J-A30011-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ALEC AND RICHARD KRAYZEL                          IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellants

                       v.

LAWRENCE J. ROBERTS,
ADMINISTRATOR OF THE ESTATE OF
GORDON A. SPIWAK, DEC’D

                            Appellee                   No. 489 EDA 2014


              Appeal from the Judgment Entered January 28, 2014
              In the Court of Common Pleas of Philadelphia County
               Civil Division at No(s): June Term, 2012, No. 1970

BEFORE: MUNDY, J., JENKINS, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.:                         FILED DECEMBER 22, 2015

        Appellants, Alec and Richard Krayzel,1 appeal from the judgment

entered on January 28, 2014 in favor of Appellee, Lawrence J. Roberts,

Administrator of the Estate of Gordon A. Spiwak, deceased, (Administrator)

following a jury verdict that Administrator was not liable to Appellants. After

careful review, we affirm.

        We set forth the facts and procedural history of this case, as

summarized from the certified record, as follows.       This negligence action

arises out of a motor vehicle accident. On July 21, 2010, a vehicle driven by
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
 As Appellants share a surname, we refer to them individually by their first
names.
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Gordon A. Spiwak (Decedent) negligently rear-ended the vehicle driven by

Richard in which Alec was a passenger.             Administrator admitted that

Decedent was negligent. Each Appellant asserted that he sustained serious

bodily injury from whiplash in the form of soft tissue damage to his back,

neck, and spine as a result of the accident.

       On February 22, 2013, the case proceeded to arbitration.           The

arbitration panel found in favor of the Appellants and awarded each

Appellant $10,000.00 in damages, for a total award of $20,000.00.          On

March 21, 2013, Administrator filed a notice of appeal to the court of

common pleas, demanding a jury trial.            Thereafter, on July 31, 2013,

Appellants stipulated to limit the maximum amount of damages to

$25,000.00, pursuant to Pennsylvania Rule of Civil Procedure 1311.1.

       On September 17, 2013, a two-day jury trial commenced.              On

September 18, 2013, the jury returned a verdict in favor of Administrator.

Specifically, the jury found that the negligence of Decedent was not a factual

cause of injury to either Appellant. On September 30, 2013, Appellants filed

a timely post-trial motion,2 and the trial court denied the motion on

____________________________________________


2
  The tenth day to timely file a post-trial motion fell on Saturday, September
28, 2013. When computing the ten-day filing period “[if] the last day of any
such period shall fall on a Saturday or Sunday … such day shall be omitted
from the computation.” 1 Pa.C.S.A. § 1908. Accordingly, the last day for
Appellants to timely file a post-trial motion was on Monday, September 30,
2013.




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December 31, 2013.         Thereafter, on January 28, 2014, Appellants filed a

praecipe to enter judgment, and judgment was entered in favor of

Administrator. That same day, Appellants filed a timely notice of appeal. 3

       On appeal, Appellants raise the following issues for our review.

              1. Did the trial court err in overruling [Appellants’]
              objection to [Administrator’s] cross-examination of []
              Alec Krayzel regarding a social media statement that
              he expected to recover $1,000,000.00 where: (a)
              the statement obtained from social media was not
              disclosed to [Appellants’] counsel despite an ongoing
              discovery request; (b) the question was knowingly
              misleading as [Appellants] stipulated to limiting
              damages to $25,000.00 under Pa.R.C.P. 1311.1; (c)
              statements with regard to the amount of damages
              demanded are inadmissible, and (d) the statement
              was     otherwise    inadmissible,    irrelevant  and
              prejudicial?

              2. Did the trial court err in limiting presentation of
              [Appellants’] medical reports offered pursuant to
              Pa.R.C.P. 1311.1?

              3. Was the verdict in favor of the defendant, that
              defendant’s negligence was not a factual cause of
              any injury to [Appellants], contrary to the weight of
              the uncontradicted, uncontroverted evidence and the
              result   of   prejudice    and   partiality, entitling
              [Appellants] to a new trial?

              4. Did the trial court err in refusing [Appellants’]
              requested charge on damages as mandated by
              Pa.R.C.P. 223.3 and requested points for charge

____________________________________________


3
  Appellants and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925. The trial court’s Rule 1925(a) opinion adopts the
reasoning expressed in footnote one of its December 31, 2013 order denying
Appellants’ post-trial motion.



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            regarding the nature and compensability of soft
            tissues injuries?

            5. Did the trial court err in refusing [Appellants’]
            requested point for charge that the verdict must bear
            a reasonable relation to the loss suffered as
            demonstrated by uncontroverted evidence per
            Neison v. Hines, 653 A.2d 634, 637 (Pa. 1995)?

            6. Did the trial court err in denying [Appellants’]
            requested instruction that under the facts of the
            case, the jury must find defendant’s negligence was
            a factual cause of harm to [Appellants]?

Appellants’ Brief at 6-8.

      All of Appellants’ issues in their post-trial motion sought to obtain a

new trial. We begin by noting our standard of review.

            In reviewing a trial court’s denial of a motion for a
            new trial, the standard of review for an appellate
            court is as follows:

                         [I]t is well-established law that, absent a
                  clear abuse of discretion by the trial court,
                  appellate courts must not interfere with the
                  trial court’s authority to grant or deny a new
                  trial.

                                     *     *   *

                         Thus, when analyzing a decision by a
                  trial court to grant or deny a new trial, the
                  proper standard of review, ultimately, is
                  whether the trial court abused its discretion.

               Moreover, our review must be tailored to a well-
            settled, two-part analysis:

                        We must review the court’s alleged
                  mistake and determine whether the court erred
                  and, if so, whether the error resulted in
                  prejudice necessitating a new trial.   If the

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                  alleged mistake concerned an error of law, we
                  will scrutinize for legal error.        Once we
                  determine whether an error occurred, we must
                  then determine whether the trial court abused
                  its discretion in ruling on the request for a new
                  trial.

ACE Am. Ins. Co. v. Underwriters at Lloyds and Cos., 939 A.2d 935,

939 (Pa. Super. 2007) (citations omitted), affirmed, 971 A.2d 1121 (Pa.

2009).

      In their first issue on appeal, Appellants argue that the trial court

improperly admitted a statement Alec posted to his public Facebook page.

Appellants’ Brief at 28. In that statement, which Alec posted to Facebook

during jury selection, Alec identified his location as Philadelphia City Hall by

“tagging” himself at that location on Facebook and commented that he was

“becoming a millionaire.”    Administrator’s Brief at 4.     During the cross-

examination of Alec, the trial court permitted Administrator to question Alec

on the statement, over Appellants’ objection.       We review a trial court’s

evidentiary rulings according to the following standard.

            When we review a trial court ruling on admission of
            evidence, we must acknowledge that decisions on
            admissibility are within the sound discretion of the
            trial court and will not be overturned absent an
            abuse of discretion or misapplication of law. An
            abuse of discretion is not merely an error of
            judgment, but if in reaching a conclusion the law is
            overridden or misapplied, or the judgment exercised
            is manifestly unreasonable, or the result of partiality,
            prejudice, bias or ill-will, as shown by the evidence
            or the record, discretion is abused.




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Commonwealth Fin. Sys., Inc. v. Smith, 15 A.3d 492, 496 (Pa. Super.

2011) (citations and internal quotation marks omitted).    Further, “[a] trial

judge has considerable latitude in determining the scope of cross-

examination and his determination will not be reversed in the absence of an

abuse of discretion unless a party suffers obvious disadvantage.” Yacoub v.

Lehigh Valley Med. Assocs., P.C., 805 A.2d 579, 597 (Pa. Super. 2002),

appeal denied, 825 A.2d 639 (Pa. 2003) (internal quotation marks and

citation omitted).

      The trial court explained that it permitted the cross-examination

question for the following reasons.

            This was proper cross-examination under the
            circumstances and went to [Alec’s] state of mind,
            motive, bias and credibility. The Facebook post was
            certainly available to Alec [], the poster, and cross-
            examination of him with his mid-trial post did not
            violate any rule of discovery or evidence.

Trial Court Order, 12/31/13, at 1-2 n.1.

      In admitting this statement, we discern no abuse or error of law.

Specifically, even though Appellants stipulated to a maximum of $25,000.00

of damages, Alec’s Facebook post still was relevant to show Alec’s state of

mind, motive, bias, and credibility.   See Yacoub, supra (stating that a

party may cross-examine to explore credibility or bias that would affect the

testimony of the witness). Its probative value to demonstrate that Alec did

not sustain significant injuries and was attempting to use the litigation to

profit outweighed any prejudice to Appellants. Moreover, the statement was

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J-A30011-15


made by Alec on his Facebook account and was available to him.

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

denying Appellants’ motion for a new trial on these grounds.                  See

Commonwealth Fin. Sys., supra; Yacoub, supra. ACE Am. Ins., supra.

      In their second issue on appeal, Appellants argue that the trial court

improperly limited the presentation of Appellants’ medical reports under

Pennsylvania Rule of Civil Procedure 1311.1.       Appellants’ Brief at 42.    As

noted above, we review a trial court’s admission of evidence for an abuse of

discretion or an error of law. See Commonwealth Fin. Sys., supra. Rule

1311.1 provides the procedure for admitting documents, including expert

reports, at the trial of an appeal from arbitration in which the plaintiff elects

to limit the maximum amount of damages to $25,000.00.

            Rule 1311.1. Procedure on Appeal. Admission
            of Documentary Evidence

            (a) The plaintiff may elect a limit of $25,000.00 as
            the maximum amount of damages recoverable upon
            the trial of an appeal from the award of arbitrators.
            …

            (b) If the plaintiff has filed and served an election as
            provided in subdivision (a), any party may offer at
            trial the documents set forth in Rule 1305(b)(1)[,
            including reports of licensed health care providers
            and expert reports]. The documents offered shall
            be admitted if the party offering them has provided
            written notice to every other party of the intention to
            offer the documents at trial at least twenty days
            from the date the appeal is first listed for trial. …

            (c) A document which is received into evidence
            under subdivision (b) may be used only for those

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J-A30011-15


            purposes which would be permissible if the person
            whose testimony is waived by this rule were
            present and testifying at the hearing. The court shall
            disregard any portion of the document so received
            that would be inadmissible if the person whose
            testimony is waived by this rule were testifying in
            person.

            (d) Any other party may subpoena the person whose
            testimony is waived by this rule to appear at or serve
            upon a party a notice to attend the trial and any
            adverse party may cross-examine the person as to
            the document as if the person were a witness for
            the party offering the document. …

Pa.R.C.P. 1311.1(a)-(d).

      Appellants contend that pursuant to Rule 1311.1, the trial court

abused its discretion by not permitting Appellants to read the entirety of

their expert reports and health care provider report to the jury. Appellants’

Brief at 42. “We, as judges on an appellate court, are mindful that trial

judges have wide discretion in the management and conduct of trial

proceedings.   Thus, we are most careful not to second-guess trial court

judges in the exercise of their discretion to so manage.” In re C.W., 960

A.2d 458, 469 (Pa. Super. 2008) (citation omitted). However, “[w]hen legal

issues such as the interpretation of a rule are concerned, our standard of

review is de novo and our scope of review is plenary. We further note that

the object of all interpretation and construction of rules is to ascertain and

effectuate the intention of the Supreme Court.” Kopytin v. Aschinger, 947

A.2d 739, 744 (Pa. Super. 2008), appeal denied, 964 A.2d 2 (Pa. 2009).




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        Contrary to Appellants’ argument, there is nothing in the plain

language of Rule 1311.1 that requires a trial court to permit a party offering

a document into evidence under Rule 1311.1 to read the entirety of the

document to the jury. Rule 1311.1 merely provides that the document must

be admitted into evidence.        Pa.R.C.P. 1311.1(b).    Here, the trial court

complied with Rule 1311.1 by admitting Appellants’ expert reports into

evidence. Moreover, even though it was under no obligation to do so, the

trial court allowed Appellants to read the highlights of the reports to the

jury.    See N.T., 9/17/13, at 52-68 (presenting to the jury segments of

expert reports and treatment notes describing the various injuries Appellants

sustained in the car accident).      Further, as the trial court explained, the

reports were admitted into evidence in their entirety, and the full reports

were with the jury while it deliberated. Trial Court Order, 12/31/13, at 1-2

n.1. Because the trial court complied with Rule 1311.1, we will not second-

guess the trial court’s discretion in the management and conduct of the jury

trial. See In re C.W., supra. Accordingly, the trial court did not abuse its

discretion or err as a matter of law in denying Appellants’ post-trial motion

for a new trial on this basis, and Appellants’ second issue does not warrant

relief. See ACE Am. Ins., supra.

        In their third issue on appeal, Appellants contend that the verdict of no

liability was against the weight of the evidence. Appellants’ Brief at 46. Our

standard of review of such claims is as follows.


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                  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 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.

            The factfinder is free to believe all, part, or none of
            the evidence and to determine the credibility of the
            witnesses. 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. 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.

Haan v. Wells, 103 A.3d 60, 69-70 (Pa. Super. 2014) (citations and

internal quotation marks omitted; brackets in original).

      Appellants contend that because Administrator conceded negligence

and did not present a factual challenge to the underpinnings of the expert


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reports detailing their injuries, the jury’s verdict of no factual causation is

not supported by the evidence.         Appellants’ Brief at 69.        Appellants

apparently maintain that because the Administrator admitted Decedent was

negligent, the jury had to find that negligence was the factual cause of

Appellants’ injuries.   The trial court, however, explained that the issue of

factual causation was contested and the evidence supported the jury’s

verdict as follows.

            The gist of the dispute involves the verdict of no
            factual cause in the face of uncontradicted medical
            evidence. [Appellants] are correct that the medical
            evidence was not subject to cross-examination and
            there was no defense expert, [but] the issue of
            whether [Appellants] suffered any injuries was hotly
            contested. [Appellants] did not seek any emergency
            care or complain about any injuries at the time of
            the accident.      They engaged in normal physical
            activities shortly after the accident, treated only with
            a chiropractor, never saw an orthopedist or
            neurologist and never underwent any objective
            diagnostic testing. They were also impeached as to
            the extent and duration of their claimed disability
            and injuries. We also note that the demeanor of
            plaintiffs was disinterested and lackadaisical.
            Viewing the evidence in the light most favorable to
            the verdict winner, the jury was entitled to disbelieve
            [Appellants] and find that they suffered no injuries of
            any kind from the rear end collision. Likewise, a jury
            may choose not to credit expert testimony, even if
            uncontradicted.      Clearly, the jury accepted the
            argument of defense counsel, which [was]
            reasonably based in the evidence, or lack thereof,
            and inferences reasonably drawn, that [Appellants]
            suffered no injuries from the accident and that
            neither [Appellants] nor their chiropractor were
            worthy of belief on this score.

Trial Court Order, 12/31/13, at 1-2 n.1 (citation omitted).

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      We conclude that the trial court did not abuse its discretion in

concluding that the verdict was not against the weight of the evidence.

Under our standard of review, we may not reevaluate the underlying

question of whether the evidence was against the weight of the evidence.

See Haan, supra.       Although Administrator conceded that Decedent was

negligent, Administrator never stipulated that his negligence caused the

Appellants’ injuries or that Appellants were injured.         As the plaintiffs,

Appellants had the burden of proof and persuasion on these issues.          We

discern no abuse of discretion in the trial court’s conclusion that Appellants

did not meet their burden, even though they presented the only expert on

the issue of damages. See id. Accordingly, Appellants’ third issue has no

merit and the trial court did not abuse its discretion or commit an error of

law in denying Appellants’ post-trial motion on this basis.      See ACE Am.

Ins., supra.

      We address Appellants’ three remaining issues together as they all

challenge various jury instructions. Appellants’ Brief at 71-72.

            Our standard of review regarding jury instructions is
            limited to determining whether the trial court
            committed a clear abuse of discretion or error of law
            which controlled the outcome of the case. Error in a
            charge occurs when the charge as a whole is
            inadequate or not clear or has a tendency to mislead
            or    confuse    rather    than clarify      a material
            issue. Conversely, a jury instruction will be upheld if
            it accurately reflects the law and is sufficient to guide
            the jury in its deliberations.

                  The proper test is not whether certain portions

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                      or isolated excerpts taken out of context
                      appear erroneous. We look to the charge in its
                      entirety, against the background of the
                      evidence in the particular case, to determine
                      whether or not error was committed and
                      whether that error was prejudicial to the
                      complaining party.

               In other words, there is no right to have any
               particular form of instruction given; it is enough that
               the charge clearly and accurately explains the
               relevant law.

Krepps v. Snyder, 112 A.3d 1246, 1256 (Pa. Super. 2015) (citations and

internal quotation marks omitted). Further, “to obtain a new trial based on

the trial court’s treatment of a jury’s question, the moving party must

demonstrate in what way the trial error caused an incorrect result.” Jeter

v. Owens-Corning Fiberglas Corp., 716 A.2d 633, 636 (Pa. Super. 1998)

(citation omitted).

        In their fourth issue on appeal, Appellants argue that the trial court

erred    in   its   instructions   on   damages.   Appellants’   Brief   at   73-76.

Specifically, Appellants contend that the trial court erred in refusing to

charge the jury regarding the seriousness of soft tissue injuries. Id. at 76.

The jury, however, found Decedent’s negligence was not the factual cause of

Appellants’ injuries and therefore did not reach the issue of damages.

Accordingly, this alleged error did not contribute to the verdict. See Jeter,

supra; Garcia v. Bang, 544 A.2d 509, 511 (Pa. Super. 1988) (noting an

alleged erroneous instruction on damages did not warrant relief because the

jury did not reach the issue of damages). Therefore, the trial court did not

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abuse its discretion or err as a matter of law in refusing to grant a new trial

on this basis. See ACE Am. Ins., supra.

       In their fifth issue, Appellants claim that the trial court erred in failing

to give the jury its requested charge that the verdict “must not be a product

of passion, prejudice, partiality or corruption, and must bear some

reasonable relation to the loss suffered by the plaintiff as demonstrated by

the uncontroverted evidence presented at trial.”         Appellants’ Brief at 77,

quoting Requested Point for Charge No. 32. First, the trial court adequately

instructed the jury that its verdict must conform to the law and the facts and

could not be a product of prejudice. See N.T., 9/18/13, at 26 (directing the

jury that “your function is to reach a fair conclusion from the evidence and

the applicable law[]”); Id. at 28 (instructing “[d]o not allow sympathy of any

kind   or   prejudice   against   any    person   or   group   to   influence   your

deliberations. You should not be influenced by anything other than the law

and the evidence in this case keeping in mind that all parties stand equally

before this [c]ourt and each is entitled to the same fair and impartial

treatment in your hands[]”).      Moreover, as discussed above, the issues of

factual cause and damages were at issue, so the requested instruction,

suggesting that those issues were “uncontroverted,” would have been

misleading.    Therefore, this issue is meritless, and the trial court did not

abuse its discretion or err as a matter of law in refusing to grant a new trial

on this basis. See Krepps, supra; ACE Am. Ins., supra.


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          Similarly, in their sixth issue, Appellants contend that the trial court

erred in refusing to instruct the jury that it must find that Decedent’s

negligence was a factual cause of Appellants’ harm. Appellants’ Brief at 79.

For the reasons discussed above, such an instruction was not appropriate

because the issue of factual causation was in dispute and the jury had to

resolve the issue. Appellants’ requested charge was not warranted in these

circumstances.       Moreover, the trial court accurately instructed the jury on

the legal principle of factual cause. See N.T., 9/18/13, at 18-19 (charging

on factual cause). Therefore, the trial court did not abuse its discretion or

err as a matter of law in refusing to give Appellants’ requested instruction.

See Krepps, supra. Consequently, this issue is without merit, and the trial

court did not err in denying Appellants’ post-trial motions raising challenges

to the jury instructions. See ACE Am. Ins., supra.

          For the foregoing reasons, Appellants’ issues on appeal do not warrant

relief.     Therefore, the trial court did not abuse its discretion or err as a

matter of law in refusing to grant Appellants’ post-trial motions.        See id.

Accordingly, we affirm the January 28, 2014 judgment.

          Judgment affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/22/2015




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