J-A01035-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


    CRYSTAL DEMPSEY                            :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    RICHARD JOSIASSEN AND RITA                 :   No. 1282 EDA 2019
    JOSIASSEN AND RAYMOND                      :
    OSBOURNE                                   :

                Appeal from the Judgment Entered April 9, 2019
      In the Court of Common Pleas of Philadelphia County Civil Division at
                        No(s): No. 408 June Term 2017


BEFORE:      NICHOLS, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                            FILED FEBRUARY 06, 2020

        This is an appeal from the denial of a motion for post-trial relief following

a jury trial and the entry of judgment in favor of the defendants on the jury

verdict in a motor vehicle personal injury action. We affirm.

        This case arose out of a low-speed collision on Germantown Avenue near

Schoolhouse Lane in Philadelphia on December 15, 2016, in which the

passenger-side mirror of a car driven by defendant Raymond Osbourne

(Osbourne) collided with the partially open driver-side door of the parked car

of defendant Richard Josiassen (Josiassen).            Appellant, plaintiff Crystal

Dempsey (Plaintiff), was a front-seat passenger in Osbourne’s car.

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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      On June 6, 2017, Plaintiff filed this action against Josiassen, Osbourne,

and Josiassen’s wife, the owner of the parked car, alleging that she suffered

      injuries to her muscles, tendons, discs, ligaments, neck, back, left
      knee, left shoulder, cervical sprain and strain, lumbar sprain and
      strain, left knee sprain and strain, left shoulder sprain and strain,
      disc protrusions and/or aggravations of disc protrusions at C2-3,
      C3-4, and C4-5, disc bulges and/or aggravation of disc bulges at
      C5-6 and C6-7, disc protrusions and/or aggravation of disc
      protrusions at L1-2, L2-3, L3-4, and L4-5, posterior popliteal cyst
      to the left knee, partial thickness tear distal subscrapularis in the
      left shoulder, left shoulder supraspinatus tendinitis, AC joint
      arthritis, and aggravation of preexisting conditions ….

Complaint ¶10. Josiassen’s wife, who was not involved in the accident, was

dismissed from the action prior to trial. Stipulation, 4/18/18.

      A jury trial was held December 3-6, 2018.        Plaintiff, Osbourne, and

Josiassen testified at trial concerning the accident and three medical expert

witnesses testified by video deposition concerning Plaintiff’s injuries or lack

thereof.

      The testimony at trial was undisputed that the accident occurred

between 9:00 and 9:30 in the morning and that it was not raining or snowing.

N.T., 12/4/18, at 38, 78, 83; N.T., 12/5/18, at 22. It was also undisputed

that the street was a two-way street with one lane in each direction and

parking on both sides. N.T., 12/4/18, at 39, 47, 79; N.T., 12/5/18, at 25.

Osbourne testified that he was driving 10-15 miles per hour, that he saw a

door of a parked car open approximately 10 feet ahead of him, that he put on

his brakes, but could not stop in time, and that he could not move into the

other lane to avoid the door because there was a bus traveling in the other

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direction. N.T., 12/4/18, at 40-42, 48-50, 71-72. Plaintiff testified that she

saw the open car door only at the moment of the collision or immediately

before the collision and that she did not know of anything that Osbourne did

that caused the accident. Id. at 79, 121, 126, 129-30. Josiassen testified

that he had parked close to the curb in a legal parking space and that he

looked in the rear-view mirror to see if any traffic was approaching before

opening the door and saw nothing. N.T., 12/5/18, at 21-25, 39. Josiassen

testified that he noticed a car as he opened the door and that he tried to close

the door, but could not close it fast enough to prevent contact between the

edge of the door and Osbourne’s passenger side mirror. Id. at 24-27, 39.

      No airbags deployed in the accident and no police or ambulance was

called to the scene. N.T., 12/4/18, at 48, 70, 127; N.T., 12/5/18, at 33-34.

Osbourne testified that the accident damaged his passenger side mirror and

caused a scrape mark on the passenger door and that his car was fully drivable

after the accident. N.T., 12/4/18, at 41-42, 44, 48. Osbourne testified that

the accident also damaged his passenger side front fender, but admitted that

that he did not notice fender damage on the day of the accident. Id. at 41-

42, 56-59. Josiassen testified that the accident caused only minor dents to

the edge of his car door and damage to Osbourne’s passenger side mirror,

and that it did not pull his door forward or damage the structure of the door.

N.T., 12/5/18, at 25-29, 33-38.




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      Plaintiff had previous lower back, neck and shoulder injuries from a

workplace accident in 2004 and had not worked since 2011 as a result of those

injuries. N.T., 12/4/18, at 86, 93-95. Plaintiff also had suffered neck and

back injuries in a prior car accident. Id. at 85-86, 111. After the December

15, 2016 accident that is the subject of this action, Plaintiff was taking the

same pain medications in the same dosages as she took before the accident.

Id. at 101-02, 115-16.

      The trial court instructed the jury that it was to decide the question “Was

either Raymond Osbourne or Richard Josiassen negligent?” and did not

instruct the jury that it must find at least one of the two defendants negligent.

N.T., 12/6/18, at 63.      The case was submitted to the jury on special

interrogatories that asked the jury:

      Do you find any of the Defendants negligent? Please answer for
      each Defendant.
      Defendant Richard Josiassen      Yes ___ No ___
      Defendant Raymond Osborne        Yes ___ No ___

Verdict Sheet. The jurors were instructed that if their answer was “no” as to

both defendants, Plaintiff could not recover and that they should stop and

return to the courtroom. N.T., 12/6/18, at 66-67; Verdict Sheet. Plaintiff did

not object to the jury instructions or special interrogatories. N.T., 12/5/18,

at 4-8, 51-53; N.T., 12/6/18, at 75. The jury returned a verdict that neither

Osbourne nor Josiassen was negligent.        Id. at 77; Verdict Sheet. Plaintiff

raised no objection to the verdict until after the trial court dismissed the jury.

N.T., 12/6/18, at 77-79.

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J-A01035-20


        Plaintiff timely filed a post-trial motion asserting that Josiassen was

negligent as a matter of law and that the verdict was against the weight of

the evidence on the ground that at least one of the two defendants had to be

negligent. The only relief that Plaintiff sought in her post-trial motion was the

vacating of the jury verdict and the granting of a new trial limited to damages.

On March 29, 2019, the trial court denied Plaintiff’s post-trial motion and on

April 9, 2019, judgment was entered in favor of defendants on the jury verdict.

This timely appeal followed.

        Plaintiff presents the following single issue for our review:

        Did the trial court abuse its discretion and commit error by
        denying Appellant's request for new trial, when the jury entered a
        defense verdict on negligence, despite the fact that Josiassen and
        Osbourne collided their vehicles, Dempsey was an innocent
        passenger in Osbourne's vehicle, no evidence was put forth of
        negligence of an unnamed third party, and no evidence was put
        forth as to any intervening or superseding causes for the collision?

Appellant’s Brief at 4. Appellee Josiassen, in addition to opposing Plaintiff’s

appeal on the merits, asserts that this issue is barred by waiver.1 We agree.2




____________________________________________


1   Appellee Osbourne did not file a brief in this appeal.
2 While the trial court did not base its denial of Plaintiff’s post-trial motion on
waiver, we may affirm a trial court’s decision if there is a proper basis for the
result reached, even if it is different than the basis relied upon by the trial
court. Generation Mortgage Co. v. Nguyen, 138 A.3d 646, 651 n.4 (Pa.
Super. 2016); In re Estate of Rood, 121 A.3d 1104, 1105 n.1 (Pa. Super.
2015). The issue of waiver is a question of law subject to this Court’s plenary,
de novo review. Stapas v. Giant Eagle, Inc., 198 A.3d 1033, 1037 (Pa.
2018); Straub v. Cherne Industries, 880 A.2d 561, 566 n.7 (Pa. 2005).

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J-A01035-20


      Claims that a verdict is inconsistent or impermissible cannot be raised

for the first time in post-trial motions and are waived where the party seeking

relief did not object at trial to the verdict sheet and instructions that permitted

the verdict and did not object to the verdict before the jury was dismissed.

Stapas v. Giant Eagle, Inc., 198 A.3d 1033, 1042 (Pa. 2018); Straub v.

Cherne Industries, 880 A.2d 561, 566-68 (Pa. 2005). Ordinarily, claims

that a jury’s verdict is against the weight of the evidence may be raised for

the first time in post-trial motions and are not waived by failure to object

before the jury is dismissed. Stapas, 198 A.3d at 1038; Criswell v. King,

834 A.2d 505, 513 (Pa. 2003).

      The fact that a post-trial motion is framed as a weight-of-the-evidence

challenge, however, does not excuse failure to preserve the issue by objection

at trial unless the motion challenges the jury’s weighing of conflicting

evidence, rather than its ability to render the verdict that it reached. Stapas,

198 A.3d at 1042. As our Supreme Court explained in Stapas,

      [A]ppellant’s characterization of its challenge to the verdict as a
      weight of the evidence challenge does not avoid waiver. … [A]
      weight of the evidence claim ripens after the verdict because it
      does not challenge the jury’s ability to render a verdict; instead,
      it contends the jury’s resolution of competing evidence was “a
      miscarriage of justice.”

Id. (quoting Criswell)      Thus, if the contention in a motion for a new trial

based on weight of the evidence is that the jury could not reach the verdict

that it did under the evidence before it, the issue must be preserved at trial

and is waived if the movant fails to object to the jury instructions and verdict

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J-A01035-20


form and makes no objection to the verdict before the jury is dismissed.

Stapas, 198 A.3d at 1042 (defendant was barred by waiver from challenging

the jury’s unsupported award of future lost wages on weight-of-the-evidence

grounds where it did not object to the jury instructions or damages

interrogatory or object to the verdict before the jury was dismissed).

      While Plaintiff characterizes that the jury’s verdict as being against the

weight of the evidence, Plaintiff’s argument is not that the jury improperly

weighed competing evidence, but that she is entitled to a new trial because

there was no evidence that anything caused the accident other than

negligence of one or the other defendant and that a jury cannot permissibly

return a verdict that neither driver in a two-vehicle collision is negligent if

there is no evidence of another cause for the accident. Plaintiff argues:

      No evidence was presented that established that [Plaintiff] was
      in any way negligent. No evidence was presented that an
      unnamed third party was negligent or that some ‘Act of God’
      occurred that would relieve either party of their obligation to
      operate their motor vehicles safely, avoiding collisions with other
      vehicles. … The facts of this case are sufficient to require a
      jury to find negligence on one or both of the Defendants.
                        *           *           *
      There was no evidence offered as to [Plaintiff’s] comparative
      negligence. There was no evidence put forth of any superseding
      or intervening causes. There was no evidence of negligent or
      intentional conduct of an unnamed third party.
                        *           *           *
      The jury was free to find Josiassen credible and find against
      Osbourne on the issue of negligence, or to find Osbourne credible
      and find against Josiassen on the issue of negligence, or to
      determine both Osbourne and Josiassen had credibility issues and
      find both of them negligent, what is not permissible is to state
      that under the circumstances presented that neither was
      negligent in any manner.

                                     -7-
J-A01035-20



Appellant’s Brief at 13-14, 16-17 (emphasis added).

       Because she challenges the jury’s ability to render the verdict that

neither defendant was negligent and not its resolution of competing evidence,

Plaintiff was required to object to the jury charge or verdict form that

permitted the jury to find both defendants not negligent or to the verdict

before the jury was discharged.            Stapas, 198 A.3d at 1042.   Plaintiff,

however, did not object to the jury instructions or verdict form and did not

object to the verdict until after the jury was dismissed. Had Plaintiff timely

objected, the issue of whether the jury could find that neither defendant was

negligent could have been addressed by the trial court at trial and the jury

could have been given the opportunity to render a verdict that would not be

subject to the challenge that she now raises.3 Instead, Plaintiff withheld her

____________________________________________


3 Because we conclude that Plaintiff’s challenge to the verdict is barred by
waiver, we do not decide whether the jury was required to find at least one
defendant negligent here. We note that while this Court and our Supreme
Court have found in a number of cases that at least one driver in a two-vehicle
collision must be negligent, those cases are factually different from this case.
Salvio v. Musgrave, 214 A.2d 226, 227 (Pa. 1965) (vehicles were traveling
toward each other in opposite directions and one vehicle ran into the curb,
allegedly because other vehicle had crossed into its lane); Cobb v. Chubeck,
160 A.2d 207, 208-09 (Pa. 1960) (accident occurred when one vehicle made
a left turn in front of an oncoming vehicle); Lind v. Thomas, 401 A.2d 830,
832-33 (Pa. Super. 1979) (accident occurred when one vehicle made a left
turn in front of an oncoming vehicle); Fair v. Snowball Express, Inc., 310
A.2d 386, 387-88 (Pa. Super. 1973) (vehicles were traveling toward each
other and accident was head-on collision that occurred when one or both
vehicles crossed at least part way into the other vehicle’s lane of travel);
Weinstein v. Philadelphia Transportation Co., 295 A.2d 111 (Pa. Super.



                                           -8-
J-A01035-20


objection until she did not like the result of the trial and prevented the jury

that heard the case from rendering a verdict consistent with what she now

claims that the law requires.          Because Plaintiff did not raise any timely

objection that the jury could not render a verdict that neither defendant was

negligent, she waived this issue and cannot seek a new trial on this ground.

Id.

       Because Plaintiff’s sole issue in this appeal is waived by her failure to

timely raise it in the trial court, we affirm the judgment entered on the jury’s

verdict.

       Judgment affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/6/20




____________________________________________


1972) (vehicles were traveling in the same direction, one behind the other,
and the following vehicle collided with the vehicle in front when the vehicle in
front was making a left turn). We also note that this Court held in Platts v.
Driscoll, 369 A.2d 381 (Pa. Super. 1976), that a passenger-plaintiff was not
entitled to a new trial where the jury found neither driver negligent in an
intersection collision and both drivers testified that they were looking carefully
and driving at safe speeds.

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