J-A23017-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

KERIM AMADOU, AN INDIVIDUAL,                     IN THE SUPERIOR COURT OF
SHAMAEL RAHAMANI, A MINOR                              PENNSYLVANIA
INDIVIDUAL AND SHAKIB RAHAMANI, A
MINOR INDIVIDUAL

                            Appellants

                       v.

RONALD SARVER

                            Appellee                 No. 1683 WDA 2015


            Appeal from the Judgment Entered September 25, 2015
              In the Court of Common Pleas of Allegheny County
                       Civil Division at No: GD 12-11773


BEFORE: LAZARUS, STABILE, and STRASSBURGER,* JJ.

CONCURRING AND DISSENTING MEMORANDUM BY STABILE, J.:
                                   FILED MARCH 07, 2017

        I agree with the Majority’s conclusion that Appellants are not entitled

to a new trial based on the trial court’s refusal to instruct the jury pursuant

to 75 Pa.C.S.A. § 4581(e), relating to seat belt use. I also agree with the

Majority’s determination that Appellants, Shamael Rahamani and Shakib

Rahamani, are not entitled a new trial on damages.         However, I disagree

with the Majority’s decision to award a new trial on damages to Appellant,

Kerim Amadou (“Amadou”). Therefore, I concur in part and dissent in part.


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-A23017-16


       On September 3, 2011, Amadou was stopped at an intersection in

Pittsburgh when his Nissan Altima was struck from behind by a pick-up truck

operated by Appellee Ronald Sarver (“Sarver”).       Sarver admitted liability.

On January 13, 2014, a jury found Sarver’s negligence was the factual cause

in bringing about injury to Amadou and awarded Amadou $1,440 in

damages.1 This damage award did not distinguish between economic and

non-economic damages.

       As this Court reiterated in Brown v. Trinidad, 111 A.3d 765 (Pa.

Super. 2015);

       Appellate 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
____________________________________________


1
  Amadou testified that he missed 13 days of work as an independent
contractor cab driver following the accident, N.T., 1/10/14, at 60, and on
average earned approximately $120 to $150 per day. N.T., 1/10/14, at 74-
75. During closing argument, Amadou’s counsel suggested to the jury that
Amadou might have missed only 12 days of work and proposed that the jury
consider 12 days of work missed at $120 per day. N.T., 1/13/14, at 254-55.
Although the jury did not designate its damages award as an award of lost
wages, it is not lost on us that 12 days at $120 per day results in a wage
loss of $1,440. Neverthless, it is not this Court’s role to speculate as to
whether the jury awarded Amadou wage loss, whether the jury entered into
a compromise verdict and settled on that amount as a compromise, or
whether the jury simply did not believe Amadou was injured or experienced
pain and suffering.




                                           -2-
J-A23017-16


      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.

Id. at 770 (quoting Haan v. Wells, 103 A.3d 60, 70 (Pa. Super. 2014), in

turn quoting In re Estate of Smaling, 80 A.3d 485, 490 (Pa. Super. 2013)

(en banc) (additional citations omitted)).     In Brown, this Court further

quoted Haan, noting:

      “The factfinder is free to believe all, part, or none of the
      evidence and to determine the credibility of the witnesses.”
      Samuel–Bassett v. Kia Motors Am., Inc. [613 Pa. 371], 34
      A.3d 1, 39 (Pa. 2011). “The trial court may award a judgment
      notwithstanding the verdict or a new trial only when the jury’s
      verdict is so contrary to the evidence as to shock one’s sense of
      justice. In determining whether this standard has been met,
      appellate review is limited to whether the trial judge’s discretion
      was properly exercised, and relief will only be granted where the
      facts and inferences of record disclose a palpable abuse of
      discretion.” Id. (citing Commonwealth v. Cousar [593 Pa.
      204], 928 A.2d 1025, 1035–36 (Pa. 2007)).            When a fact
      finder’s verdict is “so opposed to the demonstrative facts that
      looking at the verdict, the mind stands baffled, the intellect
      searches in vain for cause and effect, and reason rebels against
      the bizarre and erratic conclusion, it can be said that the verdict
      is shocking.” Farelli v. Marko [349 Pa. Super. 102], 502 A.2d
      1293, 1295 (Pa. Super. 1985) (quoting Green v. Johnson [424
      Pa. 296], 227 A.2d 644, 645 (Pa. 1967)).

Id.

      The trial court acknowledged Amadou’s contention that the verdict was

“manifestly inadequate” because “the verdict amount merely replicated

Amadou’s    out-of-pocket    expense,”   reflecting   the   jury’s   disregard   of

Amadou’s “proof of pain and suffering.”      Trial Court Rule 1925(a) Opinion

(“T.C.O.”), 7/17/14, at 3.    The trial court rejected Amadou’s reliance on


                                     -3-
J-A23017-16


Marsh v. Hanley, 856 A.2d 138 (Pa. Super. 2004), in which this Court

reversed the trial court’s denial of a new trial following a jury verdict

awarding lost wages but no damages for pain and suffering. In Marsh, the

appellant’s car was struck on the driver’s side by another car, causing the

appellant’s car to spin 180 degrees before being struck a second time.

There, the appellant was taken to the hospital by ambulance for treatment.

Both parties’ experts conceded that the appellant suffered soft tissue injuries

of the cervical and lumbar spine in the accident. The trial court found the

instant factual situation more analogous to Majczyk v. Oesch, 789 A.2d

717 (Pa. Super. 2001) (en banc), where this Court upheld a jury award of

zero dollars for pain and suffering. Quoting this Court’s opinion in Marsh,

the trial court recognized:

      The Majczyk Court specifically held that the jury may find for
      the defendant despite his obvious negligence when it does not
      believe the plaintiff’s pain and suffering, or that her injury is the
      sort that is compensable. The Court quoted from Boggavarapu
      v. Ponist, 518 Pa. 162, 167, 542 A.2d 516, 518 (1988), for the
      proposition that some injuries are the sort of “transient rub of
      life for which compensation is not warranted.” The [C]ourt first
      held that “the determination of what is a compensable injury is
      uniquely within the purview of the jury.” Majczyk, supra at
      726. The [C]ourt confirmed that credibility determinations lie
      within the province of the fact finder, and a jury is always free to
      believe all, part, some or none of the evidence presented.
      Majczyk, supra at 725-26. The [C]ourt concluded that, based
      on this record, the jury properly found that plaintiff’s accident-
      related injuries were minor, causing only a few days or weeks of
      discomfort, and not the sort that require compensation. See
      also, Davis v. Mullen, 565 Pa. 386, 773 A.2d 764 (2001) (jury
      may decide that no pain and suffering damages are due, even
      where medical expenses are awarded).


                                      -4-
J-A23017-16


T.C.O., 7/17/14, at 4-5 (quoting Marsh, 856 A.2d at 140).

     The trial court determined that “[t]he minor rear end collision in the

matter at hand renders Majczyk a more apt comparable than Marsh.” Id.

at 5. The court reasoned:

     The jury might well have concluded from Amadou’s own
     testimony that the impact and any resultant injury in this matter
     were insubstantial.      Indeed, on direct examination, despite
     repetitive inquiries from his own counsel, Amadou failed to
     confirm either a significant impact or any immediate pain. (N.T.,
     49-51). The devaluing consequences of a plaintiff’s repeated
     responses of “I can’t recall” during direct examination regarding
     the severity of impact and his immediate physical sensation
     resulting from that impact cannot be overlooked when
     questioning the adequacy of a verdict.

     Further, Amadou’s treating chiropractor, Dr. Novak, and primary
     care physician, Dr. McCollum, did not so persuasively establish a
     nexus between the complaints of pain voiced by Amadou and
     any injury from the accident that it can be concluded that the
     verdict amount was against the weight of the evidence. As
     [Sarver] notes, Dr. Novak, Amadou’s principal treatment
     provider following the accident, did not relate a lumbar injury to
     that accident.    That failed testimony is in contrast to the
     certainty of [Sarver’s] expert, a board-certified orthopedic
     surgeon, who did not relate the complaint of a lumbar injury to
     the accident.

     Generally, a new trial is [] appropriate only when the jury’s
     verdict is so against the weight of the evidence as to shock one’s
     sense of justice and a new trial is, therefore, required to rectify
     that manifest wrong. Consequently, a court is not required to
     consider the evidence in the light most favorable to the verdict
     winner when considering whether a verdict might be against the
     weight of the evidence. Where the evidence is conflicting and
     the fact-finder could have decided in favor of either party, a new
     trial will not be granted on the ground that the verdict was
     against the weight of the evidence. See, Lanning v. West, 803
     A.2d 753 (Pa. Super. 2002)[;] S.N.T. Industries, Inc. v.
     Geanopulos, 363 Pa. Super. 97, 525 A.2d 736 (1987), app.


                                    -5-
J-A23017-16


      den. 520 Pa. 577, 549 A.2d 137 (1988). The factual record in
      this case did not compel the grant of a new trial as to damages.

Id. at 5-6.

      The Majority rejects the trial court’s reliance on Majczyk, finding

Marsh more factually similar and controlling.         However, as this Court

recognized in Marsh, that case “involved more than a minor rear-end

collision.    Appellant’s car was struck twice on the driver’s side.          An

ambulance transported [Marsh] to the hospital; she suffered injuries which

required her to take medications; her symptoms did not ameliorate for

almost six months, and she lost considerable time from work.” Marsh, 856

A.2d at 140. Therefore, we held the case was controlled by Burnhauser v.

Bumberger, 745 A.2d 1256 (Pa. Super. 2000), where a zero award for pain

and suffering “bore no reasonable relationship to the loss suffered in a head-

on collision, soft tissue injuries with pain that lasted for 6 months.” Id.

      I believe this case is more analogous to Majczyk and Davis v.

Mullen, 773 A.2d 764 (Pa. 2001). In Davis, a jury awarded the plaintiff a

sum that equaled his medical expenses and property damage resulting from

an automobile accident.    The trial court denied the plaintiff’s motion for a

new trial based on weight of the evidence. Our Court reversed—finding the

damage award was inconsistent with the evidence presented, vacated the




                                      -6-
J-A23017-16


judgment, and remanded for new trial.2           Our Supreme Court reversed,

concluding that “the trial court properly exercised its discretion when it

denied Davis’ motion for a new trial because there was a reasonable basis

for the jury [to] believe: (1) that Davis did not suffer pain and/or (2) that

his alleged injury was not caused by the negligence of the defendant.” Id.

at 770. Our Supreme Court reiterated:

        In reviewing an order denying a motion for a new trial, an
        appellate court should not set aside a trial court’s decision unless
        the trial court’s decision was an abuse of discretion. A new trial
        should be granted only where the verdict is so contrary to the
        evidence as to shock one’s sense of justice and not where the
        evidence is conflicting or where the trial judge would have
        reached a different conclusion on the same facts.

        We have held that it is the duty of the trial court to control the
        amount of the verdict; it is in possession of all the facts as well
        as the atmosphere of the case, which will enable it to do more
        evenhanded justice between the parties than can an appellate
        court. Thus, a jury verdict is set aside for inadequacy when it
        appears to have been the product of passion, prejudice,
        partiality, or corruption, or where it clearly appears from
        uncontradicted evidence that the amount of the verdict bears no
        reasonable relation to the loss suffered by the plaintiff. Hence, a
        “reversal on grounds of inadequacy of the verdict is appropriate
        only where the injustice of the verdict stands forth like a
        beacon.” Hawley v. Donahoo, 416 Pa.Super. 469, 611 A.2d
        311, 312 (1992).

Id. at 766 (some citations and internal quotations omitted; brackets

removed).      See also Gold v. Rosen, 135 A.3d 1039, 1044 (Pa. Super.

____________________________________________


2
    See Davis v. Mullen, 755 A.2d 693 (Pa. Super. 2000).




                                           -7-
J-A23017-16


2016) (affirming denial of new trial following award of zero damages for pain

and suffering for a relatively minor accident and stating, “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.”); Van Kirk v. O'Toole, 857 A.2d 183, 185 (Pa. Super.

2004) (affirming denial of motion for new trial following award of zero

damages for neck and back strain and sprain and noting that “[t]he 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.”).

       Based on my review of the trial testimony, I conclude the trial court

did not abuse its discretion by denying a new trial on the grounds that the

verdict was against the weight of the evidence.              As the trial court

recognized, Amadou’s own testimony could have led the jury to conclude

that the impact and resulting injury from this minor rear-end collision were

insubstantial or non-existent.3           Moreover, testimony from his treating

chiropractor, Dr. Novak, revealed that he had treated Amadou in 2000. N.T.

Videotaped Deposition, 12/17/13, at 38. In addition, x-rays from the date
____________________________________________


3
  Cf. Casselli v. Powlen, 937 A.2d 1137, 1147 (Pa. Super. 2007) (trial
court erred by denying a new trial based on weight of the evidence following
an award of zero dollars when evidence revealed the appellant suffered a
broken bone in his foot due to appellee’s negligence).



                                           -8-
J-A23017-16


of the accident revealed loss of curvature of the spine, indicating a pre-

existing condition and degenerative changes. Id. at 21-22, 91. Dr. Novak’s

treatments addressed complaints in the cervical and thoracic areas of

Amadou’s spine but not in the lumbar area. Id. at 21-22, 60, 75. However,

Amadou registered complaints of lumbar pain when examined by Sarver’s

expert orthopedic surgeon, Dr. Levy, and Amadou reported to Dr. Levy that

he had previously been injured in a car accident, for which he sought

chiropractic care. N.T. Videotaped Deposition, 12/18/13, at 12-13, 15.

      It is well settled that “the power to grant or deny a new trial lies

inherently with the trial court, and we will not reverse its decision absent a

clear abuse of discretion or error of law which controlled the outcome of the

case.” Johnson v. Frazier, 787 A.3d 433, 435 (Pa. Super. 2001). I find no

abuse of discretion or error of law in the trial court’s conclusion that the

record in this case did not compel the grant of a new trial as to damages.

Therefore, I dissent from the Majority’s award of a new trial on damages to

Amadou.




                                    -9-
