Gold, F. v. Rosen, T.

J-A01013-16
2016 Pa. Super. 44
FRANCES GOLD, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
TERRI ROSEN AND S. ROSEN,
Appellee No. 3308 EDA 2014
Appeal from the Judgment Entered December 22, 2014
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2007-18576
BEFORE: LAZARUS, J., OTT, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED FEBRUARY 19, 2016
Appellant Frances Gold (hereinafter “Gold”) appeals from the
December 22, 2014, judgment entered in the Court of Common Pleas of
Montgomery County by the Honorable Carolyn Tornetta Carluccio after a jury
awarded Gold no monetary damages in a car accident case.1 For the
reasons set forth herein, we affirm.
____________________________________________
1
We note that Gold purports to appeal from the interlocutory order entered
on November 7, 2014, denying her motion for a new trial. To the contrary,
an appeal properly lies from the entry of judgment, not from the denial of
post-trial motions. See Pa.R.A.P. 301(a)(1), (c), (d); Hall v. Jackson, 788
A.2d 390, 404 n.1 (Pa.Super. 2001). Herein, the docket entries may have
created some confusion, for the entry for an Order on November 13, 2014,
indicates “this order/judgment was docketed and sent on November 14,
2014, pursuant to Pa.R.C.P. 236” (emphasis added). However, the
Prothonotary entered a Judgment Verdict on December 22, 2014, in an
amount of $0.00 and with a notation that notice had been sent pursuant to
Pa.R.C.P. 236. As such, the trial court's first order was not an appealable
(Footnote Continued Next Page)
*Former Justice specially assigned to the Superior Court.
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On April 23, 2004, Gold was involved in a motor vehicle accident. As a
result, Gold suffered headaches, visual difficulties, dizziness, nausea, back
pain, and neck pain for which she received medical treatment and physical
therapy. Gold was released from physical therapy in June of 2005.
Approximately six weeks thereafter, on August 2, 2005, Gold was stopped at
a red light when Appellees’ vehicle driven by Appellee Terri Rosen rear-
ended her.2
On August 1, 2007, Gold initiated suit by way of writ of summons
against Appellees and on August 11, 2009, filed a complaint against
Appellees claiming Rosen caused the August 2, 2005, motor vehicle accident
and that she sustained injuries as a result of the accident. The matter
proceeded to arbitration on August 20, 2013, and on that date the
arbitrators awarded Gold $25,000 in damages. Appellees filed an appeal
from the arbitration award on September 12, 2013.
_______________________
(Footnote Continued)
order under the Pennsylvania Rules of Appellate Procedure and the
Pennsylvania Rules of Civil Procedure. Since judgment properly has been
entered, we will consider the merits of this appeal and have corrected the
appeal paragraph accordingly. Bonavitacola v. Cluver, 619 A.2d 1363,
1366-67 (Pa.Super. 1993).
2
Appellee S. Rosen was also named as a defendant in the underlying action.
As the negligence of defendant Terri Rosen was the focus of the trial, we will
refer to Rosen individually and to S. Rosen and her collectively as
“Appellees” herein.
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On October 21, 2014, a jury trial commenced, and at trial, the parties
submitted their expert testimony to the jury through expert reports.3 They
also stipulated that Rosen had been negligent and that such negligence
factually caused Gold to suffer a neck sprain/strain. Notwithstanding,
Appellees contested the extent of the harm Gold had sustained to her neck
and also disputed that the August 2, 2005, accident caused any of her other
alleged injuries. That same day, the jury found that Rosen had been
negligent and that her negligence was a factual cause of Gold’s neck
sprain/strain; however, it awarded Gold no monetary damages for her neck
sprain/strain.
Gold timely filed a post-trial motion wherein she sought a new trial
based upon a claim that the jury’s verdict shocked the conscience.4 The trial
court denied the same on November 13, 2014, and Gold filed an appeal on
November 17, 2014. Judgment was entered on December 22, 2014.
Gold complied with Pa.R.A.P. 1925(b), and among the issues she
raised in her concise statement was the following:
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3
Prior to trial, Gold had filed an election under Pa.R.C.P. 1311.1 to limit her
monetary recovery to $25,000 or less. Such election permitted her to
submit the reports of various experts to the jury in lieu of their live
testimony at trial on the issue of damages.
4
While Gold did not use the phrase “weight of the evidence” in her Pa.R.A.P.
1925(b) statement, her contention that the jury’s verdict shocks the
conscience relates to the weight of the evidence presented at trial, as she
indicates in her question presented in her appellate brief.
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A second error committed by Judge Carluccio consisted of
denying the motion for a new trial because the jury’s response to
Question #3 constitutes a verdict that shocks the conscience.
Question #3 states:
QUESTION THREE:
What amount of money damages, if any, do you award
Plaintiff, Frances Gold, for her neck sprain and strain
factually caused by the Defendant, Terri Rosen’s,
negligence?
Neck Sprain and strain: ___0___
Pa.R.A.P. 1925(b) Statement at ¶ 3. In her appellate brief, Gold presents
the following issue for our review:
Did the trial court commit reversible error by denying the motion
of [Appellant] for a new trial because the jury entered a verdict
of $0, contrary to the weight of the evidence since both [Gold’s]
expert, Steven Mandell, M.D. (“Dr. Mandell”) and [ ] [Rosen’s]
[ ] expert, Lee Harris, M.D. (“Dr. Harris”) both found that
damage had occurred as a result of the negligence of Rosen in
operating her motor vehicle? The trial court held that the verdict
was not against the weight of the evidence.5
____________________________________________
5
Appellees assert Gold’s appeal should be quashed for her failure to
comply with Pa.R.A.P. 2154 entitled “Designation of Contents of
Reproduced Record,” in that she did not timely file either a designation
of the contents of her reproduced record or an election to defer
production of the reproduced record. Instead, Gold filed her
reproduced record on August 3, 2015, the same day she filed her
notice of appeal. However, Appellees did not file a separate
application for relief with this Court in accordance with Pa.R.A.P.
123(a) and Pa.R.A.P. 1972. See Commonwealth v. Sohnleitner,
884 A.2d 307, 312-13 (Pa.Super. 2005) (this Court will not consider
whether an appellant violated Pa.R.A.P. 2154 where the appellee failed
to file a separate motion seeking the quashing of the appeal for a
Pa.R.A.P. 2154 violation.). Moreover, while Appellees state this Court
is permitted to dismiss Gold’s appeal for her failure to follow the
pertinent Pennsylvania Rules of Appellate Procedure, such dismissal is
discretionary. Appellees do not claim to have suffered any prejudice
as a result of Gold’s delay in filing her reproduced record or otherwise
(Footnote Continued Next Page)
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Appellate review of weight of the evidence claims is limited, and it is
well-settled that:
[a]ppellate review of a weight claim is a review of the [trial
court's] exercise of discretion, not of the underlying question of
whether the verdict is against the weight of the evidence.
Because the trial judge has had the opportunity to hear and see
the evidence presented, an appellate court will give the gravest
consideration to the findings and reasons advanced by the trial
judge when reviewing a trial court's determination that the
verdict is against the weight of the evidence. One of the least
assailable reasons for granting or denying a new trial is the
lower court's conviction that the verdict was or was not against
the weight of the evidence and that a new trial should be
granted in the interest of justice.
In re Estate of Smaling, 80 A.3d 485, 490 (Pa.Super. 2013) (en banc)
(citation omitted).
In support of her argument, Gold relies primarily upon this Court’s
decision in Lombardo v. DeLeon, 828 A.2d 372 (Pa.Super. 2003) for the
proposition that where a jury recognizes an injury occurred, it must award
some monetary damages. We disagree.
_______________________
(Footnote Continued)
dispute the contents thereof. In fact, the contents of the reproduced
record herein is comprised primarily of the notes of testimony from
trial at which Gold was the only testifying witness and the expert
reports read at trial, which Appellees possessed. In addition,
Appellees indicate they did not oppose Gold’s requests for an
extension of time in which to file her brief and reproduced record in
this matter, which suggests an awareness of the single issue she
intended to raise on appeal. As such, we will not quash this appeal.
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In Lombardo, the plaintiffs, a father and his nineteen-year-old son,
were involved in a rear-end collision following which the father-driver was
pushed forward and backward, sustained a bump on the top of his head, and
was taken to the emergency room where he was treated and released.
Similarly, the son was jostled about the car upon impact and was treated
and released at the emergency room. Both sought medical treatment from
an orthopedist for four days thereafter who referred them to a chiropractor
for ongoing treatment. The pair received chiropractic care for a period of
four months. Father had to modify his work duties when he was unable to
perform some of the tasks necessary for a self-employed owner of several
Italian/pizza restaurants due to pain in his neck and back. Id. at 373. Son,
too, was unable to perform his pre-accident work duties as an executive chef
and continued to work in his father’s restaurants in supervisory or
managerial positions. Id. at 374.
Following trial wherein the defendant admitted liability, a jury returned
a verdict awarding the plaintiffs no damages. The plaintiffs appealed raising
the issue of whether the trial court should have upheld the jury’s verdict
predicated upon its finding that any pain and suffering relating to their
injuries was not compensable. A panel of this Court ultimately determined
that in light of the undisputed evidence the plaintiffs had sustained
compensable soft-tissue injuries, the jury’s award of $0 entitled them to a
new trial on damages for those undisputed injuries.
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In the matter sub judice, the trial court, citing Lombardo,
acknowledged that where there is no dispute a defendant was negligent and
both parties’ medical experts agree an accident caused the plaintiff some
injury, the jury must find the defendant’s negligence was a substantial factor
in bringing about at least some of the plaintiff’s injuries. In addition, it
stressed the Lombardo Court, relying upon Andrews v. Jackson, 800 A.2d
959, 962-64 (Pa.Super. 2002), explained “the jury may then find the injuries
caused by the accident were incidental or non-compensable and deny
damages on that basis.” Trial Court Opinion, filed June 10, 2015, at 4
(citing Lombardo, supra at 374). It then offered the following analysis in
support of its decision to deny Gold’s post-trial motion for a new trial:
In the case at bar, the parties stipulated that [Rosen] was
negligent and that [Rosen’s] negligence was the factual cause of
[Gold’s] neck sprain and strain (Please See, Verdict Sheet,
Questions #1 and #2 pre-marked “Yes.”) However, the parties
disagreed as to the extent of the harm to [Gold’s] neck as a
result of the accident. At trial, [Rosen] argued, and indeed,
[Gold] conceded that [Gold] suffered a previous neck injury.
Moreover, [Gold] had been released from physical therapy for
the previous accident, only six (6) weeks prior to the 2005
accident. [Rosen] relied upon Dr. Harris’ expert report to
support her claim that any aggravation to [Gold’s] neck from this
accident was negligible. Defense counsel read the following
portions of Dr. Harris’ report to the jury.
Review of the above medical records of Frances
Gold reveals a long history of multi-focal
complaints dating back to 1997, with a series of
car accidents and related musculoskeletal
complaints as well as report of chronic dizziness and
facial numbness. Review of the pre and post-
accident records following 08/02/05 does not
reveal convincing evidence of anything more than
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soft tissue strain and sprain, which would be
expected to have resolved or returned to baseline
within a few weeks to, at most, a few months of
conservative management. A short course of
physical therapy would be the most that would
have been required as far as treatment. All of her
subsequent evaluations and treatment, including
repeat MRI scans, MRA, vestibular testing and repeated
courses of physical therapy for dizziness bear no causal
relationship to the 08/02/05 accident, with the bulk, if
not all of her post-accident complaints, actually
representing preexisting symptoms. Apart from self-
limited strain and strain, review of these records on
Frances Gold does not reveal any additional
neurological injury refereable to the 08/02/05 accident.
Specifically, she did not sustain any additional cervical
or lumbar disc injury or radiculopathy. Her right facial
pain and numbness appears to be attributable to a
vascular loop in the brain which abuts the right 5 th
cranial nerve which, as Dr. Mandel pointed out, is not
traumatic in origin. Nor is there any traumatic
exacerbation of that condition. She had longstanding
preexisting dizziness, with no indication that this was
exacerbated as a result of the 08/02/05 accident.
There is also a strong indication of psychological
disorder, with a propensity to psychogenic seizures
over the years with negative EEG monitoring, with no
evidence she sustained any posttraumatic exacerbation
of that disorder either.
(Dr. Harris Report of 03/20/13- Trial Exhibit D-1)
(emphasis in original).
Dr. Harris’ above cited conclusion that “the pre-and post-
accident records following 08/02/05 [do] not reveal convincing
evidence of anything more than soft tissue strain and sprain,
which would be expected to have resolved or returned to
baseline within a few weeks to, at most, a few months of
conservative management” provided evidence for the jury’s
award of no damages. In addition, [Gold’s] own evidence
supported a finding of de-minimis neck injury. For example,
[Gold’s] doctor, Dr. Mandel concluded that [Gold’s] neck pain
could not be attributed to the 2005 accident. Dr. Mandel claimed
that [Gold’s] neck pain was the result of degenerative changes.
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(Please See, Trial Exhibit P-1-Dr. Mandel’s Report) Further,
[Gold’s] description of the accident indicated that it was low
impact. During her testimony, [Gold] answered that there was
no damage to [Rosen’s] car; that the police were not called to
the scene; that she got out of her car to exchange information
with [Rosen] without difficulty; that she drove her vehicle home
right after the incident without problems; that she did not seek
emergency treatment on the day in question; and that she
waited seven (7) weeks after the accident before attending
physical therapy. Further, the Abington Hospital medical records
showed that when [Gold] sought care the day after the accident,
the MRI revealed no acute/recent trauma and that [Gold] was
released with no neck brace or medicine. (Notes of Testimony
10/21/14, pgs. 60-115 and pg. 71; Exhibit D-1-Harris report
referencing Abington Hospital visit day after accident; P-1-
Abington Memorial Hospital Record) Thus, the fact finder had
sufficient evidence to conclude that [Gold’s] neck harm was de-
minimis and to decline to award damages in accordance with
Lombardo, supra. Therefore, the trial court properly denied
[Gold’s] Motion for New Trial.
Trial Court Opinion, filed June 10, 2015, at 4-6 (emphasis in original).
This Court recognizes that not all injuries are serious enough to
warrant compensation, even though there may be some pain. See Van
Kirk v. O'Toole, 857 A.2d 183, 186 (Pa.Super. 2004). “The real test is
whether the uncontroverted injuries are such that a conclusion that they are
so minor that no compensation is warranted defies common sense and
logic.” Id. at 185. Accordingly, such conclusions are made on a case by
case basis. As this court noted in Lombardo:
[t]he existence of compensable pain is, an issue of credibility
and juries must believe that plaintiffs suffered pain before they
compensate for that pain. A jury is not required to award a
plaintiff any amount of money if it believes that the injury
plaintiff has suffered in an accident is insignificant. “Insignificant”
means the jury could have concluded that any injury plaintiff
suffered did not result in compensable pain and suffering. While
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a jury may conclude that a plaintiff has suffered some painful
inconvenience for a few days or weeks after the accident, it may
also conclude that the discomfort was the sort of transient rub of
life for which compensation is not warranted.
Lombardo, 828 A.2d at 375 (citations and some quotation marks omitted)
(emphasis in original). In this vein, in holding that a jury’s award of medical
expenses without compensation for pain and suffering should not be
disturbed where the trial court reasonably may have found the jury did not
believe the plaintiff suffered any pain and suffering or that a preexisting
condition or injury was the sole cause of any alleged pain and suffering, our
Supreme Court has stated a reversal of a jury verdict on the grounds of its
inadequacy is appropriate “only where the injustice of the verdict stands
forth like a beacon.” Davis v. Mullen, 565 Pa. 386, 391, 773 A.2d 764, 766
(2001) (citation and brackets omitted).
Under the facts of this case, we discern no error in the trial court’s
rationale. This case did not involve a violent collision but rather a relatively
minor accident and Gold’s subsequent subjective claims of injuries. While
the jury’s verdict slip indicates that it concluded Rosen’s negligence caused
some harm to Gold, it did not find such harm significant enough to warrant a
monetary award, and it is within a jury’s purview to make such an essential
determination. In light of the foregoing, we find the jury’s finding was
consistent with the record and the applicable law and conclude the trial court
did not abuse its discretion or commit an error of law in denying Gold’s post-
trial motion for a new trial. As such, we affirm the judgment.
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Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/19/2016
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