Submitted: November 25, 2013
Louis J. Rizzo, Jr., Esquire, Reger Rizzo & Darnall LLP, Attorney for Plaintiff.
Daniel P. Bennett, Esquire, Mintzer, Sarowitz, Zeris, Ledva & Meyers, LLP, Attorney for Defendant Residential Construction Services.
Upon consideration of the Plaintiff's Motion for New Trial, supplements thereto, and Defendant Residential Construction Services ("RCS") response in opposition thereto, it appears to the Court that:
1. Plaintiff filed the underlying Motion for New Trial on February 6, 2013, arguing that under Superior Court Civil Rule 59, Plaintiff was entitled to a new trial due to the identification of material evidence which, Plaintiff contends, would probably change the outcome of the trial.
2. The underlying trial involved a dispute as to who loosened the gas fitting on Plaintiff's stove, which undisputedly caused the fire at Plaintiff's residence. Plaintiff requested RCS's records in an attempt to ascertain who from their company, if anyone, was at Plaintiff's residence just prior to the fire. The file produced by RCS, in response to a motion for spoliation of evidence, did not contain the names of employees or contractors/subcontractors nor payments made thereto in relation to the work at Plaintiff's house.
3. However, RCS's bookkeeper, Ms. Joseph, testified at trial that certain financial files, which would have identified the names of individuals who worked at Plaintiff's residence, were still in RCS's possession and were never produced in discovery. Those files, according to RCS's bookkeeper, would have identified who worked at the home on which dates; information clearly material to the issue at trial.
4. Further, RCS's principal, Mr. Bowen, testified at trial that he believed a subcontractor named "Josh" worked on the stove at Plaintiff's house.
5. In response to Plaintiff's Motion, this Court ordered RCS to produce all documents, including but not limited to all financial documents and employee pay records relating to the work at Plaintiff's house. The Court stayed the Motion and allowed Plaintiff an opportunity to analyze the documents and file a supplemental memorandum to their Motion.
6. Plaintiff supplemented his Motion on May 15, 2013. Therein Plaintiff states that he has obtained the full name of "Josh, " Josh Nelson, and related paychecks made to him. Specifically, Plaintiff found, within the newly-produced documents, a paycheck to Mr. Nelson during the March 2009 timeframe; around the time of the fire. Although RCS contends this payment was made for work done on other properties, this is not entirely clear from the records produced.
7. Therefore, on August 23, 2013, the Court again stayed the Motion and allowed Plaintiff time to interview/depose Mr. Nelson. The Court stated that
It is clear to the Court this is the one key piece of evidence that perhaps would have a bearing on the trial. Candidly if Josh indicates that he did not work at the home just prior to the fire or has no recollection of doing so, there would be no basis for a new trial. On the other hand, if Josh indicates that he did, that evidence would have been critical in the presentation of the plaintiff's case and in fairness, would warrant a new trial.
8. Plaintiff conducted a deposition of Mr. Nelson on October 28, 2013 and filed a supplemental letter with the Court explaining Mr. Nelson's testimony. Among other damaging information, Mr. Nelson testified that he was in Plaintiff's home the day before the fire performing work for RCS. RCS, by letter to this Court, countered Mr. Nelson's testimony arguing insufficient recollection, bias, ...