Slover, D. v. Why, S.

J-S40017-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DANIEL SLOVER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
SABINA VAN WHY AND PEIFER & :
GROSS, INC. D/B/A RUSTIC ACRES :
MOBILE HOME PARK :
:
Appellees : No. 689 EDA 2020
Appeal from the Judgment Entered February 27, 2020
In the Court of Common Pleas of Pike County
Civil Division at No(s): No. 2015-01426
BEFORE: SHOGAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY KING, J.: FILED NOVEMBER 18, 2020
Appellant, Daniel Slover, appeals from the judgment entered in the Pike
County Court of Common Pleas in favor of Appellee, Peifer & Gross, Inc. d/b/a
Rustic Acres Mobile Home Park, in this negligence action.1 We affirm.
The trial court opinion set forth the relevant facts of this appeal as
follows:
On November 20, 2013, [Appellant] was delivering
packages for a company called Mikmar Group, an
independent contractor for FedEx. Rustic Acres Mobile
Home Park (“Rustic Acres”) was on his delivery route.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 Following trial, judgment was also entered in favor of Appellant and against
Sabina Van Why only, based upon the jury’s finding that Ms. Van Why was
negligent. Ms. Van Why has not filed a brief on appeal, even though she is
represented by counsel and listed as an appellee on this Court’s docket.
J-S40017-20
Rustic Acres is comprised of one parcel of land which is
owned by [Appellee].
On the date of the incident, [Appellant] was delivering a
package to the mobile home owned by Sabina Van Why.
[Appellant] approached the front of Ms. Van Why’s home in
order to leave the package by her door. Ms. Van Why had
put makeshift steps made of wood pallets leading up to her
door. These pallets were covered with leaves and debris on
the date and time at issue. [Appellant] was injured as he
was stepping down onto what he thought was a solid step.
Instead, when he stepped down his left foot slid and twisted
in between the slats of a pallet. Damian Zurawski, a trainee
who was accompanying [Appellant] on his delivery route
that day, witnessed the injury and tended to [Appellant]
immediately after he was injured. [Appellant] and Mr.
Zurawski were able to finish their delivery route that day
with [Appellant] driving and Mr. Zurawski being the one to
get out of the vehicle to deliver the remaining packages.
After finishing the delivery route, [Appellant] returned to his
employer’s facilities and drove himself to the hospital.
[Appellant] testified that the hospital performed an x-ray
and told him that his foot was sprained. [Appellant]
followed up with Dr. Henderson at Scranton Orthopedics two
(2) days later and was told again that it was a sprain. He
was instructed to take ibuprofen for the pain and to wear a
boot on his left foot. [Appellant] went back to Scranton
Orthopedics approximately one or two weeks later and
followed up with Dr. Siebecker. He recommended that
[Appellant] begin physical therapy. [Appellant] did
participate in physical therapy for approximately two (2)
weeks but subsequently stopped treatment due to financial
reasons and his feeling that the treatment was not working.
[Appellant] subsequently ended his employment with FedEx
approximately four to five months after the incident and
began working for Derr Flooring. [Appellant’s] subsequent
job with Derr Flooring involved delivering flooring materials
and was more physically demanding than his delivery
position with FedEx as it involved handling bundles of
flooring weighing between thirty (30) and fifty (50) pounds.
In August of 2014, [Appellant] returned to Scranton
-2-
J-S40017-20
Orthopedics to see Dr. Siebecker, who recommended that
[Appellant] stop working and have another MRI. In
September of 2014, [Appellant] had an appointment with
Dr. Scalzo, a foot specialist. Dr. Scalzo initially
recommended a cortisone shot but recommended surgery
after reviewing the MRI.
[Appellant] had surgery in February of 2015, which required
him to take two (2) months off from work. He remained at
his position with Derr Flooring for approximately five (5)
months after the surgery until leaving same to begin
working as an EMT that fall. He worked as an EMT for about
two (2) years before accepting a position at Pocono
Mountain Dairy. He remained there until approximately one
week prior to the trial when he stated he had been laid off.
(Trial Court Opinion, filed May 4, 2020, at 1-3).
On October 6, 2015, Appellant filed a complaint alleging he suffered
injuries as a result of Ms. Van Why’s negligence for failing to “maintain the
premises in a proper and safe manner[.]” (Complaint, filed 10/6/15, at
¶14(b)). In a separate count, Appellant claimed Appellee was negligent for
“failing to enact, police, and/or enforce park rules against the maintenance of
hazardous conditions, construction of dangerous walkways, and/or
accumulation of debris upon the premises[.]” (Id. at ¶19(l)).
On February 11, 2020, following a two-day jury trial, the jury returned
a verdict finding Ms. Van Why was negligent, and Appellee was not negligent.
The jury also found that Ms. Van Why’s negligence was a factual cause of harm
to Appellant. The jury awarded damages in an amount equal to Appellant’s
stipulated medical expenses and lost earnings. The jury awarded zero dollars
for Appellant’s non-economic loss.
-3-
J-S40017-20
Appellant timely filed post-trial motions on February 18, 2020. In his
motions, Appellant argued: 1) the jury’s decision to award zero dollars for
non-economic loss was against the weight of the evidence; 2) Appellee
exercised considerable control over the premises, and the jury’s verdict finding
Appellee not negligent was against the weight of the evidence; and 3) the trial
court erroneously failed to admit certain evidence demonstrating Appellee’s
control over the premises. Also on February 18, 2020, the court denied
Appellant’s post-trial motions.
On February 24, 2020, Appellant filed a premature notice of appeal.
That same day, the court ordered Appellant to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal, which Appellant timely filed. On
February 27, 2020, Appellee filed a praecipe for entry of judgment in favor of
Appellee and against Appellant, as well as judgment in favor of Appellant and
against Ms. Van Why only.2
____________________________________________
2 Ordinarily, an appeal properly lies from the entry of judgment, not from the
order denying post-trial motions. See generally Johnston the Florist, Inc.
v. TEDCO Const. Corp., 657 A.2d 511, 516 (Pa.Super. 1995) (en banc).
Nevertheless, 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, Appellant filed a notice of appeal prematurely on
February 24, 2020, prior to the entry of judgment. Nevertheless, Appellant’s
notice of appeal relates forward to February 27, 2020, the date judgment was
entered. See Pa.R.A.P. 905(a)(5) (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 thereof). Hence, no jurisdictional defects impede
our review.
-4-
J-S40017-20
Appellant raises three issues for our review:
Should a new trial be granted where the jury’s award of
nothing for non-economic damages was against the weight
of the evidence?
Should a new trial be granted where the jury’s finding that
[Appellee] was not negligent was against the weight of the
evidence?
Did the trial court abuse its discretion by excluding certain
evidence that Appellee … controlled the subject premises?
(Appellant’s Brief at 5).
In his first issue, Appellant asserts the trial evidence demonstrated his
pain and suffering as a result of the injury. Appellant emphasizes the pain in
his left foot began immediately after his fall, and it continued through the date
of his surgery. Even after the surgery, Appellant maintains he still experiences
chronic pain. Appellant contends the pain has an “ongoing impact … upon
[his] activities of daily living.” (Id. at 20). Appellant insists he presented
competent expert testimony from Dr. Scalzo to support his claims for pain and
suffering. Based upon the foregoing, Appellant concludes the jury’s award of
zero dollars for non-economic damages was against the weight of the
evidence, and he is entitled to a new trial on this basis. We disagree.
The following standard of review applies to a court’s denial of post-trial
motions:
[First, we] review the [trial] court’s alleged mistake and
determine whether the court erred, and, if so, [we then ask]
whether the error resulted in prejudice necessitating a new
trial. If the alleged mistake concerned an error of law, we
will scrutinize for legal error. Once we determine whether
-5-
J-S40017-20
an error occurred, we must then determine whether the trial
court abused its discretion in ruling on the request for a new
trial.
Avery v. Cercone, 225 A.3d 873, 877 (Pa.Super. 2019) (quoting ACE Am.
Ins. Co. v. Underwriters at Lloyds and Co., 939 A.2d 935, 939 (Pa.Super.
2007), aff’d, 601 Pa. 95, 971 A.2d 1121 (2009)).
Regarding challenges to the weight of the evidence:
A new trial will be granted on the grounds that the verdict
is against the weight of the evidence where the verdict is so
contrary to the evidence it shocks one’s sense of justice. An
appellant is not entitled to a new trial where the evidence is
conflicting and the finder of fact could have decided either
way….
An abuse of discretion is not merely an error of judgment,
but if in reaching a conclusion the law is overridden or
misapplied, or the judgment exercised is manifestly
unreasonable, or [the judgment is] the result of partiality,
prejudice, bias or ill-will, as shown by the evidence of
record, discretion is abused. 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, or
partiality, prejudice, bias, or ill-will, or such lack of support
as to be clearly erroneous.
… This [C]ourt has recognized that a weight of the evidence
challenge concedes that there was evidence sufficient to
sustain the verdict, but the verdict was against the weight
of the evidence. We may not substitute our judgment for
that of the trial court, we must only decide whether the trial
court abused its discretion. Credibility issues are
determined by the jury, and this [C]ourt rarely overturns
the factual findings of a jury that are based on
determinations of credibility, because we are confined to
review a cold record.
Adkins v. Johnson & Johnson, 231 A.3d 960, 964-65 (Pa.Super. 2020)
-6-
J-S40017-20
(quoting Fanning v. Davne, 795 A.2d 388, 393-94 (Pa.Super. 2002), appeal
denied, 573 Pa. 697, 825 A.2d 1261 (2003)).
“As a general proposition[,] victims indeed must be compensated for all
that they lose and all that they suffer from the tort of another.” Catlin v.
Hamburg, 56 A.3d 914, 924 (Pa.Super. 2012), appeal denied, 621 Pa. 662,
74 A.3d 124 (2013) (quoting Casselli v. Powlen, 937 A.2d 1137, 1139
(Pa.Super. 2007)).
The Supreme Court of Pennsylvania in Davis v. Mullen, 565
Pa. 386, 773 A.2d 764, 767 (2001) distinguished between
two lines of cases where a jury awarded medical expenses
or lost wages, but awarded nothing for pain and suffering.
A jury’s award of $0 for pain and suffering could be
appropriate when the trial judge rationally concludes that
the jury reasonably found that (1) the plaintiff experienced
no pain and suffering or (2) a pre-existing condition caused
all of the plaintiff’s alleged pain and suffering. Id. at 767;
see e.g., Boggavarapu v. Ponist, 518 Pa. 162, 542 A.2d
516 (1988), Catalano v. Bujak, 537 Pa. 155, 642 A.2d 448
(1994). On the other hand, when a jury awarded damages
for medical expenses but nothing for pain and suffering, a
trial judge may order a new trial if the plaintiff’s injuries
were so severe that such an award was utterly irrational.
Davis, 773 A.2d at 766; see e.g., Todd v. Bercini, 371
Pa. 605, 92 A.2d 538 (1952) and Yacabonis v. Gilvickas,
376 Pa. 247, 101 A.2d 690 (1954); see also Marsh v.
Hanley, 856 A.2d 138 (Pa.Super. 2004).
Avery, supra at 880.
“[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.” Davis, supra at 396, 773 A.2d at 769.
[A] jury is always free to believe all, part, some, or
none of the evidence presented. Thus, while the jury
-7-
J-S40017-20
may have concluded that [the plaintiff] suffered some
painful inconvenience for a few days or weeks after
the accident, it may also have concluded that [the
plaintiff’s] discomfort was the sort of transient rub of
life for which compensation is not warranted…. [T]he
determination of what is a compensable injury is
uniquely within the purview of the jury.
In light of the wide latitude afforded juries on the pain-and-
suffering question, a jury is always free to award $0 for pain
and suffering. The question then becomes whether such a
verdict is against the weight of the evidence such that it
shocks the conscience of the trial court.
Avery, supra at 879 (quoting Majczyk v. Oesch, 789 A.2d 717, 725-26
(Pa.Super. 2001) (en banc)).
Instantly, Appellant testified that he went back to work, albeit on light
duty, approximately one week after his fall. (See N.T. Trial, 2/10/20, at 144).
Although Appellant initially sought medical attention, x-rays revealed nothing
more than a sprain. (Id. at 152). Appellant stopped attending physical
therapy after two weeks, before he had completed the course of treatment.
(Id. at 153). In January 2014, a little more than a month after the accident,
Appellant commenced a new job that required him to lift heavier loads “over
rough terrain up and down stairs.” (Id. at 145).
Appellant did not seek further medical treatment until August 2014,
which culminated with the surgery in February 2015. (Id. at 154-55). After
the surgery, which Dr. Scalzo characterized as creating a “good fusion,”
Appellant had another office visit in November 2015. (See N.T. Deposition of
Dr. Scalzo, 1/10/20, at 36). At the conclusion of that visit, Dr. Scalzo
-8-
J-S40017-20
recommended that Appellant return for reassessment in three months, but
Appellant did not comply. (Id. at 37). In fact, Appellant did not return to Dr.
Scalzo’s office until April 2017. (Id.)
The court “heard the testimony and evidence firsthand as did the jury,”
and it “determined that the jury could have reasonably found that [Appellant]
experienced no compensable pain and suffering.” (Trial Court Opinion at 6).
In particular, the evidence demonstrated that Appellant transitioned to a more
strenuous job after his accident, and he would go without medical treatment
for his foot for extended periods. On this record, the court did not abuse its
discretion in denying Appellant’s weight claim related to the damage award.
See Adkins, supra; Avery, supra. See also Davis, supra at 396-97, 773
A.2d at 770 (explaining trial court had reasonable basis to conclude that jury
did not believe plaintiff suffered compensable pain and suffering; plaintiff
admitted he did not miss work due to accident, he waited twenty days after
accident before visiting doctor, he quit treatment after twenty visits with
doctor, and he did not receive subsequent treatments).
In his second issue, Appellant contends he “presented ample evidence
concerning [Appellee’s] control over the subject lot, premises, and ultimately
stairs on each mobile home.” (Appellant’s Brief at 28). Appellant emphasizes
that Appellee developed rules and regulations that each tenant of the mobile
home park needed to follow. Appellant argues the rules “are incorporated into
and appended to the lease,” and they govern topics ranging from mowing
-9-
J-S40017-20
grass to the insulation of pipes and water meters. (Id. at 29). Appellant
further argues the park’s manager testified that Ms. Van Why’s use of a
makeshift stairway violated these rules. Appellant avers the makeshift
stairway was unreasonably dangerous, and Appellee was negligent for
allowing this condition to exist on its property. Appellant concludes the jury’s
decision regarding Appellee’s negligence was against the weight of the
evidence, and he is entitled to a new trial on this basis. We disagree.
“In trying to recover for an action in negligence, a party must prove four
elements.” Lux v. Gerald E. Ort Trucking, Inc., 887 A.2d 1281, 1286
(Pa.Super. 2005), appeal denied, 587 Pa. 731, 901 A.2d 499 (2006).
They are:
1. A duty or obligation recognized by law.
2. A breach of the duty.
3. Causal connection between the actor’s breach of the duty
and the resulting injury.
4. Actual loss or damage suffered by complainant.
Id. (emphasis omitted).
“The question of duty in tort is ‘a legal determination, assigned in the
first instance to the trial court….’” Thierfelder v. Wolfert, 617 Pa. 295, 317,
52 A.3d 1251, 1264 (2012) (quoting Sharpe v. St. Luke’s Hosp., 573 Pa.
90, 96, 821 A.2d 1215, 1219 (2003)).
As a general rule, a landlord out of possession is not liable
for injuries incurred by third parties on the leased premises
because the landlord has no duty to such persons. This
- 10 -
J-S40017-20
general rule is based on the legal view of a lease transaction
as the equivalent of a sale of the land for the term of the
lease. Thus, liability is premised primarily on possession
and control, and not merely [on] ownership.
* * *
There are a number of exceptions to the general rule of non-
liability of a landlord out of possession, one of which is
particularly relevant in the instant case: the landlord may
be liable if he or she has reserved control over a defective
portion of the leased premises or over a portion of the leased
premises which is necessary to the safe use of the property
(the “reserved control” exception). The reserved control
exception is most clearly applicable to cases involving
“common areas” such as shared steps or hallways in
buildings leased to multiple tenants. However, the
applicability of the exception is not limited to such well-
defined “common areas.” Our Supreme Court invoked the
reserved control exception in a case involving an allegedly
defective radiator in one tenant’s unit of a building occupied
by several commercial tenants, after the landlord-owner of
the building was sued for negligence by a tenant who had
been seriously burned by steam from the radiator.
Importantly, the entire building was served by a central
steam-heating system, which was controlled and operated
by the landlord.
Jones v. Levin, 940 A.2d 451, 454-55 (Pa.Super. 2007) (internal citations
and some quotation marks omitted).
Instantly, the court identified relevant portions of testimony
demonstrating that Appellee did not reserve control over Ms. Van Why’s
stairway:
June Kleintop, the property manager of Rustic Acres,
testified at trial as the corporate representative for
[Appellee]. Ms. Kleintop testified that she and her husband
have lived in Rustic Acres and have been co-property
managers of the park since 2000. She testified that Ms. Van
Why did have a lease agreement, which was admitted as
- 11 -
J-S40017-20
evidence at trial and was published to the jury. She testified
that the tenants of Rustic Acres rent individual lots from
[Appellee] but that [Appellee] owns the parcel of land which
comprises the individual lots. She testified that each tenant
signs a lease agreement which also contains rules and
regulations for the park. She testified as to the enforcement
mechanisms available to [Appellee] when a tenant commits
a violation. Significantly, Ms. Kleintop testified that
pursuant to the Rules and Regulations, the tenant is
responsible for the maintenance of the property, the
sidewalk, the driveway, and keeping the property free and
clear of debris.
Furthermore, portions of [Ms.] Van Why’s deposition were
read aloud at trial. During her deposition, she testified that
a set of stairs had been set up with her trailer when she
moved into the park. She specifically testified that she
moved the steps away and replaced it with a pallet. She
testified that she had put the pallet in question in place of
the stairs and placed a board on top of the pallet in order to
create a walking surface.
(Trial Court Opinion at 7).
Here, Ms. Van Why’s stairway was not part of a common area or other
system controlled or operated by Appellee. See Jones, supra. Rather, Ms.
Van Why unilaterally modified the stairway for her trailer, which was located
on a part of the premises that she needed to maintain. Absent more, the
court did not abuse its discretion in denying Appellant’s weight claim related
to the jury’s negligence findings. See Adkins, supra.
In his third issue, Appellant claims the trial court should have permitted
him to introduce evidence concerning Appellee’s insurance policy for the
mobile home park. Appellant maintains Appellee “opened the door” to this
evidence, because it contested the level of control it exerted over the property.
- 12 -
J-S40017-20
(Appellant’s Brief at 33). Additionally, Appellant argues the court should have
permitted him to introduce evidence concerning violations of the park’s rules
and regulations that occurred after his own accident. Appellant insists such
evidence “would have provided further proof to the jury that Appellee … not
only controlled the subject property, but did not sufficiently utilize its
enforcement remedies in order to ensure the safety of the entire premises for
invitees.” (Id. at 36). Appellant concludes the court abused its discretion by
excluding the evidence in question. We disagree.
The following principles apply to this Court’s review of a challenge to the
admissibility of evidence:
Admission of evidence is within the sound discretion of the
trial court and a trial court’s rulings on the admission of
evidence will not be overturned absent an abuse of
discretion or misapplication of law. To constitute reversible
error, a ruling on evidence must be shown not only to have
been erroneous but harmful to the party complaining.
Admissibility depends on relevance and probative value.
Evidence is relevant if it logically tends to establish a
material fact in the case, tends to make a fact at issue more
or less probable or supports a reasonable inference or
presumption regarding a material fact.
Evidence, even if relevant, may be excluded if its probative
value is outweighed by the potential prejudice.
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. The function of the trial court is to
balance the alleged prejudicial effect of the evidence against
its probative value and it is not for an appellate court to
usurp that function.
- 13 -
J-S40017-20
Carlini v. Glenn O. Hawbaker, Inc., 219 A.3d 629, 639 (Pa.Super. 2019)
(internal citations and quotation marks omitted).
“Evidence that a person was or was not insured against liability is not
admissible to prove whether the person acted negligently or otherwise
wrongfully.” Pa.R.E. 411. “But the court may admit this evidence for another
purpose, such as proving a witness’s bias or prejudice or proving agency,
ownership, or control.” Id. (emphasis added).
Instantly, the court determined that evidence regarding Appellee’s
liability insurance “was unnecessary and that any potentially probative value
would be significantly outweighed by the risk of misleading or confusing the
jury and/or unfair prejudice to [Appellee].” (Trial Court Opinion at 9).
Further, the court admitted other evidence, including Ms. Van Why’s lease and
the mobile home park’s rules and regulations, to enable the jury to determine
the amount of control Appellee exercised over Ms. Van Why’s property. (See
Ms. Van Why’s Exhibit 2, dated 7/22/16; Appellant’s Trial Exhibit 16, dated
2/10/20).3 Thus, the court did not abuse its discretion by failing to admit
evidence of Appellee’s insurance policy. See Carlini, supra; Pa.R.E. 411.
See also Price v. Yellow Cab Co. of Philadelphia, 443 Pa. 56, 64, 278
A.2d 161, 166 (1971) (recognizing assumption that “knowledge of the fact of
____________________________________________
3 Ms. Van Why’s lease, which included the park’s rules and regulations, was
first introduced at Ms. Van Why’s deposition on July 22, 2016. (See N.T.
Deposition of Ms. Van Why, 7/22/16, at 64). Appellant also introduced an
identical copy of the lease at trial.
- 14 -
J-S40017-20
insurance against liability will motivate the jury to be reckless in awarding
damages to be paid, not by the defendant, but by a supposedly well-pursed
and heartless insurance company that has already been paid for taking the
risk”).
The court also considered the admissibility of evidence concerning
violations of the park’s rules that occurred after Appellant’s accident. The
court noted that “post-incident photographs were taken in March of 2015,”
and “[t]he pictures in no way accurately reflect the scene at the time of the
incident.” (Trial Court Opinion at 10-11). Likewise, the court determined that
other evidence of violations that occurred in 2015 and 2016 “was not relevant
to the issue of the amount of control that [Appellee] may have had over the
property at the time of the incident.” (Id. at 11). Here, the court correctly
determined that the evidence at issue did not tend to establish a material fact
in the case, and its evidentiary ruling did not amount to an abuse of discretion.
See Carlini, supra. Accordingly, we affirm.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/18/2020
- 15 -