with permission from the May 12, 2015 edition of The Legal Intelligencer © 2015 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, or visit