J-A30030-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CHANDRA MCWHORTER                                 IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

GREENWOOD GAMING AND
ENTERTAINMENT, INC. D/B/A PARX
CASINO

                            Appellant                  No. 860 EDA 2015


                    Appeal from the Order February 27, 2015
                 In the Court of Common Pleas of Bucks County
                     Civil Division at No(s): No. 2012-07571


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

MEMORANDUM BY MUNDY, J.:                           FILED JANUARY 20, 2016

        Appellant, Greenwood Gaming and Entertainment, Inc., d/b/a Parx

Casino (Parx Casino), appeals from the February 27, 2015 order denying its

post-verdict motions, following the entry of a jury verdict in favor of

Appellee, Chandra McWhorter, in her personal injury action, which stemmed

from her March 7, 2010 fall from a defective chair while at Parx Casino.1

After careful consideration, we affirm.

____________________________________________
*
    Former Justice specially assigned to the Superior Court.
1
 We note that Parx Casino’s notice of appeal, having been filed before the
entry of judgment, is premature. Ruffing v. 84 Lumber Co., 600 A.2d
545, n.2 (Pa. Super. 1991); See Pa.R.A.P. 301. As such, it is subject to
quashal. Dennis v. Smith, 431 A.2d 350, 350-351 (Pa. Super. 1981).
However, in the interest of judicial economy and fairness, this Court has
(Footnote Continued Next Page)
J-A30030-15


        From the certified record, we summarize the procedural history of this

case as follows. Appellee commenced the instant action by filing a complaint

in Philadelphia County on July 1, 2011.           The case was subsequently

transferred to the Bucks County Court of Common Pleas on August 23,

2012.      Following completion of discovery, the matter proceeded to

arbitration pursuant to Bucks County Local Rules 1301-1308.               The

Arbitrators returned an award in favor of Appellee for $40,000.00 on

September 23, 2014. Parx Casino appealed, and the matter proceeded to a

de novo jury trial. On January 20, 2015, Parx Casino filed a motion in limine

seeking to preclude any evidence of the recent deaths by homicide of

Appellee’s two daughters and any evidence of medical treatment Appellee

received dealing with the impact those deaths had on her. Prior to trial, the

trial court denied the motion in part, permitting evidence that Appellee’s

daughters had recently died, but granting the motion in all other respects.

        The case was tried on February 4, 2015. The trial court summarized

the facts adduced at trial as follows.

             Following her backwards fall from a mounted chair at
             a slot machine, [Appellee] filed a Complaint against
             [Parx Casino] sounding in negligence.           The
                       _______________________
(Footnote Continued)
held, “there are some instances wherein a party has failed to enter judgment
and our appellate courts may regard as done that which ought to have been
done.” Fanning v. Davne, 795 A.2d 388, 392, (Pa. Super. 2002), appeal
denied, 825 A.2d 1261 (Pa. 2003). In light of Fanning, we will deem
judgment to have been properly entered as of March 11, 2015 and proceed
to decide the instant appeal.



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          Complaint asserted that [Parx Casino] had
          knowledge of the chair’s defective condition, yet
          allowed it to remain on the casino floor.        The
          Complaint alleged that on March 7, 2010, while
          [Appellee] sat and played a slot machine, the loose,
          broken, or otherwise defective chair in which she
          was seated caused her to fall backwards and sustain
          injuries to her neck, back and right side. [Appellee]
          testified as follows:

               “…when I went to sit down, the chair moved.
               The back swiveled and it was throwing me
               back. And I was trying to hold myself from
               falling.   And-but I mean I was on the
               floor…When I fell and I hit the ground, I hit my
               head, and I fell on my right side. And I just
               had pains running down. I hit my knee and
               my ankle. And it was a really hard fall… The
               ambulance came. I was crying because I was
               hurting on my right side. And they put me on
               a stretcher, they put the neck brace around my
               neck, and took me to Frankford Hospital”
               (N.T. 2/3/15, pp. 41 -43).

                [Appellee’s]     friend,    Cynthia     Prescod
          (hereinafter “Ms. Prescod “), who was seated next to
          the chair from which [Appellee] fell, testified about
          [Appellee’s] fall. Ms. Prescod testified that “…the
          back of the chair went back. She fell out.” (N.T.
          2/4/15, p. 12).      Ms. Prescod also testified that
          another casino patron who saw Appellee fall first got
          the attention of a Parx security guard and that when

               “...he [the security guard] looked at the chair,
               he shook the chair, and he’s like, ‘why is this
               F’ing chair on this floor? Why is this F’ing chair
               on this floor ?’ Because the back of the chair,
               like this back of the chair, was going back this
               way (indicating). And the bottom of the chair
               was shaking from the floor.” (N.T. 2/4/15, p.
               15).

              The jury also heard testimony from two
          members of [Parx Casino’s] security force who were

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J-A30030-15


              involved with [Appellee] on the day of the accident,
              and from two (2) doctors who treated [Appellee]
              after the accident.

                     On February 12, 2015, [Parx Casino] filed its
              Motion for Post -Trial Relief, which this Court denied
              in all respects on February 27, 2015. On March 24,
              2015, [Parx Casino] filed its timely Notice of Appeal
              to the Superior Court of Pennsylvania from our
              February 27, 2015 Order.

Trial Court Opinion, 6/8/15, at 1-2.

       The jury returned a verdict in favor of Appellee in the amount of

$108,736.00.      The jury attributed 88% of the causal negligence to Parx

Casino and the remaining 12% to Appellee. Consequently, on February 9,

2015, the trial court molded the verdict to $95,687.68 to reflect the jury’s

apportionment.       Parx Casino filed post-verdict motions on February 12,

2015, seeking a new trial based on perceived errors by the trial court

relative to the issues now presented on appeal. The trial court denied the

motions by order filed on March 4, 2015. On March 11, 2015, the trial court

again molded the verdict to $106,005.34, in response to Appellee’s February

11, 2015 petition for delay damages. Parx Casino filed a notice of appeal on

March 24, 2015.2

       On appeal, Parx Casino raises the following issues for our review.

                   1)    Did the [trial c]ourt err in denying the
              Motion in Limine of [Parx Casino] to Preclude Any
              Evidence, Testimony, or Reference to the Death or
____________________________________________
2
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.


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J-A30030-15


            Murder of [Appellee’s] Daughters, the Impact of the
            Murders on [Appellee] and permit[ting] Appellee[] to
            introduce evidence of her daughters’ deaths and
            evidence concerning the treatment that was
            rendered to her as a result of the deaths, where such
            evidence was irrelevant to the claims [Appellee]
            presented against [Parx Casino], and/or where the
            probative value of the evidence was outweighed by
            the danger of unfair prejudice it presented to [Parx
            Casino]?

                  2)    Did the [trial c]ourt err by overruling
            [Parx Casino’s] objections to the [trial c]ourt’s
            instruction to the jury that it could award damages
            for future pain and suffering and proceeding to
            provide that charge to the jury, where [Appellee]
            submitted no evidence that [Appellee] would suffer
            such damages in the future as a result of the alleged
            accident?

                  3)     Did the [trial c]ourt err by overruling
            [Parx Casino’s] objections to the [trial c]ourt’s
            instruction to the jury that it could award damages
            for    embarrassment      and/or    humiliation  and
            proceeding to provide that charge to the jury, where
            [Appellee] submitted no evidence that [Appellee]
            would suffer such damages in the future as a result
            of the alleged accident?

Parx Casino’s Brief at 4.

      Parx Casino’s challenges involve the trial court’s denial of its post-

verdict motions for a new trial on three grounds. Parx Casino’s Brief at 24.

            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.


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J-A30030-15


                 ***

                 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 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, 601 Pa. 95, 971 A.2d 1121
            (2009).

Czimmer v. Janssen Pharmaceuticals, Inc., 122 A.3d 1043, 1051 (Pa.

Super. 2015).

     Parx Casino first asserts the trial court erred by partially denying its

motion in limine to exclude any evidence of the fact that Appellee’s two

daughters had been murdered a short time before her fall at the Parx

Casino.   Parx Casino’s Brief at 15.   Parx Casino specifically asserts, the

“[e]vents and circumstances that happened to [Appellee] prior to suit -no

matter how tragic- did not make the existence of any fact in the case more

or less probable than they would have been without the evidence.” Id. at




                                    -6-
J-A30030-15


17, citing Pa.R.E. 401.        In the alternative, Parx Casino argues the

information was unduly prejudicial. Id.

             Here, the danger of unfair prejudice to [Parx Casino]
             was significant.    Permitting any evidence of the
             deaths of [Appellee’s] daughters to be introduced
             would have caused the jury to feel sympathetic
             toward [Appellee]. Moreover, introduction of such
             evidence stood to confuse or mislead the jury into
             believing that the deaths had any impact on
             [Appellee’s] alleged fall inside the casino or caused it
             to occur in any way.

Id. at 18.     “[T]he trial court erred by failing to properly balance these

factors and excluding the evidence of the deaths during trial.” Id. at 17.

      We address this issue mindful of the following additional standards.

             A motion in limine is used before trial to obtain a
             ruling on the admissibility of evidence. It gives the
             trial judge the opportunity to weigh potentially
             prejudicial and harmful evidence before the trial
             occurs, thus preventing the evidence from ever
             reaching the jury. A trial court’s decision to grant or
             deny a motion in limine is subject to an evidentiary
             abuse of discretion standard of review.

Parr v. Ford Motor Co., 109 A.3d 682, 690 (Pa. Super. 2014) (en banc)

(internal quotation marks and citations omitted), appeal denied, 123 A.3d

331 (Pa. 2015), cert. denied, ---U.S.---, (2015) 2015 WL 6001619.

             Admission of evidence rests within the trial court’s
             discretion, and we will reverse only if we find an
             abuse of 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.




                                      -7-
J-A30030-15


Ely v. Susquehanna Aquacultures, Inc., ---A.3d---, 2015 WL 7571961,

at *10 (Pa. Super. 2015) (internal quotation marks and citations omitted).

            Admissibility depends on relevance and probative
            value. Evidence is relevant if it logically tends to
            establish a material fact in the case, tends to make a
            fact at issue more or less probable or supports a
            reasonable inference or presumption regarding a
            material fact. Evidence, even if relevant, may be
            excluded if its probative value is outweighed by the
            potential prejudice.    ‘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. The function of the trial court
            is to balance the alleged prejudicial effect of the
            evidence against its probative value and it is not for
            an appellate court to usurp that function.

Klein v. Aronchick, 85 A.3d 487, 498 (Pa. Super. 2014) (internal quotation

marks and citations omitted), appeal denied, 104 A.3d 5 (Pa. 2014).

      As noted, the trial court granted Parx Casino’s motion in limine in

substantial part.   See Trial Court Opinion, 6/8/15, at 6.      The trial court

explained the limited purpose for which it allowed evidence of the fact

Appellee’s daughters had died to come in.

            [The trial court’s] rulings here were narrowly tailored
            to provide the jury with probative context as to
            [Appellee’s] circumstances of being out with friends
            for recreation for the first time in several months,
            since losing her daughters, and gave the jury context
            as to why [Appellee] was raising her then infant
            granddaughter on her own, and how her accident-
            related injuries sustained in the March 7, 2010 fall
            affected her ability to do so. [The trial court] crafted
            and enforced strict parameters to ensure no
            testimony or evidence was unduly prejudicial.


                                     -8-
J-A30030-15


Id. at 7.

      We discern no abuse of discretion by the trial court. The mention of

her daughters’ deaths in the testimony was brief and within the limited

confines permitted by the trial court.         Appellee’s direct examination

testimony in this regard consisted of the following.

                  Q.    Now, the panel heard, the jury hears,
            that this accident, this incident on March 7th, took
            place late at night, or early in the morning, about
            4:30 in the morning. Is that correct?

                  A.     Yes. Yes, it did. I had lost my -- I lost
            my two daughters, and I was always staying in the
            house. I wouldn’t go anywhere. And that’s when
            my ex-supervisor and my sister told me I need to
            get out of the house.

                  Q.    Are you all right?

                 A.    Because I was very depressed. And I
            wouldn’t never come outside. Because I lost my
            daughters.

                 Q.    Okay. And this was the first night that
            you were able to come out. They took you out.

                  A.    Uh -huh. Yes.


                                      …

                  Q.   And the panel saw – the jury saw now
            that you have a walker. That has nothing to do with
            this.

                  A.   No, it doesn’t. This doesn’t have – I
            developed vertigo, and I’m a medical alert because I
            walk now and I fall. And it’s due to the stress that I
            was going through from my daughters.


                                     -9-
J-A30030-15


N.T., 2/3/15, at 53-54.

                   Q.    Now, at the time you had -- you were
             taking care of your granddaughter?

                   A.     Yes.

                   Q.     In 2010?

                   A.     Yes.

                   Q.     And it was -- you now are her mother? …

                   A.     Yes, I’m her -- yes.

Id. at 55.

      On cross-examination, defense counsel elicited the following.

                   Q.    Okay. …   I asked you some questions
             about whether you’d ever been to Parx before the
             date of the accident.

                   A.    I didn’t go -- I haven’t been to Parx – I
             didn’t go to Parx until March. I didn’t go around
             January and before that, like -- after the tragedy I
             had with my daughters.


Id. at 64.

      Cynthia Prescod, who was a friend of Appellee and a witness to her

fall, testified on direct examination as follows.

                   Q.    Okay. Now, Ms. Prescod, let me draw
             your attention back to March of 2010. Could you tell
             the panel, tell the jury, what happened that day?

                  A.    Well, that night, actually, March 2010, I
             knew Chandra a while back and I knew she had lost
             her daughters, and I knew she was like depressed
             and didn’t want to go out, didn’t want to hang out


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J-A30030-15


            with her friends, so I had called her up and I told her
            I was going to take her out.

N.T., 2/4/15, at 8.

      We conclude the trial court properly weighed the legitimate probative

value of the fact of the death of Appellee’s daughters, which gave context to

her visit to the casino and explained her primary caregiving role to her

grandchild, with any prejudicial influence that the evidence might derive.

We will not usurp the trial court’s function. See Klein, supra.

      In its remaining two issues, Parx Casino challenges certain instructions

the trial court gave to the jury. Parx Casino’s Brief at 19, 22.

                  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 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


                                     - 11 -
J-A30030-15


                     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).


Czimmer, supra at 1052.

              Pennsylvania law makes clear that the court is bound
              to charge the jury only on the law applicable to the
              factual parameters of a particular case and that it
              may not instruct the jury on inapplicable legal issues.
              Consequently, where the record [evidence fails] to
              satisfy the elements of a particular legal doctrine,
              the court may not discuss that doctrine in its charge.

MacNutt v. Temple University Hosp., Inc., 932 A.2d 980, 991 (Pa.

Super. 2007) (internal quotation marks and citations omitted), appeal

denied, 940 A.2d 365 (Pa. 2007). “[An] appellant must make a timely and

specific objection to a jury instruction to preserve for review a claim that the

jury charge was legally or factually flawed.” McManamon v. Washko, 906

A.2d 1259, 1282, (Pa. Super. 2006) (citation omitted), appeal denied, 921

A.2d 497 (Pa. 2007).3

       Parx Casino first claims the trial court’s instruction to the jury that

they could find damages for future non-economic loss was erroneous
____________________________________________
3
  Appellant preserved its challenges to the trial court’s instructions with
timely objections at trial. N.T., 2/4/15, at 78, 81, 84-85.


                                          - 12 -
J-A30030-15


because “[Appellee] did not present any evidence that she stands to suffer

pain in the future, or that she will need any medical treatment in the future

from injuries relating to this alleged accident. Nor did [McWhorter] submit

any testimony from a physician or otherwise to suggest that she will require

future medical care or that any pain and/or suffering will be likely to occur in

the future.” Parx Casino’s Brief at 20.

      The trial court determined there was sufficient evidence presented at

trial to require the charge to the jury on future non-economic damages.

Trial Court Opinion, 6/8/15, at 20.

            The above-noted pain and suffering testimony,
            referencing continuing pain, discomfort, and other
            symptoms experienced by [Appellee] nearly five (5)
            years post-accident, clearly indicated that the jury
            could reasonably infer that [Appellee] would continue
            to suffer such non-economic damages in the future.4

            __________________
            4
               Additionally, we note that [Appellee’s] treating
            physician, Dr. Paul Steinfield, testified that he
            concluded after examining [Appellee] multiple times
            after the accident of March 7, 2010 that she suffered
            from chronic pain which did not respond to
            treatment. The testimony of [Appellee’s] second
            treating physician, Dr. Bruce Lizerbram, was to the
            same effect.

Trial Court Opinion, 6/8/15, at 10.

      Our review of the record leads us to conclude there was sufficient

testimony about Appellee’s lingering and chronic effects from the accident to

justify the trial court to give a charge on future non-economic damages. It


                                      - 13 -
J-A30030-15


was for the jury to determine if that evidence was credible and if any such

damages should be awarded. See Pa.R.C.P. 223.3 (prescribing the charge

to be given when non-economic damages are at issue in a case for personal

injury). We note Parx Casino does not claim that the trial court’s instruction

was legally inaccurate or misleading.        Rather, Parx Casino suggests the

instruction somehow invited the jury to award future non-economic damages

based on sympathy, revisiting its first argument. Parx Casino’s Brief at 21.

We reject the contention. Viewing the trial court’s instructions as a whole,

we conclude they were legally correct and did not serve to confuse, distract,

or mislead the jury. See Czimmer, supra at 1052.

      In its final issue, Parx Casino makes a similar claim that the trial

court’s instruction regarding damages for embarrassment and humiliation

was unwarranted based on the facts presented at trial. Parx Casino’s Brief

at 22. “Absent any testimony from [Appellee] that she felt embarrassed or

humiliated following the accident, the jury had no evidence upon which to

base an award for [embarrassment and humiliation].” Id. Embarrassment

and humiliation are potential components of non-economic damages.

Giordano v. A.C. & S. Inc., 666 A.2d 710, 713 (Pa. Super. 1995), appeal

denied, 674 A.2d 1072 (Pa. 1996); see also Pa.R.C.P. 223.3.           The trial

court cites testimony relating the circumstances surrounding the fall in a

public place during which some witnesses were laughing.            Trial Court

Opinion, 6/8/15, at 10, citing, N.T., 2/3/15, at 42, 71; N.T., 2/4/15, at 13.


                                    - 14 -
J-A30030-15


             We found that the [] testimony undeniably
             warranted       a     jury   instruction     regarding
             embarrassment and humiliation. Additionally, we
             found [Appellee’s] testimony as to residual pains and
             struggles to, at the very least, infer that she would
             experience      continuing  embarrassment       and/or
             humiliation in the future. Certainly as a matter of
             inferential and even deductive logic, the jury was
             entitled to so find.

Id. at 10-11 (footnote omitted).    We discern no abuse of discretion.    The

evidence was sufficient to place the issue of Appellee’s embarrassment and

humiliation before the jury.   See Giordano, supra (holding a jury charge

for damages from plaintiff’s embarrassment and humiliation was proper

where plaintiff’s injuries from asbestos exposure “prevented them from

socializing and forced family and friends to take over tasks they used to

do”).

        For the reasons expounded above, we conclude the trial court did not

abuse its discretion in permitting a limited reference to the death of

Appellee’s daughters or by over-ruling Parx Casino’s objections to its charge

on non-economic damages.       Consequently, we conclude the trial court did

not err or abuse its discretion in denying Parx Casino’s post-verdict motions.

We therefore affirm the trial court’s February 27, 2015 order.

        Order affirmed.




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J-A30030-15




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/20/2016




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