Pierchalski, G. v. Thomas, E.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
GEMMA PIERCHALSKI AND JOSEPH : IN THE SUPERIOR COURT OF
B. ABRAHAM : PENNSYLVANIA
:
Appellants :
:
:
v. :
:
: No. 672 WDA 2019
EDWARD THOMAS :
Appeal from the Judgment Entered April 4, 2019
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): GD-14-008993
BEFORE: SHOGAN, J., OLSON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY SHOGAN, J.: FILED MAY 26, 2020
Gemma Pierchalski (“Pierchalski”) and Joseph B. Abraham (“Abraham”)
(collectively, “Appellants”) appeal from the April 4, 2019 order entering
judgment in their favor, following a jury trial. After careful review, we affirm.
This appeal stems from a rear-end collision that occurred in June of
2012. Appellants filed the underlying action against Edward Thomas
(“Appellee”) seeking economic and non-economic damages due to injuries
Pierchalski suffered in the accident. The jury trial lasted seven days.1 During
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1 We note that although it appears the trial began on September 20, 2018,
and continued on September 21, 2018, the notes of testimony for those days
are not included in the certified record. This Court attempted to locate a copy
of the transcripts, but we were unsuccessful. We also found that while
Appellee included the deposition testimony of both Appellants’ and Appellee’s
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the course of the trial, Pierchalski testified regarding the accident and alleged
injuries. N.T., 9/24/18-9/25/18; 9/27/18. They also presented the testimony
of a forensic economist, Matthew Hanak; her husband, Abraham, and the
video deposition testimony of their medical expert, Dr. Daniel T. Altman.
Appellee testified on his own behalf and presented the video deposition of his
medical expert, Dr. Howard Senter. While Appellee admitted fault for the
accident, N.T. 9/27/18, at 665, he argued that Pierchalski’s pain and injuries
were not caused by the 2012 accident but rather, were caused by any number
of prior and subsequent car accidents in which Pierchalski had been involved.
N.T., 9/28/18, at 757-759. Following the trial, the jury returned a verdict in
favor of Appellants for $1,455.99 in economic losses. Id. at 828-829. The
jury found that Appellee’s negligence was the factual cause of Pierchalski’s
injuries but failed to award any compensation for past medical expenses, past
and future pain and suffering, or loss of consortium. Verdict Slip, 9/28/18.
Appellants filed post-trial motions containing 271 paragraphs and
alleging multiple errors on the part of the trial court. Plaintiffs’ Motions for
Post Trial Relief Pursuant to Pa.R.C.P. 227.1, 10/9/18. The trial court
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experts in his supplemental certified record, the same were not included in
the certified record. This Court was able to locate those documents, and they
were added to the certified record on April 17, 2020. It is an appellant’s duty
to ensure that the certified record is complete. Brandon v. Ryder Truck
Rental, Inc., 34 A.3d 104 n.1 (Pa. Super. 2011). Although we could find
waiver, neither party cites to or relies upon any testimony from the missing
days’ transcripts, so we proceed with our review.
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scheduled argument on Appellants’ post-trial motions for December 4, 2018.
On October 26, 2018, Appellee filed a motion to quash Appellants’ post-trial
motions for failing to comply with Local Rule 227.1(b) of the Allegheny County
Rules of Civil Procedure. The trial court ultimately denied Appellee’s motion
to quash and following argument and consideration of the briefs, the trial court
denied Appellants’ post-trial motions on December 10, 2018. Order,
12/10/18.
Appellants sent the trial court correspondence, informing the court that
they were expecting an opinion in the instant case. Trial Court Opinion,
6/21/19, at 3. In response, the trial court noted that as of March 14, 2019,
neither party had filed a praecipe to enter judgment. Id. In April of 2019,
Appellee sought to have the docket marked satisfied and discontinued. Motion
to Have Docket Marked as Satisfied and Discontinued, 4/4/19. Appellants filed
a motion in opposition. On April 4, 2019, Judge Alan Hertzberg entered
judgment on the September 2018 jury verdict and ruled that Appellants had
forfeited their right to appeal from the denial of their post-trial motions
because they failed to appeal within thirty days of the denial of those motions.
Order, 4/4/19. Both Appellant and the trial court complied with Pa.R.A.P.
1925.
Appellants present the following questions for our review:
1. Should a new trial be ordered on the ground that the jury’s
verdict is inadequate when the jury awarded economic damages
that were lost as the result of pain yet failed to award non-
economic damages for pain and suffering?
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2. Should a new trial be ordered on the grounds that the [t]rial
[c]ourt permitted the introduction of prejudicial evidence of prior
and subsequent accidents with injuries that were unrelated to the
accident at issue?
3. Should a new trial be ordered on the grounds that the [t]rial
[c]ourt permitted Appellee to introduce evidence of prior
inconsistent statements that were withheld from Appellants in
violation of a discovery order and used in ambush at trial?
4. Can a trial court deny [Appellants’] right to file an appeal
with the Superior Court of Pennsylvania for not filing a notice of
appeal without thirty days of denial of post[-]trial motions when
neither party has moved for a judgment to be entered on to the
trial court docket?
Appellants’ Brief at 8-9.
Although Appellants present the waiver issue as their final issue, we will
address it before we reach the merits of the appeal. In that issue, Appellants
aver that the trial court erred when it held that they waived their appeal by
failing to file their notice of appeal within thirty days of the order denying their
post-trial motions. Appellants’ Brief at 34. In support of their argument,
Appellants posit that because they filed their notice of appeal within thirty
days of the entry of judgment, the court erred when it found they waived their
right to appeal the denial of their post-trial motions. Id. Appellee argues that
the trial court did not err because pursuant to Pa.R.A.P. 903, a notice of appeal
should be filed within thirty days after the entry of the order from which the
appeal is taken. Appellee’s Brief at 27. Appellee notes that the entry of
judgment is a “precondition” to the appeal, but argues that Appellants should
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have entered judgment against him, and their failure to do so rendered their
appeal untimely. Id. at 28.
In Johnston the Florist v. Tedco Construction Co., 657 A.2d 511,
514 (Pa. Super. 1995) (en banc), this Court noted that an appeal from an
order denying post-trial motions is interlocutory. We further found that an
appeal to this Court can only lie “from judgments entered subsequent to the
trial court disposition of any post-verdict motions, not from the order denying
post-trial motions.” Id. See also Drum v. Shaull Equipment and Supply
Co., 760 A.2d 5, 8 n.1 (Pa. Super. 2000) (finding that although this Court did
not have jurisdiction to hear an interlocutory appeal from the denial of a post-
trial motion where judgment has not been entered, this Court may hear the
appeal where final judgment was entered during the pendency of the appeal).
In the instant case, judgment was entered on April 4, 2019. Order, 4/4/19.
Appellants filed their notice of appeal on May 1, 2019, from the order entering
judgment. Appellants’ Notice of Appeal to the Superior Court, 5/1/19, at 2.
Thus, Appellants have appealed from entry of judgment and not the denial of
the post-trial motions; thus, we will reach the merits of the appeal.
Turning to Appellant’s first issue on appeal, Appellants aver that the trial
court should have awarded them a new trial because the jury’s award is
contrary to the weight of the evidence. Appellants’ Brief at 16. Appellants
argue that because the jury was presented with “uncontroverted evidence of
pain and suffering[, it] must award non-economic damages for the same,” and
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the failure to do so is “contrary to the weight of the evidence.” Id.Specifically, Appellants aver that there was no dispute that Pierchalski
“suffered pain.” Id. Moreover, Appellants aver that Pierchalski testified that
she could not work because of her pain, she ultimately sold her dental practice,
and that the “jury was provided no other explanation as to why [Pierchalski]
could not work for this period.... [A]s such, the trial court did not have a
reasonably (sic) basis to conclude that the jury did not believe that
[Pierchalski] suffered any pain.” Id. at 17.
In response, Appellee posits that the injuries suffered by Pierchalski
were minor and were non-compensable. Appellee’s Brief at 6. Appellee
argues that the jury believed that Pierchalski’s injuries were insignificant
because she testified that she was able to exit the car immediately after the
accident, and she did not go to the hospital after the accident but rather,
followed up with her primary care physician complaining of bruising on her
hands and knees. Appellee’s Brief at 9 (citing N.T. 9/24/18, at 330, 331;
Deposition Transcript of Dr. Daniel Altman, 9/24/18, at 23 (Dr. Altman’s
videotaped deposition was played for the jury during the trial, N.T., 9/26/18,
at 601); Deposition Transcript of Dr. Howard Senter, 8/14/18, at 12, (Dr.
Senter’s videotaped deposition was played for the jury during the trial, N.T.,
9/27/18, at 683) Moreover, Appellee points out that there was no clinical or
radiographic evidence showing Pierchalski was injured as a result of the
accident. Appellee’s Brief at 9. (citing Senter deposition, 8/14/18, at 38, 119).
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Finally, Appellee notes that Appellants’ expert examined Pierchalski a few
months after the accident and “found only stiffness in Pierchalski’s neck and
no objective evidence of traumatic injury.” Id. (citing Altman deposition,
9/24/18, at 26).
When reviewing the denial of a motion for a new trial, our standard of
review is well established.
The Superior Court’s standard for reviewing the trial court’s
denial of a motion for a new trial is whether the trial court clearly
and palpably abused its discretion or committed an error of law
which affected the outcome of the case. Melso v. Sun Pipe Line
Co., 394 Pa.Super. 578, 576 A.2d 999 (1990), appeal denied, 527
Pa. 667, 593 A.2d 842 (1991); Cooper v. Burns, 376 Pa.Super.
276, 545 A.2d 935 (1988), appeal denied, 522 Pa. 619, 563 A.2d
888 (1989). We will reverse the trial court’s denial of a new trial
only where there is a clear abuse of discretion or an error of law
which controlled the outcome of the case. Vignoli v. Standard
Motor Freight, Inc., 418 Pa. 214, 210 A.2d 271 (1965);
Cashdollar v. Mercy Hospital of Pittsburgh, 406 Pa.Super.
606, 595 A.2d 70 (1991). The trial court abuses its discretion
when it misapplies the law or when it reaches a manifestly
unreasonable, biased or prejudiced result. Girard Trust Bank v.
Remick, 215 Pa.Super. 375, 258 A.2d 882 (1969). Abuse of
discretion may occur through an honest, but erroneous use of
discretion. Pachesky v. Getz, 353 Pa.Super. 505, 509, 510 A.2d
776, 778 (1986); Adelman v. John McShain, Inc.,148
Pa.Super. 138, 24 A.2d 703 (1942). A new trial may not be
granted merely because the evidence conflicts and the jury could
have decided for either party. Hilbert v. Katz, 309 Pa.Super.
466, 471, 455 A.2d 704, 706 (1983) (citations omitted). The
grant of a new trial is appropriate, however, where the jury verdict
may have been based on improperly admitted evidence. Wilkes–
Barre Iron & Wire Works, Inc. v. Pargas of Wilkes–Barre,
Inc. v. Caladie, 348 Pa.Super. 285, 294, 502 A.2d 210, 215
(1985) (citations omitted).
Coughlin v. Massaquoi, 138 A.3d 638, 642-643 (Pa. Super. 2016) (quoting
Whyte v. Robinson, 617 A.2d 380, 382 (Pa. Super. 1992)). We note that it
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is well established that “generally the determination of whether the pain is
severe enough to be compensable is left to the jury.” Van Kirk v. O’Toole,
857 A.2d 183, 186 (Pa. Super. 2004). In this case, the jury heard extensive
testimony regarding Pierchalski’s subjective complaints of pain. See, e.g.,
N.T., 9/24/18, at 280-294. During trial, Appellee’s expert testified that he did
not observe any objective evidence of injury and noted that Pierchalski had
been complaining of neck pain and numbness in her arms/hands for years
prior to the accident. Senter Deposition, 8/14/18, at 15-20 (reviewing
Pierchalski’s medical history and noting Pierchalski had complained of neck
pain, thoracic pain, low back pain, and chronic soft tissue cervical and lumbar
symptoms since 2003). Further, during cross examination, Pierchalski
repeatedly testified that she had suffered neck and similar injuries in prior and
subsequent falls and accidents. N.T., 9/25/18, at 415, 430, 439.
In its opinion, the trial court noted the verdict in this case did not “shock
[the] court’s [conscience]” given the lack of objective proof of injury. Trial
Court Opinion, 7/21/19, at 6. See Davis v. Mullen, 773 A.2d 764, 767 (Pa.
2001) (“A jury’s award of medical expenses without compensation for pain
and suffering should not be disturbed where the trial court had a reasonable
basis to believe that: (1) the jury did not believe the plaintiff suffered any pain
and suffering or (2) that a preexisting condition or injury was the sole cause
of the alleged pain and suffering.”); Van Kirk, 857 A.2d at 186 (finding that
where claim of injury was based on subjective complaints, it would be
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reasonable for a jury to award zero damages for pain). Given all of the above,
the trial court did not abuse its discretion when it denied Appellants’ motion
for a new trial because the jury’s verdict was not against the weight of the
evidence.
In their second issue, Appellants aver that the trial court erred when it
admitted evidence of subsequent and prior accidents in which Pierchalski had
been involved because that evidence was unfairly prejudicial. Appellants’ Brief
at 28. A trial court’s decision regarding the admissibility of evidence will not
be disturbed absent an abuse of discretion. Czimmer v. Janssen
Pharmaceuticals, Inc., 122 A.3d 1043, 1058 (Pa. Super. 2015).
As to subsequent accidents, Appellants argue that the admission of
evidence relating to accidents occurring after the accident with Appellee
caused unfair prejudice and confused the jury by “casting [Pierchalski] as an
individual prone to injuries, a serial litigator or conflating the issue of future
lost wages.” Appellants’ Brief at 29. Appellants admit that while subsequent
motor vehicle accidents may be relevant to future earning capacity, the court
should have found the prejudicial value outweighed the probative value of the
evidence. Id. at 30. In its opinion, the trial court stated “[Pierchalski] was
making damage claims for the rest of her life. This writer was left to determine
whether subsequent injuries to the same areas of [Pierchalski’s] body would
be relevant to a jury’s determination of [Appellee’s] liability for same.” Trial
Court Opinion, 6/19/19, at 9. The court further noted, it would be
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“disingenuous to allow the jury to determine [Pierchalski’s] present claims of
pain and suffering alleged to have occurred in this incident that ‘overlap’ and
repeat claims made in subsequent (and prior, infra) accidents.” Id. at 10.
We agree and find the trial court did not abuse its discretion when it allowed
evidence regarding the Pierchalski’s subsequent accidents. See McGuire v.
Hamler, 49 A.2d 396 (Pa. 1946) (finding where there are claims of permanent
pain or impairment, subsequent accidents may be relevant evidence).
As to prior accidents, Appellants again aver that the trial court erred
because their introduction was unfairly prejudicial. Appellants’ Brief at 30.
Appellants argue that the trial court erred because Appellee had conceded
liability in the case and to the extent Pierchalski’s medical history was
relevant, “the admission of numerous accidents as opposed to merely her
medical history caused her unfair prejudice far outweighs the probative value
of the same for Appellee.” Appellants’ Brief at 30-31. The trial court found
that as to Pierchalski, “[T]he prior complaints of pain and injury were identical
to those in which she now sought damages from [Appellee] in the present
case.” Trial Court Opinion, 7/21/19, at 14. Indeed, given the similarity in
prior injuries and those claimed in the instant case and Pierchalski’s claim of
aggravation of a pre-existing injury in her complaint, the trial court did not
abuse its discretion. See Papa v. Pittsburgh Penn–Center Corp., 218 A.2d
783, 789 (Pa. 1966) (observing that, “[t]estimony concerning any prior fall
[i]s not admissible for any purpose unless the injuries from that alleged
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accident could be connected to those claimed in the present suit, so as to raise
the inference of a pre-existing condition.” See also Musselman v. Davison,
41 D. & C. 4th 302, 308 (Bucks Co. 1999) aff’d, 757 A.2d 1004 (Pa. Super.
2000) appeal denied, 795 A.2d 978 (Pa. 2000) (since plaintiff “suffered a
concussion in the 1982 fall” and “had suffered from migraines” following car
accidents in 1980 and 1986,”[t]hese prior falls and accidents would go to
establishing that her migraines and memory loss were prior existing
conditions” before her 1990 fall). Here, the trial court found that precluding
this information would deprive the jury of the facts necessary to determine
whether Appellee was liable for Pierchalski’s injuries. Trial Court Opinion,
7/21/19, at 9-10. This decision does not constitute an abuse of discretion.
In support of their third issue, Appellants argue that the trial court erred
when it allowed Appellee to impeach Pierchalski with a prior inconsistent
statement she made during a 2008 deposition when that statement was
withheld and not produced by Appellee during discovery. Appellants’ Brief at
32. Appellants posit that Appellee’s failure to produce these documents
constitutes a violation of the March 2016 discovery order which required
Appellee to produce “all prior testimony, depositions, recorded statements,
examinations under oath which it has in its possession.” Appellants’ Brief at
33 (citing Order, 3/16/16).
Although Appellants argue that they objected to the admission of the
evidence used to impeach Pierchalski, Appellants fail to set forth the substance
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of that evidence and fail to cite to the portion of the record where this alleged
error occurred. After a review of the record, it appears that Appellants are
referring to a deposition Pierchalski gave in 2008 in another case in which
Pierchalski was injured in an automobile accident. N.T., 9/24/18, at 341-352.
Although Appellants claim Appellee admitted that he did not produce a copy
of the deposition to Appellants, Appellants do not provide any citation for such
admission as required by the Rules of Appellate Procedure. Pa.R.A.P. 2119(c)
(“If reference is made to the pleadings, evidence, charge, opinion or order, or
any other matter appearing in the record, the argument must set forth, in
immediate connection therewith, or a footnote thereto, a reference to the
place in the record where the matter referred to appears.”). Moreover, given
the lack of citation to the record, it is not clear where Appellee used the
deposition testimony in question to impeach Pierchalski. “Failing to provide
factual background and citation to the record represent serious deviations
from the briefing requirements of the Rules of Appellate Procedure. An issue
not properly briefed in this manner is considered waived, as such an omission
impeded our ability to address the issues on appeal.” Commonwealth v.
Einhorn, 911 A.2d 960, 970 (Pa. Super. 2006) (quoting Commonwealth v.
Miller, 721 A.2d 1121, 1124 (Pa. Super. 1998)). Thus, we find the issue
waived.
Even if we were to reach the merits, however, we would find Appellants
are not entitled to relief. Indeed, as the trial court stated, to the extent
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Appellee violated the 2016 discovery order by failing to provide Appellants
with a copy of her own deposition, this error is harmless. In its opinion, the
trial court noted the allowance of this statement, in the face of a “lack of
objective medical evidence and credibility found by the jury cannot be
considered more than harmless error and is rather in fact fanciful, if not
delusional.” Trial Court Opinion, 7/21/19, at 13. We agree. A review of the
copious record makes clear that there was sufficient evidence and testimony
presented upon which the jury could have based its findings. It is well
established in this Commonwealth that an error is harmless where it does not
affect the verdict. Yacoub v. Lehigh Valley Medical Associates, P.C., 805
A.2d 579, 590 (Pa. Super. 2002) (“[W]e further find that this error did not
affect the verdict and was therefore harmless.”). See also Knowles v.
Levan, 15 A.3d 504, 508 n.4 (Pa. Super. 2011) (same).
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/26/2020
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