Bohannon, J. v. Quans, J.

J-A28010-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOSETTE BOHANNON IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
JAMES M. QUAN AND QUAN’S
CONSTRUCTION
Appellees No. 344 EDA 2015
Appeal from the Judgment Entered April 10, 2015
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 00721 March Term, 2013
BEFORE: GANTMAN, P.J., PANELLA, J., and SHOGAN, J.
MEMORANDUM BY GANTMAN, P.J.: FILED DECEMBER 11, 2015
Appellant, Josette Bohannon, appeals from the judgment entered in
the Philadelphia County Court of Common Pleas in favor of Appellees, James
M. Quan and Quan’s Construction, in this personal injury action. We affirm.
On March 30, 2011, Appellee’s truck struck Appellant’s van in a motor
vehicle accident. Appellant filed a complaint for damages on March 6, 2013,
claiming she suffered severe injuries to her neck and back as a result of the
accident. Appellee admitted full responsibility for the accident, so negligence
was not a question at trial. On July 25, 2014, Appellant filed a motion in
limine to preclude Appellee from introducing at trial evidence of Appellant’s
pre-existing health conditions. Appellant claimed in her motion that
evidence of her pre-existing health conditions was irrelevant and unfairly
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prejudicial to her case. Appellant had an existing diagnosis of endometriosis
and interstitial cystitis, which caused her to take 360 milligrams daily of
Oxycodone to treat her conditions. The court heard oral arguments on the
motion in limine prior to the start of trial on October 27, 2014. At that time,
the court denied Appellant’s motion on the merits, stating evidence of
Appellant’s pre-existing conditions and the medication she took was relevant
to damages. The case then proceeded to a jury trial. Following trial, the
jury rendered a verdict in favor of Appellee on October 28, 2014.
Appellant timely filed a motion for post-trial relief on November 5,
2014, in which she sought a new trial or, in the alternative, judgment
notwithstanding the verdict (“JNOV”) and a trial on damages. The court
denied Appellant’s motion on January 21, 2015. Appellant filed a notice of
appeal on January 23, 2015.1 The court did not order a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant
____________________________________________
1
A final judgment entered during the pendency of an appeal is sufficient to
perfect appellate jurisdiction. Drum v. Shaull Equipment and Supply,
Co., 787 A.2d 1050 (Pa.Super. 2001), appeal denied, 569 Pa. 693, 803 A.2d
735 (2002). Here, the court denied Appellant’s post-trial motion by order
entered (with Rule 236 notice ) on January 21, 2015. Appellant filed her
notice of appeal on January 23, 2015, prior to entry of a final judgment. At
this Court’s direction, Appellant filed a praecipe to enter final judgment,
which was entered on April 10, 2015. Although Appellant’s notice of appeal
was actually premature when filed, it related forward to April 10, 2015, the
date final judgment was entered. See Pa.R.A.P. 905(a) (stating notice of
appeal filed after court’s determination but before entry of appealable order
shall be treated as filed after such entry and on day of entry). Hence, there
are no jurisdictional impediments to our review.
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filed none.
Appellant raises the following issues for our review:
WHETHER THE TRIAL COURT ERRED IN DENYING
APPELLANT’S MOTION FOR POST-TRIAL RELIEF?
WHETHER EVIDENCE OF APPELLANT’S PRIOR UNRELATED
INJURIES AND NARCOTIC USE WAS IRRELEVANT AND
UNFAIRLY PREJUDICIAL AND MISLED THE JURY?
WHETHER APPELLANT IS ENTITLED TO [JNOV] AND A
TRIAL ON DAMAGES?
(Appellant’s Brief at 5).
In her issues combined, Appellant argues her prior injuries and
narcotic pain medication use are unrelated to the injuries she suffered in the
car accident. Appellant asserts she did not intend to introduce evidence of
her prior pain medication use associated with her pre-accident health
conditions of endometriosis and interstitial cystitis. Appellant contends
Appellee introduced evidence of Appellant’s prior injuries and heavy
medication usage merely to harm Appellant’s case. Appellant avers
evidence of these injuries and medication usage was unduly prejudicial and
should have been excluded under Pa.R.E. 403. Appellant maintains she
raised this claim in her pre-trial motion in limine and preserved it for
appellate review. Appellant also asserts Appellee’s defense expert witness
admitted Appellant’s heavy narcotics usage made her more susceptible to
pain from new injuries. Appellant claims the defense expert’s testimony
irrefutably supported her own argument that she was an “eggshell skull”
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plaintiff and Appellee was responsible for even the unforeseeable damage he
caused her. Appellant avers she was entitled to JNOV, because no
reasonable jury could have found in favor of Appellee. Appellant concludes
the trial court erred when it denied her request for a new trial without this
evidence or, in the alternative, enter JNOV in her favor, with a new trial on
damages. We disagree.
Initially, “[T]o preserve an issue for appellate review, a party must
make a timely and specific objection at the appropriate stage of the
proceedings…” Thompson v. Thompson, 963 A.2d 474, 475 (Pa.Super.
2008). Significantly:
In this jurisdiction…one must object to errors,
improprieties or irregularities at the earliest possible stage
of the adjudicatory process to afford the jurist hearing the
case the first occasion to remedy the wrong and possibly
avoid an unnecessary appeal to complain of the matter.
Id. at 476. See generally Pa.R.A.P. 302 (providing: “Issues not raised in
the lower court are waived and cannot be raised for the first time on
appeal”).
Issue preservation and presentation requirements are
enforced in our system of justice for principled reasons, …,
as they facilitate the open, deliberate, and consistent
application of governing substantive legal principles from
the foundation of a case through its conclusion on
appellate review. Loose shifting of positions after the entry
of judgments by those challenging them disrupts the
stability and predictability of the process, fostering the
potential for unfairness. As well, there are substantial
interests at stake on both sides of medical malpractice
actions.
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Moreover, the professional handling of civil actions is
essential to the administration of justice. … Similarly, we
would be remiss to disregard requirements of issue
preservation and presentation to alleviate consequences
which may flow from attorneys’ failure to remain abreast
of the areas of law in which they practice.
Anderson v. McAfoos, 618 Pa. 478, 492-93, 57 A.3d 1141, 1149-50
(2012).
Rule 103 addresses waiver of issues raised in pre-trial motions as
follows:
Rule 103. Rulings on Evidence
(a) Preserving a Claim of Error. A party may claim
error in a ruling to admit or exclude evidence only:
(1) if the ruling admits evidence, a party, on the
record:
(A) makes a timely objection, motion to strike, or
motion in limine; and
(B) states the specific ground, unless it was
apparent from the context
* * *
(b) Not Needing to Renew an Objection or Offer
of Proof. Once the court rules definitively on the record—
either before or at trial—a party need not renew an
objection or offer of proof to preserve a claim of error for
appeal.
Pa.R.E. 103. “A motion in limine may preserve an objection for appeal
without any need to renew the objection at trial, but only if the trial court
clearly and definitively rules on the motion.” Blumer v. Ford Motor Co.,
20 A.3d 1222, 1232 (Pa.Super. 2011), appeal denied, 616 Pa. 649, 49 A.3d
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441 (2012).
“[A] court’s decision to grant or deny a motion in limine is subject to
an evidentiary abuse of discretion standard of review.” Commonwealth v.
Reese, 31 A.3d 708, 715 (Pa.Super. 2011) (en banc). Likewise, “[W]hether
evidence is admissible is a determination that rests within the sound
discretion of the trial court and will not be reversed on appeal absent a
showing that the court clearly abused its discretion.” Fisher v. Central Cab
Co., 945 A.2d 215, 218 (Pa.Super. 2008).
The term discretion imports the exercise of judgment,
wisdom and skill so as to reach a dispassionate conclusion,
within the framework of the law, and is not exercised for
the purpose of giving effect to the will of the judge.
Discretion must be exercised on the foundation of reason,
as opposed to prejudice, personal motivations, caprice or
arbitrary actions. Discretion is abused when the course
pursued represents not merely an error of judgment, but
where the judgment is manifestly unreasonable or where
the law is not applied or where the record shows that the
action is a result of partiality, prejudice, bias or ill will.
Schmalz v. Manufacturers & Traders Trust Co., 67 A.3d 800, 802-03
(Pa.Super. 2013).
Where the discretion exercised by the trial court is
challenged on appeal, the party bringing the challenge
bears a heavy burden.
When the court has come to a conclusion by the
exercise of its discretion, the party complaining of it
on appeal has a heavy burden; it is not sufficient to
persuade the appellate court that it might have
reached a different conclusion if, in the first place,
charged with the duty imposed on the court below; it
is necessary to go further and show an abuse of the
discretionary power. …
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* * *
We emphasize that an abuse of discretion may not be
found merely because the appellate court might have
reached a different conclusion, but requires a showing of
manifest unreasonableness….
Paden v. Baker Concrete Const., Inc., 540 Pa. 409, 412, 658 A.2d 341,
343 (1995) (internal citations and quotation marks omitted). “[A] trial court
has broad discretion with regard to the admissibility of evidence, and is not
required to exclude all evidence that may be detrimental to a party’s case.”
Schuenemann v. Dreemz, LLC 34 A.3d 94, 102 (Pa.Super. 2011). “To
constitute reversible error, an evidentiary ruling must not only be erroneous,
but also harmful or [unduly] prejudicial to the complaining party.” Ettinger
v. Triangle-Pacific Corp., 799 A.2d 95, 110 (Pa.Super. 2002), appeal
denied, 572 Pa. 742, 815 A.2d 1042 (2003). As to questions of law that
arise in the context of evidentiary admissibility, however, our standard of
review is de novo and our scope of review is plenary. Weaver v. Lancaster
Newspapers, Inc., 592 Pa. 458, 465, 926 A.2d 899, 903 (2007).
Relevant evidence is evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the
action more or less probable than it would be without the evidence. Pa.R.E.
401. Generally, all relevant evidence is admissible. Pa.R.E. 402. Evidence
that might otherwise be relevant to an issue in a particular case, however,
can still be incompetent and inadmissible because one or more established
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rules of evidence preclude its admission. Id. See also Commonwealth v.
Paddy, 569 Pa. 47, 70-71, 800 A.2d 294, 308 (2002) (stating: “Evidence
that is relevant may nevertheless be inadmissible if it violates a rule of
competency, such as the hearsay rule”). An example of a proposed
admission violating a rule of competency is found in Rule 403, which limits
the admission of relevant evidence in the following manner:
Rule 403. Excluding Relevant Evidence for
Prejudice, Confusion, Waste of Time, or Other
Reasons
The court may exclude relevant evidence if its probative
value is outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.
Comment: Pa.R.E. 403 differs from F.R.E. 403. The
Federal Rule provides that relevant evidence may be
excluded if its probative value is “substantially
outweighed.” Pa.R.E. 403 eliminates the word
“substantially” to conform the text of the rule more closely
to Pennsylvania law. See Commonwealth v. Boyle, 498
Pa. 486, 447 A.2d 250 (1982).
“Unfair prejudice” means a tendency to suggest decision
on an improper basis or to divert the jury's attention away
from its duty of weighing the evidence impartially.
Pa.R.E. 403. In this balancing test of probative value and undue prejudicial
effect, the question is whether the provocative or potentially misleading
nature of the challenged evidence outweighs its probative value. Mahan v.
Am-Gard, Inc., 841 A.2d 1052, 1057 (Pa.Super. 2003), appeal denied, 579
Pa. 712, 858 A.2d 110 (2004). Generally, for purposes of this test,
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“prejudice means an undue tendency to suggest a decision on an improper
basis. The erroneous admission of harmful or prejudicial evidence
constitutes reversible error.” Braun v. Target Corp., 983 A.2d 752, 760
(Pa.Super. 2009), appeal denied, 604 Pa. 701, 987 A.2d 158 (2009). See
also Smith v. Morrison, 47 A.3d 131, 137 (Pa.Super. 2012), appeal
denied, 618 Pa. 690, 57 A.3d 71 (2012) (reiterating: “Unfair prejudice
supporting exclusion of relevant evidence means a tendency to suggest
decision on an improper basis or divert the jury’s attention away from its
duty of weighing the evidence impartially”).
Our standard of review of a trial court’s denial of a motion for JNOV is
as follows:
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. Absent an abuse of discretion, the
trial court’s determination will not be disturbed.
Holt v. Navarro, 932 A.2d 915, 919 (Pa.Super. 2007), appeal denied, 597
Pa. 717, 951 A.2d 1164 (2008). Furthermore:
A JNOV can be entered upon two bases: (1) where the
movant is entitled to judgment as a matter of law; and/or,
(2) the evidence was such that no two reasonable minds
could disagree that the verdict should have been rendered
for the movant. When reviewing a trial court’s denial of a
motion for JNOV, we must consider all of the evidence
admitted to decide if there was sufficient competent
evidence to sustain the verdict…. Concerning any
questions of law, our scope of review is plenary.
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Concerning questions of credibility and weight accorded
the evidence at trial, we will not substitute our judgment
for that of the finder of fact…. A JNOV should be entered
only in a clear case.
Braun, supra at 759.
When considering a challenge to denial of a new trial:
Our review of the trial court’s denial of a new trial is
limited to determining whether the trial court acted
capriciously, abused its discretion, or committed an error
of law that controlled the outcome of the case. In making
this determination, we must consider whether, viewing the
evidence in the light most favorable to the verdict winner,
a new trial would produce a different verdict.
Consequently, if there is any support in the record for the
trial court’s decision to deny a new trial, that decision must
be affirmed.
J.W.S. Delavau, Inc. v. Eastern America Transport & Warehousing,
Inc., 810 A.2d 672, 680 (Pa.Super. 2002), appeal denied, 573 Pa. 704, 827
A.2d 430 (2003). A new trial is granted only where the verdict is so
contrary to the evidence as to shock one’s sense of justice, not where the
evidence is conflicting or where the court might have reached a different
conclusion on the same facts. Lombardo v. DeLeon, 828 A.2d 372, 374
(Pa.Super. 2003), appeal denied, 579 Pa. 704, 857 A.2d 679 (2004).
In the instant case, Appellant objected to the introduction at trial of
her pre-existing conditions and narcotic pain medication use in her pre-trial
motion in limine. The trial court definitively denied the motion on the
merits. At trial, Appellee introduced evidence about Appellant’s pre-existing
health conditions, and Appellant did not object. Evidentiary Rule 103(b) did
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not require Appellant to re-raise the issue at trial to preserve it for appeal,
once the court had definitively ruled on her pre-trial motion. See Blumer,
supra; Thompson, supra. Thus, the trial court erred in finding Appellant
had waived her evidentiary claim for purposes of appeal. Instead, Appellant
properly preserved the issue for appellate review.
With respect to the merits of the issue concerning the admission at
trial of Appellant’s prior health conditions and medication use, the court
reasoned as follows:
The evidence of Appellant’s prior medication use, although
prejudicial, was not unfairly prejudicial. Appellant’s
condition immediately preceding the accident in question
was that she was taking large amounts of narcotic pain
medication for constant daily pain to her abdomen and
pelvis which rendered her totally unable to work for more
than a decade and limited certain daily activities.
Appellant’s medical records, as well as her own testimony,
show that she was taking on average 360 mgs of
Oxycodone per day in the days, weeks, and months before
the accident, and that the dosages remained unchanged
after the accident. This testimony is critical, and it is
unrebutted. If the jury were only permitted to hear that
Appellant was taking roughly 360 mgs of pain medication
post-accident, without knowing that she was already
taking the same amount pre-accident for a chronic
condition, the jury could reach the improper conclusion
that Appellant was taking said medication due solely to her
alleged spinal injury caused by the accident, when in fact,
she was already taking the same dosages previously.
Surely, such testimony would be misleading at best and
disingenuous at worst. In other words, Appellant’s use of
pain medication was relevant to show that she was indeed
pr[e]scribed the same amount of medication both before
and after the accident and that her current medication
usage was ongoing rather than a result of the underlying
accident. This information would allow the jury to focus on
the medical testimony regarding Appellant’s alleged
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injuries and other relevant factors as the basis for its
decision rather than simply drawing an improper inference
that the accident solely caused Appellant’s present use of
pain medication.
With this legal framework in mind, the admission of
Appellant’s prior medication use was not unfairly
prejudicial insofar as it was relevant to Appellant’s
condition both prior to and following the accident.
(Trial Court Opinion, filed 4/10/15, at 6-7). We agree. The introduction of
this evidence concerning Appellant’s prior health conditions and narcotic pain
medication use was not so prejudicial to Appellant’s case that it would
warrant exclusion and, therefore, a new trial. Appellant’s contention that
she is an “eggshell skull” plaintiff does not mean Appellee must pay for pre-
accident conditions. Accordingly, Appellee was entitled to introduce at trial
evidence of Appellant’s prior ailments and use of pain medications for the
purpose stated. See Smith, supra; Braun, supra; Mahan, supra. Due to
this disposition, we conclude the trial court properly denied Appellant’s post-
verdict request for a new trial without this evidence. See J.W.S. Delavau,
Inc., supra.
With respect to Appellant’s challenge to the denial of JNOV, the court
reasoned:
Under Rule 227.1(b), post-trial relief may not be granted
unless the basis for such relief was raised at trial by some
appropriate method, and the post-trial motion expressly
identifies “how the grounds were asserted in pre-trial
proceedings or at trial.”
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In the case sub judice, Appellant’s counsel waived his right
to move for [JNOV] when he failed to move for a directed
verdict or object to the verdict at the close of trial.
* * *
In the case at bar, Appellant importunes this [c]ourt to
grant the Motion for [JNOV] because evidence of
Appellant’s previous chronic pain and medication use was
highly prejudicial. This [c]ourt need not further explicate
its unabashed rejection of Appellant’s Motion for Post-Trial
Relief and subsequent brief because, after a meticulous
reading of Appellant’s motion and supporting documents,
this [c]ourt finds absolutely no evidence that the issues
Appellant’s counsel presents in his Motion were preserved
at trial.
(Trial Court Opinion at 4-5) (internal citations omitted). We agree Appellant
waived her JNOV claim. Here, Appellant made no request for a binding jury
charge or a directed verdict at the appropriate time at trial’s end; and her
belated request for JNOV in post-verdict motions was untimely. Thus, the
court properly refused to grant Appellant’s request for JNOV and a new trial
on damages. See Haan v. Wells, 103 A.3d 60, 67 (Pa.Super. 2014)
(explaining to preserve right to request JNOV post-trial, party must first
request binding charge to jury or move for directed verdict at trial).
Accordingly, we affirm.
Judgment affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/11/2015
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