Robert Maizel - Pa. Superior Court Issue of First Impression

Superior Court Argument


Robert Maizel Argued the Superior Court of Pennsylvania in the Case of Matthews v. Batroney on an Issue of First Impression.

The Issue Before the Court was Whether the Judge is Bound to Instruct the Jury on the Charges Agreed Upon at a Charging Conference.

This matter arises from a motor vehicle accident, which occurred at an intersection, in Philadelphia, Pennsylvania. On September 18, 2015, the Plaintiff, Jason Matthews was riding his bicycle at the intersection of 19th Street and Cherry Streets, in the morning on his way to work. The area in which Mr. Matthews was traveling contained heavy bicycle and pedestrian traffic in the morning.

Prior to the start of testimonial evidence by the parties, the Honorable Mary D. Colins informed the jury:

There will be closing arguments where the lawyers will sum up to you what they think the evidence has shown to you and how they believe it proves their position and then I will give you the law. And that final instruction on the law, taken along with these instructions and any legal instructions I might give you during trial [sic]. So take that law and you will apply it to the facts; and that’s how our jobs, our duties intersect.

Testimonial evidence was elicited by the parties, and plaintiff testified that as he was traveling to work, Mr. Matthews approached the stop sign at the intersection of 19th and Cherry Streets, slowing significantly, but not stopping at the stop sign, as he had made eye contact with the Defendant, and believed he was safe to proceed through the intersection. The Defendant’s vehicle was on Cherry Street and to the left of Mr. Matthews. During her testimony, Defendant stated that the Plaintiff was approaching from her right-hand side, as she pulled forward to see whether vehicles were in the intersection.

Both Cherry Street and 19th Streets are one-way streets. Specifically, 19th Street is a street containing two traffic lanes traveling southbound and Cherry Street is a street containing one traffic lane traveling westbound. As the Defendant approached the intersection, she testified that she did not “necessarily stop right at the stop sign.” The Defendant first saw Mr. Matthews’ bicycle in her peripheral vision, and she testified that it was quite possible that Mr. Matthews could have already been in the intersection when she entered the intersection. The initial point of impact between the Defendant’s vehicle and Mr. Matthews’ bicycle was the vehicle’s passenger side corner, and occurred in the intersection.

Upon the conclusion of testimony at trial, counsel spoke to the Honorable Mary D. Colins regarding the charges each party requested be given to the jury. Plaintiff’s counsel presented his proposed charges, which included 75 Pa. C.S.A. §3321 and 75 Pa. C.S.A. §3323., defendant’s counsel similarly presented his charges. Judge Colins then held a charging conference prior to closing arguments. Specifically, Judge Colins conducted a charging conference, wherein she agreed to read the charges requested by the parties, as follows:

[e]ach of you have requested negligence per se charges. Defense has requested a charge, 75 [Pa. Consolidated Statute] §3501 and §3323, actually both requested §3323, I believe. Defense is [sic] in Section §3323 is much more complete than the one proposed by the Plaintiff. Plaintiff has asked for subsection b. Are you looking at these, counsel? I’m going to read defense’s[sic]. Let me take a look for one second. Hold on, I’m going to read §3501 that’s proposed by defense, which is complete, and then plaintiff has asked for §3321. I’ll read that as well.

Judge Colins then went on to state that she would further discuss the jury instructions with counsel in the morning, before charging the jury, but made absolutely no indication that the Court would not be giving the agreed upon instructions. The Court claimed to give “a general idea” to counsel regarding what charges the court would be giving the jury.  Following what was a charging conference with the Court, the parties each gave their closing arguments. Though defense counsel requested additional time to review the proposed charges of plaintiff’s counsel, the court did not recess, allow the parties to research, or hold argument on the proposed charges.  Instead, Judge Colins allowed the parties to proceed to closing arguments.

During his closing, Plaintiff’s counsel argued that all elicited testimony acknowledged that the front of Defendant’s vehicle struck the left-hand side of the Plaintiff’s bike.  Also, based upon the conference with the judge, prior to closing arguments, Plaintiff’s counsel stated the following in his argument:

The Judge is going to tell you there are certain obligations, an obligation to stop at the stop sign and also, another statute that we’re going to hear from but not as popular, probably not as common, but there’s a statute you’re going to be instructed by and that instruction is under vehicles approaching an intersection at the same time.

Plaintiff’s counsel, again, relying upon the representations of the judge prior to closing arguments, presented 75 Pa. C.S.A. §3321 to the jury, arguing that when two (2) vehicles approach an intersection at approximately the same time, the vehicle on the left must yield the right-of-way to the vehicle on the right.  Plaintiff’s counsel further elaborated upon his argument relating to 75 Pa. C.S.A. §3321, which was weaved throughout his closing.  Defendant’s counsel likewise discussed 75 Pa. C.S.A. 3321 in his closing argument, relying upon the statute for rebuttal purposes.

Following closing arguments, and before Judge Colins, defense counsel stated as follows regarding the charging of 75 Pa. C.S.A. §3321: “my concern[sic] I wanted to read it before I commented on[sic]. It’s my concern I probably should have raised it before Mr. Weinberg argued it…” The Judge then went on to state that she believed, once again that an instruction regarding 75 Pa. C.S.A. §3321 was proper.  Then, summarily after the issue had been thoroughly argued by counsel for both plaintiff and defendant in their closings, the court denied the request to read 75 Pa. C.S.A. §3321 and adjourned for the evening.

Counsel returned the following morning, where the parties argued the applicability of 75 Pa. C.S.A. §3321 to the case at hand, and plaintiff’s counsel indicated that not only did the statute apply to this case, but also, that his credibility to the jury was severely impeded by the judge’s decision not to present 75 Pa. C.S.A. §3321 to the jury. The Court went on the state that, despite having previously agreed to charge the jury with 75 Pa. C.S.A. §3321, that the court now believed, after closing arguments were made, that 75 Pa. C.S.A. §3323 controlled the case at bar.  Plaintiff’s counsel moved for a mistrial on the basis of the improper instruction.

Following the charge, the jury rendered a verdict, in favor of the defendant, finding the plaintiff seventy (70) percent negligent and the plaintiff thirty (30) percent negligent. Plaintiff then moved for a new trial, on the issue of the court’s failure to properly instruct the jury on 75 Pa. C.S.A. §3321.  On October 19, 2018, the court heard argument on the plaintiff’s post-trial motion. During that argument the following discourse occurred between defense counsel and the court:

Counsel:     There was no discussion that you [Judge Colins] were going to read 3321 to the jury before closing arguments.

The Court: There was.

Counsel:     There was?

The Court:  I believe, before the charge. I always do the charging conference before the closings. And in fact, we did discuss it.

During that argument, plaintiff’s counsel raised the issues of prejudice to the plaintiff and the fact that his credibility with the jury was compromised as a result of the court’s mercurial change of heart regarding the instruction.

On November 8, 2018, the Court denied the Plaintiff’s Post-Trial Motion. Plaintiff’s Notice of Appeal and supporting documents were filed November 26, 2018.  Following the initiation of this appeal, Judge Colins retired, and Judge Robins-New who had no connection to the trial, rendered the opinion in this matter.


The trial court erred by failing to properly instruct the jury after holding a charging conference, prior to closing arguments where the court agreed to give the jury certain, specific charges. Namely, the trial court agreed to charge the jury pursuant to 75 Pa. C.S.A. §3321, and based upon the court’s representations that such a charge would be given, plaintiff’s counsel relied heavily upon 75 Pa. C.S.A. §3321 within his closing arguments. Defense counsel similarly argued 75 Pa. C.S.A. §3321 in his closing.  Ultimately, the trial court did not instruct the jury on 75 Pa. C.S.A. §3321, and in failing to do so, committed an error of law.

By agreeing to charge the jury with 75 Pa. C.S.A. §3321 prior to conducting closing arguments, the parties were justified in relying upon the court’s representations when presenting their closing arguments. However, by failing to give 75 Pa. C.S.A. §3321, as agreed upon, the court discredited the plaintiff’s arguments, and committed an error of law.

The trial court’s decision not to charge the jury with 75 Pa. C.S.A. §3321 amounted to more than harmless error, as it substantially affected the outcome of trial, and was highly prejudicial to the plaintiff, specifically, as to the apportionment of liability as it related to each party’s negligence. Moreover, the charge of 75 Pa. C.S.A. §3321 was fully supported by the facts of the case, and the trial court abused its discretion by failing to provide this instruction to the jury.

Generally:  A trial court is bound to charge only on that law for which there is factual support in the record. As a general rule, refusal to give a requested jury instruction containing a correct statement of the law relating to the issues raised by the evidence is grounds for a new trial unless the substance of that point has been covered in the court’s charge as a whole.  Santarlas v. Leaseway Motorcar Transport Co., 689 A.2d 311, 312 (Pa. Super. 1997).

The Superior Court has yet to rule on this issue of first impression.


Robert Maizel is an Experienced Trial Attorney in Philadelphia with over fifteen years of trial experience.

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Saffern & Weinberg has offices located in both Center City Philadelphia and Jenkintown, Pennsylvania.  Attorney Robert Maizel is a Partner with the Law Offices of Saffren & Weinberg.

Robert Maizel is associated with, and is a Partner with the Law Firm of Saffren & Weinberg. Robert Maizel is not a Law Firm, and rather Robert Maizel is affiliated with the Law Firm of Saffren & Weinberg.  All clients shall formulate an agreement with the Law Firm of Saffren & Weinberg, with the option of hiring Robert Maizel as lead counsel on your case to be heard in the State Courts of Pennsylvania, and Marc Weinberg as the lead counsel in cases to be heard in the Federal Courts of Pennsylvania.  Mr. Maizel handles all actions in the Administrative Courts of Pennsylvania including the EEOC and PaHRC.

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