J-A24028-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOSEPH SMITH, VERONICA FLEAGLE                   IN THE SUPERIOR COURT OF
AND MICHAEL ORTIZ                                      PENNSYLVANIA

                            Appellants

                       v.

JUDITH KAPLOW

                            Appellee                 No. 2698 EDA 2015


               Appeal from the Judgment Entered August 18, 2015
              In the Court of Common Pleas of Philadelphia County
                Civil Division at No(s): June Term, 2014, No. 3448


BEFORE: BOWES, J., OTT, J., and SOLANO, J.

MEMORANDUM BY OTT, J.:                           FILED DECEMBER 20, 2016

       Joseph Smith, Veronica Fleagle, and Michael Ortiz (collectively “the

appellants”) appeal from the judgment entered August 18, 2015, in the

Philadelphia County Court of Common Pleas.1         In this negligence action

following a motor vehicle accident, the jury (1) found both Smith and Judith

Kaplow, the drivers of the respective vehicles, equally liable for the accident,


____________________________________________


1
  We note the appellants filed their notice of appeal from the August 11,
2015, order denying their post-trial motions.        See Notice of Appeal,
8/19/2015. However, “an appeal properly lies from the entry of judgment,
not from the denial of post-trial motions.” Gold v. Rosen, 135 A.3d 1039,
1040, n.1 (Pa. Super. 2016).         In the present case, judgment was
subsequently entered on the verdict on August 18, 2015. Therefore, we will
consider this appeal as properly filed after the entry of judgment. See id.
See also Pa.R.A.P. 905(a)(5)..
J-A24028-16



(2) awarded Smith and his passenger, Ortiz, each $1.00 in damages, and

(3) awarded no damages to Smith’s other passenger, Fleagle, after

determining she did not suffer a serious impairment of a bodily function. On

appeal, the appellants argue the damages verdict was against the weight of

the evidence, and the trial court repeatedly abused its discretion or

committed an error of law in its rulings.2 For the reasons below, we affirm.

        The facts underlying the appellants’ claims are aptly summarized the

by trial court as follows:

        On the afternoon of September 4, 2012, Ms. Kaplow was driving
        home from a lunch meeting in downtown Philadelphia heading
        west towards the Philadelphia suburbs.          Paula Cramer, Ms.
        Kaplow’s friend, was a passenger in her car.           That same
        afternoon, [the appellants] decided to take an afternoon drive
        with Smith at the wheel of his car, albeit with no particular
        destination in mind. At approximately 1:50 PM, both Smith and
        Kaplow were driving on the Benjamin Franklin Parkway at Eakins
        Oval, which is located at the northwest end of the Benjamin
        Franklin Parkway directly [in] front of the Philadelphia Museum
        of Art. This circular stretch of road situated between Eakins Oval
        and the Philadelphia Art Museum is at least four lanes wide, with
        various exits leading onto several thoroughfares on both the left
        and right, and traffic merging (and diverging) frequently in
        multiple directions. A tremendous downpour began as they
        neared Eakins Oval, which impaired visibility and caused traffic
        to slow down. While Smith and Kaplow were passing in front of
        the Art Museum/Eakins Oval, their cars sideswiped each other.
        Kaplow and Smith pulled their cars to the side of the road after
        the impact, but because it was raining so hard, Smith got out of
        his car and went into Kaplow’s car, where the two exchanged
        information.    Both then left the scene and drove to their
        respective homes. According to Smith and Fleagle, they called
        the police immediately after the collision; however, Smith stated
____________________________________________


2
    The appellants do not challenge the jury’s findings with respect to Fleagle.



                                           -2-
J-A24028-16


      that the police did not arrive at the scene and instead spoke to
      them over the phone. At no point during their brief post-
      accident interaction did Smith indicate to Kaplow that he, or
      either of his passengers, were injured.

            Later that day, both Smith and Ortiz stated that they felt
      “tightness” in their backs, shoulders, and arms; and went to see
      Dr. Joseph Kwon, a chiropractor, for treatment that same day.
      The next day, Fleagle stated that she too began to experience
      pain in her upper and lower back, as well as shooting pains
      through her neck and thighs. On the advice of Smith and Ortiz,
      Fleagle began chiropractic treatment with Dr. Kwon as well. Dr.
      Kwon diagnosed all three [appellants] with back sprains and
      strains. He also determined that Ortiz and Fleagle were having
      back spasms, and that Fleagle had sprained her pelvis. During
      their treatment with Dr. Kwon, all three [appellants] were
      additionally examined by: Dr. Allen,3 an orthopedic physician;
      Dr. Michelle Holding, a physiatrist; Dr. Frederick Lieberman, an
      orthopedic surgeon; and Dr. Joel Swartz, a neuro-radiologist.
      Dr. Kwon treated Smith and Fleagle through February 11, 2013,
      and Ortiz through June 25, 2013. [The appellants] did not
      receive any further medical treatment for their injuries since
      2013.4
      __________
         3
           For reasons unknown, Dr. Allen’s first name is not listed
         in the trial record.
         4
           At trial, [the appellants] each testified that they did not
         receive any additional treatment following their respective
         discharges from Dr. Kwon, Dr. Holding, Dr. Levenberg, Dr.
         Allen, and Dr. Swartz. However, while Smith stated that
         he stopped receiving treatment in February 2013, Fleagle
         and Ortiz did not provide an exact date, rather they
         testified that they did not seek or receive any further
         medical treatment in 2014 or 2015.

Trial Court Opinion, 12/3/2015, at 2-3 (record citations omitted).

      On June 25, 2014, the appellants filed a complaint against Kaplow,

seeking damages for the injuries they sustained in the motor vehicle

accident.    Kaplow filed a timely answer and new matter in which she



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asserted she was not negligent, and raised the affirmative defense of

comparative negligence.      She also filed a cross-claim against Smith,

asserting his negligence was the sole cause of the accident.      The case

proceeded to a jury trial.   On July 20, 2015, the jury returned a verdict,

finding both Smith and Kaplow 50% negligent for the accident, and awarding

Smith $1.00 in damages and Ortiz $0.00 in damages. See N.T., 7/20/2015,

at 128. The jury also found Fleagle, who was bound by limited tort, did not

suffer a serious impairment of a bodily function, and, therefore, could not

recover. See id. at 128-129.

     The trial court then stated, on the record, that the jury had initially

produced a verdict sheet in which it awarded no damages to either Smith

or Ortiz. See N.T., 7/20/2015, at 129. The court explained: “And I sent

the verdict sheet back for you to come up with a dollar amount. You had

[to] award damages.” Id. As noted above, the jury returned with an award

of $1.00 for Smith.   The court then sent the jury back a second time,

instructing them to “come up with a dollar amount for Mr. Ortiz.”    Id. at

130. The jury returned with an award of $1.00 for Ortiz. See id. at 131.

     The appellants filed post-trial motions on July 30, 2015, which were

denied by the trial court on August 11, 2015. The appellants then praeciped




                                    -4-
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for the entry of judgment on August 18, 2015, and, the following day, filed

this timely appeal.3

       The appellants first argue the jury’s award of $1.00 in damages to

both Smith and Ortiz was against the weight of the evidence.          It is well-

settled that “[t]he decision to grant a new trial lies within the discretion of

the trial court.”     Lombardo v. DeLeon, 828 A.2d 372, 374 (Pa. Super.

2003), appeal denied, 857 A.2d 679 (Pa. 2004).

       In reviewing an order denying a motion for a new trial, an
       appellate court should not set aside a trial court’s decision unless
       the trial court’s decision was an abuse of discretion. Catalano
       v. Bujak, 537 Pa. 155, 642 A.2d 448, 450 (1994). “A new trial
       should be granted only where the verdict is so contrary to the
       evidence as to shock one’s sense of justice [and not] where the
       evidence is conflicting [or] where the trial judge would have
       reached a different conclusion on the same facts.” Henery v.
       Shadle, 443 Pa.Super. 331, 661 A.2d 439, 441, allocatur
       denied, 542 Pa. 670, 668 A.2d 1133 (1995).

Davis v. Mullen, 773 A.2d 764, 766 (Pa. 2001). Further, when reviewing a

claim that the jury’s verdict was inadequate, we must bear in mind the

following:

       It is the province of the jury to assess the worth of all testimony
       presented. The jury is free to believe all, some, or none of the
       witness testimony presented at trial. However, the jury’s verdict
       may be set aside if it is the product of passion, prejudice,
       partiality, or corruption, or if it is clear the verdict bears no

____________________________________________


3
  On August 20, 2015, the trial court ordered the appellants to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
The appellants complied with the court’s directive, and filed a concise
statement on September 11, 2015.



                                           -5-
J-A24028-16


      reasonable relationship to the loss suffered by the plaintiff based
      on the uncontroverted evidence presented.

                                     ****
      “Uncontroverted” evidence … is evidence which is unopposed or
      unchallenged, not merely uncontradicted. If one party has the
      burden of proof, opposing counsel may strenuously controvert
      the evidence through cross-examination and argument; reasons
      not to accept the plaintiff’s evidence may suffice to prevent the
      meeting of that burden, even without affirmative countervailing
      evidence.

Carroll v. Avallone, 939 A.2d 872, 874 (Pa. 2007) (citations omitted).

Indeed, the Supreme Court has made clear that “when a jury’s verdict has

no basis in the uncontroverted evidence offered at trial so as to be grossly

inadequate that verdict should be vacated.” Kiser v. Schulte, 648 A.2d 1,

7 (Pa. 1994).

      In   the   present   case,   the    appellants     contend   they   presented

uncontroverted evidence of injuries suffered by Smith and Ortiz in the motor

vehicle accident. See Appellants’ Brief at 24. Specifically, they assert:

      Smith suffered a strain and sprain injury to his neck and his
      back, had medical care and treatment for approximately six (6)
      months and did not recover until over two (2) years after the
      accident. … Ortiz suffered a strain and sprain injury to his neck
      and his back, had medical care and treatment for approximately
      ten (10) months and did not recover until over two (2) years
      after the accident.

Id. at 24-25. The appellants argue the jury award of $1.00 each “bears no

reasonable relation to the harm [Smith and Ortiz] suffered and shocks one’s

sense of justice.”   Id. at 24.

      In rejecting this claim, the trial court stated:




                                         -6-
J-A24028-16


       [T]he jury’s verdict makes it crystal clear that they did not find
       [the a]ppellants credible and, rather, believed that the
       [a]ppellants[] had grossly exaggerated the nature of their
       injuries and how those supposed injuries impacted their lives.
       The jury’s verdict also makes it crystal clear that they believed
       the chiropractic and other treatments [were] neither reasonable,
       nor medically necessary. These credibility determinations are
       the sole province of the jury and the evidence at trial clearly
       supported the jury’s verdict.      The verdict should not be
       overturned absent compelling circumstances, none of which are
       offered by [the a]ppellants.

Trial Court Opinion, 12/3/2015, at 11.

       Upon our review of the record, the parties’ briefs, and the relevant

case law, we find no abuse of discretion on the part of the trial court in

denying the appellants’ motion for a new trial.     First, the severity of the

impact at the time of the accident was highly disputed. Smith described the

accident as a “hard hit” that “shook the car up.”     N.T., 7/16/2015, at 39.

However, Kaplow stated the impact was more like a “slight bump.”            N.T.,

7/17/2015, at 117.

       Second, Kaplow’s medical experts disagreed with the appellants’

experts regarding the severity of the injuries Smith and Ortiz sustained. Dr.

Richard Levenberg, an orthopedic spine surgeon, examined both Smith and

Ortiz on January 15, 2015, two years post-accident. Dr. Levenberg opined

that Smith had suffered “[c]ervical and thoracic lumbar sprain” as a result of

the accident, but that his injuries had resolved by the time of the exam.4
____________________________________________


4
  The appellants contend Dr. Levenberg testified that Smith and Ortiz did not
recover from their injuries until his examination, two years post-accident.
See Appellants’ Brief at 17-18, 21.           However, contrary to their
(Footnote Continued Next Page)


                                           -7-
J-A24028-16



Videotaped Deposition of Richard Levenberg, M.D., 6/25/2015, at 62.

Furthermore, he discounted the opinion of Dr. Michelle Holding, the

appellants’ expert in physical medicine and rehabilitation pain management,

who performed an EMG exam5 on both parties.            Dr. Holding opined Smith

suffered a “lumbosacral radiculopathy involving the bilateral, both sides, of

the L5/S1 nerve root consistent with the time of his motor vehicle accident.”

N.T., 7/20/2015, at 45. However, Dr. Levenberg testified the EMG results

were not consistent with either Smith’s complaints or his MRI study.         See

Videotaped Deposition of Richard Levenberg, M.D., 6/25/2015, at 65.

      With regard to Ortiz, Dr. Levenberg conceded Ortiz suffered “[s]prain

and strain” as a result of the accident, which he described as “soft tissue

injury only.” Id. at 45. However, the doctor also testified Ortiz displayed

“multiple” signs of “symptom exaggeration.”          Id. at 41.   Dr. Levenberg

explained that during his exam, he performed certain maneuvers, or

“Waddell signs,” which are “not intended to cause pain,” so that when a

patient reports pain during these maneuvers, “it’s considered symptom

exaggeration.” Id.         The doctor testified that Ortiz reported pain during a
                       _______________________
(Footnote Continued)

characterization, Dr. Levenberg opined the appellants’ injuries had resolved
sometime before his examination. See Videotaped Deposition of Richard
Levenberg, M.D., 6/25/2015, at 49, 62.
5
  Dr. Holding testified that an EMG examination is a “nerve conduction”
study, that helps determine whether a patient has a nerve injury. N.T.,
7/20/2015, at 13. By inserting a needle electrode into a muscle, the doctor
can test “the integrity of the line for the nerve.” Id. at 14.



                                            -8-
J-A24028-16



number of these maneuvers, and Dr. Levenberg’s “impression medically was

[Ortiz] was exaggerating and attempting to confuse” him. Id. at 43.

     In addition, Kaplow presented the testimony of neuroradiologist Dr.

Michael Brooks.   Dr. Brooks reviewed the MRI studies performed on both

Smith and Ortiz, and opined that none of the studies revealed any objective

evidence of cervical or lumbar disc injury. See Videotaped Trial Deposition

of Michael Brooks, M.D., 7/1/2015, at 39-40, 53. However, Dr. Brooks did

find evidence of degenerative changes, or normal “wear and tear,” in both

patients. Id. at 34, 44.

     Therefore, while it was uncontroverted that the appellants suffered

some type of injuries as a result of the accident, the severity of those

injuries was vigorously disputed. This Court has previously explained:

           The existence of compensable pain is, “an issue of
     credibility and juries must believe that plaintiffs suffered pain
     before they compensate for that pain.” Davis, [supra,] 773
     A.2d at 769. 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. Majczyk v. Oesch, 789
     A.2d 717, 724.       “Insignificant” means the jury could have
     concluded that any injury plaintiff suffered did not result in
     compensable pain and suffering. Id. at 725. While 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.” Id. at 724.




Lombardo, supra, 828 A.2d at 375.           Although the Lombardo panel

granted the plaintiffs a new trial on damages, it did so by affirming the


                                    -9-
J-A24028-16



ruling of the trial court.    See id. (“We conclude from our review of the

evidence that the lower court did not palpably abuse its discretion in

determining that a new trial limited to the issue of damages was required.”).

      Recently, in Gold, supra, a panel of this Court affirmed the trial

court’s denial of a new trial when the jury awarded no damages for the

plaintiff’s neck strain suffered following a motor vehicle accident, after

determining the defendant was negligent and her negligence was a factual

cause of the plaintiff’s injury.       See Gold, supra, 135 A.3d at 1041.

Recognizing   that   “not    all   injuries   are   serious   enough   to   warrant

compensation, even though there may be some pain,” the Gold Court found

no reasons to disturb the trial court’s ruling.         Id. at 1044.    The panel

explained:

      This case did not involve a violent collision but rather a relatively
      minor accident and [the plaintiff’s] subsequent subjective claims
      of injuries.     While the jury’s verdict slip indicates that it
      concluded [the defendant’s] negligence caused some harm to
      [the plaintiff], 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.

Id.

      Similarly, in the present case, we find no basis to disturb the trial

court’s ruling denying the appellants a new trial. Kaplow’s experts testified

that neither Smith nor Ortiz displayed any objective evidence of injury.

Therefore, considering the pain they suffered was based on their own

subjective complaints, and resulted from a motor vehicle accident that

Kaplow described as minor, the jury acted within its discretion when it

                                       - 10 -
J-A24028-16



awarded only nominal damages. Accordingly, no relief is warranted on this

claim.

       In their second issue, the appellants argue the trial court erred or

abused its discretion several times throughout the course of the trial. See

Appellants’ Brief at 25-26.          First, they contend that, during the direct

examination of both Smith and Ortiz, the court improperly “admonished

[counsel] for asking leading questions even though there was no objection

by the defense[.]” Id. at 26, citing N.T., 7/16/2015, at 50, 67.

       Pennsylvania Rule of Evidence 611 allows the trial court to exercise

reasonable control over the manner of presenting witnesses.              Pa.R.E.

611(a). The rule also provides that “[l]eading questions should not be used

on direct or redirect examination except as necessary to develop the

witness’s testimony.” Pa.R.E. 611(c). Therefore, “[t]he allowance of leading

questions lies within the discretion of the trial court and a court’s tolerance

or intolerance of leading questions will not be reversed absent an abuse of

discretion.”    Katz v. St. Mary Hosp., 816 A.2d 1125, 1128 (Pa. Super.

2003) (emphasis supplied). In the present case, our review of the questions

posed by counsel, and the court’s response, reveals no abuse of discretion.6
____________________________________________


6
  We note the appellants provided no citations to pertinent case law or rules
of procedure in support of their claim. On this basis alone, we could
conclude this issue is waived. See Rettger v. UPMC Shadyside, 991 A.2d
915, 932 (Pa. Super. 2010), appeal denied, 15 A.3d 491 (Pa. 2011).
Nevertheless, we will address the merits.




                                          - 11 -
J-A24028-16



In both instances, counsel was clearly leading the witness, and the court

simply advised him not to do so.         See N.T., 7/16/2015, at 50, 67.     The

appellants are entitled to no relief.

      Next, the appellants contend the trial court “repeatedly instructed the

jury how to find so the [appellants] could not recover.” Appellants’ Brief at

26-27. In support of their claim, they cite to four passages from the court’s

instructions when the trial court explained to the jury that, if they found

Smith was negligent and Kaplow was not negligent, Smith could not recover

any damages. See id., citing N.T., 7/20/2015, at 109, 110, 117.

      When considering a challenge to the court’s jury charge, our standard

of review is as follows:

      [We must] “determine whether the trial court committed a clear
      abuse of discretion or error of law controlling the outcome of the
      case.” It is only 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” that error in a charge will be found to be
      a sufficient basis for the award of a new trial.

Pringle v. Rapaport, 980 A.2d 159, 165 (Pa. Super. 2009) (citations

omitted), appeal denied, 987 A.2d 162 (Pa. 2009).

      Our review of the passages cited by the appellants, read in the context

of the charge as a whole, reveals no error or abuse of discretion. See N.T.,

7/20/2015, at 107-110, 116-118. As the trial court explained in its opinion:

      This Court had the task of explaining to the jury the rather
      complex interplay, and shifting burdens of proof of the parties,
      since Smith was both an Additional Defendant and Plaintiff, and
      Fleagle was bound by the limited tort option.



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J-A24028-16



Trial Court Opinion, 12/3/2015, at 10. Furthermore, the appellants simply

make a bald allegation that the court’s instructions were “severely

prejudicial” without explaining how they were so, or providing any citation to

relevant authorities. See Borough of Mifflinburg v. Heim, 705 A.2d 456,

467 (Pa. Super. 1997) (finding issue waive when appellant’s discussion was

limited to one sentence, and included no supporting case law), appeal

denied, 794 A.2d 359 (Pa. 1999). Accordingly, no relief is warranted on this

claim.

       The appellants next assert the trial court “repeatedly provided wrong

and improper jury instructions” with regard to the verdict sheet, the

respective burdens of proof, and the issue of comparative negligence. 7

Appellants’ Brief at 27-30. They also contend the trial court erred when, in

“an ex-parte, off the record, conversation with the jury,” the court instructed

them to resume deliberations and award Ortiz some amount of damages.

Id. at 29. Again, we find no reversible error.

       With respect to the verdict sheet, the appellants argue the trial court

erred when it told the jurors their “first decision” would be to determine

whether additional defendant Smith was negligent, when, in fact, “[t]he first

question on the verdict sheet was ‘Do you find the defendant was
____________________________________________


7
  We note the appellants’ brief is repetitive, and at times disjointed. We
have attempted to differentiate each claim of error so that we may address
them on appeal.




                                          - 13 -
J-A24028-16



negligent?’” Appellants’ Brief at 28. However, when we consider the charge

in the context it was given, we find no error. Here, the court instructed the

jury as follows:

      I like to give a description of the verdict sheet right up front. It’s
      really a lot of common sense, and I have to read a lot of law to
      describe this verdict sheet, but don’t make it complicated. It’s
      simple. So the first thing you’ll have to figure out is whether or
      not Judith Kaplow was negligent. And I’m going to read what
      negligence is in this context. You’ll answer yes or no. Was the
      additional defendant, Plaintiff Joseph Smith negligent? That will
      be your first decision.

N.T., 7/20/2015, at 107-108. It is evident the trial court was explaining to

the jury that their first decision would be to determine each party’s

respective negligence, or lack thereof.          Only after that determination was

made would the jury move on to calculate damages. This instruction tracks

the verdict sheet that was provided to the jury.              See Verdict Sheet,

7/20/2015.

      The appellants also criticize the following statement by the trial court:

“The parties have agreed that there was some injuries to the plaintiff, but

then you have to prove actual damages.” Appellants’ Brief at 28, citing N.T.,

7/20/2015, at 109.       The appellants claim the court’s statement “is a

complete mis-characterization of the duties and responsibilities of all of the

participants in the trial, most importantly, the jury” because “[t]he jury does

not have to prove anything.”      Id.     However, read in context, again, it is

evident the trial court used the pronoun “you” generically, and meant that




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J-A24028-16



the plaintiffs, i.e. the appellants, had to prove the damages they suffered as

a result of the accident. See N.T., 7/20/2015, at 109.

      Next, the appellants claim the trial court erroneously instructed the

jury that Smith had the burden to prove his own negligence in the cross-

claim. See Appellants’ Brief at 28-29. The court stated:

      In this case the defendant has also claimed … the Defendant
      Kaplow has claimed that Smith is negligent. In that case, the
      plaintiff did have the burden of proving that Defendant Smith
      was negligent.

N.T., 7/20/2015, at 116.       Although we agree this particular sentence is

inartful, we do not find that the court improperly shifted the burden of proof

to Smith. Rather, the inference in the court’s wording is that Kaplow was

the plaintiff in the cross-claim.

      In a related argument,        the   appellants challenge   the   following

instruction on comparative negligence:

      If you find that [Smith and Kaplow] were both negligent and you
      apportion who was more or less, and you find that Mr. Smith
      was more than 50 percent negligent, he still can’t recover. But if
      you get past that, you’ll be assessing damages for him, as well
      as the other plaintiffs in this case.

Id. at 117. The appellants argue this instruction is “clearly erroneous on its

face” because Ortiz’s damages were not contingent upon whether Smith was

“fifty (50) percent negligent or less.” Appellants’ Brief at 30. Again, we find

the appellants have mischaracterized the court’s instruction.          The last




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sentence in the passage clearly establishes that only Smith’s damages were

contingent upon his own negligence.8

        With regard to the appellants’ assertion that the trial court conducted

an ex-parte, off the record, conversation with the jury before instructing

them “they had to award some damages to plaintiff Michael Ortiz,” 9 the trial

court denies the allegation. See Trial Court Opinion, 12/3/2015, at 12. Our

review of the trial transcript supports the court’s recollection.

        After the jury returned with a verdict awarding Smith $1.00 and Ortiz

$0.00, the following exchange took place:

              THE COURT: … Is there any reason that this verdict can’t
        be recorded as stated by the foreperson?

              [KAPLOW’S COUNSEL]: Can I ask if we can see the Court
        at sidebar?

              THE COURT: Yes. Take a seat folks.

           (Whereupon, a brief sidebar discussion held off the record.)

              THE COURT: Jurors, I’m sorry to have to do this, but I
        need you to go out and come up with a dollar amount for Mr.
        Ortiz. Come back with that figure when you’re ready.

              THE CRIER: All rise as the jury exits the courtroom.
____________________________________________


8
  We note the trial court found this claim waived because the appellants’
concise statement failed to identify the specific portion of the court’s
comparative negligence charge that they alleged was improper. See Trial
Court Opinion, 12/3/2015, at 10.        See also Statement of Matters
Complained of on Appeal, 9/11/2015, at ¶ 3 (“The Court improperly
instructed the jury on comparative negligence.”). For that reason, we, too,
could find this claim waived.
9
    Appellants’ Brief at 29.



                                          - 16 -
J-A24028-16



N.T., 7/20/2015, at 129-130. The jury later returned with a damages award

of $1.00 for Ortiz. See id. at 130. Notably, counsel for the appellants did

not object to the court’s instruction.

       Contrary to appellants’ allegation, the court did not hold an off the

record, ex parte discussion with the jury before directing them to continue

their deliberations.     Rather, the court instructed them, on the record, that

they had to award some damages to Ortiz. More importantly, the appellants

did not object when the court ordered the jury to conduct further

deliberations.    “A specific objection must be made to preserve a claim of

objectionable jury charge.”        McNeil v. Owens-Corning Fiberglas Corp.,

680 A.2d 1145, 1149 (Pa. 1996). The appellants’ failure to object waives

this claim for appellate review.10 See id.

       Next, the appellants contend the trial court erred when, upon request,

it declined to give Pennsylvania Suggested Standard Civil Jury Instruction

6.02A, “Damages in cases of undisputed negligence and injury.”            That

instruction, now renumbered Pa. SSJI (Civ.) 7.50, provides, in relevant part:

       The parties agree that the defendant was negligent and [the
       parties] [medical experts] agree that the negligence caused
       some injury to the plaintiff. Therefore, you must answer “yes”
       on the Verdict/Jury Interrogatory to Question #1 and Question
       #2 [whether the defendant was negligent or the defendant’s
       negligence was the “factual cause” of harm to the plaintiff].
____________________________________________


10
  We note, too, the appellants did not challenge the court’s decision to send
the jury back the first time when they returned a verdict that awarded no
damages to either Smith or Ortiz. See N.T., 7/20/2015, at 129.



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      You must therefore at least award some damages for those
      [uncontested] [agreed-upon] injuries [specify damages - e.g.,
      medical bills, lost wages, pain and suffering, etc.]

Pa.SSJI (Civ.) 7.50 (emphasis in original).       The appellants argue this

instruction was necessary because the parties agreed “there were injuries

and there was factual ca[u]se.” Appellants’ Brief at 31.

      The trial court, however, explained that it declined to charge the jury

on Pa.SSJI (Civ.) 7.50 because that instruction “applies to damages in cases

of undisputed negligence and injury.” Trial Court Opinion, 12/3/2015, at

10 (emphasis in original).     Conversely, in the present case, the court

emphasized, “both liability and the extent of damages were the pivotal and

hotly contested trial issues.” Id. We agree. A simple reading of the first

sentence in the instruction - “[t]he parties agree that the defendant was

negligent” – reveals it is inapplicable to the case sub judice. Pa. SSJI (Civ.)

7.50. Accordingly, no relief is warranted on this claim.

      Because we conclude the trial court neither erred or abused its

discretion in denying the appellants’ request for a new trial, we affirm the

judgment entered by the trial court.

      Judgment affirmed.




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J-A24028-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/20/2016




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