J-A04039-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

BETHANY L. NOTARO,                      :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                       Appellant        :
                                        :
                  v.                    :
                                        :
WILLIAM C. PFAFFLE,                     :
                                        :
                       Appellee         :
                                        :    No. 1060 WDA 2014

               Appeal from the Judgment Entered June 27, 2014,
              in the Court of Common Pleas of Allegheny County,
                     Civil Division at No(s): AR 12-002473

BEFORE: BOWES, OLSON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                      FILED APRIL 02, 2015

      Bethany L. Notaro (Notaro) appeals from a judgment entered after a

jury awarded her no damages in a car accident case. We affirm.

      Notaro was stopped in her vehicle, waiting to merge into traffic, when

a vehicle driven by William C. Pfaffle (Pfaffle) rear-ended her. Notaro filed a

complaint against Pfaffle wherein she claimed that Pfaffle caused the

accident and that she suffered injuries as a result of the accident.    At the

jury trial, Pfaffle conceded that his negligence caused the accident. The jury

found that Pfaffle’s negligence was a factual cause in bringing about harm to

Notaro; however, the jury did not award Notaro any damages.

      Notaro timely filed a post-trial motion wherein she sought a new trial

based upon a claim that the verdict was contrary to the weight of the




* Retired Senior Judge assigned to the Superior Court.
J-A04039-15

evidence presented at trial.     The trial court denied the motion, and a

judgment was entered.

      Notaro timely filed a notice of appeal. The trial court did not order her

to comply with Pa.R.A.P. 1925(b), but the court did issue an opinion in

support of its decision to deny the post-trial motion.     In her brief to this

Court, Notaro asks us to consider this question:

      Whether the trial court committed a clear abuse of discretion in
      denying [Notaro’s] post-trial motion in a case where the jury
      verdict was against the weight of the evidence, bore no
      reasonable relationship to the evidence and created an
      inconsistent verdict where negligence [was] admitted and
      causation [was] found by the jury[?]

Notaro’s Brief at 4.

      Appellate review of weight of the evidence claims is limited. 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) (citation

omitted).




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      Notaro claims that the trial court erred by denying her post-trial

motion for a new trial. According to Notaro, the jury’s verdict was contrary

to the weight of the evidence because the jury did not award her damages

despite the facts that: Pfaffle conceded that he caused the accident; the jury

found that Pfaffle’s negligence was a factual cause of harm to Notaro; and

Notaro presented the jury with “uncontested evidence of injuries[.]”

Notaro’s Brief at 12.

      In support of her argument, Notaro relies heavily on a case she

captions as “Anastasi v. Old Forge Borough.”        Notaro’s Brief at 12-16.

Notaro does not provide a citation to this case. Notaro attached the case to

her post-trial motion. Based upon our review of that attachment, it appears

that Anastasi is an unreported, non-precedential memorandum opinion of

the   Commonwealth      Court.   We    further   observe   that,   even   if   the

Commonwealth Court would have published Anastasi, “decisions rendered

by the Commonwealth Court are not binding on this Court.”           Beaston v.

Ebersole, 986 A.2d 876, 881 (Pa. Super. 2009). Because Anastasi is of no

precedential value, it provides no basis upon which to grant relief to Notaro.

      Notaro also contends that our Supreme Court’s decision in Neison v.

Hines, 653 A.2d 634 (Pa. 1995), supports her claim that the trial court

erred by denying her post-trial motion for a new trial. We disagree.

       While driving a pickup truck, Hines rear-ended an automobile driven

by Neison. Hines admitted liability at trial; the jury was asked to determine



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how much in damages Hines should pay Neison.            The jury awarded no

damages to Neison.     Neison filed a post-trial motion seeking a new trial

based upon a claim that the verdict was contrary to the weight of the

evidence presented at trial.   The trial court granted the motion; however,

this Court reversed that decision on appeal.

      The Supreme Court granted Neison’s petition for allowance of appeal

and ultimately reversed this Court’s decision. The Supreme Court explained,

in part, as follows.

             In the instant case, uncontroverted evidence establishes
      that Neison was involved in a violent automobile accident caused
      by Hines, and due to her negligence, which was conceded at
      trial. The accident caused Ms. Neison’s head to shatter the rear
      window of the car. The impact produced trauma in the form of a
      large lump on the back of Neison’s head. As a result of the
      collision, the rear end of Ms. Neison’s car had been “wiped out”
      and the car looked like “an accordion.” Her car was struck with
      such force that the glasses which Neison was wearing prior to
      the accident were found by a volunteer firemen on the trunk of
      the vehicle. In fact, the force of the collision caused the trunk to
      crack and split. The record also shows that Ms. Neison went
      immediately to the hospital for treatment of the head injury.
      She returned two days later complaining of neck and shoulder
      pain, and was told that the pain was a natural result of the type
      of injury that she had sustained. Because of her continuing
      pain, she consulted a specialist, Dr. Lee, who, after examination
      diagnosed her as having post-traumatic myofascitis pain
      syndrome in the neck and scapula, cervical sprain syndrome,
      and a herniated disk. Dr. Lucas also testified that he examined
      Neison, and that she suffered from fibromyalgia, or inflammation
      of the muscle tissue, and cervical strain. He then opined that
      her condition was directly caused by her automobile accident.
      [Hines’] expert, Dr. Mitchell, testified that Ms. Neison “exhibited
      a diagnosis of a healed neck sprain and a healed scapular or
      shoulder blade sprain.” He further testified that recovery from
      soft tissue damage such as Ms. Neison’s usually occurs in three
      to five months.        Thus, the uncontested evidence amply


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J-A04039-15

      demonstrates that Ms. Neison was involved in a violent
      automobile accident and suffered from soft tissue injuries, a
      cervical sprain, and a herniated disk.

             In light of this uncontroverted evidence, we cannot find
      that the trial court abused its discretion in ordering a new trial.
      Common sense dictates that a collision of this severity caused by
      the negligence of another would lead to severe and painful
      injuries, although the evidence offered at trial left room for
      disagreement as to whether the pain resulting from Ms. Neison’s
      injuries was as severe as she claimed or whether the accident
      was in fact causative. However, the jury’s decision to find for
      Hines and award no damages for pain and suffering bears no
      rational relationship to the evidence produced at trial. The jury’s
      decision to disbelieve all the evidence presented during the trial
      defies common sense and is indeed shocking.

Neison, 553 A.2d at 637-38 (citations and footnote omitted).

      As to this case, the trial court summarized the evidence presented at

trial as follows.1

            The jury in the instant case could have found the following
      facts by a preponderance of the evidence. On July 11, 2010,
      [Notaro] was stopped at an entrance ramp to a highway. There
      was a passenger in [her] vehicle, a large SUV hatchback.
      [Notaro] was wearing her seat belt and her hands were on the
      steering wheel. [Pfaffle’s] vehicle was stopped about a half of a
      car length behind [Notaro].

            After observing a break in the traffic, [Pfaffle] assumed
      [Notaro] was merging onto the highway. But when [Pfaffle]
      looked back he discovered [Notaro] had stopped. Although he
      applied his brakes, [Pfaffle] could not avoid the crash. [Pfaffle]
      was travelling three to five miles per hour at impact. His airbag
      did not deploy and he was not injured.

            [Notaro] never lost consciousness.       Her head struck
      nothing in the vehicle and she was not cut or bleeding. Her air
      bag did not deploy and she exited her vehicle without assistance.

1
 We have reorganized the trial court’s opinion by breaking it up into smaller
paragraphs.

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J-A04039-15

     [Notaro] did not complain to [Pfaffle] of any injuries. [Notaro]’s
     vehicle sustained a broken taillight and scratched bumper.
     There was no testimony of record that [Pfaffle]’s vehicle was
     damaged.

           At the scene [Notaro] declined to be taken for medical
     treatment. She and her passenger continued on to their original
     destination, a garden store. [Notaro] did not see her primary
     care physician (PCP), Dr. Santiago, until four days after the
     accident. She complained of pain “in the right side of [her]
     shoulder, going up to [her] head and in [her] neck, going down
     [her] arm, but not very far, and then in [her] left shoulder blade
     and upper back and a little bit into [her] right shoulder blade.”
     [Notaro] testified of swelling in her face and locking of her jaw,
     symptoms she associated with TMJ (temporomandibular joint
     disorder), for which she had previously treated with an
     orthodontist. At her deposition she stated the lockjaw, swelling
     and head pain, symptoms of TMJ, were the same before and
     after the accident. X-rays failed to reveal any broken bones.
     Dr. Santiago prescribed a muscle relaxer and strengthening
     exercises.

            [Notaro] did not miss any work as a result of this accident.
     Although she testified she had trouble doing things with/for her
     young daughter, she also testified she “didn't like feeling dopey
     on medication,” and did not use it because she “wasn't able to
     function in all of the things that [she] had to do.” Other than
     activities related to her daughter, [Notaro] did not testify as to
     specific activities in which she was unable to engage.

           No further medical treatment was sought until November
     18, 2010, when [Notaro] was seen by Dr. Puri, a PCP who
     prescribed a different muscle relaxer. [Notaro] returned on
     December 6, 2010, for a prescription refill. Although Dr. Puri
     suggested physical therapy, [Notaro] attended only one session.

            [Notaro] had begun treating for TMJ with her orthodontist,
     Dr. Purvis, in October or November of 2009. At that time her
     symptoms included locking of her jaw and soreness of her face
     that extended to her ear. [Notaro] returned to Dr. Purvis two to
     four times after the accident. On November 30, 2011, Dr. Purvis
     authored a letter wherein he reported seeing [Notaro] after the
     accident, but noted that the “treatment was not directed toward
     the resolution of any problems associated with recent trauma”


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      and opined that he “doubted that any information [he] could
      provide ... would have any correlation to [Notaro’s] accident.”

Trial Court Opinion, 8/6/2014, at 5-7 (citations and footnotes omitted).

      The court offered the following analysis in support of its decision to

deny Notaro’s post-trial motion for a new trial.

            At trial, [Notaro]’s counsel conceded that if the jury found
      [Notaro]’s injuries to be de minimus, it would not have to award
      any damages. All of [Notaro]’s complaints were subjective. She
      presented no witnesses, such as her passenger, to corroborate
      her claims.      [Notaro]’s two office visits to Dr. Puri were
      essentially related to medication. Neither party presented a
      doctor or a video deposition at trial. Each side referred to
      excerpts from [Notaro]’s medical records. [Notaro] chose to
      forego physical therapy. The jury could have found [Notaro]’s
      alleged symptoms were controlled by medication and, therefore,
      insignificant.

            Even though I would have awarded damages had this case
      proceeded non-jury, the jury’s verdict did not shock my
      conscience. Moreover, the jury’s finding that any injuries were
      so minor as to not warrant compensation did not defy common
      sense or logic. The verdict was not against the weight of the
      evidence.

            l also disagree with [Notaro]’s argument that the verdict
      was inconsistent. “[A] claim of verdict inconsistency is not the
      same complaint as a claim sounding in evidentiary weight. A
      verdict may be perfectly consistent and yet be a shock to the
      losing party, as well as a shock to the conscience of the jurist
      who oversaw the presentation of evidence.” Criswell v. King,
      834 A.2d 505 (Pa. 2003). A true case of verdict inconsistency
      can be found in City of Philadelphia v. Grey, 633 A.2d 1090
      (1993). There the jury answered “no” to a question asking
      whether a defendant driver was casually negligent, but assigned
      25% causal negligence to the same driver in a subsequent
      answer. In the case at bar, the jury found some injury caused
      by [Pfaffle]’s negligence, but believed it was not compensable.

Trial Court Opinion, 8/6/2014, at 7-8.



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      We can discern no error in the trial court’s rationale.       Unlike the

circumstances in Nieson, this case did not involve a violent collision which

would necessarily and obviously cause a compensable injury.        Rather, this

case involved a relatively minor accident and Notaro’s subjective claims of

injuries and related pain.

      As this Court has explained,

      [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 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 v. DeLeon, 828 A.2d 372, 375 (Pa. Super. 2003) (citations and

some quotation marks omitted).

      Here, the jury’s verdict slip indicates that they concluded that Pfaffle’s

negligence caused harm to Notaro and that harm was insignificant and

unworthy of compensation. The jury’s determination was consistent with the

record and the law. For these reasons, we conclude that the trial court did

not abuse its discretion or commit an error of law by denying Notaro’s post-

trial motion for a new trial. Consequently, we affirm the judgment.

      Judgment affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/2/2015




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