J-S16020-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    MARGARET ANTHONY AND CARMEN :              IN THE SUPERIOR COURT OF
    ANTHONY                     :                   PENNSYLVANIA
                                :
                 Appellants     :
                                :
                                :
             v.                 :
                                :
                                :              No. 1067 MDA 2017
    SAM RIZZO AND LISA ZAVADA :
    RIZZO                       :

             Appeal from the Judgment Entered August 16, 2017
        In the Court of Common Pleas of Luzerne County Civil Division
                          at No(s): 12175-CV-2015


BEFORE:      BOWES, J., MURRAY, J., and PLATT*, J.

MEMORANDUM BY MURRAY, J.:                             FILED APRIL 03, 2018

       Margaret Anthony and Carmen Anthony (Appellants) appeal from the

judgment entered after a jury awarded them $0 damages in this negligence

action.1 Upon careful review, we affirm.

       This case arises from an alleged dog bite attributed to a standard poodle

owned by Sam Rizzo and Lisa Zavada Rizzo (the Rizzos). Margaret Anthony

was employed by the Rizzos as a house cleaner, and on May 23, 2014,

Appellants arrived together at the Rizzos’ home. Lisa Rizzo was in her car and
____________________________________________


* Retired Senior Judge assigned to the Superior Court.

1  Appellants purported to appeal from the June 6, 2017 order denying their
motion for post-trial relief. That order is interlocutory, as 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); Prime Medica Assoc. v. Valley Forge Ins.
Co., 970 A.2d 1149, 1154 n.6 (Pa. Super. 2009). Judgment was properly
entered on August 16, 2017, and we have amended the caption accordingly.
J-S16020-18



the dog was unrestrained in the rear seat with the windows open. Lisa greeted

Margaret as Lisa backed out of the driveway, and Margaret approached the

car. The dog barked from the rear driver’s side as Margaret approached; the

dog then came into contact with Margaret’s right forearm.

       That same day, Margaret treated with family physician Dr. Alan L.

Boonin for what she described as a dog bite. Dr. Boonin diagnosed Margaret

with an avulsion, or tearing of the skin, on her right forearm, and he cleaned

the area, applied steri-strips, prescribed antibiotics and administered a

tetanus booster shot. N.T., 4/18/17, at 71-73. Margaret had a follow-up visit

with Dr. Boonin approximately one month later, on June 15, 2014, when Dr.

Boonin observed that Margaret appeared to be healing.          He did not refer

Margaret to a plastic surgeon to discuss scarring-related issues.

       Appellants initiated a lawsuit on October 29, 2015, raising a claim of

negligence against the Rizzos.2 They alleged, inter alia, that Margaret suffered

injuries as a result of the bite from the Rizzos’ dog.        On April 4, 2017,

Appellants filed a motion to preclude a verdict slip question and jury

instruction on factual cause, which the trial court denied.

       Trial commenced on April 18, 2017.        Margaret testified that the dog

lunged out of the car window and bit her twice on the forearm, causing her to

bleed and sustain scarring. Margaret testified that she suffered from mental
____________________________________________


2  Appellants’ complaint also included counts of negligence per se, premises
liability, punitive damages, and loss of consortium for Carmen Anthony. Only
the issue of negligence was presented to the jury and included in the verdict
slip.

                                           -2-
J-S16020-18



anguish and embarrassment as a result of the incident.         Margaret’s sister,

Marlene Snedeker, testified that Margaret became fearful following the

incident and she no longer enjoyed walks through their neighborhood.

Appellants also called Dr. Boonin as a fact witness regarding his personal

observations and medical records for Margaret.

      Appellants additionally called Lisa Rizzo to testify as if on cross-

examination. Lisa testified that Margaret rested her arm on the window while

the dog was barking, and that Margaret’s injury was nothing more than a

minor scratch with only minimal bleeding.       N.T., 4/18/17, at 57-59.     She

stated that she offered to wipe the affected area with a tissue, but Margaret

said she planned to clean it with alcohol inside Lisa’s home. Id. at 57-58.

      Lisa testified again during the Rizzos’ case in chief, and provided the

same account of the incident. Neither party introduced any expert testimony.

      In its jury instructions, the trial court instructed on factual causation as

follows, in relevant part:

         In order for the [Appellants] to recover in this case, the
      [Rizzos’] negligent conduct must have been a factual cause in
      bringing about the harm. Conduct is a factual cause of harm when
      the harm would not have occurred absent the conduct. To be a
      factual cause, the conduct must have been an actual real factor in
      causing the harm, even if the result is unusual or unexpected.

         A factual cause cannot be an imaginary or fanciful factor having
      no connection or only an insignificant connection with the harm.
      To be a factual cause, the [Rizzos’] conduct need not be the only
      factual cause. The fact that some other causes — the fact that
      some other causes concur with the [Rizzos’] negligence in
      producing an injury does not relieve the [Rizzos] from liability, as
      long as their own negligence is a factual cause of the injury.

                                      -3-
J-S16020-18



N.T., 4/19/17, at 181-82.

     As reflected on the verdict slip, the jury found that the Rizzos were

negligent and that their negligence was a factual cause of any harm to

Margaret. However, the jury further found that 50% of the causal negligence

was attributable to Margaret and 50% was attributable to the Rizzos, and that

the total amount of damages sustained by Margaret as a result of the incident

was $0.

     Appellants filed a timely motion for post-trial relief on April 28, 2017

seeking, inter alia, a new trial on the issue of damages. The Rizzos filed an

answer.    The trial court entered an order dated June 6, 2017 denying

Appellants’ post-trial motion.   Appellants filed a notice of appeal, and

subsequently complied with the court’s Pa.R.A.P. 1925 order to file a concise

statement of errors complained of on appeal. On August 15, 2017, this Court

issued an order directing Appellants to praecipe for judgment in accordance

with the trial court’s June 6, 2017 order, and final judgment was entered on

the trial court docket on August 16, 2017. The trial court subsequently issued

a Pa.R.A.P. 1925(a) opinion.

     Appellant raises the following issues for our review:

        A. Whether the trial court abused its discretion and/or
     committed an error of law in denying [Appellants’] motion to
     preclude a verdict slip question and jury instruction on factual
     cause when it was uncontroverted that [Margaret] has suffered
     some injury as a result of the subject incident.

          B. Whether the trial court abused its discretion and/or

                                    -4-
J-S16020-18


         committed an error of law in denying [Appellants’] motion for
         post-trial relief seeking a new trial on damages since the jury’s
         verdict was so contrary to the evidence that it shocks one’s sense
         of justice.

Appellants’ Brief at 4 (unnecessary capitalization and suggested answers

omitted).

         In their first issue, Appellants argue that the trial court erred in charging

the jury with an instruction on factual cause when it was undisputed that

Margaret suffered some injury as a result of the incident. Appellants contend

that the instruction and verdict slip “did nothing more than confuse the jury

and result[ ] in a jury verdict that is against the weight of the evidence.” Id.

at 10.

         We recognize:

         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 enough that the charge clearly and
         accurately explains the relevant law.

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


                                          -5-
J-S16020-18



some quotation marks omitted), appeal denied, 125 A.3d 778 (Pa. 2015).

Further, “[w]hile we recognize that the [Pennsylvania Standard Jury

Instructions] are not binding on trial courts, [they] are nonetheless

instructive.” Gorman v. Costello, 929 A.2d 1208, 1213 (Pa. Super. 2007).

      Here, our review reveals that the trial court’s jury instruction on factual

cause was nearly identical to Pennsylvania Standard Jury Instruction 13.20

(Civ. 2017). The trial court rejected Appellants’ argument that an instruction

on factual causation misled or confused the jury, stating:

      Appellants argued that, if the jury found [the Rizzos] negligent, it
      must find that such negligence was the factual cause of
      Margaret[]’s injury. Indeed, following deliberations, the jury
      concluded that [the Rizzos’] negligence was a factual cause of
      Margaret[]’s injury. Any alleged legal error or unjust result that
      Appellants wanted to avoid . . . never came to fruition because
      the jury held that [the Rizzos’] conduct was a factual cause of any
      injury.

Trial Court Opinion, 10/24/17, at 11-12.

      Upon review of the charge as a whole, we conclude that the trial court

provided an adequate instruction for factual cause to sufficiently guide the

jury in its deliberations. See Krepps, 112 A.3d at 1256. Even if an error

occurred, we would agree with the trial court’s conclusion that such error

would be harmless because the jury found that the Rizzos’ negligence was a

factual cause of the harm to Margaret. See Bennett v. A.T. Masterpiece

Homes at Broadsprings, LLC, 40 A.3d 145, 149-50 (Pa. Super. 2012) (post-

trial request for new trial requires a showing of actual prejudice resulting from

an erroneous ruling, and this Court “will not reverse an order denying a new

                                      -6-
J-S16020-18


trial unless the trial court committed an error of law that controlled the

outcome of the case”).     Accordingly, Appellants’ first argument is without

merit.

      Next, Appellants argue that the jury’s verdict was against the weight of

the evidence. Specifically, they contend that the jury was required to award

damages upon finding the Rizzos negligent and their negligence a factual

cause of Margaret’s harm. Appellants argue that Margaret’s injuries, including

obvious and apparent scarring, are compensable and “more severe than a

muscle strain/sprain that resolves within a short period of time.” Appellants’

Brief at 19.   In support, Appellants rely in part on this Court’s decision in

Caselli v. Powlen, 937 A.2d 1137 (Pa. Super. 2007), for the propositions

that a “jury is not free to ignore an obvious injury,” and that an award of $0

“represents a finding by the jury that . . . [Margaret] experienced absolutely

no compensable pain. . . .” Appellant’s Brief at 18, quoting Caselli, 937 A.2d

at 1139, 1140.

      In considering whether the jury’s verdict was against the weight of the

evidence, we are mindful that:

      A new trial based on weight of the evidence issues will not be
      granted unless the verdict is so contrary to the evidence as to
      shock one’s sense of justice; a mere conflict in testimony will not
      suffice as grounds for a new trial. Upon review, the test is not
      whether this Court would have reached the same result on the
      evidence presented, but, rather, after due consideration of the
      evidence found credible by the [jury], and viewing the evidence
      in the light most favorable to the verdict winner, whether the court
      could reasonably have reached its conclusion. Our standard of
      review in denying a motion for a new trial is to decide whether the

                                     -7-
J-S16020-18


      trial court committed an error of law which controlled the outcome
      of the case or committed an abuse of discretion.

Elliott v. Ionta, 869 A.2d 502, 504 (Pa. Super. 2005) (internal citations

omitted).

      In the Casselli decision cited by Appellants, a pedestrian initiated a

negligence action after he fell on the sidewalk outside of a property owner’s

residence and incurred $1,578 in medical expenses. Casselli, 937 A.2d at

1138. The pedestrian suffered a broken bone in his foot, and the property

owner did not dispute that the injury was caused by the fall or that the

pedestrian’s medical treatment was reasonable. Id. at 1140. The jury found

that the pedestrian and property owner were each 50% negligent in causing

the fall, but nevertheless awarded $0 in damages. Id. at 1138. On appeal,

this Court noted: “[W]here a defendant concedes liability and his or her expert

concedes injury resulting from the accident that would reasonably be expected

to cause compensable pain and suffering, the jury’s verdict is against the

weight of the evidence where it finds for the defendant.”       Id. (emphasis

removed, other emphasis added) (citation omitted). We then held that the

jury’s $0 verdict was against the weight of the evidence where causation was

conceded, a broken bone is a type of injury “to which human experience

teaches there is accompanying pain,” and the property owner agreed that the

pedestrian’s medical treatment was reasonable.         Id. at 1139 (citation

omitted).

      After thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the trial court, we conclude

                                     -8-
J-S16020-18


that Appellants’ challenge to the weight of the verdict does not merit relief.

      Appellants did not offer any expert testimony in support of their claim

of compensable pain, relying exclusively on fact witnesses. The trial court

opinion thoroughly addresses and refutes Appellants’ contentions. See Trial

Court Opinion, 10/24/17, at 12-25 (stating that contrary to Appellants’

argument, “[a] jury is not compelled to believe that a dog bite . . . causes

compensable pain,” Boggavarapu v. Ponist, 542 A.2d 516, 518 (Pa. 1988),

and “the existence of compensable pain is an issue of credibility and juries

must believe that plaintiffs suffered pain before they compensate for that

pain,” Majczyk v. Oesch, 789 A.2d 717 (Pa. Super. 2001); and noting that

Appellants presented no expert medical testimony about any pain suffered by

Margaret, the Rizzos testified that Margaret suffered a mere scratch that was

a minor injury, and the jury was free to believe all, part, or none of the

evidence, see id. at 725-26).

      We further hold that Casselli is distinguishable — in that case, the

broken bone suffered by the pedestrian was specifically noted as an injury

recognized by common experience as a source of pain and suffering – whereas

in the instant matter, Margaret’s dog bite or scratch could be found, as a

matter of law, to carry no compensable pain. See Boggavarapu, 542 A.2d

at 518. Because the Honorable Lesa S. Gelb, sitting as the trial court, has

authored an excellent analysis of Appellants’ second issue, we adopt the

opinion as our own. The parties shall attach a copy of the trial court’s opinion


                                     -9-
J-S16020-18


dated October 24, 2017, to all future filings in this matter that cite this

memorandum.

     Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/3/2018




                                  - 10 -
                                                                                Circulated 03/15/2018 03:32 PM




 Margaret Anthony and                            In the Court of Common Pleas
 Carmen Anthony,                                      of Luzerne County

 Appellants

                                                       CIVIL ACTION - LAW ....
        VS.
Sam Rizzo and
Lisa Zavada Rizzo,

                       Appellees                         No. 12175 of 2015

                                           OPINION

Background

        Appellants initiated suit against Appellees by filing a Complaint

on October 29, 2015, alleging that Appellant Margaret Anthony

("Margaret Anthony") suffered injuries as a result of a bite from

Appellees' dog on May 23, 2014.1 In advance of trial, on April 4, 2017,

Appellants filed a Motion to Preclude a Verdict Slip Question and Jury

Instruction on Factual Cause, arguing that the uncontested medical

evidence reflected that Margaret Anthony suffered injury, and, is

therefore, legally entitled to relief. (4/4/17 Motion to Preclude Factual

Cause.) On April 11, 2017, Appellees filed an Answer to Appellants'


1 Appellant Carmen Anthony, Margaret Anthony's husband, alleged injuries due to loss of
consortium. (Complaint, 1156-59.} During the trial, Appellants presented no evidence regarding
Appellant Carmen Anthony's loss of consortium claim. Accordingly, the issue of loss of
consoriium was not included in the verdict slip or otherwise presented to the jury.
     Motion to Preclude Factual Cause Instruction and Verdict Slip Entry.

     (4/11 /17 Answer Preclude Factual Cause.) In their Answer, Appellees

    argued that, where causation is disputed, the burden of proof for

    factual cause lies with the plaintiff. See (id.) Further, Appellees

    asserted that they continue to dispute causation and that the jury

    would be free to reject any of Appellants' evidence presented in

    support of causation. See (id.)

           On April 18, 2017, a trial commenced in the above-captioned

    matter (the "Triol"}. At the start of the Trial, this Court deferred ruling

    on Appellants' Motion to Preclude Factual Cause Instruction and

    Verdict Slip Entry until after any relevant evidence was presented to

    the jury (N.T.,2 p. 4-5.) Following opening statements by the parties,

    Appellants' counsel called Appellee Lisa Zavada Rizzo ("Lisa Rizzo")

as a witness to be questioned as though under cross examination.

    (N.T., p. 41.)

          According to Lisa Rizzo, her dog that was involved in the incident

on May 23, 2014 was a standard poodle that weighed approximately

sixty-five (65) to seventy (70) pounds. (N.T., p. 44-45.) On the day of the


2   N.T. refers to the Notes of Testimony from the Trial commencing on April 18, 2017.


                                                 2
incident, Appellees' dog was in the back of Lisa Rizzo's vehicle with

the windows down to allow the entire vehicle to cool down while the

air conditioning started. (N.T., p. 55.) While Lisa Rizzo waited in the

driveway, Appellants arrived to clean her home. (N.T., p. 55-56.) After

Lisa Rizzo attempted to greet Margaret Anthony from her vehicle,

Anthony approached because she was unable to hear what Rizzo

said. (N.T., p. 56-57.) As Margaret Anthony reached Lisa Rizzos car, the

dog was barking from the rear driver's side. (N.T., p. 59, 66.)

      Soon after arriving at the vehicle, Margaret Anthony came into

contact with Appellees' dog as she rested her forearm on the open

car window ledge. (N.T., p. 57.) During her testimony, Lisa Rizzo

maintained that her dog merely scratched Margaret Anthony and

that she was able to aid Anthony by wiping the area with a tissue

moistened with saliva. (N.T., p. 57.) At the time of the incident, Lisa

Rizzo noticed that Margaret Anthony's arm was bleeding a little, but

Anthony indicated that she planned to clean the area with alcohol

once inside Appellees' home. (N.T., p. 58.) Later, Lisa Rizzo called

Margaret Anthony to inform her that the dog's shots were up to date,

but that she should visit her doctor if she so desired. (N.T., p. 58.)


                                    3
       Dr. Boonin, Margaret Anthony's family physician, treated her on

 the date of the incident for an injury to her forearm that she described

 as a dog bite. (N.T., p. 70.)Dr. Boonin's records from that day indicate

 that his diagnosis was a     11
                                   •••   right forearm evulsion of the skin and a

 one-inch hematoma with no bite marks." (N.T., p. 71.) An evulsion is a

 tearing away of the skin. (N.T., p. 72.) ln Margaret Anthony's case, this

 meant that the top part of her right forearm skin was torn away from

 the lower fatty tissue layer. (N.T., p. 72.) Dr. Boonin also explained that,

with a dog bite, the teeth could get under the skin and pull it over,

leaving no actual bite marks. (N.T., p. 72.) To treat Margaret Anthony's

arm, Dr. Boonin cleaned it, applied steri-strips, prescribed an

antibiotic, and administered a tetanus booster shot. (N.T., p. 73.)

According to Dr. Boonin, he prescribed an antibiotic because of the

high rate of infection associated with animal bites, and administered

the tetanus booster shot as he would in any case involving a bite or a

tear of the skin from an object. (N.T., p. 73.) Dr. Boonin saw Margaret

Anthony again on June 15, 2014 and noted that her forearm evulsion

was healing. (N.T., p. 73.) Dr. Boonin never referred Margaret Anthony

to a plastic surgeon for the injury. (N.T., p. 81.)


                                           4
       According to Margaret Anthony, on the day in question, she

 approached Lisa Rizzo•s vehicle even though the dog was barking

 because the dog often barked at her. (N.T., p. 89.) Margaret Anthony

 denied leaning on the window ledge, as Lisa Rizzo described, and,

 explained that the dog lunged out of the reor window to bite her

 twice on the arm. (N.T., p. 89.) After noticing blood running down her

 arm, Margaret Anthony went into the house to clean the wound with

 peroxide. (N.T., p. 89.) She then proceeded to Dr. Boonin s office for
                                                              1




an emergency appointment, instead of going to an emergency

room. (N.T., p. 89.) After the visit to Dr. Boonin's office, she was taking

Aleve for the pain at the wound site. (N.T., p. 100.)

      During Margaret Anthony's testimony, Appellants' counsel

published to the jury a photograph of her arm that was taken a few

months after the incident (N.T., p. 92-93.) Margaret Anthony also

showed the jury her arm from the witness stand. (N.T., p. 94.) She

testified that, since the day of the incident, she often covers the

injured area on her arm as she is sometimes teased about .the scar.

(N.T., p. 91-92.) Also, Margaret Anthony explained that she no longer

takes walks because she is afraid of dogs and still has nightmares


                                  5
 about the incident. {N.T., p. 95-97.) Margaret Anthony never treated

 with a doctor for these nightmares. {N.T., p. 113.) Following the

 incident, Margaret Anthony never returned to work for Appellants;

 however, Dr. Boonin did not instruct Margaret Anthony that she could

 not work because of her injury. {N.T., p. 97, 113.)

      Later,    Margaret     Anthony's      sister,    Marlene   Snedeker,

 {"Snedeker") testified about the injury Anthony suffered and the effect

the incident had on her. (N.T., p. 116-117.) Snedeker helped her sister

clean the wound the day after the incident and noticed that she was

in visible pain during this process. {N.T., p. 118-119.)Snedeker also

explained that she and her sister used to enjoy four mile walks in both

the morning and evening, but that stopped after the incident

because of her sister's fear of dogs. (N.T., p. 117, 119-120.)

      At the start of the defense's case in chief, Lisa Rizzo again

testified. (N.T., p. 146-165.) During her testimony, Lisa Rizzo reviewed

her prior depiction of the incident. (N.T., p. 146-165.) Appellant Sam

Rizzo ("Sam Rizzo") also provided testimony about the day of the

incident. (N.T., p. 165.)Sam Rizzo recalled his conversation with his wife,

Lisa Rizzo, on the day of the incident. (N.T.,p. 170.) Sam Rizzo


                                   6
remembered Lisa explaining that Margaret Anthony was claiming the

Appellees' dog bit her and that she had a mark, like a scratch, on her

arm. (N.T., p. 170.) Also, after Lisa Rizzo advised him that Margaret

Anthony said she did not plan to sue Appellees, Sam Rizzo told his wife

to begin documenting everything that occurred with Margaret

Anthony because he feared an unfounded lawsuit. (N.T., p. 171.)

     After the defense finished presenting its witnesses, this Court

delivered its charge to the jury. (N.T., p. 17 6.) Relevant to the factual

cause of any harm, this Court instructed the jury as follows:

            In order for [Margaret Anthony] to recover in this
           case, the [Appellees'] negligent conduct must
           have been a factual cause in bringing about
           the harm. Conduct is a factual cause of harm
           when the harm would not have occurred
           absent the conduct. To be a factual cause, the
           conduct must have been an actual real factor
           in causing the harm, even if the· result is unusual
           or unexpected. A factual cause cannot be an
           imaginary or fanciful factor having no
           connection or only an insignificant connection
          with the harm. To be a factual cause, the
           [Appellees'] conduct need not be the only
          factual cause. The fact that some other causes
          - the fact that some other causes concur with
          the [Appellees'] negligence in producing an
          injury does not relieve the [Appellees] from
          liability, as long as their own negligence is a
          factual cause of the injury. (N.T., p. 181-182.)


                                  7
     The jury rendered its verdict on April 19, 2017. Relevant to the

current appeal, the jury completed the verdict slip as follows:

      1. Do you find that [Appellees], Sam Rizzo and Lisa Zavada Rizzo

were negligent? Yes

     2. Was the [Appellees'] negligence a factual cause of any harm

to [Appellant Margaret Anthony]? Yes ...

     5. Taking the combined negligence that was a factual cause of

any harm to [Margaret Anthony] as 100 percent, what percentage of

that causal negligence was attributable to the [Appellees] and what

percentage was attributable to [Margaret Anthony]?

                [Appellees]                           50%

                [Margaret Anthony]

     6. Please state the total amount of damages, if any, sustained

by [Margaret Anthony] as a result of this accident, without regard to

and without reduction by the percentage, if any, that you have

attributed to [Margaret Anthony].

                           TotaliQ




                                 8
      On April 28, 2017, Appellants filed a Motion for Post-Trial Relief.

 (4/28/17 Post-Trial Motion.) In Appellants' Brief in Support of Post-Trial

 Motion, Appellants argued that the trial court erred by including the

 issue of factual cause in its charge and on the verdict slip, and, that

the jury was required to find some amount of damages in favor of

Appellant Margaret Anthony. (4/28/17 Post-Trial Brief.) On May 5, 2017,

Appellees filed their Answer to Appellants' Motion for Post Trial Relief.

By Order dated June 6, 2017, this Court denied Appellants' Motion for

Post Trial Relief. (6/6/17 Order.) Appellants filed a Notice of Appeal to

the Pennsylvania Superior Court on July 5, 2017.

      On July 27, 2017, Appellants filed their Concise Statement of

Errors Complained of on Appeal pursuant to Pa.R.A.P. No. 1925. In their

Concise Statement, Appellants raise the following issues for review:

      1 . Whether it was an error in charging the jury on Factual Cause

and/or placing the question of factual cause on the verdict slip when

the evidence presented made it clear that [Margaret Anthony's]

injuries where clear and obvious and as a result of the May 23, 2014

incident.




                                  9
      2. Whether it was an error to deny [Appellants] a new trial on

damages where the jury has already found the [Appellees] were

negligent,   and    such   negligence was       the factual       cause   of

[Appellants'] damages.

Standard of Review

       "A new trial based on weight of the evidence issues will not be

granted unless the verdict is so contrary to the evidence as to shock

one's sense of justice; a mere conflict in testimony will not suffice as

grounds for a new trial. It is beyond argument that the fact-finder is

free to accept or reject the credibility of both expert and lay

witnesses, and to believe all, part or none of the evidence." Casselli v.

Powlen, 937 A.2d 1137, 1139 {Pa. Super. 2007) (quoting Nemirovsky v.

Nemirovsky, 776 A.2d 988 (Pa. Super. 2001 )).

      In addition, the Pennsylvania Supreme Court has instructed as

follows:

            We have held that it is the duty of the trial court
            'to control the amount of the verdict; it is in
            possession of all the facts as well as the
            atmosphere of the case, which will enable it to
            do more evenhanded justice between the
            parties than can an appellate court.' Thus, 'a
           jury verdict is set aside for inadequacy when it


                                  10
               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 the loss suffered by the
              plaintiff.' Hence, a 'reversal on grounds of
              inadequacy of the verdict is appropriate only
              where 'the injustice of the verdict stands forth
              like a beacon.'' Davis v. Mullen, 565 Pa. 386, 390-
              91, 773 A.2d 7 64, 7 66 (Pa.2001) {internal citations
              omitted).

 Discussion

      First, Appellants argue that the trial court erred by including the

issue of factual cause in its instruction and on the verdict slip; however,

Appellants' argument ignores the fact that the jury explicitly found

that Appellees' conduct was a factual cause of Margaret Anthony's

harm. See (Verdict Slip.) In their Motion to Preclude a Verdict Slip

Question and Jury Instruction on Factual Cause, Appellants argued

that, because the evidence was undisputed that Margaret Anthony

suffered an injury, the jury must find factual cause and could not avoid

awarding damages by finding otherwise. (4/4/17 Motion to Preclude

Factual Cause.) Without even touching upon the merits of this

argument, the end result which Appellants sought was reached not

by a judicial ruling, but by the findings of the jury. Appellants argued


                                    11
that, if the jury found Appellees negligent, it must find that such

negligence was the factual cause of Margaret Anthony's injury.

Indeed, following deliberations, the jury concluded that Appellees'

negligence was a factual cause of Margaret Anthony's injury. Any

alleged legal error or unjust result that Appellants wanted to avoid by

this Court granting their Motion never came to fruition because the

jury held that Appellees I conduct was a factual cause of any injury.

     In their second issue presented for review, Appellants allege that

the trial court erred by denying their request for a new trial on

damages because it was against the weight of the evidence for the

jury to fail to award any damages. Appellants assert that, having

found Appellees negligent and that such negligence was a factual

cause of Margaret Anthony's harm, the jury was not free to ignore her

obvious injury and fail to award damages. Contrary to Appellants'

argument, the Pennsylvania Supreme Court has stated, ' [a] jury is not
                                                         1




compelled to believe that a dog bite or puncture by needle causes

compensable pain." Boggavarapv v. Ponist, 518 Pa. 162, 167, 542

A.2d 516, 518 (Pa. 1988).




                                 12
        "Indeed, the existence of compensable pain is an issue of

 credibility and juries must believe that plaintiffs suffered pain before

 they compensate for that pain." Majczyk v. Oesch, 789 A.2d 717, 723

  (Pa. Super. 2001) (quoting Davis v. Mullen, 565 Pa. 386, 396, 773 A.2d

 764, 769 (Pa. Super. 2001 )). Further, " ... the determination of what is

 compensable injury is uniquely within the purview of the jury.11 Id. at

 726.

        In Majczyk v. Oesch, the Pennsylvania Superior Court affirmed

 the trial court's denial of a motion for new trial, holding that a jury may

 find for a defendant in the face of obvious negligence where it does

 not believe that a plaintiff's alleged pain and suffering was

 compensable. kl Majczyk involved a personal injury claim filed by the

 plaintiffs after their vehicle was rear-ended by the defendant who was

. traveling at a speed of five (5) mph. Id. at 719. Specifically, the plaintiff

 driver alleged a herniated cervical disc as a result of the accident and

 sought damages for her ongoing pain and suffering.           kl at 719-721.
 During the trial, two of the defendant's medical experts testified

 regarding the plaintiff driver's alleged injuries.        kt at 721. The
 defendant's first medical expert testified that the plaintiff driver


                                     13
 suffered a cervical strain in the accident and that he advised her to

 keep wearing the medical collar prescribed at the emergency room.

 ld. Upon review of this testimony, the Superior Court further noted that

 the first medical expert testified that the plaintiff driver was      11
                                                                            l 00

 percent better" approximately three weeks after the occident.jd, The

 defense's second medical expert, while disputing causation of the

 plaintiff driver's more serious injury, still appeared to admit that the

plaintiff driver suffered some injury. KL at 721-722. The jury held in favor

of the defendant and the trial court denied the plaintiff driver's motion

for new trial. KL at 720.

             Based on her characterization of 'the defendant's medical

testimony as having conceded injury, the plaintiff driver appealed the

defense verdict to the Pennsylvania Superior Court, arguing, in part,

that the jury verdict was against the weight of the evidence presented

at trial.      KL at 720. In its opinion, the Superior Court summarized the
general rule of the cases relied upon by the plaintiff driver as follows:
11
     •••   where a defendant concedes liability and his or her expert

concedes injury resulting from the accident that would reasonably be

expected to cause compensable pain and suffering, the jury's verdict


                                       14
is against the weight of the evidence where it finds for defendant." Id.

at   722. The     Maiczyk Court then         explored     the   meaning of

compensable pain and suffering by detailing the Pennsylvania

Supreme Court's analysis of two seemingly conflicting lines of cases in

Davis v. Mullen.   kl at 722-723. Relying on Davis and other related

cases, the Maiczyk Court found that, although the trial included

disputed evidence regarding the severity of the injuries, the jury was

free to believe all, part, some, or none of that evidence.        kl at 726.

Affirming the trial court's denial of a new trial, the Superior Court

determined that " ... while the jury may have concluded that [the

plaintiff driver] suffered some painful inconvenience for a few days or

weeks after the accident, it may also have concluded that [the

plaintiff driver's] discomfort was the sort of transient rub of life for which

compensation is not warranted." kt at 726 (citing Boggavarapu v.

Ponist, 518 Pa. 162, l67, 542A.2d 516, 518 (Pa. 1988)).

      In Davis, as relied upon by the Majczyk Court, the Pennsylvania

Supreme Court resolved two apparently competing lines of cases

regarding compensable injury by distinguishing the severity of the




                                    15
    plaintiffs' injuries in each line of coses.> Davis v. Mullen, 565 Pa. 386,

    773 A.2d 764 (Pa. 2001 ); See also Majczyk, 789 A.2d at 722-723. The

    plaintiff in Davis, a driver of a tractor trailer, filed suit against the driver

    of a vehicle who fell asleep at the wheel and crossed the dividing line

to strike the plaintiff's truck head-on. Davis v. Mullen, 565 Pa. 386, 389,

773 A.2d 7 64, 7 65. During the trial, the plaintiff testified that he was

examined at the hospital and received pain medication, but, that he

returned to work the Monday after the accident, which occurred on

Friday. Id. About twenty days after the accident, the plaintiff sought

treatment from a chiropractor, but discontinued the sessions after

twenty visits.� The only issue for the Davis jury was damages, as the

defendant admitted liability, but disputed the extent of the plaintiff's

injury.   kl The jury awarded the plaintiff compensation for his medical

3  As noted by the Majczyk Court. the Davis Court examined compensable injury in a slightly
 different context. Majczyk, 789 A.2d at 722. In Davis. the Supreme Court addressed a situation
 where a jury awarded the plaintiff compensation for medical expenses . .but failed to award any
 damages for pain and suffering. Davis v. Mullen, 565 Pa. 386, 773 A.2d 764. The Court's decision
 to uphold the jury award was based upon its analysis of what constitutes a compensable injury.
 Id. Although the instant matter does not involve the exact situation where medical expenses
were awarded in the absence of compensation for pain and suffering, the Davis Court's holding
regarding compensable injury is relevant to a determination in this matter where the jury found
negligence was split 50/50 between the parties. but did not award damages for pain and
suffering. Like in Majczyk, the jury in this case found in favor of the defendants. awarding no
damages to Margaret Anthony for her alleged pain and suffering, thereby. demonstrating their
belief that any injuries suffered were not compensable. Because the Pennsylvania Superior Court
in Majczyk applied the Davis analysis of compensable injury to a similar situation where no
damages were awarded, it is directly applicable to the current matter. See Majczyk, 789 A.2d
717.


                                             16
expenses and damaged personal property; however, they awarded

no money for pain and suffering.         kl   at 390, 7 66. Following the jury

verdict, the trial court denied the plaintiff's motion for new trial related

to the lack of award of damages for pain and suffering. Kt On appeal,

the Pennsylvania Superior Court reversed the trial court, finding that

the award was inconsistent with the evidence of record.          kl
      At the start of its Opinion affirming the trial court, the Davis Court

acknowledged that it must reconcile a line of cases where new trials

were granted for a jury's failure to award damages for pain and

suffering in addition to medical expenses with a line of cases

upholding jury verdicts that awarded compensation for medical

expenses in the absence of any award for pain and suffering. Id. at

391 , 7 66. First, the Davis Court described in detail the line of cases that

were overturned for failure to award damages for pain and suffering.

Id. at 391-392, 7 67. This first line of cases involved evidence of severe

injury with no compensation for pain and suffering. See id. at 392-393,

7 67-7 68. For example, the Davis Court reviewed cases involving injuries

to plaintiffs which included a woman suffering from a neck protrusion

that rendered her 30-40% disabled as a result of the vehicle in which


                                    17
she was riding colliding with a utility poll; a woman who was rendered

unconscious and suffered a disfiguring scar from a car accident; and,

a woman who was hospitalized for 19 days and unable to work for 14

months as the result of a motor vehicle accident.              kL at 391-393,   7 67-

7 68. The Davis Court explained the Pennsylvania Supreme Court's

decision to overturn such jury verdicts in this first line of cases as follows:

11
     •••   the plaintiffs' injuries were too severe for the trial courts to have had

a reasonable basis to believe that the juries I awards of medical

expenses, without compensation for pain and suffering was based on

any determination properly in province of the juries." Id. at 391-392,

767.

             Next, the Davis Court considered the second line of cases where

the Pennsylvania Supreme Court " ... focused on the power of the jury

as the ultimate finder of fact and the need for the judiciary to guard

against usurping the role of the jury," concluding that" ... a jury award

of medical expenses without a corresponding award of damages for

pain and suffering, is not necessarily inconsistent." Id. at 393, 768. This

second line of cases involved the following circumstances: a plaintiff

who received a Band-Aid and two tetanus shots to treat a dog bite


                                           18
wound while later complaining of sciatic nerve pain from the needle,

and a plaintiff who was the victim of the use of excessive force by a

police officer.   kL at 394-995, 768-769. Having reconciled these two

lines of cases based on the severity of the injury and the jury's province

to determine whether an injury is compensable, the Davis Court

rejected any per se rule preventing a jury from compensating a

plaintiff for medical expenses in the absence of an award of

damages for pain and suffering. The Court explained, 11 [i]ndeed, the

existence of compensable pain is an issue of credibility and juries must

believe that plaintiffs suffered pain before they compensate for that

pain."   kL at 396, 7 69 (internal citations omitted).
     Notably, one case examined by the Davis Court in its second line

of cases involved circumstances similar to the instant matter. In

Boggavarapu v. Ponist, the Pennsylvania Supreme Court held that the

record was sufficient to support the jury's finding that the plaintiff did

not suffer compensable pain from a dog bite. Boggavarapu v. Ponist,

518 Pa. 162, 542 A.2d 516 (Pa. 1988). The plaintiff in Boggavarapu

brought suit against his neighbor for a dog bite which resulted in two

puncture wounds.      kL at 165, 517. To treat the dog bite, the plaintiff

                                     19
went to a local emergency room where he received two tetanus

shots and a Band-Aid. ls;L The plaintiff later alleged that the tetanus

needle pierced his sciatic nerve, causing continuing pain. � After

finding the defendants negligent, the jury awarded the plaintiff

damages for his medical expenses only, not for pain and suffering. kl

at 166, 518. The trial court in Boggavarapu granted the plaintiff a new

trial because the award did not include compensation for pain and

suffering. kt The Superior Court affirmed. Boggavarapu v. Ponist, 368

Pa. Super. 634, 531 A.2d 28 (Pa. Super. 1987).

     The Pennsylvania Supreme Court reversed the Superior Court,

finding that, upon the evidence presented, the jury was free to

believe all, some, or none of the allegations related to the plaintiff's

pain and suffering. Boggavarapu, 518 Pa. 162, 168-169, 542 A.2d 516,

519. Although the Court acknowledged that there are certain injuries

which common experience tells us cause pain, it explained that, 11 [a]

jury is not compelled to believe that a dog bite or puncture by a

needle causes compensable pain." kt at 167, 518. Further, "(t] hey

may believe that it is a transient rub of life and living, a momentary

stab of fear and pain, or neither."   kt Specifically, the Boggavarapu

                                 20
Court clarified that the jury's award was related to the dog bite only,

not the needle. Ji;t at 168, 518. Because the plaintiff's allegations of

pain were related to the needle, rather than the bite, the jury was free

to hold that the dog bite was not a compensable injury.       kl   at 168,

518-519. While the jury was also free to find that pain accompanied

the dog bite, it was not required to do so and was able to reject any

subjective notions of pain. Id.

     Like Boggavarapu, the facts of the case currently before this

Court fit squarely within the Davis second line of cases where the jury's

decision not to award compensation for pain and suffering must be

upheld. See Davis v. Mullen, 565 Pa. 386, 393, 773 A.2d 764, 768 (Pa.

200 l). Although the jury found Appellees negligent and that their

negligence was a factual cause of the injury to Margaret Anthony,

they were free to find, based on the record, that the injury was not

compensable. The main factors which demonstrate that the zero

dollar award in the instant matter was wholly within the province of

the jury are that both injury and causation were disputed throughout

the trial, the allegations regarding pain and suffering were subjective,

and the injury itself was minor. First, while Pennsylvania Courts have


                                  21
    previously held that, where liability and injury likely to cause

    compensable pain are conceded, it is against the weight of the

    evidence to find for the defendant, in the current matter, neither

    liability, nor injury associated with compensable pain were conceded.

See Majczyk v. Oesch, 789 A.2d 717, 720 (Pa. Super. 2001 ). Throughout

the Trial, Appellees asserted that Margaret Anthony suffered a mere

scratch which was due to her own negligence in approaching the

vehicle and that the scratch was only a minor injury. See (4/11 /17

Answer Preclude Factual Cause; N.T., p. 57-59, 66, 71-73, 97, 100, 113.)

In fact, Appellees even suggested that Appellants' claim was

fabricated or exaggerated. See (N.T., p. 171.} This is simply not a

situation where Appellees accepted any sort of liability for a

compensable injury that would render the jury's verdict against the

weight of the evidence.

          Second, there was no expert medical testimony in this case

about any pain suffered by Margaret Anthony.4 Indeed, all of the



4   Dr. Boonin's testimony at trial was solely as Margaret Anthony's treating physician and not as an
expert rendering any opinions relevant to this case. Dr. Boonin did not prepare an expert report,
was never admitted as an expert, and was testifying under subpoena. See (N.T., p. 69-84.)
Furthermore. Dr. Boonin provided no testimony related to Margaret Anthony's pain and suffering.
See (id.)


                                                22
evidence regarding suffering by Margaret Anthony came from her

own testimony and that of her sister. It is black letter law that a jury is

free to believe all, part, some, or none of the evidence presented to

it. Majczyk, 789 A.2d 717, 726. The jury's ultimate finding in favor of the

defense indicates that it rejected this subjective testimony about

Margaret Anthony's alleged pain. Margaret Anthony testified that, as

a result of the dog bite, she had to go to an emergency visit with her

doctor and took Aleve to subdue the pain she experienced. (N.T., p.

89, l 00.} She also provided testimony regarding the effect the resulting

scar has on her life. {N.T., p. 91-92, 95-97 .} According to Margaret

Anthony, she now experiences nightmares, covers the scar in

embarrassment, and is unable to take walks outside because of other

people with dogs. (N.T., p. 91-92, 95-97.) Margaret Anthony's sister

added that she was in visible pain while cleaning the wound the day

after the incident. (N.T., p. 118-119 .)

      Although the jury was free to reject this evidence outright with

nothing to dispute it, there was also contradictory evidence

presented that the jury apparently found credible. Lisa Rizzo

described the wound as a mere scratch that she was able to treat


                                    23
Margaret Anthony during which he noted that the wound was

healing. (N.T., p. 73.) Dr. Boonin never referred Margaret Anthony to a

plastic surgeon, nor told her that she should stop working. (N.T., p. 97,

113.) In fact, the view of Margaret Anthony's scar at the Trial revealed

only a faint, small marking, not unlike the kind of faint scars or

blemishes most adults have on their bodies. (N.T., p. 94.) This case

stands in strong contrast to the first line of cases identified in Davis and

is most similar to the dog bite in Boggavarapu. See Davis, 565 Pa. 386,

391-392, 773 A.2d 764, 767; Boggavarapu v. Ponist, 518 Pa. 162, 542

A.2d 516 (Pa. 1988). Accordingly, the jury was free to hold that

Margaret Anthony's injury was nothing more than a transient rub of life

for which compensation was not warranted.



                            (END OF OPINION)




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