J-A22040-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JILL COOPEY,                                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

CITY OF WILKES-BARRE; JOSEPH J.
RANIELI; UNITED PARCEL SERVICE,
INC.; UNITED PARCEL SERVICE CO.

                            Appellees                No. 1410 MDA 2014


                 Appeal from the Order Entered August 4, 2014
                in the Court of Common Pleas of Luzerne County
                        Civil Division at No.: 3940-2006


                                                 IN THE SUPERIOR COURT OF
JILL COOPEY,                                           PENNSYLVANIA

                            Appellee

                       v.

CITY OF WILKES-BARRE; JOSEPH J.
RANIELI; UNITED PARCEL SERVICE,
INC.; UNITED PARCEL SERVICE CO.

                            Appellants               No. 1524 MDA 2014


                 Appeal from the Order Entered August 4, 2014
                in the Court of Common Pleas of Luzerne County
                       Civil Division at No.: 3940-CV-2006


BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-A22040-15



MEMORANDUM BY PLATT, J.:                         FILED SEPTEMBER 30, 2015

      In these consolidated cross-appeals, Appellant, Jill Coopey (Coopey),

and Appellees/Cross-Appellants, Joseph J. Ranieli, United Parcel Service,

Inc., and United Parcel Service Co. (UPS), appeal from the order entered on

August 4, 2014, which granted in part and denied in part Coopey’s motion

for post-trial relief. After careful review, we affirm.

      The trial court summarized the factual and procedural history as

follows:

            . . . Coopey alleged she suffered injuries to her spine,
      head, thumb, and knee when a delivery truck broad-sided her
      vehicle on April 13, 2004. Evidence established that a stop sign
      had been removed or otherwise knocked down at the
      intersection prior to the accident occurring. [] Coopey sued
      [Mr.] Ranielli, a [UPS] truck driver, for driving negligently, []
      UPS under a theory of respondeat superior, and the City of
      Wilkes-Barre for failing to maintain the missing stop sign at the
      intersection at the site of the crash.

             At trial, [Coopey] provided documentary evidence such as
      emergency room records, MRI films, and X-Rays, as well as
      expert medical testimony to argue that the car accident caused
      significant lumbar spine and other injuries. [Coopey] offered
      evidence from multiple witnesses, including medical expert Dr.
      William R. Prebola, of four distinct categories of injury resulting
      from the accident: (1) spinal disc herniations, (2) head
      laceration, (3) thumb abrasion, and (4) knee fracture.

             . . . UPS vigorously cross-examined [Coopey’s] expert and
      lay witnesses, arguing that [her] spinal injuries pre-existed this
      car accident. However, [UPS] never argued the veracity or
      reliability of [Coopey’s] witnesses regarding the head, thumb,
      and knee injuries [she] suffered. [UPS] did not call their own
      expert medical witnesses. Further, [] counsel for the City of
      Wilkes-Barre argued throughout the course of trial that the City
      did not have notice of the missing stop sign, which the law
      requires in order to hold the City liable.

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              At the completion of trial, responding to special
       interrogatories on the verdict slip, the [j]ury found as follows:
       (1) City of Wilkes-Barre did not act negligently; (2) [UPS] acted
       negligently, but such negligence was not a substantial factor in
       causing the harm suffered; (3) [Coopey] acted negligently, but
       such negligence was not a substantial factor in causing the harm
       suffered. [Coopey] neither polled the jury nor objected to the
       verdict prior to dismissal of the jury. [She] then filed a [m]otion
       for [p]ost[-t]rial [r]elief and a [n]ew [t]rial, arguing that the
       [trial c]ourt erred in making a number of prejudicial evidentiary
       rulings and that the [j]ury’s verdict was against the weight of
       the evidence at trial.

(Trial Court Opinion, 8/04/14, at 1-2) (transcript citations omitted).

       On August 4, 2014, the trial court granted in part and denied in part

Coopey’s motion for post-trial relief.         Specifically, the court “order[ed] a

[n]ew [t]rial for the limited purpose of (1) apportioning the percentage of

fault . . . between [Coopey] and [UPS], and (2) assessing damages for the

undisputed thumb, head, and knee injuries . . . .”            (Order, 8/04/14, at

unnumbered page 2).

       On August 20, 2014, the court entered judgment pursuant to Coopey’s

praecipe.1 On the same date, Coopey timely appealed. UPS timely filed a

cross-appeal on September 3, 2014.2

       On appeal and cross-appeal, the parties raise the following questions:
____________________________________________


1
  We note that the trial court’s August 4, 2014 order awarding a new trial is
appealable as of right.     See Pa.R.A.P. 311(a)(6).     Therefore, we are
constrained to conclude that it was error to enter judgment because issues
remained pending. Accordingly, we vacate the August 20, 2014 judgment.
2
  The court did not order the parties to file Rule 1925(b) statements, nor did
it file a Rule 1925(a) opinion. See Pa.R.A.P. 1925.



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       Coopey presents four questions for our review:

       1.     At the new trial, should [Coopey] be permitted to prove all
       injuries asserted by her physicians and not merely the ones that
       the trial court deemed to be uncontroverted after [UPS]
       counsel’s cross-examination?

       2.    . . . Did the trial court erroneously fail to charge the jury
       that [Coopey] could recover if she aggravated a pre-existing
       condition, an issue raised by [UPS] counsel in his cross-
       examination of [Coopey] and her physicians?

       3.    . . . Did the trial court properly exclude [photographs
       taken of Coopey shortly after her 1993 fall from a horse]?

       4.   At the retrial, should UPS be precluded from asserting that
       [Coopey] was contributorily negligent?

(Coopey’s Brief, at 6-7).3

       UPS presents seven questions:

       [1.] Are Ms. Coopey’s brief and reproduced record substantially
       defective under the Pennsylvania Rules of Appellate Procedure?

       [2.] Does Ms. Coopey’s failure to brief and argue certain issues
       in her post-trial motions preclude appellate review of those
       issues?

       [3.] Was the trial court correct in denying Ms. Coopey
       judgment [notwithstanding the verdict] or a new trial on her
       alleged back and neck injuries?

       [4.] Did the trial court correctly decline to charge the jury on
       aggravation of pre-existing condition?




____________________________________________


3
   We note that Coopey’s statement of questions              involved contains
“unnecessary detail.” Pa.R.A.P. 2116(a).



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J-A22040-15


       [5.] Did the trial court correctly exclude from evidence a
       photograph produced for the first time during trial that purported
       to show Ms. Coopey with crutches?

       [6.] Does Ms. Coopey present any basis upon which to overturn
       the jury’s verdict that she was contributorily negligent?

       [7.] Did the trial court err in overturning the jury’s verdict that
       the accident caused no injury to Ms. Coopey?

(UPS’ Brief, at 6-7) (most capitalization omitted).4

       Preliminarily, we note that UPS’ first and second issues raise

procedural concerns.

       First, UPS alleges that Coopey’s “brief and reproduced record [] fail in

multiple respects to conform to the appellate rules.”       (UPS’ Brief, at 32).

Specifically, UPS claims that (1) Coopey compiled the reproduced record

without its participation and created a “mangled document dump” (id. at

33); (2) relevant docket entries are not included; (3) the brief fails to set

forth facts with supporting record citations; (4) argument is impermissibly

included in the statement of the case; (5) the argument section fails to cite

to the record; and (6) the brief is misleading because Coopey is arguing

from documents never admitted into evidence.           (See id. at 31-37).   We

disagree.



____________________________________________


4
  The substance of UPS’ questions three, four, five, and six directly responds
to Coopey’s issues one, two, three, and four, respectively. Therefore, we
will address the issues raised as they appear in UPS’ brief for ease of
analysis and disposition.



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J-A22040-15



      It is well-settled that “[t]his Court may quash or dismiss an appeal if

the appellant’s brief fails to conform to the requirements set forth in the

Pennsylvania Rules of Appellate Procedure.”        Forrester v. Hanson, 901

A.2d 548, 551 n.2 (Pa. Super. 2006); see also Pa.R.A.P. 2101 (authorizing

quashal or dismissal for substantial briefing defects).

      Here, upon independent review, we conclude that Coopey has

substantially complied with our appellate rules and included record citations

where appropriate.      See Pa.R.A.P. 2117, 2119, 2152-53; (see also

Coopey’s Brief, at 4-62). Accordingly, this issue lacks merit.

      Next, UPS alleges that Coopey has waived issues not raised in her

post-trial motions.    Specifically, “her claimed neck and back injury, her

unsuccessful effort to obtain a jury charge on alleged aggravation of pre-

existing injuries, and the granting of the objection to introduction at trial of a

newly-produced photograph picturing her sometime after her 1993 fall from

the horse . . . .” (UPS’ Brief, at 37). We disagree.

      It is well-settled that “[i]ssues not raised in the lower court are waived

and cannot be raised for the first time on appeal.”           Pa.R.A.P. 302(a).

Further, the “[f]ailure to set forth an argument in briefs filed in the court in

support of post-trial motions constitutes a failure to preserve the issue or

issues not argued.” Jackson v. Kassab, 812 A.2d 1233, 1235 (Pa. Super.

2002), appeal denied, 825 A.2d 1261 (Pa. 2003) (citations omitted).




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J-A22040-15



      Here, Coopey has preserved her appeal issues in her post-trial motions

and brief. (See Post-Trial Motions, 4/21/14, at 2-6; Brief, 5/23/14, at 11-

15). Accordingly, this issue lacks merit.

      UPS’ remaining issues challenge the trial court’s ruling on Coopey’s

post-trial motions.

            The applicable standard of review of the court’s decision to
      grant a new trial is as follows:

                       The decision of whether to grant a new trial is
                within the sound discretion of the trial court. We will
                not disturb the trial court’s decision unless the court
                palpably abused its discretion or committed an error
                of law. In evaluating an order awarding a new trial,
                we keep in mind that a new trial is warranted where
                the jury’s verdict is so contrary to the evidence as to
                shock one’s sense of justice. However, a new trial
                should not be granted because of a mere conflict in
                testimony or because the trial judge, on the same
                facts, would have arrived at a different conclusion.

            Where there is no dispute that the defendant is negligent
      and both parties’ medical experts agree the accident caused
      some injury to the plaintiff, the jury may not find the
      defendant’s negligence was not a substantial factor in bringing
      about at least some of plaintiff’s injuries. Such a verdict is
      contrary to the weight of the evidence adduced at trial. In other
      words, a jury is entitled to reject any and all evidence up until
      the point at which the verdict is so disproportionate to the
      uncontested evidence as to defy common sense and logic.

Andrews v. Jackson, 800 A.2d 959, 962 (Pa. Super. 2002), appeal denied,

813 A.2d 835 (Pa. 2002) (citations and quotation marks omitted; emphases

in original).

      In the third issue, UPS challenges Coopey’s request “to reverse the

jury verdict and direct judgment [notwithstanding the verdict] on causation


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J-A22040-15



and order a new trial on damages on the issue of her alleged back and neck

injuries.”   (UPS’ Brief, at 42; see id. at 42-47) (footnote and citation

omitted). Coopey claims, in her corresponding first issue, that the trial court

erred in limiting her, at the new trial, to damages related to the injuries

“deemed uncontroverted[,]” specifically, thumb, head, and knee injuries.

(Coopey’s Brief, at 23). She argues that the court “should, instead permit

[her] to prove all her damages, including cervical and lumbar disc

herniations.” (Id.). We disagree.

      The trial court explained:

            This leads the [trial c]ourt to the important question of
      what exactly constitutes uncontroverted evidence.        Unlike
      Andrews[, supra], in this case [UPS] did not call any expert
      medical witnesses, so the circumstance here do not involve
      agreement among both parties’ experts. Instead, [UPS] relied
      upon cross-examination of [Coopey’s] witnesses and vigorous
      argument that the alleged back injuries pre-existed this
      accident, at the same time ignoring the alleged thumb, head,
      and knee injuries.

             Upon review, [the trial c]ourt believes that the holding in
      Andrews[, supra] stand[s] for the principle that agreement
      between medical experts as to the existence of an injury is
      sufficient to constitute uncontroverted evidence, but not
      necessary. In other words, other circumstances may arise that
      present uncontroverted evidence of an injury without agreement
      between parties’ experts.

                                   *    *    *

             In this case, [UPS] called no expert medical witnesses and
      failed to rebut expert medical testimony that [Coopey] suffered
      thumb, head, and knee injuries as a result of the April 13, 2004
      car accident. . . . [T]his is not a case in which the jury was
      entitled to disbelieve [Coopey’s] expert on these particular
      injuries in favor of [UPS’] expert. In this [c]ourt’s view, the

                                       -8-
J-A22040-15


      failure of [UPS] to address the thumb, head, and knee injuries
      makes the evidence uncontroverted. . . . Coopey provided
      unrebutted expert medical testimony rising to the level of
      uncontroverted evidence that she suffered head, [thumb], and
      knee injuries from the automobile accident.

(Trial Ct. Op., at 6-7, 9-10) (emphases and citations omitted). Upon review,

we agree and conclude that the record supports the court’s decision to limit

Coopey to the uncontroverted injuries.        See Andrews, supra at 962.

Accordingly, the third issue does not merit relief.

      In the fourth issue, UPS challenges Coopey’s requested jury charge on

the aggravation of a pre-exiting condition because she “adamantly den[ied]

the existence of any pre-existing injury throughout the course of the trial[.]”

(UPS’ Brief, at 47; see id. at 47-50). Coopey claims, in her corresponding

second issue, that “the [trial] court erroneously failed to charge [the jury]

that [she] could recover if she aggravated a pre-existing condition[.]”

(Coopey’s Brief, at 41). We disagree.

      When an appellate court reviews a challenge to the trial court’s
      refusal to give a specific jury instruction, the court’s role is to
      determine whether the record supports that decision. In fulfilling
      this role, we must keep in mind that a trial court should charge
      on a point of law when there is some factual support in the
      record for the charge. . . .

Meyer v. Union Railroad Co., 865 A.2d 857, 866 (Pa. Super. 2004)

(citations omitted; emphasis in original).

      Here, the record reflects that Coopey consistently denied that she had

any pre-existing injuries. (See N.T. Trial, 4/08/14, at 168, 170, 176, 179-

80, 182-84, 187-89, 204).      Therefore, there is no factual support for her



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J-A22040-15



requested jury instruction and the trial court properly refused to issue the

charge. See Meyer, supra at 866. Accordingly, Coopey is not entitled to

relief on this basis. See Andrews, supra at 962. This issue lacks merit.

       In the fifth issue, UPS challenges Coopey’s attempt to introduce a

photograph originally produced in the middle of trial. (See UPS’ Brief, at 50-

51).   Coopey claims, in her corresponding third issue, that “the trial court

erroneously excluded photographs taken of [her] after her 1993 fall from a

horse.”   (Coopey’s Brief, at 47).   Specifically, she asserts that “[t]he trial

court erred because the discovery request upon which it relied was

overbroad, and the ‘harsh sanction’ of excluding such evidence was not

appropriate in light of the lack of prejudice.” (Id.). We disagree.

             The admissibility of evidence is a matter addressed solely
       to the discretion of the trial court and may be reversed only
       upon a showing that the court abused its discretion. Thus our
       standard of review is very narrow. . . . To constitute reversible
       error, an evidentiary ruling must not only be erroneous, but also
       harmful or prejudicial to the complaining party.

Klein v. Aronchick, 85 A.3d 487, 491 (Pa. Super. 2014), appeal denied,

104 A.3d 5 (Pa. 2014) (quotation marks and citations omitted).

       Here, the record reflects that it is undisputed that UPS requested the

photographs during discovery and Coopey did not produce them.              (See

Coopey’s Brief, at 48-52; UPS’ Brief, at 50-51; N.T. Trial, 4/07/14, at 104-

06).   Instead, Coopey produced the photographs during trial.         (See N.T.

Trial, 4/07/14, at 104-06).      However, counsel did not argue that the

discovery request was improper, but rather stated “[he] had no way of


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J-A22040-15



knowing that they would even be important until [he] now heard the five

days of testimony.”       (Id. at 106; see also Coopey’s Brief, at 48).

Accordingly, the trial court relied on both the fact that the photographs

“were not turned over” and its ruling on Coopey’s motion in limine to

exclude them from trial.     (N.T. Trial, 4/07/14, at 106; see also Order,

3/14/14, at unnumbered page 2 (“All parties will be precluded from using

any documents at trial that were not produced during discovery.”)).

      Therefore, we conclude that the trial court did not abuse its discretion

in precluding the photographs.         See Klein, supra at 491.   Accordingly,

Coopey is not entitled to relief on this basis. See Andrews, supra at 962.

This issue lacks merit.

      In the sixth issue, UPS challenges Coopey’s request for “judgment

notwithstanding the verdict . . . on the issue of her negligence.” (UPS’ Brief,

at 52; see id. at 52-54). Coopey claims, in her corresponding fourth issue,

that “[a]t the retrial, UPS should be precluded from asserting that [she] was

contributorily negligent.” (Coopey’s Brief, at 53). Specifically, she asserts

that “there is no evidence that she drove her vehicle in a negligent manner.”

(Id.). We disagree.

      The trial court explained:

            . . . [T]he jury found that [Coopey] and [UPS] acted negligently,
      thereby making them both liable for causing this accident.

                                   *     *      *

           . . . [T]he jury’s determination that both [] Coopey and [UPS]
      drove negligently is unambiguous and free from doubt. . . .

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J-A22040-15



(Trial Ct. Op., at 10, 12). Upon review, we agree. Coopey testified that she

saw Mr. Ranieli in the UPS truck approach the intersection. (See N.T. Trial,

4/07/14, at 137; N.T. Trial, 4/08/14, at 195-96). She further indicated that

she honked her horn, slowed down, but did not stop.           (See N.T. Trial,

4/07/14, at 137; N.T. Trial, 4/08/14, at 196-97).

      Accordingly, we conclude that the record supports the court’s finding

that the jury’s verdict was not contrary to the evidence.      See Andrews,

supra at 962. This issue does not merit relief.

      In the final issue, UPS claims that the “trial court erred in overturning

[the] jury verdict that the accident caused no injury to Ms. Coopey.” (UPS’

Brief, at 54) (most capitalization omitted). Specifically, UPS argues that the

trial court overstated the evidence presented and relied on inapplicable law.

(See id. at 55-60). We disagree.

      The trial court concluded:

            . . . [T]he [j]ury’s failure to causally relate the negligence
      of [UPS] and the comparative negligence of [] Coopey to the
      [head, thumb, and knee] injuries suffered in the crash goes
      against the weight of the evidence. . . .

                                   *     *      *

            Much of the confusion in this case stems from the [j]ury’s
      finding that both [Coopey] and [Mr. Ranielli] drove negligently,
      but that negligence did not cause any harm, even the
      uncontroverted head, thumb, and knee injuries that resulted
      from the accident. Unfortunately, upon review, Pennsylvania law
      does not permit a jury to make such a finding in this particular
      case.




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J-A22040-15


           Under Pennsylvania case law, in an auto accident case,
     where uncontroverted evidence of any injury that arose from the
     auto accident exists, the jury must find that the negligent party’s
     conduct was a substantial factor in leading to that injury.

                                 *     *      *

            Ultimately, in a case involving a car accident where
     uncontroverted evidence of an injury related to that accident
     occurs, if the jury finds the defendant negligent, the jury must
     also find the negligence to be a substantial factor in causing the
     injury unless the plaintiff’s excessive comparative negligence
     prevents recovery.

                                 *     *      *

     [T]he jury found that [Coopey] and [UPS] acted negligently,
     thereby making them both liable for causing this accident. By
     finding that neither [Coopey] nor [UPS] caused injuries
     uncontestedly resulting from this accident defies logic, shocks
     the conscience of the [trial c]ourt, and is against the weight of
     the evidence.

                                 *     *      *

     The problem in the case at bar arose because the jury failed to
     apportion the degree of negligence in causing the accident
     between [] Coopey and [UPS]. The comparative negligence of
     [Coopey] in this case, which may or may not bar recovery
     entirely, requires the [trial c]ourt to burden a new jury with
     apportioning fault between the two negligent parties prior to
     apportioning any damages.

                                 *     *      *

           Justice requires [the trial c]ourt to find that the jury’s
     determination that both [] Coopey and [Mr. Ranielli] drove
     negligently is unambiguous and free from doubt. Furthermore,
     nothing suggests to [the trial] court that the issues of damages
     and liability are intertwined here. In this case, an automobile
     accident where the [j]ury found [Coopey] and [UPS] negligent
     and where uncontroverted evidence of an injury causally related
     to the accident exists, the [j]ury could not legally determine that


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J-A22040-15


      the negligence was not a substantial factor in bringing about the
      injury. . . .

(Trial Ct. Op., at 3, 6, 10, 12-13) (citations omitted and emphasis in

original). Upon review, we agree and conclude that the record supports the

court’s finding that the jury’s verdict was contrary to the evidence.     See

Andrews, supra at 962. Accordingly, this issue does not merit relief.

      Judgment vacated.    Order affirmed.   Case remanded for a new trial

limited to apportioning degree of liability between Coopey and UPS, and

assessing damages, if any, for the undisputed thumb, head, and knee

injuries that Coopey suffered in the April 13, 2004 car accident. Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/30/2015




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