J. A15003/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

REGINA SMITH AND JANIE SMITH,            :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                         Appellants      :
                                         :
                    v.                   :          No. 469 EDA 2015
                                         :
THOMAS GEE                               :


               Appeal from the Judgment Entered March 20, 2015,
              in the Court of Common Pleas of Philadelphia County
                Civil Division at No. October Term, 2012 No. 3638


BEFORE: FORD ELLIOTT, P.J.E., DUBOW AND JENKINS, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED AUGUST 17, 2016

      Janie Smith (“Smith”), plaintiff in the court below, appeals from the

judgment entered March 20, 2015, in this motor vehicle accident case.

Smith was a passenger in the vehicle driven by her daughter, Regina Smith

(“Regina”).    Smith was rear-ended by defendant/appellee, Thomas Gee

(“Gee”), and liability was stipulated.   Following a jury trial, the jury found

that Smith sustained a serious impairment of bodily function (Regina had

elected the limited tort option), but awarded damages of only $500 for pain

and suffering.   Medical expenses were stipulated.     Post-trial motions were

denied, and this timely appeal followed. After careful review, we affirm.

      The trial court has aptly summarized the history of this matter as

follows:
J. A15003/16


                Plaintiffs, Regina Smith, Angela Smith, and
          Janie Smith filed a complaint in this motor vehicle,
          limited tort matter on October 25, 2012 against
          Thomas Gee in the Court of Common Pleas in
          Philadelphia County, First Judicial District of
          Pennsylvania. On January 28, 2014 the parties went
          to arbitration, where the arbitrators found in favor of
          all three Plaintiffs and against [Gee]. [Gee] then
          filed an appeal for a trial de novo, and requested
          12 jurors.

                A Jury Trial was held on September 10, 2014
          and September 11, 2014. The parties stipulated that
          Janie Smith had recoverable medical expenses of
          $2,565.22 and Regina Smith had recoverable
          medical expenses of $1,315. Plaintiff Angela Smith
          was released from this action prior to trial. [Gee] did
          not contest liability [for] the accident itself,
          therefore, the sole issues before the jury was [sic]
          whether the Plaintiffs suffered serious impairment of
          a bodily function, and whether [Gee] was liable for
          any     serious     impairment      of      a    bodily
          function.[Footnote 1]

                [Footnote 1] In a limited tort insurance
                case,    Plaintiff can   only    recover
                non-economic damages if it is shown she
                suffered a “serious impairment of a
                bodily function[.]” Long v. Mejia, 896
                A.2d 596 (Pa.Super[.] 2006).

                 Regina Smith was operating the vehicle, with
          Janie Smith in the front passenger seat.         Janie
          testified that the car came to a stop at a yield sign,
          when they were hit from the rear. Janie claimed
          injury from hitting her left knee on the dashboard
          and her head on the back of the headrest, as well as
          lower back pain. Both Plaintiffs were transported to
          Presbyterian Hospital via ambulance.

                Defendant, Thomas Gee testified that he was
          stopped approximately 10 feet behind Plaintiffs at
          the yield sign.    Gee testified he then hit the
          accelerator, and his car was traveling at less than


                                   -2-
J. A15003/16


          5 miles per hour when it collided with the Plaintiffs’
          car. He testified that his airbags did not deploy, and
          that the Plaintiffs’ car was not pushed forward at all.

                 At the direction of her Lawyer, Janie Smith
          visited Dr. [Maurice] Singer. Prior to the accident,
          Janie Smith had a knee replacement surgery on her
          left knee.     After the accident, a Doctor told
          Janie Smith that her knee had been “knocked out of
          place” and recommended another surgery.

                A year after the accident, Janie Smith had the
          surgery on her left knee. She rehabbed in the
          hospital for 3 weeks before leaving. Although the
          surgery improved her condition, Janie Smith testified
          that her knee felt weak, and would sometimes
          buckle.

                Janie Smith testified that she used a walker
          due to the pain in her back, and had muscle spasms
          in her neck. She could not walk around the house
          without something to lean or hold on to. The pain in
          her neck, back and knee were the same.

                On September 12, 2014 the Jury entered a
          verdict in favor of both Plaintiffs.     Plaintiff,
          Regina Smith was awarded $1,315.00 in economic
          damages.      Plaintiff, Janie Smith was awarded
          $2,676.22 in economic damages, and an additional
          $500.00 for serious impairment of a bodily
          function.[Footnote 2]

                [Footnote 2] The Jury Verdict Slip, read
                as follows:    “state the amount of
                non-economic    damages,       if   any,
                sustained by the plaintiff, Janie Smith,
                as a result of the accident (emphasis
                added).

                 On September 19, 2014, Plaintiff Janie Smith
          filed a Post-Trial Motion requesting her non-economic
          damages be modified by additur, a new trial be held
          on the issue of damages only, or alternatively a
          Judgment Notwithstanding the Verdict be entered.


                                   -3-
J. A15003/16


              The Court denied Plaintiff’s Post-Trial Motion on
              January 8, 2015. Plaintiff Janie Smith then filed this
              appeal on February 6, 2015.

Trial court opinion, 11/12/15 at 1-3 (citations to the transcript omitted).

Judgment was entered on March 20, 2015. On April 29, 2015, Smith was

ordered to file a concise statement of errors complained of on appeal within

21 days pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and she timely

complied on May 7, 2015.        On November 12, 2015, the trial court filed a

Rule 1925(a) opinion.

         Smith has raised the following issue for this court’s review: “Whether,

in a limited tort case, a $500.00 award for non-economic damages is

inadequate compensation as a matter of law, where the jury found that the

plaintiff sustained a ‘serious impairment of bodily function?’” (Smith’s brief

at 3.)

              It is well settled that the grant of a new trial is a
              matter within the discretion of the trial court.
              Burrell v. Philadelphia Elec. Co., 438 Pa. 286,
              288, 265 A.2d 516, 517 (1970); Krivijanski v.
              Union Ry. Co., 357 Pa.Super. 196, 199, 515 A.2d
              933, 935 (1986). However, that discretion is not
              absolute, and this Court will reverse the lower court
              if it has abused its discretion. Burrell, 438 Pa. at
              288, 265 A.2d at 517 (citing Austin v. Ridge, 435
              Pa. 1, 4, 255 A.2d 123, 124 (1969)).

Kiser v. Schulte, 648 A.2d 1, 3-4 (Pa. 1994).

              A jury verdict is set aside as inadequate when it
              appears to have been the product of passion,
              prejudice, partiality, or corruption, or where it clearly
              appears from uncontradicted evidence that the
              amount of the verdict bears no reasonable relation to


                                        -4-
J. A15003/16


            the loss suffered by the plaintiff. Elza v. Chovan,
            396 Pa. 112, 114, 152 A.2d 238, 240 (1959);
            Slaseman v. Meyers, 309 Pa.Super. 537, 541, 455
            A.2d 1213, 1215 (1983). Where the jury’s verdict is
            so contrary to the evidence as to “shock one’s sense
            of justice” a new trial should be awarded. Burrell,
            438 Pa. at 289, 265 A.2d at 518; Bochar v. J.B.
            Martin Motors, 374 Pa. 240, 242, 97 A.2d 813, 814
            (1953). It is the province of the jury to assess the
            worth of the testimony and to accept or reject the
            estimates given by the witnesses. If the verdict
            bears a reasonable resemblance to the proven
            damages, it is not the function of the court to
            substitute its judgement for the jury’s. Elza, 396
            Pa. at 115, 152 A.2d at 240 (citing Paustenbaugh
            v. Ward Baking Co., 374 Pa. 418, 97 A.2d 816
            (1953)). However, where the injustice of the verdict
            “stand[s] forth like a beacon”, a court should not
            hesitate to find it inadequate and order a new trial.
            Elza, 396 Pa. at 118, 152 A.2d at 241; Slaseman,
            309 Pa.Super. at 540; 455 A.2d at 1215.

Id. at 4. “The mere fact that a verdict is low does not necessarily mean that

it is inadequate[.]”   Alexander v. Knight, 177 A.2d 142, 146 (Pa.Super.

1962), citing Palmer v. Leader Publ’g Co., 7 Pa.Super. 594 (1898).

                  The amount of a jury verdict will rarely
                  be     held    inadequate   on    appeal.
                  Moreover, we emphasize that it is the
                  province of the jury to assess the
                  evidence and to accept or reject
                  conflicting testimony given by witnesses.
                  Even if testimony is uncontradicted, the
                  jury is not required to accept everything
                  or anything a party presents.

            Dawson v. Fowler, 384 Pa.Super. 329, 558 A.2d
            565, 567 (1989), appeal denied, 523 Pa. 636, 565
            A.2d 445 (1989) (citations omitted). A verdict will
            not be set aside if the verdict bears a reasonable
            resemblance to the proven damages.         Hill v.



                                    -5-
J. A15003/16


              Commonwealth, Bureau of Corrections, 124
              Pa.Commw. 172, 177, 555 A.2d 1362, 1365 (1989).

Gallagher v. Marguglio, 632 A.2d 1309, 1311 (Pa.Super. 1993), appeal

denied, 645 A.2d 1316 (Pa. 1994). “We have held that seemingly low and

unfair jury verdicts are nevertheless adequate when the jurors are presented

with conflicting testimony on liability, contributory negligence or degree of

injury.”    Id., citing Dawson; see also Alexander, 177 A.2d at 146 (“As

stated in Elza v. Chovan, [] 152 A.2d at page 240 ‘compromise verdicts are

both expected and allowed. The compromise may arise out of damages or

negligence or the balance of evidence concerning either or both.’” (additional

citations omitted).)

        “Pain may be subjective, and [] if believed, is compensable.”

Gallagher, 632 A.2d at 1311, quoting Boggavarapu v. Ponist, 542 A.2d

516, 518 (Pa. 1988) (citation omitted). “The jury must assess the evidence

and may accept or reject conflicting testimony given by witnesses.          This

court will not substitute its judgment for that of the jury.” Gallagher, 632

A.2d at 1312, citing Dawson.

        Instantly, although liability was conceded, the jury was presented with

conflicting testimony on the degree of Smith’s injuries, particularly to the left

knee.      At the time of the accident, Smith was on disability.      (Notes of

testimony, 9/10/14 at 15.) Smith suffered from chronic health conditions,

including multiple sclerosis, high blood pressure, and diabetes. (Id. at 16,




                                      -6-
J. A15003/16


67.) In addition, she had a left knee replacement before the accident. (Id.

at 17-18.)

        According to Smith, the rear-end impact caused her left knee to hit

something, which she identified as, “The dashboard, the part where the

thing you have to shift the gears.” (Id. at 22.) According to Smith, she told

first responders, as well as emergency room personnel, that she hurt her left

knee.    (Id. at 24-25.)   However, EMS records indicate that while Smith

complained of head and back pain, she did not complain about her knee.

(Deposition of Leonard Brody, M.D., 7/28/14 at 21.) Similarly, ER records

did not reflect any knee injury. (Id. at 21-22.) Maxwell Stepanuk, Jr., D.O.,

Smith’s medical expert, conceded that the paramedic’s report from the date

of the accident, as well as the ER records, did not indicate any complaints of

knee pain. (Deposition of Maxwell Stepanuk, Jr., D.O., 7/30/14 at 39-41.)

Furthermore, Dr. Singer’s initial report did not indicate that Smith struck her

knee as a result of the accident. (Id. at 42-43.) This contradicts Smith’s

trial testimony that she told Dr. Singer she was suffering from knee pain.

(Notes of testimony, 9/10/14 at 29.)

        In fact, when Dr. Stepanuk first examined Smith on January 19, 2011,

three months after the accident, she did not make any complaints of knee

pain.   (Stepanuk deposition at 46.)   Dr. Stepanuk’s initial report indicates

that there were no complaints of pain in either lower extremity.         (Id.)

Dr. Stepanuk specifically asked Smith whether she had struck any body



                                     -7-
J. A15003/16


parts as a result of the accident. (Id.) Smith did not tell Dr. Stepanuk that

she had struck her knee. (Id.)

        Smith testified that she continues to have problems with her left knee.

(Notes of testimony, 9/10/14 at 34.)         She stated that it feels weak and

sometimes it buckles on her. (Id.) She also complained of back and neck

pain.     (Id. at 35-36.)   Smith testified that she is unable to enjoy certain

activities as she did before the accident, including volunteering at church

and taking her grandchildren to the park. (Id. at 36-37.) Smith has to use

a riding scooter to go shopping. (Id. at 37-38.) Smith testified she needs a

walker when she leaves the house. (Id. at 38.)

        On cross-examination, Smith admitted that during her deposition,

when asked whether she had taken any vacations since the accident, she

testified that she went to Atlantic City in the summer of 2012.        (Id. at

60-61.) Smith omitted that she had recently taken a trip to Las Vegas and a

cruise.     (Id. at 61-65.)    The defense also produced photographs from

Smith’s Facebook account of a July 4, 2014 block party.        (Id. at 68-69.)

Smith is depicted standing in high heels and posing for photographs. (Id. at

70-72.)

        Dr. Brody reviewed an x-ray of Smith’s left knee taken March 4, 2010,

approximately seven months before the accident. (Brody deposition at 17.)

The radiologist identified some loosening in the left knee. (Id. at 18, 39.)

Dr. Stepanuk agreed that Smith had a pre-existing left knee condition, a



                                       -8-
J. A15003/16


loosening of the tibial plateau, prior to the accident. (Stepanuk deposition at

59.) Smith was also using a cane prior to the accident. (Id. at 62; Brody

deposition   at   25.)      Dr.    Brody    diagnosed    Smith   with   soft    tissue

sprains/strains to her neck and low back as a result of the October 26, 2010

accident.    (Id. at 28.)     In his opinion, these would have resolved in

4-8 weeks.     (Id. at 30.)       Dr. Brody testified that Smith’s second knee

surgery was not related to the accident. (Id. at 29.)

      Regarding the force of impact, Smith testified that the trunk of

Regina’s car was all smashed in.           (Notes of testimony, 9/10/14 at 27.)

Smith testified that if she had not been wearing her seat belt, she “probably

would’ve went [sic] through the window.” (Id. at 21.) Regina testified that

her car had to be towed from the scene and that she incurred close to

$4,000 in repair costs. (Notes of testimony, 9/11/14 at 19-20.) Regina and

Smith both identified photographs as fair               depictions of the      vehicle

immediately after the accident.        (Notes of testimony, 9/10/14 at 26-27;

notes of testimony, 9/11/14 at 19; Plaintiffs’ Exhibit 10.)

      This testimony was in contrast with that of the defendant, Gee, who

testified that he was traveling no more than 5 miles per hour when he struck

the rear of Regina’s vehicle.       (Notes of testimony, 9/11/14 at 87.)          His

airbags did not deploy, and Regina’s vehicle was not pushed forward. (Id.)

Gee testified that Plaintiffs’ Exhibit 10 did not accurately depict the condition




                                           -9-
J. A15003/16


of Regina’s vehicle after the accident.       (Id. at 89.)     Gee testified that

Regina’s vehicle did not sustain that amount of damage. (Id.)

      Similarly, Michelle Lahalih (“Lahalih”), a fire service paramedic who

responded to the accident and prepared a report, characterized the damage

to Regina’s vehicle as “very minor.”         (Id. at 76-77.)     Lahalih’s report

indicated, “Patient was restrained.    Very minor damage to rear vehicle

noted. Unknown speed. No damage to seat belt or compartment noted.”

(Id. at 78.)   Looking at the photographs taken by the plaintiffs, Lahalih

testified to them as showing moderate damage. (Id. at 81.) However, at

the scene, she saw only very minor damage to the vehicle. (Id. at 83.)

      The crux of Smith’s argument is that because the jury found she met

the limited tort threshold of proving a serious injury, 1 the $500 award for

non-economic damages was inadequate as a matter of law. However, Smith

has cited no case law in support of the proposition that the jury must award

a certain amount of damages whenever it finds that the plaintiff in a limited

tort case has sustained a serious injury.     The jury could have determined

that Smith sustained a serious impairment of body function as a result of the

accident, but that it was temporary and fleeting.

      As stated above, where the jury is presented with conflicting testimony

on the degree of injury sustained, a seemingly low or unfair jury verdict will


1
   “Serious injury” is defined as, “A personal injury resulting in death,
serious impairment of body function or permanent serious
disfigurement.” 75 Pa.C.S.A. § 1702.


                                    - 10 -
J. A15003/16


not be overturned. Gallagher, 632 A.2d at 1311. Here, while negligence

was not an issue, the degree of Smith’s injuries was vigorously contested.

Smith had serious and chronic pre-existing conditions, including diabetes,

MS, and high blood pressure. She had a total left knee replacement before

the accident. Medical records indicated some loosening in the left knee joint

prior to the accident.

      Moreover, Smith’s credibility was an issue at trial. She testified that

she told the paramedics, ER staff, and her physicians about her left knee

pain, but the medical records indicate otherwise. She omitted details about

vacations she took after the accident. Facebook photos showed her walking

around in high heels at a neighborhood block party, even though she

testified she could not walk without the assistance of a walker.    She and

Regina testified to extensive damage to the vehicle, which was contradicted

by both Gee and an independent witness, Lahalih.       Taken together, it is

likely that the jury did not consider Smith to be particularly credible.   It

appears that the jury’s small award for pain and suffering was a compromise

verdict.   For these reasons, the trial court did not abuse its discretion in

denying Smith’s motion for a new trial on damages.

      Judgment affirmed.




                                    - 11 -
J. A15003/16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/17/2016




                          - 12 -
