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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    GEMMA PIERCHALSKI AND JOSEPH               :   IN THE SUPERIOR COURT OF
    B. ABRAHAM                                 :        PENNSYLVANIA
                                               :
                       Appellants              :
                                               :
                                               :
                v.                             :
                                               :
                                               :   No. 672 WDA 2019
    EDWARD THOMAS                              :

               Appeal from the Judgment Entered April 4, 2019
      In the Court of Common Pleas of Allegheny County Civil Division at
                           No(s): GD-14-008993


BEFORE: SHOGAN, J., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SHOGAN, J.:                                 FILED MAY 26, 2020

        Gemma Pierchalski (“Pierchalski”) and Joseph B. Abraham (“Abraham”)

(collectively, “Appellants”) appeal from the April 4, 2019 order entering

judgment in their favor, following a jury trial. After careful review, we affirm.

        This appeal stems from a rear-end collision that occurred in June of

2012.     Appellants filed the underlying action against Edward Thomas

(“Appellee”) seeking economic and non-economic damages due to injuries

Pierchalski suffered in the accident. The jury trial lasted seven days.1 During


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1 We note that although it appears the trial began on September 20, 2018,
and continued on September 21, 2018, the notes of testimony for those days
are not included in the certified record. This Court attempted to locate a copy
of the transcripts, but we were unsuccessful. We also found that while
Appellee included the deposition testimony of both Appellants’ and Appellee’s
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the course of the trial, Pierchalski testified regarding the accident and alleged

injuries. N.T., 9/24/18-9/25/18; 9/27/18. They also presented the testimony

of a forensic economist, Matthew Hanak; her husband, Abraham, and the

video deposition testimony of their medical expert, Dr. Daniel T. Altman.

Appellee testified on his own behalf and presented the video deposition of his

medical expert, Dr. Howard Senter.             While Appellee admitted fault for the

accident, N.T. 9/27/18, at 665, he argued that Pierchalski’s pain and injuries

were not caused by the 2012 accident but rather, were caused by any number

of prior and subsequent car accidents in which Pierchalski had been involved.

N.T., 9/28/18, at 757-759. Following the trial, the jury returned a verdict in

favor of Appellants for $1,455.99 in economic losses. Id. at 828-829. The

jury found that Appellee’s negligence was the factual cause of Pierchalski’s

injuries but failed to award any compensation for past medical expenses, past

and future pain and suffering, or loss of consortium. Verdict Slip, 9/28/18.

       Appellants filed post-trial motions containing 271 paragraphs and

alleging multiple errors on the part of the trial court. Plaintiffs’ Motions for

Post Trial Relief Pursuant to Pa.R.C.P. 227.1, 10/9/18.              The trial court



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experts in his supplemental certified record, the same were not included in
the certified record. This Court was able to locate those documents, and they
were added to the certified record on April 17, 2020. It is an appellant’s duty
to ensure that the certified record is complete. Brandon v. Ryder Truck
Rental, Inc., 34 A.3d 104 n.1 (Pa. Super. 2011). Although we could find
waiver, neither party cites to or relies upon any testimony from the missing
days’ transcripts, so we proceed with our review.

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scheduled argument on Appellants’ post-trial motions for December 4, 2018.

On October 26, 2018, Appellee filed a motion to quash Appellants’ post-trial

motions for failing to comply with Local Rule 227.1(b) of the Allegheny County

Rules of Civil Procedure. The trial court ultimately denied Appellee’s motion

to quash and following argument and consideration of the briefs, the trial court

denied Appellants’ post-trial motions on December 10, 2018.              Order,

12/10/18.

        Appellants sent the trial court correspondence, informing the court that

they were expecting an opinion in the instant case.        Trial Court Opinion,

6/21/19, at 3. In response, the trial court noted that as of March 14, 2019,

neither party had filed a praecipe to enter judgment. Id. In April of 2019,

Appellee sought to have the docket marked satisfied and discontinued. Motion

to Have Docket Marked as Satisfied and Discontinued, 4/4/19. Appellants filed

a motion in opposition.     On April 4, 2019, Judge Alan Hertzberg entered

judgment on the September 2018 jury verdict and ruled that Appellants had

forfeited their right to appeal from the denial of their post-trial motions

because they failed to appeal within thirty days of the denial of those motions.

Order, 4/4/19.     Both Appellant and the trial court complied with Pa.R.A.P.

1925.

        Appellants present the following questions for our review:

        1.    Should a new trial be ordered on the ground that the jury’s
        verdict is inadequate when the jury awarded economic damages
        that were lost as the result of pain yet failed to award non-
        economic damages for pain and suffering?

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      2.    Should a new trial be ordered on the grounds that the [t]rial
      [c]ourt permitted the introduction of prejudicial evidence of prior
      and subsequent accidents with injuries that were unrelated to the
      accident at issue?

      3.     Should a new trial be ordered on the grounds that the [t]rial
      [c]ourt permitted Appellee to introduce evidence of prior
      inconsistent statements that were withheld from Appellants in
      violation of a discovery order and used in ambush at trial?

      4.     Can a trial court deny [Appellants’] right to file an appeal
      with the Superior Court of Pennsylvania for not filing a notice of
      appeal without thirty days of denial of post[-]trial motions when
      neither party has moved for a judgment to be entered on to the
      trial court docket?

Appellants’ Brief at 8-9.

      Although Appellants present the waiver issue as their final issue, we will

address it before we reach the merits of the appeal. In that issue, Appellants

aver that the trial court erred when it held that they waived their appeal by

failing to file their notice of appeal within thirty days of the order denying their

post-trial motions.   Appellants’ Brief at 34.    In support of their argument,

Appellants posit that because they filed their notice of appeal within thirty

days of the entry of judgment, the court erred when it found they waived their

right to appeal the denial of their post-trial motions. Id. Appellee argues that

the trial court did not err because pursuant to Pa.R.A.P. 903, a notice of appeal

should be filed within thirty days after the entry of the order from which the

appeal is taken.    Appellee’s Brief at 27.    Appellee notes that the entry of

judgment is a “precondition” to the appeal, but argues that Appellants should




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have entered judgment against him, and their failure to do so rendered their

appeal untimely. Id. at 28.

      In Johnston the Florist v. Tedco Construction Co., 657 A.2d 511,

514 (Pa. Super. 1995) (en banc), this Court noted that an appeal from an

order denying post-trial motions is interlocutory. We further found that an

appeal to this Court can only lie “from judgments entered subsequent to the

trial court disposition of any post-verdict motions, not from the order denying

post-trial motions.” Id. See also Drum v. Shaull Equipment and Supply

Co., 760 A.2d 5, 8 n.1 (Pa. Super. 2000) (finding that although this Court did

not have jurisdiction to hear an interlocutory appeal from the denial of a post-

trial motion where judgment has not been entered, this Court may hear the

appeal where final judgment was entered during the pendency of the appeal).

In the instant case, judgment was entered on April 4, 2019. Order, 4/4/19.

Appellants filed their notice of appeal on May 1, 2019, from the order entering

judgment. Appellants’ Notice of Appeal to the Superior Court, 5/1/19, at 2.

Thus, Appellants have appealed from entry of judgment and not the denial of

the post-trial motions; thus, we will reach the merits of the appeal.

      Turning to Appellant’s first issue on appeal, Appellants aver that the trial

court should have awarded them a new trial because the jury’s award is

contrary to the weight of the evidence. Appellants’ Brief at 16. Appellants

argue that because the jury was presented with “uncontroverted evidence of

pain and suffering[, it] must award non-economic damages for the same,” and


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the failure to do so is “contrary to the weight of the evidence.”            Id.

Specifically, Appellants aver that there was no dispute that Pierchalski

“suffered pain.” Id. Moreover, Appellants aver that Pierchalski testified that

she could not work because of her pain, she ultimately sold her dental practice,

and that the “jury was provided no other explanation as to why [Pierchalski]

could not work for this period.... [A]s such, the trial court did not have a

reasonably (sic) basis to conclude that the jury did not believe that

[Pierchalski] suffered any pain.” Id. at 17.

      In response, Appellee posits that the injuries suffered by Pierchalski

were minor and were non-compensable. Appellee’s Brief at 6.             Appellee

argues that the jury believed that Pierchalski’s injuries were insignificant

because she testified that she was able to exit the car immediately after the

accident, and she did not go to the hospital after the accident but rather,

followed up with her primary care physician complaining of bruising on her

hands and knees. Appellee’s Brief at 9 (citing N.T. 9/24/18, at 330, 331;

Deposition Transcript of Dr. Daniel Altman, 9/24/18, at 23 (Dr. Altman’s

videotaped deposition was played for the jury during the trial, N.T., 9/26/18,

at 601); Deposition Transcript of Dr. Howard Senter, 8/14/18, at 12, (Dr.

Senter’s videotaped deposition was played for the jury during the trial, N.T.,

9/27/18, at 683) Moreover, Appellee points out that there was no clinical or

radiographic evidence showing Pierchalski was injured as a result of the

accident. Appellee’s Brief at 9. (citing Senter deposition, 8/14/18, at 38, 119).


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Finally, Appellee notes that Appellants’ expert examined Pierchalski a few

months after the accident and “found only stiffness in Pierchalski’s neck and

no objective evidence of traumatic injury.”     Id. (citing Altman deposition,

9/24/18, at 26).

     When reviewing the denial of a motion for a new trial, our standard of

review is well established.

            The Superior Court’s standard for reviewing the trial court’s
      denial of a motion for a new trial is whether the trial court clearly
      and palpably abused its discretion or committed an error of law
      which affected the outcome of the case. Melso v. Sun Pipe Line
      Co., 394 Pa.Super. 578, 576 A.2d 999 (1990), appeal denied, 527
      Pa. 667, 593 A.2d 842 (1991); Cooper v. Burns, 376 Pa.Super.
      276, 545 A.2d 935 (1988), appeal denied, 522 Pa. 619, 563 A.2d
      888 (1989). We will reverse the trial court’s denial of a new trial
      only where there is a clear abuse of discretion or an error of law
      which controlled the outcome of the case. Vignoli v. Standard
      Motor Freight, Inc., 418 Pa. 214, 210 A.2d 271 (1965);
      Cashdollar v. Mercy Hospital of Pittsburgh, 406 Pa.Super.
      606, 595 A.2d 70 (1991). The trial court abuses its discretion
      when it misapplies the law or when it reaches a manifestly
      unreasonable, biased or prejudiced result. Girard Trust Bank v.
      Remick, 215 Pa.Super. 375, 258 A.2d 882 (1969). Abuse of
      discretion may occur through an honest, but erroneous use of
      discretion. Pachesky v. Getz, 353 Pa.Super. 505, 509, 510 A.2d
      776, 778 (1986); Adelman v. John McShain, Inc.,148
      Pa.Super. 138, 24 A.2d 703 (1942). A new trial may not be
      granted merely because the evidence conflicts and the jury could
      have decided for either party. Hilbert v. Katz, 309 Pa.Super.
      466, 471, 455 A.2d 704, 706 (1983) (citations omitted). The
      grant of a new trial is appropriate, however, where the jury verdict
      may have been based on improperly admitted evidence. Wilkes–
      Barre Iron & Wire Works, Inc. v. Pargas of Wilkes–Barre,
      Inc. v. Caladie, 348 Pa.Super. 285, 294, 502 A.2d 210, 215
      (1985) (citations omitted).

Coughlin v. Massaquoi, 138 A.3d 638, 642-643 (Pa. Super. 2016) (quoting

Whyte v. Robinson, 617 A.2d 380, 382 (Pa. Super. 1992)). We note that it

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is well established that “generally the determination of whether the pain is

severe enough to be compensable is left to the jury.” Van Kirk v. O’Toole,

857 A.2d 183, 186 (Pa. Super. 2004). In this case, the jury heard extensive

testimony regarding Pierchalski’s subjective complaints of pain. See, e.g.,

N.T., 9/24/18, at 280-294. During trial, Appellee’s expert testified that he did

not observe any objective evidence of injury and noted that Pierchalski had

been complaining of neck pain and numbness in her arms/hands for years

prior to the accident.     Senter Deposition, 8/14/18, at 15-20 (reviewing

Pierchalski’s medical history and noting Pierchalski had complained of neck

pain, thoracic pain, low back pain, and chronic soft tissue cervical and lumbar

symptoms since 2003).         Further, during cross examination, Pierchalski

repeatedly testified that she had suffered neck and similar injuries in prior and

subsequent falls and accidents. N.T., 9/25/18, at 415, 430, 439.

      In its opinion, the trial court noted the verdict in this case did not “shock

[the] court’s [conscience]” given the lack of objective proof of injury. Trial

Court Opinion, 7/21/19, at 6. See Davis v. Mullen, 773 A.2d 764, 767 (Pa.

2001) (“A jury’s award of medical expenses without compensation for pain

and suffering should not be disturbed where the trial court had a reasonable

basis to believe that: (1) the jury did not believe the plaintiff suffered any pain

and suffering or (2) that a preexisting condition or injury was the sole cause

of the alleged pain and suffering.”); Van Kirk, 857 A.2d at 186 (finding that

where claim of injury was based on subjective complaints, it would be


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reasonable for a jury to award zero damages for pain). Given all of the above,

the trial court did not abuse its discretion when it denied Appellants’ motion

for a new trial because the jury’s verdict was not against the weight of the

evidence.

      In their second issue, Appellants aver that the trial court erred when it

admitted evidence of subsequent and prior accidents in which Pierchalski had

been involved because that evidence was unfairly prejudicial. Appellants’ Brief

at 28. A trial court’s decision regarding the admissibility of evidence will not

be disturbed absent an abuse of discretion.             Czimmer v. Janssen

Pharmaceuticals, Inc., 122 A.3d 1043, 1058 (Pa. Super. 2015).

      As to subsequent accidents, Appellants argue that the admission of

evidence relating to accidents occurring after the accident with Appellee

caused unfair prejudice and confused the jury by “casting [Pierchalski] as an

individual prone to injuries, a serial litigator or conflating the issue of future

lost wages.” Appellants’ Brief at 29. Appellants admit that while subsequent

motor vehicle accidents may be relevant to future earning capacity, the court

should have found the prejudicial value outweighed the probative value of the

evidence. Id. at 30. In its opinion, the trial court stated “[Pierchalski] was

making damage claims for the rest of her life. This writer was left to determine

whether subsequent injuries to the same areas of [Pierchalski’s] body would

be relevant to a jury’s determination of [Appellee’s] liability for same.” Trial

Court Opinion, 6/19/19, at 9.         The court further noted, it would be


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“disingenuous to allow the jury to determine [Pierchalski’s] present claims of

pain and suffering alleged to have occurred in this incident that ‘overlap’ and

repeat claims made in subsequent (and prior, infra) accidents.” Id. at 10.

We agree and find the trial court did not abuse its discretion when it allowed

evidence regarding the Pierchalski’s subsequent accidents. See McGuire v.

Hamler, 49 A.2d 396 (Pa. 1946) (finding where there are claims of permanent

pain or impairment, subsequent accidents may be relevant evidence).

      As to prior accidents, Appellants again aver that the trial court erred

because their introduction was unfairly prejudicial. Appellants’ Brief at 30.

Appellants argue that the trial court erred because Appellee had conceded

liability in the case and to the extent Pierchalski’s medical history was

relevant, “the admission of numerous accidents as opposed to merely her

medical history caused her unfair prejudice far outweighs the probative value

of the same for Appellee.” Appellants’ Brief at 30-31. The trial court found

that as to Pierchalski, “[T]he prior complaints of pain and injury were identical

to those in which she now sought damages from [Appellee] in the present

case.” Trial Court Opinion, 7/21/19, at 14. Indeed, given the similarity in

prior injuries and those claimed in the instant case and Pierchalski’s claim of

aggravation of a pre-existing injury in her complaint, the trial court did not

abuse its discretion. See Papa v. Pittsburgh Penn–Center Corp., 218 A.2d

783, 789 (Pa. 1966) (observing that, “[t]estimony concerning any prior fall

[i]s not admissible for any purpose unless the injuries from that alleged


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accident could be connected to those claimed in the present suit, so as to raise

the inference of a pre-existing condition.” See also Musselman v. Davison,

41 D. & C. 4th 302, 308 (Bucks Co. 1999) aff’d, 757 A.2d 1004 (Pa. Super.

2000) appeal denied, 795 A.2d 978 (Pa. 2000) (since plaintiff “suffered a

concussion in the 1982 fall” and “had suffered from migraines” following car

accidents in 1980 and 1986,”[t]hese prior falls and accidents would go to

establishing that her migraines and memory loss were prior existing

conditions” before her 1990 fall). Here, the trial court found that precluding

this information would deprive the jury of the facts necessary to determine

whether Appellee was liable for Pierchalski’s injuries.     Trial Court Opinion,

7/21/19, at 9-10. This decision does not constitute an abuse of discretion.

      In support of their third issue, Appellants argue that the trial court erred

when it allowed Appellee to impeach Pierchalski with a prior inconsistent

statement she made during a 2008 deposition when that statement was

withheld and not produced by Appellee during discovery. Appellants’ Brief at

32.   Appellants posit that Appellee’s failure to produce these documents

constitutes a violation of the March 2016 discovery order which required

Appellee to produce “all prior testimony, depositions, recorded statements,

examinations under oath which it has in its possession.” Appellants’ Brief at

33 (citing Order, 3/16/16).

      Although Appellants argue that they objected to the admission of the

evidence used to impeach Pierchalski, Appellants fail to set forth the substance


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of that evidence and fail to cite to the portion of the record where this alleged

error occurred. After a review of the record, it appears that Appellants are

referring to a deposition Pierchalski gave in 2008 in another case in which

Pierchalski was injured in an automobile accident. N.T., 9/24/18, at 341-352.

Although Appellants claim Appellee admitted that he did not produce a copy

of the deposition to Appellants, Appellants do not provide any citation for such

admission as required by the Rules of Appellate Procedure. Pa.R.A.P. 2119(c)

(“If reference is made to the pleadings, evidence, charge, opinion or order, or

any other matter appearing in the record, the argument must set forth, in

immediate connection therewith, or a footnote thereto, a reference to the

place in the record where the matter referred to appears.”). Moreover, given

the lack of citation to the record, it is not clear where Appellee used the

deposition testimony in question to impeach Pierchalski. “Failing to provide

factual background and citation to the record represent serious deviations

from the briefing requirements of the Rules of Appellate Procedure. An issue

not properly briefed in this manner is considered waived, as such an omission

impeded our ability to address the issues on appeal.” Commonwealth v.

Einhorn, 911 A.2d 960, 970 (Pa. Super. 2006) (quoting Commonwealth v.

Miller, 721 A.2d 1121, 1124 (Pa. Super. 1998)). Thus, we find the issue

waived.

      Even if we were to reach the merits, however, we would find Appellants

are not entitled to relief.   Indeed, as the trial court stated, to the extent


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Appellee violated the 2016 discovery order by failing to provide Appellants

with a copy of her own deposition, this error is harmless. In its opinion, the

trial court noted the allowance of this statement, in the face of a “lack of

objective medical evidence and credibility found by the jury cannot be

considered more than harmless error and is rather in fact fanciful, if not

delusional.” Trial Court Opinion, 7/21/19, at 13. We agree. A review of the

copious record makes clear that there was sufficient evidence and testimony

presented upon which the jury could have based its findings.        It is well

established in this Commonwealth that an error is harmless where it does not

affect the verdict. Yacoub v. Lehigh Valley Medical Associates, P.C., 805

A.2d 579, 590 (Pa. Super. 2002) (“[W]e further find that this error did not

affect the verdict and was therefore harmless.”).     See also Knowles v.

Levan, 15 A.3d 504, 508 n.4 (Pa. Super. 2011) (same).

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/26/2020




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