J-A28010-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOSETTE BOHANNON                                IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellant

                    v.

JAMES M. QUAN AND QUAN’S
CONSTRUCTION

                         Appellees                   No. 344 EDA 2015


              Appeal from the Judgment Entered April 10, 2015
            In the Court of Common Pleas of Philadelphia County
              Civil Division at No(s): 00721 March Term, 2013


BEFORE: GANTMAN, P.J., PANELLA, J., and SHOGAN, J.

MEMORANDUM BY GANTMAN, P.J.:                    FILED DECEMBER 11, 2015

      Appellant, Josette Bohannon, appeals from the judgment entered in

the Philadelphia County Court of Common Pleas in favor of Appellees, James

M. Quan and Quan’s Construction, in this personal injury action. We affirm.

      On March 30, 2011, Appellee’s truck struck Appellant’s van in a motor

vehicle accident. Appellant filed a complaint for damages on March 6, 2013,

claiming she suffered severe injuries to her neck and back as a result of the

accident. Appellee admitted full responsibility for the accident, so negligence

was not a question at trial. On July 25, 2014, Appellant filed a motion in

limine to preclude Appellee from introducing at trial evidence of Appellant’s

pre-existing health conditions.      Appellant claimed in her motion that

evidence of her pre-existing health conditions was irrelevant and unfairly
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prejudicial to her case. Appellant had an existing diagnosis of endometriosis

and interstitial cystitis, which caused her to take 360 milligrams daily of

Oxycodone to treat her conditions. The court heard oral arguments on the

motion in limine prior to the start of trial on October 27, 2014. At that time,

the court denied Appellant’s motion on the merits, stating evidence of

Appellant’s pre-existing conditions and the medication she took was relevant

to damages. The case then proceeded to a jury trial. Following trial, the

jury rendered a verdict in favor of Appellee on October 28, 2014.

       Appellant timely filed a motion for post-trial relief on November 5,

2014, in which she sought a new trial or, in the alternative, judgment

notwithstanding the verdict (“JNOV”) and a trial on damages.        The court

denied Appellant’s motion on January 21, 2015. Appellant filed a notice of

appeal on January 23, 2015.1 The court did not order a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant

____________________________________________


1
  A final judgment entered during the pendency of an appeal is sufficient to
perfect appellate jurisdiction. Drum v. Shaull Equipment and Supply,
Co., 787 A.2d 1050 (Pa.Super. 2001), appeal denied, 569 Pa. 693, 803 A.2d
735 (2002). Here, the court denied Appellant’s post-trial motion by order
entered (with Rule 236 notice ) on January 21, 2015. Appellant filed her
notice of appeal on January 23, 2015, prior to entry of a final judgment. At
this Court’s direction, Appellant filed a praecipe to enter final judgment,
which was entered on April 10, 2015. Although Appellant’s notice of appeal
was actually premature when filed, it related forward to April 10, 2015, the
date final judgment was entered. See Pa.R.A.P. 905(a) (stating notice of
appeal filed after court’s determination but before entry of appealable order
shall be treated as filed after such entry and on day of entry). Hence, there
are no jurisdictional impediments to our review.



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filed none.

      Appellant raises the following issues for our review:

         WHETHER THE TRIAL COURT ERRED IN DENYING
         APPELLANT’S MOTION FOR POST-TRIAL RELIEF?

         WHETHER EVIDENCE OF APPELLANT’S PRIOR UNRELATED
         INJURIES AND NARCOTIC USE WAS IRRELEVANT AND
         UNFAIRLY PREJUDICIAL AND MISLED THE JURY?

         WHETHER APPELLANT IS ENTITLED TO [JNOV] AND A
         TRIAL ON DAMAGES?

(Appellant’s Brief at 5).

      In her issues combined, Appellant argues her prior injuries and

narcotic pain medication use are unrelated to the injuries she suffered in the

car accident. Appellant asserts she did not intend to introduce evidence of

her prior pain medication use associated with her pre-accident health

conditions of endometriosis and interstitial cystitis.    Appellant contends

Appellee introduced evidence of Appellant’s prior injuries and heavy

medication usage merely to harm Appellant’s case.             Appellant avers

evidence of these injuries and medication usage was unduly prejudicial and

should have been excluded under Pa.R.E. 403.         Appellant maintains she

raised this claim in her pre-trial motion in limine and preserved it for

appellate review. Appellant also asserts Appellee’s defense expert witness

admitted Appellant’s heavy narcotics usage made her more susceptible to

pain from new injuries.     Appellant claims the defense expert’s testimony

irrefutably supported her own argument that she was an “eggshell skull”


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plaintiff and Appellee was responsible for even the unforeseeable damage he

caused her.     Appellant avers she was entitled to JNOV, because no

reasonable jury could have found in favor of Appellee. Appellant concludes

the trial court erred when it denied her request for a new trial without this

evidence or, in the alternative, enter JNOV in her favor, with a new trial on

damages. We disagree.

     Initially, “[T]o preserve an issue for appellate review, a party must

make a timely and specific objection at the appropriate stage of the

proceedings…”   Thompson v. Thompson, 963 A.2d 474, 475 (Pa.Super.

2008). Significantly:

        In this jurisdiction…one         must object to         errors,
        improprieties or irregularities at the earliest possible stage
        of the adjudicatory process to afford the jurist hearing the
        case the first occasion to remedy the wrong and possibly
        avoid an unnecessary appeal to complain of the matter.

Id. at 476. See generally Pa.R.A.P. 302 (providing: “Issues not raised in

the lower court are waived and cannot be raised for the first time on

appeal”).

        Issue preservation and presentation requirements are
        enforced in our system of justice for principled reasons, …,
        as they facilitate the open, deliberate, and consistent
        application of governing substantive legal principles from
        the foundation of a case through its conclusion on
        appellate review. Loose shifting of positions after the entry
        of judgments by those challenging them disrupts the
        stability and predictability of the process, fostering the
        potential for unfairness. As well, there are substantial
        interests at stake on both sides of medical malpractice
        actions.


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           Moreover, the professional handling of civil actions is
           essential to the administration of justice. … Similarly, we
           would be remiss to disregard requirements of issue
           preservation and presentation to alleviate consequences
           which may flow from attorneys’ failure to remain abreast
           of the areas of law in which they practice.

Anderson v. McAfoos, 618 Pa. 478, 492-93, 57 A.3d 1141, 1149-50

(2012).

      Rule 103 addresses waiver of issues raised in pre-trial motions as

follows:

           Rule 103. Rulings on Evidence

           (a)       Preserving a Claim of Error. A party may claim
           error in a ruling to admit or exclude evidence only:

            (1)    if the ruling admits evidence, a party, on the
                   record:

             (A) makes a timely objection, motion to strike, or
             motion in limine; and

             (B) states the specific         ground,   unless   it   was
             apparent from the context

                                   *     *     *

           (b)      Not Needing to Renew an Objection or Offer
           of Proof. Once the court rules definitively on the record—
           either before or at trial—a party need not renew an
           objection or offer of proof to preserve a claim of error for
           appeal.

Pa.R.E. 103.      “A motion in limine may preserve an objection for appeal

without any need to renew the objection at trial, but only if the trial court

clearly and definitively rules on the motion.” Blumer v. Ford Motor Co.,

20 A.3d 1222, 1232 (Pa.Super. 2011), appeal denied, 616 Pa. 649, 49 A.3d

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441 (2012).

     “[A] court’s decision to grant or deny a motion in limine is subject to

an evidentiary abuse of discretion standard of review.” Commonwealth v.

Reese, 31 A.3d 708, 715 (Pa.Super. 2011) (en banc). Likewise, “[W]hether

evidence is admissible is a determination that rests within the sound

discretion of the trial court and will not be reversed on appeal absent a

showing that the court clearly abused its discretion.” Fisher v. Central Cab

Co., 945 A.2d 215, 218 (Pa.Super. 2008).

        The term discretion imports the exercise of judgment,
        wisdom and skill so as to reach a dispassionate conclusion,
        within the framework of the law, and is not exercised for
        the purpose of giving effect to the will of the judge.
        Discretion must be exercised on the foundation of reason,
        as opposed to prejudice, personal motivations, caprice or
        arbitrary actions. Discretion is abused when the course
        pursued represents not merely an error of judgment, but
        where the judgment is manifestly unreasonable or where
        the law is not applied or where the record shows that the
        action is a result of partiality, prejudice, bias or ill will.

Schmalz v. Manufacturers & Traders Trust Co., 67 A.3d 800, 802-03

(Pa.Super. 2013).

        Where the discretion exercised by the trial court is
        challenged on appeal, the party bringing the challenge
        bears a heavy burden.

           When the court has come to a conclusion by the
           exercise of its discretion, the party complaining of it
           on appeal has a heavy burden; it is not sufficient to
           persuade the appellate court that it might have
           reached a different conclusion if, in the first place,
           charged with the duty imposed on the court below; it
           is necessary to go further and show an abuse of the
           discretionary power. …

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                                 *    *    *

         We emphasize that an abuse of discretion may not be
         found merely because the appellate court might have
         reached a different conclusion, but requires a showing of
         manifest unreasonableness….

Paden v. Baker Concrete Const., Inc., 540 Pa. 409, 412, 658 A.2d 341,

343 (1995) (internal citations and quotation marks omitted). “[A] trial court

has broad discretion with regard to the admissibility of evidence, and is not

required to exclude all evidence that may be detrimental to a party’s case.”

Schuenemann v. Dreemz, LLC 34 A.3d 94, 102 (Pa.Super. 2011).              “To

constitute reversible error, an evidentiary ruling must not only be erroneous,

but also harmful or [unduly] prejudicial to the complaining party.” Ettinger

v. Triangle-Pacific Corp., 799 A.2d 95, 110 (Pa.Super. 2002), appeal

denied, 572 Pa. 742, 815 A.2d 1042 (2003).       As to questions of law that

arise in the context of evidentiary admissibility, however, our standard of

review is de novo and our scope of review is plenary. Weaver v. Lancaster

Newspapers, Inc., 592 Pa. 458, 465, 926 A.2d 899, 903 (2007).

      Relevant evidence is evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the

action more or less probable than it would be without the evidence. Pa.R.E.

401. Generally, all relevant evidence is admissible. Pa.R.E. 402. Evidence

that might otherwise be relevant to an issue in a particular case, however,

can still be incompetent and inadmissible because one or more established


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rules of evidence preclude its admission. Id. See also Commonwealth v.

Paddy, 569 Pa. 47, 70-71, 800 A.2d 294, 308 (2002) (stating: “Evidence

that is relevant may nevertheless be inadmissible if it violates a rule of

competency, such as the hearsay rule”).        An example of a proposed

admission violating a rule of competency is found in Rule 403, which limits

the admission of relevant evidence in the following manner:

        Rule 403.    Excluding   Relevant   Evidence   for
             Prejudice, Confusion, Waste of Time, or Other
             Reasons

        The court may exclude relevant evidence if its probative
        value is outweighed by a danger of one or more of the
        following: unfair prejudice, confusing the issues,
        misleading the jury, undue delay, wasting time, or
        needlessly presenting cumulative evidence.

        Comment: Pa.R.E. 403 differs from F.R.E. 403. The
        Federal Rule provides that relevant evidence may be
        excluded if its probative value is “substantially
        outweighed.”        Pa.R.E. 403 eliminates the word
        “substantially” to conform the text of the rule more closely
        to Pennsylvania law. See Commonwealth v. Boyle, 498
        Pa. 486, 447 A.2d 250 (1982).

        “Unfair prejudice” means a tendency to suggest decision
        on an improper basis or to divert the jury's attention away
        from its duty of weighing the evidence impartially.

Pa.R.E. 403. In this balancing test of probative value and undue prejudicial

effect, the question is whether the provocative or potentially misleading

nature of the challenged evidence outweighs its probative value. Mahan v.

Am-Gard, Inc., 841 A.2d 1052, 1057 (Pa.Super. 2003), appeal denied, 579

Pa. 712, 858 A.2d 110 (2004).        Generally, for purposes of this test,


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“prejudice means an undue tendency to suggest a decision on an improper

basis.      The erroneous admission of harmful or prejudicial evidence

constitutes reversible error.”    Braun v. Target Corp., 983 A.2d 752, 760

(Pa.Super. 2009), appeal denied, 604 Pa. 701, 987 A.2d 158 (2009). See

also Smith v. Morrison, 47 A.3d 131, 137 (Pa.Super. 2012), appeal

denied, 618 Pa. 690, 57 A.3d 71 (2012) (reiterating: “Unfair prejudice

supporting exclusion of relevant evidence means a tendency to suggest

decision on an improper basis or divert the jury’s attention away from its

duty of weighing the evidence impartially”).

         Our standard of review of a trial court’s denial of a motion for JNOV is

as follows:

            Whether, when reading the record in the light most
            favorable to the verdict winner and granting that party
            every favorable inference therefrom, there was sufficient
            competent evidence to sustain the verdict. Questions of
            credibility and conflicts in the evidence are for the trial
            court to resolve and the reviewing court should not
            reweigh the evidence. Absent an abuse of discretion, the
            trial court’s determination will not be disturbed.

Holt v. Navarro, 932 A.2d 915, 919 (Pa.Super. 2007), appeal denied, 597

Pa. 717, 951 A.2d 1164 (2008). Furthermore:

            A JNOV can be entered upon two bases: (1) where the
            movant is entitled to judgment as a matter of law; and/or,
            (2) the evidence was such that no two reasonable minds
            could disagree that the verdict should have been rendered
            for the movant. When reviewing a trial court’s denial of a
            motion for JNOV, we must consider all of the evidence
            admitted to decide if there was sufficient competent
            evidence to sustain the verdict….         Concerning any
            questions of law, our scope of review is plenary.

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        Concerning questions of credibility and weight accorded
        the evidence at trial, we will not substitute our judgment
        for that of the finder of fact…. A JNOV should be entered
        only in a clear case.

Braun, supra at 759.

     When considering a challenge to denial of a new trial:

        Our review of the trial court’s denial of a new trial is
        limited to determining whether the trial court acted
        capriciously, abused its discretion, or committed an error
        of law that controlled the outcome of the case. In making
        this determination, we must consider whether, viewing the
        evidence in the light most favorable to the verdict winner,
        a new trial would produce a different verdict.
        Consequently, if there is any support in the record for the
        trial court’s decision to deny a new trial, that decision must
        be affirmed.

J.W.S. Delavau, Inc. v. Eastern America Transport & Warehousing,

Inc., 810 A.2d 672, 680 (Pa.Super. 2002), appeal denied, 573 Pa. 704, 827

A.2d 430 (2003).     A new trial is granted only where the verdict is so

contrary to the evidence as to shock one’s sense of justice, not where the

evidence is conflicting or where the court might have reached a different

conclusion on the same facts. Lombardo v. DeLeon, 828 A.2d 372, 374

(Pa.Super. 2003), appeal denied, 579 Pa. 704, 857 A.2d 679 (2004).

     In the instant case, Appellant objected to the introduction at trial of

her pre-existing conditions and narcotic pain medication use in her pre-trial

motion in limine.   The trial court definitively denied the motion on the

merits. At trial, Appellee introduced evidence about Appellant’s pre-existing

health conditions, and Appellant did not object. Evidentiary Rule 103(b) did


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not require Appellant to re-raise the issue at trial to preserve it for appeal,

once the court had definitively ruled on her pre-trial motion. See Blumer,

supra; Thompson, supra. Thus, the trial court erred in finding Appellant

had waived her evidentiary claim for purposes of appeal. Instead, Appellant

properly preserved the issue for appellate review.

      With respect to the merits of the issue concerning the admission at

trial of Appellant’s prior health conditions and medication use, the court

reasoned as follows:

         The evidence of Appellant’s prior medication use, although
         prejudicial, was not unfairly prejudicial.      Appellant’s
         condition immediately preceding the accident in question
         was that she was taking large amounts of narcotic pain
         medication for constant daily pain to her abdomen and
         pelvis which rendered her totally unable to work for more
         than a decade and limited certain daily activities.
         Appellant’s medical records, as well as her own testimony,
         show that she was taking on average 360 mgs of
         Oxycodone per day in the days, weeks, and months before
         the accident, and that the dosages remained unchanged
         after the accident. This testimony is critical, and it is
         unrebutted. If the jury were only permitted to hear that
         Appellant was taking roughly 360 mgs of pain medication
         post-accident, without knowing that she was already
         taking the same amount pre-accident for a chronic
         condition, the jury could reach the improper conclusion
         that Appellant was taking said medication due solely to her
         alleged spinal injury caused by the accident, when in fact,
         she was already taking the same dosages previously.
         Surely, such testimony would be misleading at best and
         disingenuous at worst. In other words, Appellant’s use of
         pain medication was relevant to show that she was indeed
         pr[e]scribed the same amount of medication both before
         and after the accident and that her current medication
         usage was ongoing rather than a result of the underlying
         accident. This information would allow the jury to focus on
         the medical testimony regarding Appellant’s alleged

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         injuries and other relevant factors as the basis for its
         decision rather than simply drawing an improper inference
         that the accident solely caused Appellant’s present use of
         pain medication.

         With this legal framework in mind, the admission of
         Appellant’s prior medication use was not unfairly
         prejudicial insofar as it was relevant to Appellant’s
         condition both prior to and following the accident.

(Trial Court Opinion, filed 4/10/15, at 6-7). We agree. The introduction of

this evidence concerning Appellant’s prior health conditions and narcotic pain

medication use was not so prejudicial to Appellant’s case that it would

warrant exclusion and, therefore, a new trial.    Appellant’s contention that

she is an “eggshell skull” plaintiff does not mean Appellee must pay for pre-

accident conditions. Accordingly, Appellee was entitled to introduce at trial

evidence of Appellant’s prior ailments and use of pain medications for the

purpose stated. See Smith, supra; Braun, supra; Mahan, supra. Due to

this disposition, we conclude the trial court properly denied Appellant’s post-

verdict request for a new trial without this evidence. See J.W.S. Delavau,

Inc., supra.

      With respect to Appellant’s challenge to the denial of JNOV, the court

reasoned:

         Under Rule 227.1(b), post-trial relief may not be granted
         unless the basis for such relief was raised at trial by some
         appropriate method, and the post-trial motion expressly
         identifies “how the grounds were asserted in pre-trial
         proceedings or at trial.”




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        In the case sub judice, Appellant’s counsel waived his right
        to move for [JNOV] when he failed to move for a directed
        verdict or object to the verdict at the close of trial.

                                 *     *      *

        In the case at bar, Appellant importunes this [c]ourt to
        grant the Motion for [JNOV] because evidence of
        Appellant’s previous chronic pain and medication use was
        highly prejudicial. This [c]ourt need not further explicate
        its unabashed rejection of Appellant’s Motion for Post-Trial
        Relief and subsequent brief because, after a meticulous
        reading of Appellant’s motion and supporting documents,
        this [c]ourt finds absolutely no evidence that the issues
        Appellant’s counsel presents in his Motion were preserved
        at trial.

(Trial Court Opinion at 4-5) (internal citations omitted). We agree Appellant

waived her JNOV claim. Here, Appellant made no request for a binding jury

charge or a directed verdict at the appropriate time at trial’s end; and her

belated request for JNOV in post-verdict motions was untimely. Thus, the

court properly refused to grant Appellant’s request for JNOV and a new trial

on damages.     See Haan v. Wells, 103 A.3d 60, 67 (Pa.Super. 2014)

(explaining to preserve right to request JNOV post-trial, party must first

request binding charge to jury or move for directed verdict at trial).

Accordingly, we affirm.

     Judgment affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/11/2015




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