J-A01013-16

                                   2016 PA Super 44



FRANCES GOLD,                                          IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellant

                       v.

TERRI ROSEN AND S. ROSEN,

                            Appellee                      No. 3308 EDA 2014


            Appeal from the Judgment Entered December 22, 2014
             In the Court of Common Pleas of Montgomery County
                      Civil Division at No(s): 2007-18576


BEFORE: LAZARUS, J., OTT, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                            FILED FEBRUARY 19, 2016

       Appellant    Frances      Gold   (hereinafter   “Gold”)   appeals   from   the

December 22, 2014, judgment entered in the Court of Common Pleas of

Montgomery County by the Honorable Carolyn Tornetta Carluccio after a jury

awarded Gold no monetary damages in a car accident case.1                    For the

reasons set forth herein, we affirm.
____________________________________________


1
  We note that Gold purports to appeal from the interlocutory order entered
on November 7, 2014, denying her motion for a new trial. To the contrary,
an appeal properly lies from the entry of judgment, not from the denial of
post-trial motions. See Pa.R.A.P. 301(a)(1), (c), (d); Hall v. Jackson, 788
A.2d 390, 404 n.1 (Pa.Super. 2001). Herein, the docket entries may have
created some confusion, for the entry for an Order on November 13, 2014,
indicates “this order/judgment was docketed and sent on November 14,
2014, pursuant to Pa.R.C.P. 236” (emphasis added). However, the
Prothonotary entered a Judgment Verdict on December 22, 2014, in an
amount of $0.00 and with a notation that notice had been sent pursuant to
Pa.R.C.P. 236. As such, the trial court's first order was not an appealable
(Footnote Continued Next Page)


*Former Justice specially assigned to the Superior Court.
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      On April 23, 2004, Gold was involved in a motor vehicle accident. As a

result, Gold suffered headaches, visual difficulties, dizziness, nausea, back

pain, and neck pain for which she received medical treatment and physical

therapy. Gold was released from physical therapy in June of 2005.

Approximately six weeks thereafter, on August 2, 2005, Gold was stopped at

a red light when Appellees’ vehicle driven by Appellee Terri Rosen rear-

ended her.2

       On August 1, 2007, Gold initiated suit by way of writ of summons

against Appellees and on August 11, 2009, filed a complaint against

Appellees claiming Rosen caused the August 2, 2005, motor vehicle accident

and that she sustained injuries as a result of the accident.      The matter

proceeded to arbitration on August 20, 2013, and on that date the

arbitrators awarded Gold $25,000 in damages.       Appellees filed an appeal

from the arbitration award on September 12, 2013.




                       _______________________
(Footnote Continued)

order under the Pennsylvania Rules of Appellate Procedure and the
Pennsylvania Rules of Civil Procedure. Since judgment properly has been
entered, we will consider the merits of this appeal and have corrected the
appeal paragraph accordingly. Bonavitacola v. Cluver, 619 A.2d 1363,
1366-67 (Pa.Super. 1993).
2
  Appellee S. Rosen was also named as a defendant in the underlying action.
As the negligence of defendant Terri Rosen was the focus of the trial, we will
refer to Rosen individually and to S. Rosen and her collectively as
“Appellees” herein.



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       On October 21, 2014, a jury trial commenced, and at trial, the parties

submitted their expert testimony to the jury through expert reports.3 They

also stipulated that Rosen had been negligent and that such negligence

factually caused Gold to suffer a neck sprain/strain. Notwithstanding,

Appellees contested the extent of the harm Gold had sustained to her neck

and also disputed that the August 2, 2005, accident caused any of her other

alleged injuries.     That same day, the jury found that Rosen had been

negligent and that her negligence was a factual cause of Gold’s neck

sprain/strain; however, it awarded Gold no monetary damages for her neck

sprain/strain.

       Gold timely filed a post-trial motion wherein she sought a new trial

based upon a claim that the jury’s verdict shocked the conscience.4 The trial

court denied the same on November 13, 2014, and Gold filed an appeal on

November 17, 2014. Judgment was entered on December 22, 2014.

       Gold complied with Pa.R.A.P. 1925(b), and among the issues she

raised in her concise statement was the following:


____________________________________________


3
  Prior to trial, Gold had filed an election under Pa.R.C.P. 1311.1 to limit her
monetary recovery to $25,000 or less. Such election permitted her to
submit the reports of various experts to the jury in lieu of their live
testimony at trial on the issue of damages.
4
  While Gold did not use the phrase “weight of the evidence” in her Pa.R.A.P.
1925(b) statement, her contention that the jury’s verdict shocks the
conscience relates to the weight of the evidence presented at trial, as she
indicates in her question presented in her appellate brief.



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       A second error committed by Judge Carluccio consisted of
       denying the motion for a new trial because the jury’s response to
       Question #3 constitutes a verdict that shocks the conscience.
       Question #3 states:

              QUESTION THREE:
              What amount of money damages, if any, do you award
              Plaintiff, Frances Gold, for her neck sprain and strain
              factually caused by the Defendant, Terri Rosen’s,
              negligence?
              Neck Sprain and strain: ___0___

Pa.R.A.P. 1925(b) Statement at ¶ 3. In her appellate brief, Gold presents

the following issue for our review:

       Did the trial court commit reversible error by denying the motion
       of [Appellant] for a new trial because the jury entered a verdict
       of $0, contrary to the weight of the evidence since both [Gold’s]
       expert, Steven Mandell, M.D. (“Dr. Mandell”) and [ ] [Rosen’s]
       [ ] expert, Lee Harris, M.D. (“Dr. Harris”) both found that
       damage had occurred as a result of the negligence of Rosen in
       operating her motor vehicle? The trial court held that the verdict
       was not against the weight of the evidence.5
____________________________________________


5
  Appellees assert Gold’s appeal should be quashed for her failure to
comply with Pa.R.A.P. 2154 entitled “Designation of Contents of
Reproduced Record,” in that she did not timely file either a designation
of the contents of her reproduced record or an election to defer
production of the reproduced record. Instead, Gold filed her
reproduced record on August 3, 2015, the same day she filed her
notice of appeal.      However, Appellees did not file a separate
application for relief with this Court in accordance with Pa.R.A.P.
123(a) and Pa.R.A.P. 1972. See Commonwealth v. Sohnleitner,
884 A.2d 307, 312-13 (Pa.Super. 2005) (this Court will not consider
whether an appellant violated Pa.R.A.P. 2154 where the appellee failed
to file a separate motion seeking the quashing of the appeal for a
Pa.R.A.P. 2154 violation.). Moreover, while Appellees state this Court
is permitted to dismiss Gold’s appeal for her failure to follow the
pertinent Pennsylvania Rules of Appellate Procedure, such dismissal is
discretionary. Appellees do not claim to have suffered any prejudice
as a result of Gold’s delay in filing her reproduced record or otherwise
(Footnote Continued Next Page)


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J-A01013-16



      Appellate review of weight of the evidence claims is limited, and it is

well-settled that:

      [a]ppellate 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.

In re Estate of Smaling, 80 A.3d 485, 490 (Pa.Super. 2013) (en banc)

(citation omitted).

      In support of her argument, Gold relies primarily upon this Court’s

decision in Lombardo v. DeLeon, 828 A.2d 372 (Pa.Super. 2003) for the

proposition that where a jury recognizes an injury occurred, it must award

some monetary damages. We disagree.



                       _______________________
(Footnote Continued)

dispute the contents thereof. In fact, the contents of the reproduced
record herein is comprised primarily of the notes of testimony from
trial at which Gold was the only testifying witness and the expert
reports read at trial, which Appellees possessed.         In addition,
Appellees indicate they did not oppose Gold’s requests for an
extension of time in which to file her brief and reproduced record in
this matter, which suggests an awareness of the single issue she
intended to raise on appeal. As such, we will not quash this appeal.




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J-A01013-16


     In Lombardo, the plaintiffs, a father and his nineteen-year-old son,

were involved in a rear-end collision following which the father-driver was

pushed forward and backward, sustained a bump on the top of his head, and

was taken to the emergency room where he was treated and released.

Similarly, the son was jostled about the car upon impact and was treated

and released at the emergency room. Both sought medical treatment from

an orthopedist for four days thereafter who referred them to a chiropractor

for ongoing treatment.   The pair received chiropractic care for a period of

four months. Father had to modify his work duties when he was unable to

perform some of the tasks necessary for a self-employed owner of several

Italian/pizza restaurants due to pain in his neck and back. Id. at 373. Son,

too, was unable to perform his pre-accident work duties as an executive chef

and continued to work in his father’s restaurants in supervisory or

managerial positions. Id. at 374.

     Following trial wherein the defendant admitted liability, a jury returned

a verdict awarding the plaintiffs no damages. The plaintiffs appealed raising

the issue of whether the trial court should have upheld the jury’s verdict

predicated upon its finding that any pain and suffering relating to their

injuries was not compensable. A panel of this Court ultimately determined

that in light of the undisputed evidence the plaintiffs had sustained

compensable soft-tissue injuries, the jury’s award of $0 entitled them to a

new trial on damages for those undisputed injuries.


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J-A01013-16


      In   the   matter   sub    judice,   the   trial   court,   citing   Lombardo,

acknowledged that where there is no dispute a defendant was negligent and

both parties’ medical experts agree an accident caused the plaintiff some

injury, the jury must find the defendant’s negligence was a substantial factor

in bringing about at least some of the plaintiff’s injuries. In addition, it

stressed the Lombardo Court, relying upon Andrews v. Jackson, 800 A.2d

959, 962-64 (Pa.Super. 2002), explained “the jury may then find the injuries

caused by the accident were incidental or non-compensable and deny

damages on that basis.”         Trial Court Opinion, filed June 10, 2015, at 4

(citing Lombardo, supra at 374). It then offered the following analysis in

support of its decision to deny Gold’s post-trial motion for a new trial:

            In the case at bar, the parties stipulated that [Rosen] was
      negligent and that [Rosen’s] negligence was the factual cause of
      [Gold’s] neck sprain and strain (Please See, Verdict Sheet,
      Questions #1 and #2 pre-marked “Yes.”) However, the parties
      disagreed as to the extent of the harm to [Gold’s] neck as a
      result of the accident. At trial, [Rosen] argued, and indeed,
      [Gold] conceded that [Gold] suffered a previous neck injury.
      Moreover, [Gold] had been released from physical therapy for
      the previous accident, only six (6) weeks prior to the 2005
      accident.   [Rosen] relied upon Dr. Harris’ expert report to
      support her claim that any aggravation to [Gold’s] neck from this
      accident was negligible. Defense counsel read the following
      portions of Dr. Harris’ report to the jury.

           Review of the above medical records of Frances
           Gold reveals a long history of multi-focal
           complaints dating back to 1997, with a series of
           car accidents and related musculoskeletal
           complaints as well as report of chronic dizziness and
           facial numbness.   Review of the pre and post-
           accident records following 08/02/05 does not
           reveal convincing evidence of anything more than

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J-A01013-16


         soft tissue strain and sprain, which would be
         expected to have resolved or returned to baseline
         within a few weeks to, at most, a few months of
         conservative management.           A short course of
         physical therapy would be the most that would
         have been required as far as treatment. All of her
         subsequent evaluations and treatment, including
         repeat MRI scans, MRA, vestibular testing and repeated
         courses of physical therapy for dizziness bear no causal
         relationship to the 08/02/05 accident, with the bulk, if
         not all of her post-accident complaints, actually
         representing preexisting symptoms. Apart from self-
         limited strain and strain, review of these records on
         Frances Gold does not reveal any additional
         neurological injury refereable to the 08/02/05 accident.
         Specifically, she did not sustain any additional cervical
         or lumbar disc injury or radiculopathy. Her right facial
         pain and numbness appears to be attributable to a
         vascular loop in the brain which abuts the right 5 th
         cranial nerve which, as Dr. Mandel pointed out, is not
         traumatic in origin. Nor is there any traumatic
         exacerbation of that condition. She had longstanding
         preexisting dizziness, with no indication that this was
         exacerbated as a result of the 08/02/05 accident.
         There is also a strong indication of psychological
         disorder, with a propensity to psychogenic seizures
         over the years with negative EEG monitoring, with no
         evidence she sustained any posttraumatic exacerbation
         of that disorder either.

          (Dr. Harris Report     of   03/20/13-   Trial   Exhibit    D-1)
     (emphasis in original).

           Dr. Harris’ above cited conclusion that “the pre-and post-
     accident records following 08/02/05 [do] not reveal convincing
     evidence of anything more than soft tissue strain and sprain,
     which would be expected to have resolved or returned to
     baseline within a few weeks to, at most, a few months of
     conservative management” provided evidence for the jury’s
     award of no damages.        In addition, [Gold’s] own evidence
     supported a finding of de-minimis neck injury. For example,
     [Gold’s] doctor, Dr. Mandel concluded that [Gold’s] neck pain
     could not be attributed to the 2005 accident. Dr. Mandel claimed
     that [Gold’s] neck pain was the result of degenerative changes.

                                   -8-
J-A01013-16


      (Please See, Trial Exhibit P-1-Dr. Mandel’s Report) Further,
      [Gold’s] description of the accident indicated that it was low
      impact. During her testimony, [Gold] answered that there was
      no damage to [Rosen’s] car; that the police were not called to
      the scene; that she got out of her car to exchange information
      with [Rosen] without difficulty; that she drove her vehicle home
      right after the incident without problems; that she did not seek
      emergency treatment on the day in question; and that she
      waited seven (7) weeks after the accident before attending
      physical therapy. Further, the Abington Hospital medical records
      showed that when [Gold] sought care the day after the accident,
      the MRI revealed no acute/recent trauma and that [Gold] was
      released with no neck brace or medicine. (Notes of Testimony
      10/21/14, pgs. 60-115 and pg. 71; Exhibit D-1-Harris report
      referencing Abington Hospital visit day after accident; P-1-
      Abington Memorial Hospital Record) Thus, the fact finder had
      sufficient evidence to conclude that [Gold’s] neck harm was de-
      minimis and to decline to award damages in accordance with
      Lombardo, supra. Therefore, the trial court properly denied
      [Gold’s] Motion for New Trial.

Trial Court Opinion, filed June 10, 2015, at 4-6 (emphasis in original).

      This Court recognizes that not all injuries are serious enough to

warrant compensation, even though there may be some pain.                See Van

Kirk v. O'Toole, 857 A.2d 183, 186 (Pa.Super. 2004). “The real test is

whether the uncontroverted injuries are such that a conclusion that they are

so minor that no compensation is warranted defies common sense and

logic.” Id. at 185.   Accordingly, such conclusions are made on a case by

case basis. As this court noted in Lombardo:

      [t]he existence of compensable pain is, an issue of credibility
      and juries must believe that plaintiffs suffered pain before they
      compensate for that pain. A jury is not required to award a
      plaintiff any amount of money if it believes that the injury
      plaintiff has suffered in an accident is insignificant. “Insignificant”
      means the jury could have concluded that any injury plaintiff
      suffered did not result in compensable pain and suffering. While

                                       -9-
J-A01013-16


      a jury may conclude that a plaintiff has suffered some painful
      inconvenience for a few days or weeks after the accident, it may
      also conclude that the discomfort was the sort of transient rub of
      life for which compensation is not warranted.

Lombardo, 828 A.2d at 375 (citations and some quotation marks omitted)

(emphasis in original). In this vein, in holding that a jury’s award of medical

expenses without compensation for pain and suffering should not be

disturbed where the trial court reasonably may have found the jury did not

believe the plaintiff suffered any pain and suffering or that a preexisting

condition or injury was the sole cause of any alleged pain and suffering, our

Supreme Court has stated a reversal of a jury verdict on the grounds of its

inadequacy is appropriate “only where the injustice of the verdict stands

forth like a beacon.” Davis v. Mullen, 565 Pa. 386, 391, 773 A.2d 764, 766

(2001) (citation and brackets omitted).

      Under the facts of this case, we discern no error in the trial court’s

rationale. This case did not involve a violent collision but rather a relatively

minor accident and Gold’s subsequent subjective claims of injuries.        While

the jury’s verdict slip indicates that it concluded Rosen’s negligence caused

some harm to Gold, it did not find such harm significant enough to warrant a

monetary award, and it is within a jury’s purview to make such an essential

determination.   In light of the foregoing, we find the jury’s finding was

consistent with the record and the applicable law and conclude the trial court

did not abuse its discretion or commit an error of law in denying Gold’s post-

trial motion for a new trial. As such, we affirm the judgment.

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J-A01013-16


     Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/19/2016




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