J-A28005-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DAWN GILLEY                                             IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                            Appellant

                       v.

ALYSA WOLOSZYN

                            Appellee                           No. 437 EDA 2016


              Appeal from the Judgment Entered January 27, 2016
              In the Court of Common Pleas of Philadelphia County
              Civil Division at No(s): May Term, 2014 1405-02943


BEFORE: PANELLA, J., SHOGAN, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                      FILED MARCH 29, 2017

        Appellant, Dawn Gilley, appeals from the judgment entered January

27, 2016, in favor of Appellee, Alysa Woloszyn, in this motor vehicle

accident, personal injury lawsuit.1            Specifically, she argues that the trial

court     should    have     granted     her     post-trial   motion   for   judgment


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Appellant purports to appeal from the order denying her motion for post-
trial relief. However, an appeal is properly taken from the final judgment
entered after post-trial relief is denied. See Growall v. Maietta, 931 A.2d
667, 669 n.1 (Pa. Super. 2007), appeal denied, 951 A.2d 1164 (Pa. 2008).
Here, the trial court denied Appellant’s post-trial motion, and entered
judgment in favor of Appellee, on January 27, 2016. (See Order, 1/27/16).
Although Appellant filed a praecipe to enter judgment on February 15, 2016,
which the prothonotary entered, because the court already entered
judgment, the February 15, 2016 entry of judgment is a legal nullity. We
have amended the caption accordingly.
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notwithstanding the verdict (JNOV) following the September 18, 2015, jury

verdict, which found that Appellant, whose car was hit by Appellee, was

sixty-percent negligent. We affirm.

      We take the factual and procedural history in this matter from our

review of the certified record, and the trial court’s May 4, 2016 opinion.

             On May 20, 2013, [Appellant] and [Appellee] were
      involved in an automobile accident. [Appellant] is a real estate
      agent and testified that[,] at the time of the accident[,] she was
      on her way to a client meeting. She testified that the accident
      happened at a stop light near the City Avenue exit in
      Philadelphia, [Pennsylvania]. [Appellant] testified that she was
      stopped at the light when a car hit her from behind, and as a
      result, she struck her head on the steering wheel and her cell
      phone was broke[n] after hitting the windshield. [Appellant]
      testified that[,] after the accident[,] she was disoriented and
      hurt. She also testified on different occasions, that at the point
      of impact [Appellee] was going anywhere from twenty, forty, or
      seventy miles an hour, but argued she did not intend to mislead
      anyone when making such conflicting testimony. [Appellant]
      made the varied statements in her deposition, emergency room,
      and physician records. After her car was struck, [Appellant]
      moved her car out of the way of traffic and called 911[;]
      however[,] the police did not arrive at the scene of the accident
      while the parties were there.

            [Appellant] testified that she had a hands free cell phone
      that she used in her car and never took her hands off of the
      steering wheel when using her cell phone. She further testified
      that she was not on her cell phone at the time of the accident.
      During her cross-examination, she testified that she signed a
      form at the hospital after the accident stating the accident
      occurred at 10:02 a.m. [Appellant’s] cell phone records revealed
      that she had a two[-]minute cell phone call that began at 10:01
      a.m.

            Additionally, during [Appellant’s] deposition[,] she stated
      that she had the following injuries: (1) her forehead and mouth
      were bleeding and she had to pick glass out of her forehead, (2)
      her face was bruised under her eyes and nose, (3) her right

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J-A28005-16


     hand was bleeding, (4) her left thumb nail was lost in the
     accident, (5) her wrist was cut open from digging her nail into it,
     [and (6)] her tooth was broken. However, none of the injuries
     were listed in [Appellant’s] emergency room records.

            At the time of the accident, [Appellee] was on her way to
     work as well. [Appellee] testified that she exited the expressway
     at City Avenue and[,] at the end of the ramp, she stopped at the
     red light where no cars were in front of her. The light turned
     green and [Appellee] turned right onto City Avenue.           She
     testified that her attention was partly on a Mack truck that was
     also making the turn next to her to make sure the truck would
     not hit her[,] and then put her attention back on City Avenue,
     and as she rounded the corner, she saw [Appellant’s] car
     stopped close in front of her. After seeing [Appellant’s] car
     stopped in the road, [Appellee] tried to brake and veer to the
     right in an effort to avoid [Appellant’s] car. [Appellee] admitted
     to bumping [Appellant’s] car. She testified that the contact was
     minimal and could be described as a fender bender. [Appellee]
     stated that as she turned the curve, she was going between ten
     and twenty miles per hour.           There was no damage to
     [Appellee’s] car from the accident. [Appellee] further testified
     that when she and [Appellant] exited their cars after the
     accident, [Appellant] was not bleeding on any part of her body[,]
     nor were there any abrasions or glass in her forehead. Both
     [Appellant] and [Appellee] remained at the scene of the accident
     for about fifteen minutes after the accident occurred.

           [Appellant’s] counsel filed a motion for directed verdict on
     the issue of liability because [Appellee] admitted to bumping
     [Appellant’s car] with her car and causing the accident in part.
     After considering [Appellant’s] motion and [Appellee’s] response,
     the [trial court] denied the motion and let the case go to the
     jury. After deliberation, the jury returned a verdict attributing
     sixty percent negligence to [Appellant] and forty percent
     negligence to [Appellee].

           On January 27, 2016, [the trial court] heard oral argument
     on [Appellant’s] Motion for Post Trial Relief.      [Appellant’s]
     attorney presented the motion and requested a judgment
     notwithstanding the verdict. [Appellant’s] counsel argued that
     the evidence did not support the jury verdict and [Appellee] did
     not satisfy her burden of proving [Appellant’s] negligence.
     [Appellee] opposed [Appellant’s] Motion for Post Trial Relief[,]
     and argued that there was substantial evidence at trial to

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J-A28005-16


       support the verdict. [On January 27, 2016, the trial court denied
       the motion and entered judgment in favor of Appellee. This
       timely appeal followed.2]

(Trial Court Opinion, 5/04/16, at 3-5) (record citations omitted).

       Appellant raises two questions on appeal.

       [1.] Did the trial court err in denying the motion for post trial
       relief and failing to enter a judgment notwithstanding the verdict
       where: (1) the evidence was such that no two reasonable minds
       could disagree that the verdict should have been rendered in
       favor of [Appellant]; and (2) the evidence presented at trial was
       insufficient to sustain the verdict by the jury that [Appellant]
       was sixty (60%) percent negligent?

       [2.] Did the trial court err in denying the motion for post trial
       relief where: (1) [Appellee] failed to develop any evidence or
       testimony to support her allegation that [Appellant] was at fault
       for the accident; (2) [Appellee] failed to provide the jury with a
       factual basis for its decision; and (3) the verdict is contrary to
       the evidence, shocks one’s sense of justice[,] and is an abuse of
       discretion?

(Appellant’s Brief, at 5) (unnecessary capitalization omitted).

       In her first issue, Appellant contends that the court erred in not

granting her post-trial motion and entering JNOV in her favor.              (See

Appellant’s Brief, at 12-20).3         Specifically, she claims that based on the

evidence at trial, no two reasonable minds could disagree that she was not

sixty-percent negligent, and that the evidence at trial was insufficient to
____________________________________________


2
   Pursuant to the court’s order, Appellant filed a statement of errors
complained of on appeal, on March 4, 2016. See Pa.R.A.P. 1925(b). The
trial court entered its opinion on May 4, 2016. See Pa.R.A.P. 1925(a).
3
 We note that Appellant failed to comply with the requirement of Pa.R.A.P.
2119(a), that she organize her brief according to the questions presented.
See Pa.R.A.P. 2119(a).



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J-A28005-16



support a conclusion that she was sixty-percent negligent. (See id.).        We

disagree.

      Our standard of review concerning denial of a motion for JNOV is well-

settled.

            When reviewing the propriety of an order granting or
      denying judgment notwithstanding the verdict, we must
      determine whether there is sufficient competent evidence to
      sustain the verdict. We must view the evidence in the light most
      favorable to the verdict winner and give the verdict winner the
      benefit of every reasonable inference arising therefrom while
      rejecting all unfavorable testimony and inferences. . . .

             Pennsylvania law makes clear that a judgment
      notwithstanding the verdict is proper only in clear cases where
      the facts are such that no two reasonable minds could disagree
      that the verdict was improper. Questions of credibility and
      conflicts in evidence are for the fact-finder to resolve. This Court
      will not substitute its judgment based upon a cold record for that
      of the fact-finder where issues of credibility and weight are
      concerned.

Dubose v. Quinlan, 125 A.3d 1231, 1237–38 (Pa. Super. 2015), appeal

granted in part, 138 A.3d 610 (Pa. 2016) (citations omitted). Furthermore,

“the burden to establish the plaintiff’s conduct as a contributing factor in his

injury rests with the defendant, who must show both the negligence of the

conduct alleged and the causal relationship of that conduct to the injuries for

which damages are sought.” Angelo v. Diamontoni, 871 A.2d 1276, 1280

(Pa. Super. 2005), appeal denied, 889 A.2d 87 (Pa. 2005) (citation omitted).

      Here, Appellee admitted to bumping into Appellant’s car after exiting I-

76 West onto City Avenue, prior to turning right onto Presidential Boulevard.

(See N.T. Trial, 9/14/15, at 27-28; N.T. Trial, 9/16/15, at 97).       Appellee


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J-A28005-16



explained that she was the first car stopped at a red light at the end of the I-

76 exit ramp, waiting to turn right onto City Avenue, and there were no

other vehicles in front of her. (See N.T. Trial, 9/14/15, at 33-34; N.T. Trial,

9/15/15, at 16-17; N.T. Trial, 9/16/15, at 98). When the light turned green,

she made a right turn onto City Avenue where she saw Appellant’s car

stopped in the roadway with no cars in front of it. (See N.T. Trial, 9/14/15,

at 32-33; N.T. Trial 9/16/15, at 98).         Appellee testified that she hit

Appellant’s car while driving about ten miles per hour.       (See N.T. Trial,

9/16/15, at 100). Appellant testified that she signed a form at the hospital

stating that the accident occurred at 10:02 a.m., and that she placed a two-

minute phone call at 10:01 a.m. (See N.T. Trial, 9/16/15, at 48-49).

      Viewing the evidence in the light most favorable to Appellee, as verdict

winner, and giving her the benefit of every reasonable inference, we

conclude that the evidence supports Appellee’s theory that Appellant’s car

was stopped in a roadway, with no cars in front of her, while she was talking

on her cell phone with her assistant. See Angelo, supra at 1280; Dubose,

supra at 1237-38. Thus, there is sufficient evidence to support the jury’s

conclusion that Appellant was acting negligently, and that her contributory

negligence was sixty-percent the cause of the accident.        Accordingly, we

conclude that this is not a case where no two reasonable minds could

disagree that the verdict was improper, and the trial court did not err or

abuse its discretion when it denied Appellant’s motion for JNOV.           See

Dubose, supra at 1237-38. Appellant’s first issue does not merit relief.

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J-A28005-16



      In her second issue, Appellant argues that the trial court erred in

denying her post-trial motion for a new trial. (See Appellant’s Brief, at 14-

17, 19, 22).   Specifically, Appellant argues that Appellee failed to present

evidence that she was at fault for the accident, and therefore Appellant

claims she is entitled to a new trial because the verdict shocked one’s sense

of justice. (See id. at 14-16). We disagree.

      Appellant’s claim challenges the weight of the evidence, for which our

standard of review is well settled.

            [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.

Phillips v. Lock, 86 A.3d 906, 919 (citation omitted).         “A new trial is

warranted when the jury’s verdict is so contrary to the evidence that it

shocks one’s sense of justice. . . .    [A] new trial should not be granted

because of a mere conflict in testimony or because the trial judge on the

same facts would have arrived at a different conclusion.” Martin v. Evans,

711 A.2d 458, 461 (Pa. 1998) (citations and internal quotation marks

omitted).




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J-A28005-16



      Here, the trial court addressed Appellant’s post-trial motion for a new

trial and concluded that it

      . . . did not err by denying [Appellant] a new trial because the
      jury’s verdict was not so contrary to the evidence as to shock
      one’s sense of justice.       The jury took into account that
      [Appellee] admitted to bumping [Appellant’s] car and partially
      causing the accident, as she was found to be forty percent
      negligent. The jury was free to find [Appellee’s] account of
      events more credible than [Appellant’s] testimony. [Appellee]
      testified that she was driving at about ten to twenty miles an
      hour as she turned the curve onto City Avenue and attempted to
      avoid [Appellant’s] car, which was stopped in the street. There
      was also evidence that [Appellant] was talking on her cell phone
      at the time of the accident. Because of this evidence, it cannot
      shock one’s sense of justice to find [Appellant] sixty percent
      negligent in the cause of this accident. Therefore, the jury
      verdict was not against the weight of the evidence and [the trial
      court] did not err by not granting a new trial.

(Trial Ct. Op., at 8).

      We agree with the reasoning of the trial court and will not re-weigh the

evidence. See Phillips, supra at 919. Accordingly, based on the foregoing

and our own independent review of the record, we conclude that the trial

court did not abuse its discretion or commit an error of law when it found

that Appellant is not entitled to a new trial. Appellant’s second issue does

not merit relief.

      Judgment affirmed.

      Judge Shogan joins the Memorandum.

      Judge Panella files a Dissenting Memorandum.




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J-A28005-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/29/2017




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