J-A08030-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DAVID F. CAPPONI, LISA A. CAPPONI              IN THE SUPERIOR COURT OF
AND CHRISTIAN CAPPONI, A MINOR                       PENNSYLVANIA

                         Appellees

                    v.

ANN BERG

                         Appellant                 No. 1453 EDA 2015


                  Appeal from the Order Entered April 2, 2015
             In the Court of Common Pleas of Philadelphia County
                 Civil Division at No(s): 0526 July Term, 2013


BEFORE: BOWES, OLSON and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                          FILED AUGUST 11, 2016

       Appellant, Ann Berg, appeals from the order entered on April 2, 2015,

which granted in part and denied in part the post-trial motion filed by David

F. Capponi, Lisa A. Capponi, and Christian Capponi, a minor.          We are

constrained to affirm.

       On July 2, 2013, David F. Capponi, Lisa A. Capponi, and Christian

Capponi instituted the current negligence action against Appellant.       The

plaintiffs claimed they were entitled to personal injury and property damages

that arose out of a January 15, 2013 motor vehicle accident.       The parties

proceeded to a jury trial, where the following uncontradicted evidence was

presented:

      At approximately 3:10 p.m. on January 15, 2013, Plaintiff David

       Capponi was driving his red Ford pickup truck eastbound on Grant


*Retired Senior Judge assigned to the Superior Court.
J-A08030-16



      Avenue in Philadelphia; David Capponi’s son, Christian Capponi, was in

      the front passenger seat of the truck. N.T. Trial, 10/27/14, at 6-8 and

      31.

     At approximately the same time, Appellant was operating a Honda

      automobile that was stopped and facing westbound on Grant Avenue.

      Specifically, Appellant was behind at least one car, in the left-hand

      turning lane of westbound Grant Avenue, and was seeking to turn left,

      travel across the eastbound lanes of Grant Avenue, and travel onto

      Krewstown Road. N.T. Trial, 10/29/14, at 6-8 and 16-17.

     The intersection of Grant Avenue and Krewstown Road was controlled

      by stoplights. At the time, Appellant was facing a stoplight that was

      composed of all of the following signals:         a green left-turn arrow, a

      yellow left-turn arrow, a solid green light, a solid yellow light, and a

      solid red light.   N.T. Trial, 10/28/14, at 91 and 101-105; N.T. Trial,

      10/29/14, at 8.

     As witness Denise Smith (hereinafter “Ms. Smith” or “witness Denise

      Smith”) testified:       “[w]hen you’re sitting at the intersection [like

      Appellant was that day,] . . . [the light] would be red[]. Then it turns

      to a green arrow left. Then it turns yellow, left arrow. Then it turns . .

      . [a] sold green for both sides.” N.T. Trial, 10/28/14, at 91. When the

      light   turns   “solid   green   for   both   sides,”   individuals   positioned

      westbound on Grant Avenue and seeking to turn left onto Krewstown

      Road (like Appellant was) must yield to the traffic flowing eastbound

                                        -2-
J-A08030-16



       on Grant Avenue, as those individuals also have a “solid green” light.

       Id. Moreover, individuals such as Appellant are also informed of the

       fact they must yield to the solid green light, with the placement of a

       sign that declares: “Left Turn Yield on Green.” Id.

      When David and Christian Capponi (hereinafter collectively “the

       Capponis”)    passed   into   the   intersection   of   Grant   Avenue   and

       Krewstown Road, the Capponis’ vehicle collided with Appellant’s

       automobile.    Both vehicles suffered extensive damage.           N.T. Trial,

       10/27/14, at 13-19.

      A police officer at the scene offered to call the Capponis an ambulance,

       but David Capponi refused the offer and “told whoever offered the

       ambulance that [he and Christian Capponi] were both fine.” Id. at 43-

       44.

      Appellant suffered a fractured breastbone and seven fractured ribs;

       Appellant was hospitalized for four days because of her injuries. N.T.

       Trial, 10/29/14, at 13.

       During trial, the Capponis, Appellant, and witness Denise Smith all

testified as to their memories of the accident. According to both David and

Christian Capponi, when David Capponi drove through the intersection of

Grant Avenue and Krewstown Road, he had a solid green light and Appellant

simply turned right into his path. David Capponi testified:

         A: . . . as we were going through the intersection of
         Krewstown Road and Grant Avenue, we were struck. My


                                       -3-
J-A08030-16


       truck was struck by [Appellant’s] car as I was proceeding
       through the intersection.

       Q: As you were approaching the intersection, what was the
       speed limit?

       A: The speed limit is 30 miles per hour.

       Q: What speed were you [] traveling?

       A: I was traveling the speed limit.

       Q: In which of the two eastbound lanes were you in on that
       particular afternoon?

       A: I was in the left hand lane.

       Q: All right. Did you have occasion to observe the color of
       the traffic light for traffic on Grant Avenue, moving from
       west to east, that is, the direction you were traveling?

       A: I had a green light.

                                    ...

       Q: Did you have occasion to see [Appellant’s] vehicle as you
       approached the imaginary center of that intersection?

       A: Yes. . . . [Appellant] was in the turning lane of the
       opposing traffic. She was sitting in the opposing turning
       lane. They have a lane just to make a turn there, and her
       car was sitting there.

                                    ...

       Q: As you started into the intersection, tell the [c]ourt and
       jury what occurred between your vehicle and [Appellant’s]
       vehicle.

       A: As we entered the intersection, for whatever reason,
       [Appellant] pulled out directly in front of my truck as I was
       in the intersection, and it was a shock. . . . I turned my
       truck to the right to go to the right hand lane, and she
       never stopped moving her vehicle. She kept coming at me.

                                    -4-
J-A08030-16


         . . . So the right side front of her car hit my driver’s side
         fender as we were turning, and it knocked my truck to the
         right. . . . We went into a construction fence for the WaWa
         [Convenience Store] . . . [a]nd because it was a
         construction job, there was a base or a hole in the front of it
         where the storm water goes, and the truck was dangling
         there, and then we got out.

N.T. Trial, 10/27/14, at 8-11.1

       Appellant testified that, immediately prior to the accident, she was

stopped in the left-hand turning lane of Grant Avenue and was seeking to

turn left onto Krewstown Road. N.T. Trial, 10/29/14, at 6-8. According to

Appellant, the light controlling her vehicle “was green and then it turned

yellow, and I noticed a little blue car in the right-hand lane against the curb .

. . going east. So I made my turn.” Id. at 9. As Appellant testified, “[t]he

next thing I knew, I was hit and . . . spun almost into the . . . construction

that was going on.”       Id. at 10. Appellant testified that, prior to being hit,

she did not see the Capponis’ red pickup truck. Id.

       Witness Denise Smith also testified as to her memory of the accident.

As Ms. Smith testified, immediately prior to the accident, she was operating
____________________________________________


1
  With respect to the cause of the accident, Christian Capponi testified
similarly to David Capponi. Christian Capponi testified:

         As we entered the intersection, . . . [o]ur light was green. .
         . . [Appellant’s] vehicle made a left turn, cutting out in
         front of . . . us. . . . [M]y dad tried to swerve out of the way
         so we didn’t hit her head on, and it hit the driver’s side of
         the front of his truck. And we wound up inside of the ditch
         where they were building the new WaWa.

N.T. Trial, 10/28/14, at 52-53.



                                           -5-
J-A08030-16



a vehicle and was stopped directly behind Appellant’s vehicle, in the left-

hand turning lane of Grant Avenue.          N.T. Trial, 10/28/14, at 90.   With

respect to the accident, Ms. Smith testified:

        A: Okay. We were in the left-hand lane. I was behind
        [Appellant]. On that particular light, when it changes, you
        have a green arrow to make a left and then the traffic in the
        other two lanes can go at the same time.

        So, as the light turned green, I can’t remember if there
        were cars in front of her. . . . But you have to wait your
        turn to make your left. You have to wait your turn until the
        light turns [yellow].

        Then when it turns [yellow], you’re supposed to stop
        because the sign says “yield to green.” The oncoming cars
        will be coming after that turns [yellow]. So I did see it turn
        [yellow] when she was still out in the intersection, and she
        didn’t move then.

                                      ...

        Q: Now, who hit who?

        A: It was a red truck. And it would have had to be in the
        right lane coming towards us, not the center lane, but the
        right lane, and he clipped her.

        It looked like he clipped her right on the passenger’s side. .
        ..

Id. at 91-92.

      Ms. Smith testified that she did not see the color of the traffic light at

the specific time that Appellant began her turn.          However, Ms. Smith

testified that she saw the light “turn yellow when [Appellant] was waiting in

the line and [Appellant] didn’t move.” Id. at 113. As Ms. Smith testified:



                                     -6-
J-A08030-16


         Q: Did you tell us on direct examination that [Appellant]
         started to make her left hand turn onto Krewstown Road
         and the light was yellow at that point in time?

         A: The light had turned [yellow]. I don’t know exactly when
         she started moving up, but I saw the light turn [yellow]. . .
         . So it was a green arrow, then it went to yellow, then the
         light just turned green for everybody to go.

         Q: All right.     But at that point in time when [Appellant]
         started –

         A: She didn’t move on the yellow light.

         Q: Pardon me?

         A: She did not move on the yellow light.

                                           ...

         Q: So what color was the controlling traffic device for
         westbound traffic on Grant Avenue when [Appellant] started
         to make her left hand turn?

         A: I didn’t see the color of the light at that point.

         Q: You didn’t see the color?

         A: I did not.

Id. at 102-103.2
____________________________________________


2
  During trial, Ms. Smith also acknowledged that, at the scene of the
accident, she told an officer the following:

         Q: Well, do you recall stating that the light went from solid
         green to yellow, and that when the light turned yellow,
         traffic cleared for [Appellant] to turn? She began her left
         turn and soon as she started turning, what’s called the
         “Capponi vehicle” came from the opposite side of traffic and
         they collided”

(Footnote Continued Next Page)


                                           -7-
J-A08030-16



      As to whether Ms. Smith saw the Capponis’ vehicle prior to the

accident, Ms. Smith testified in a seemingly contradictory manner. Initially,

Ms. Smith testified that she saw the Capponis’ vehicle prior to the accident

and that the Capponis’ vehicle was “traveling fast.” Ms. Smith testified:

         Q: You saw the truck proceeding in the opposite lane?

         A: Yes.

         Q: Describe the manner in which it was proceeding in the
         opposite lane.

         A: It was traveling fast.

Id. at 93.

      However, Ms. Smith later testified that she did not see the Capponis’

vehicle approach the intersection – and that she first saw the Capponis’

truck when it was “colliding with [Appellant’s] vehicle.”           Id. at 107.

According to this version of the events:

         Q: Where was the [Capponis’] truck when you first saw it . .
         . ? Was it in the intersection?

         A: It was impacting her car in the intersection, yes.

         Q: So when you first saw it, it was in the intersection? By
         “intersection,” we mean the intersection of Grant Avenue
         with Krewstown Road?

         A: Yes.
                       _______________________
(Footnote Continued)

         A: If that’s what I said, then that’s what I said if that’s what
         the officer wrote down.

N.T. Trial, 10/28/14, at 104.



                                            -8-
J-A08030-16



        Q: And it was colliding with [Appellant’s] vehicle?

        A: Correct.

        Q: Okay. And that was the first time that you saw this red
        truck?

        A: Yes.

Id. at 106-107.

      Moreover, at trial, both Christian Capponi and osteopathic physician

Dr. William J. O’Brien (hereinafter “Dr. O’Brien”) testified regarding the

extent of Christian Capponi’s alleged injuries.      Christian Capponi testified

that the accident caused him to suffer bulging discs in his thoracic and

lumbar spine and that he suffers from middle and lower back pain “every

single day.” Id. at 60-66. Yet, Christian Capponi testified that he: did not

go to the hospital on the day of the accident; felt no pain at the accident

scene; did not miss any time from school as a result of the accident; did not

miss any time from his construction job as a result of the accident; and, was

still able to lift heavy things in his construction job after the accident. Id. at

73-78. Further, Christian Capponi testified that, after the accident, he went

to see Dr. O’Brien for his back pain.       Christian Capponi testified that Dr.

O’Brien performed an initial MRI on his back and, “[f]rom the first MRI, [Dr.

O’Brien] said my back was in immaculate condition. He didn’t see anything

wrong with it.”    Id. at 61.    However, later MRIs revealed that Christian

Capponi suffered from multiple bulging discs in his spine. Id. at 64-65.




                                      -9-
J-A08030-16



      During trial, Dr. O’Brien testified as both a lay and an expert witness.

As Dr. O’Brien testified, it was his “medical opinion within a reasonable

degree of medical certainty . . . that the MRI findings of multiple disc bulges

are directly related to the car accident of January 15[, 2013].” N.T. Trial,

10/27/14, at 92-93. However, Christian Capponi testified that “the first time

[he] had ever been under any medical care or treatment with [Dr.] O’Brien”

was after the accident – and, according to Dr. O’Brien’s testimony, Dr.

O’Brien did not “ever get any past medical . . . records for Christian

[Capponi].”   N.T. Trial, 10/28/14, at 59; N.T. Trial, 10/27/14, at 116.

Moreover, with respect to the cause of Christian Capponi’s back injuries, Dr.

O’Brien admitted during trial that:    he “wasn’t aware [Christian Capponi]

was doing construction work with his father;” he “wasn’t aware [Christian

Capponi] was doing . . . [things s]uch as sweeping, lifting things, throwing

out trash;” and, was not aware that Christian Capponi “has even gone

snowmobiling in January or the early part of th[e] year” 2014. N.T. Trial,

10/27/14, at 114-116.

      After the evidence was presented, the trial court submitted to the jury

a “general verdict with special findings.”         After deliberation, the jury

rendered its verdict. In open court, the jury announced that Appellant was

negligent, but that Appellant’s negligence was not a factual cause of any

harm to either David or Christian Capponi.         N.T. Trial, 10/30/14, at 3-4.

Therefore, the jury’s verdict was for Appellant.




                                    - 10 -
J-A08030-16



       Moreover, attached to the certified record are the jury’s two verdict

slips.3    In relevant part, the jury’s verdict slip for David Capponi reads as

follows:

              JURY VERDICT SHEET FOR PLAINTIFF DAVID CAPPONI

           Question 1:
           Was [Appellant] negligent?
              Yes __X__ No _____

           If you answer Question 1 “Yes”, go to Question 2.

           If you answer Question 1 “No”, David Capponi cannot
           recover and you should not answer any further questions.
           Tell the court officer you have reached a verdict.

           Question 2:
           Was the negligence of [Appellant] a factual cause of any
           harm to David Capponi?
              Yes _____ No __X__

           If you answer Question 2 “Yes”, go to Question 3.

           If you answer Question 2 “No”, David Capponi cannot
           recover and you should not answer any further questions.
           Please tell the court officer you have reached a verdict.

           Question 3:
           Was plaintiff David Capponi negligent?
              Yes __X__ No _____

           If you answer Question 3 “Yes”, go to Question 4.

           If you answer Question 3 “No”, go to Question 6.

____________________________________________


3
  In order to understand Appellant’s arguments on appeal, we are required
to restate the jury verdict sheets.




                                          - 11 -
J-A08030-16


       Question 4:
       Was David Capponi’s negligence a factual cause of any
       harm to him?
          Yes __X__ No _____

       If you answer Question 4 “Yes”, go to Question 5.

       If you answer Question 4 “No”, go to Question 6.

       Question 5:
       Taking the combined negligence that was a factual cause of
       any harm to David Capponi as 100[%], what percentage of
       that negligence do you attribute to [Appellant] and what
       percentage do you attribute to David Capponi?

          Percentage of negligence attributable to [Appellant]
          __10__%

          Percentage of negligence attributable to David Capponi
          __90__%

          Total 100%

       If you have found David Capponi’s negligence is greater
       than 50[%], David Capponi cannot recover and you should
       not answer any other questions. Please tell the court officer
       you have reached a verdict.

       If you have found David Capponi’s percentage less than or
       equal to 50%, go to Question 6.

       Question 6:
       Please state the amount of David Capponi’s economic
       damages.

                                   ...

       Question 7:
       Do you find that the plaintiff, David Capponi, sustained a
       serious impairment of a body function?

                                   ...

       Question 8:

                                  - 12 -
J-A08030-16


        State the amount of noneconomic damages, if any,
        sustained by David Capponi as a result of the accident.

                                      ...

        Advise the court officer that you have reached a verdict.


Jury Verdict Sheet for David Capponi, 10/30/14, at 1-3 (internal bolding

omitted).

      With respect to David Capponi, the jury did not answer any question

after “Question 5.” However, the jury answered questions three, four, and

five, even though it answered “No” to “Question 2” and even though it was

instructed: “[i]f you answer Question 2 ‘No’, plaintiff David Capponi cannot

recover and you should not answer any further questions.        Please tell the

court officer you have reached a verdict.” Id. at 1.

      As to Christian Capponi, the jury’s verdict slip reads:

         JURY VERDICT SHEET FOR PLAINTIFF CHRISTIAN CAPPONI

        Question 1:
        Were any of the defendants negligent?       Please answer for
        each defendant.

            [Appellant]:      Yes __X__       No _____

            David Capponi:    Yes __X__       No _____

        If you answer Question 1 Yes as to any defendant, go to
        Question 2.

        If you answer Question 1 “No” as to all defendants,
        Christian Capponi cannot recover and you should not
        answer any further questions. Tell the court officer you
        have reached a verdict.

        Question 2:

                                     - 13 -
J-A08030-16


        Was the negligence of those defendants you have found to
        be negligent a factual cause of any harm to Christian
        Capponi? Only answer for those defendants you have found
        negligent in response to Question 1.

            [Appellant]:     Yes _____       No __X__

            David Capponi:   Yes _____       No __X__

        If you answer Question 2 “Yes” as to any defendant, go to
        Question 3.

        If you answer Question 2 “No” as to all defendants you have
        found to be negligent, plaintiff Christian Capponi cannot
        recover and you should not answer any further questions.
        Please tell the court officer you have reached a verdict.

        Question 3:
        Taking the combined negligence that was a factual cause of
        any harm to the plaintiff as 100[%], what percentage of
        that negligence do you attribute to each party?

                                       ...

        Question 4:
        Please state the total amount of damages sustained by the
        Plaintiff Christian Capponi, as a result of the accident.

                                       ...

        Advise the court officer that you have reached a verdict.

Jury Verdict Sheet for Christian Capponi, 10/30/14, at 1-3 (internal bolding

omitted).

     With respect to Christian Capponi, the jury did not answer any

question following “Question 2.” Id.

     On November 6, 2014, the Capponis filed a timely post-trial motion.

Amongst other things, the Capponis claimed that they were entitled to a new



                                   - 14 -
J-A08030-16



trial because: 1) the jury’s determination that David Capponi was negligent

was against the weight of the evidence because the uncontradicted evidence

demonstrated that the accident was “caused exclusively or entirely by [the]

negligent operation of [Appellant, who] failed to remain in a stopped position

in the left hand turning lane from west[]bound Grant Avenue and who in

violation of the controlling traffic signals proceeded without making required

and proper look for on-coming or approaching traffic on Grant [Avenue];” 2)

the jury’s determination that Appellant’s negligence was not the factual

cause of the harm to David Capponi was against the weight of the evidence;

and, 3) the jury’s determination that Appellant’s negligence was not the

factual cause of the harm to Christian Capponi was against the weight of the

evidence. The Capponis’ Post-Trial Motion, 11/6/14, at 1-9.

        By order entered April 2, 2015, the trial court granted the Capponis’

post-trial motion in part and denied the motion in part. Specifically, the trial

court granted the Capponis a new trial on the issues of:        liability; David

Capponi’s property damage claim; and, Christian Capponi’s personal injury

claim. Appellant filed a timely notice of appeal.

        Within the “Statement of Questions Involved” section of Appellant’s

brief,4 Appellant lists four claims:



____________________________________________


4
    See Pa.R.A.P. 2116(a).




                                          - 15 -
J-A08030-16


          1. Did the trial court, in the course of deciding [] David
          Capponi’s motion for a new trial, commit prejudicial error
          and/or an abuse [of] discretion in setting aside and/or
          vacating the jury’s determination finding [David Capponi
          90%] negligent and determining the jury’s finding is not
          supported by the record?

          2. Did the [trial] court, in the course of deciding [] David
          Capponi’s motion for a new trial, commit prejudicial error
          and/or an abuse of discretion in setting aside and/or
          vacating the jury’s determination finding [David Capponi
          90%] negligent and determining that David Capponi is
          entitled to a new trial on property damage where the
          Pennsylvania Comparative Negligence Act precludes him
          from any recovery of damages?

          3.   Did the [trial] court, in the course of deciding []
          Christian Capponi’s motion for a new trial, commit
          prejudicial error and/or an abuse of discretion in setting
          aside and vacating the jury’s determination finding [David
          Capponi 90%] negligent and determining the jury’s finding
          is not supported by the record?

          4. Did the [trial] court, in the course of deciding [] Christian
          Capponi’s motion for a new trial, commit prejudicial error
          and/or an abuse of discretion in setting aside and vacating
          the jury’s determination finding [David Capponi 90%]
          negligent and determining the jury’s finding is not
          supported by the record, the issue of liability was fairly
          determined by the jury, and the question of damages for
          Christian Capponi only was readily separable from the issue
          of liability between [Appellant] and [] David Capponi?

Appellant’s Brief at 9 (some internal capitalization omitted).5,   6

____________________________________________


5
    The Capponis have not filed an opposing brief with this Court.
6
  The trial court ordered Appellant to file and serve a concise statement of
errors complained of on appeal, pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b).      Appellant complied and, within her Rule 1925(b)
Statement, Appellant listed the four claims found in her Rule 2116(a)
“Statement of Questions Involved.”



                                          - 16 -
J-A08030-16



      However, within the argument section of Appellant’s brief, Appellant

raises only three claims.      Further, the claims Appellant raises in the

argument section of her brief differ somewhat from the claims Appellant lists

in her Rule 2116(a) “Statement of Questions Involved” on appeal section.

Specifically, within the argument section of Appellant’s brief, Appellant raises

the following claims. First, Appellant claims that “the verdict of a jury should

not be disturbed where no reversible error has been committed.” Id. at 17

(internal bolding and capitalization omitted).       Second, Appellant claims:

“because the jury found David Capponi’s negligence was greater than 50%,

his recovery is precluded under the Pennsylvania Comparative Negligence

Act and it was improper for the trial court to set aside and/or vacate the

judgment for [Appellant].”     Id. at 23 (internal bolding and capitalization

omitted). Finally, Appellant claims:

        the jury fairly determined liability against [Appellant] and []
        David Capponi and apportioned the liability between them.
        It would be prejudicial to re-litigate the issue of liability that
        a duly appointed jury has fairly determined. . . . As such,
        [A]ppellant respectfully requests that this Court . . .
        determine that David Capponi is 90% negligent and
        [Appellant] was 10% negligent for the purposes of trial or
        arbitration on damages for Christian Capponi only.

Id. at 33.




                                       - 17 -
J-A08030-16



       We conclude that none of the three claims Appellant develops before

this Court entitles Appellant to relief.7

       We have held:

         The factfinder is free to believe all, part, or none of the
         evidence and to determine the credibility of the witnesses.
         The trial court may award . . . a new trial only when the
         jury’s verdict is so contrary to the evidence as to shock
         one’s sense of justice. . . . When a fact finder’s verdict is so
         opposed to the demonstrative facts that looking at the
         verdict, the mind stands baffled, the intellect searches in
         vain for cause and effect, and reason rebels against the
         bizarre and erratic conclusion, it can be said that the verdict
         is shocking.

                                           ...

         Appellate review of a weight [of the evidence] 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.

____________________________________________


7
  As stated above, the three claims Appellant raises in the argument section
of her brief differ somewhat from the four claims Appellant lists in the
“Statement of Questions Involved” section. Since “[i]ssues not properly
developed or argued in the argument section of an appellate brief are
waived,” when referencing Appellant’s claims in this memorandum, we will
refer to the three claims Appellant actually raises in the argument section of
her brief. Kituskie v. Corbman, 682 A.2d 378, 383 (Pa. Super. 1996).



                                          - 18 -
J-A08030-16



Haan v. Wells, 103 A.3d 60, 70 (Pa. Super. 2014) (internal quotations and

citations omitted).

      “The trial court’s decision whether to limit a new trial to a particular

issue or grant a new trial as to all issues will not be reversed absent an

abuse of discretion.”    Chiaverini v. Sewickley Valley Hosp., 598 A.2d

1021, 1024 (Pa. Super. 1991). As our Supreme Court held, “new trials may

be limited to specific issues only when this procedure will be fair to both

parties. Where the question of negligence or contributory negligence is not

free from doubt, it is an abuse of discretion for the trial judge to grant a new

trial on the issue of damages alone.” Gagliano v. Ditzler, 263 A.2d 319,

320 (Pa. 1970) (internal quotations and citations omitted); Nogowski v.

Alemo-Hammad, 691 A.2d 950, 958 (Pa. Super. 1997) (internal quotations

and citations omitted). In particular:

        a [trial] court may grant a new trial[] limited to the issue of
        damages[] [o]nly where (1) the question of liability is not
        intertwined with the question of damages, [a]nd (2) the
        issue of liability is either (a) not contested or (b) has been
        fairly determined so that no substantial complaint can be
        made with respect thereto.

Gagliano, 263 A.2d at 320; see also Mirabel v. Morales, 57 A.3d 144,

152 (Pa. Super. 2012).

      We have held that liability is “fairly determined” when “the court is

convinced upon a review of the whole case that the jury settled the issue as

to responsibility fairly and upon sufficient evidence – so that dissociated

from the other questions it ought to stand as the final adjudication of the


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rights of the parties.” Lambert v. PBI Indus., 366 A.2d 944, 956-957 (Pa.

Super. 1976) (en banc), quoting 58 Am.Jur.2d New Trial, § 27 (1971).

       On appeal, Appellant first claims that “the verdict of a jury should not

be disturbed where no reversible error has been committed.”           Appellant’s

Brief at 17 (internal bolding and capitalization omitted).         This claim is

waived, as Appellant did not raise the claim in her court-ordered Rule

1925(b) statement and the claim is not “fairly suggested” by her Rule 2116

“Statement of Questions Involved.”8 Pa.R.A.P. 1925(b)(4)(vii) (“[i]ssues not

included in the [Rule 1925(b) s]tatement . . . are waived”); Pa.R.A.P.

2116(a) (“[n]o question will be considered unless it is stated in the

statement of questions involved or is fairly suggested thereby”).

       Second, Appellant claims:         “because the jury found David Capponi’s

negligence was greater than 50%, his recovery is precluded under the

Pennsylvania Comparative Negligence Act and it was improper for the trial

court to set aside and/or vacate the judgment for [Appellant].”9 Appellant’s

Brief at 17 (internal bolding and capitalization omitted). This claim fails.




____________________________________________


8
  Moreover, Appellant’s first claim on appeal is meritless, as the trial court
did not grant the Capponis a new trial based upon any alleged error; rather,
the trial court granted the Capponis a new trial based upon their claim that
the verdict was against the weight of the evidence.
9
 Appellant raised this claim in both her Rule 1925(b) statement and her
Rule 2116(a) statement.



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J-A08030-16



     Here, the trial court submitted to the jury a “general verdict with

special findings.” As the Pennsylvania Supreme Court explained:

        Generally, a verdict is the decision of a jury reported to the
        court on matters submitted to the jury at trial.               In
        Pennsylvania, verdicts may be general, special, or general
        with special findings. A general verdict is a finding by the
        jury in terms of the issue or issues referred to them and is,
        either wholly or in part, for the plaintiff or for the defendant.
        Thus, when a trial judge requires only a general verdict slip,
        a jury will be call[ed] upon only to find “for plaintiff in the
        amount of . . .” or “for defendant.” No other substance will
        appear on the general verdict slip.

        In contrast, when the trial court exercises its discretion to
        employ a general verdict with special findings . . . the
        analytical subparts of the jury’s process will be set forth in
        individual questions to be answered by the jury, and the
        answers thereto are always given in connection with the
        ultimate general verdict. To the extent the answer is “no”
        to a particular question, the general verdict slip with special
        findings becomes a de facto “verdict for defendant.”
        Conversely, should the jury arrive at the last question, the
        slip's “bottom line” looks akin to the general verdict slip in
        that the amount of damages awarded to the plaintiff are
        specified.

        As [the Pennsylvania Supreme Court] explained in Brown
        v. Ambridge Yellow Cab Co., 97 A.2d 377, 381 (Pa.
        1953), when special findings are employed in connection
        with a general verdict, the jury’s decision is the general
        verdict, not the answers to the individual interrogatories:

           Taking the answers [to the interrogatories] as a whole
           one cannot say that they represent a mathematical
           exactness and factual certainty of such impeccability as
           to overturn the deliberate and solemn conclusion
           reached in the general verdict. It would appear that the
           jury, after due deliberations, reached its conclusions and
           then perfunctorily and hurriedly attempted to answer
           the voluminous interrogatories. Logic does not require,
           and there is no law which compels acceptance of the

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             special findings here, shot through as they are with
             inconsistencies, vagueness and inconclusiveness, as
             against the general verdict, which with authority and
             definitiveness declares: “we, the Jurors . . . find for the
             Plaintiff . . . in the amount of $8000.00. . . .”

         In fact, in the usual case where special findings are
         consistent with the general verdict, the special findings are
         considered merely advisory.

Fritz v. Wright, 907 A.2d 1083, 1091-1092 (Pa. 2006) (internal footnotes

and some internal quotations and citations omitted);

      Further, as our Supreme Court held: “the only verdict which is valid is

one announced in open court and there affirmed.”         Reed v. Kinnik, 132

A.2d 208, 210 (Pa. 1957); see also Commonwealth v. Zlatovich, 269

A.2d 469, 473 (Pa. 1970) (“[t]he verdict as uttered is the sole embodiment

of the jury’s act”); Rottmund v. Pa. R. Co., 74 A. 341, 343 (Pa. 1909)

(“[t]here is no verdict of any force except a public verdict, given openly in

court. This is the practice uniformly followed throughout the state so far as

we are advised. All the authorities agree that the only verdict is that which

the jury announce orally in court, and which alone is received and recorded

as the jury’s finding”) (internal quotations and citations omitted).

      According to Appellant, the trial court erred in granting David

Capponi’s motion for a new trial because “the jury found David Capponi’s

negligence was greater than 50%” and, thus, David Capponi’s “recovery is

precluded under the Pennsylvania Comparative Negligence Act.” Appellant’s

Brief at 23. This claim fails because the jury did not “fairly determine” David

Capponi’s liability.


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J-A08030-16



      As explained above, the jury announced the following verdict in open

court: Appellant was negligent, but Appellant’s negligence was not a factual

cause of any harm to either David or Christian Capponi.            N.T. Trial,

10/30/14, at 3-4. This was the entirety of the jury’s verdict. Moreover, the

jury’s determination that Appellant’s negligence was not a factual cause of

any harm to either David or Christian Capponi foreclosed any further inquiry:

as a result of this finding, “the general verdict slip with special findings

bec[ame] a de facto ‘verdict for [Appellant].’” Fritz, 907 A.2d at 1092.

      It is true that, within the Jury Verdict Sheet for David Capponi, the

jury continued to answer questions after answering “No” to “Question 2”:

“[w]as the negligence of [Appellant] a factual cause of any harm to David

Capponi.”     Jury Verdict Sheet for David Capponi, 10/30/14, at 1-3.

However, the jury verdict sheet informed the jury: “If you answer Question

2 ‘No’, David Capponi cannot recover and you should not answer any further

questions. Please tell the court officer you have reached a verdict.” Id.

      Therefore, according to the plain terms of both the law and the verdict

sheet, the jury should not have apportioned liability between Appellant and

David Capponi.    Moreover, the jury did not “announce orally in court” its

apportionment of liability.   Rottmund, 74 A. at 343.     As such, the jury’s

purported apportionment of liability did not become part of the verdict.

      In light of the above, in this case, we conclude that the jury did not

“fairly determine” David Capponi’s liability. As a result, Appellant’s claim –

that, “because the jury found David Capponi’s negligence was greater than

                                    - 23 -
J-A08030-16



50%, his recovery is precluded under the Pennsylvania Comparative

Negligence Act” – fails.

      Finally, Appellant claims:

         the jury fairly determined liability against [Appellant] and []
         David Capponi and apportioned the liability between them.
         It would be prejudicial to re-litigate the issue of liability that
         a duly appointed jury has fairly determined. . . . As such,
         [A]ppellant respectfully requests that this Court . . .
         determine that David Capponi is 90% negligent and
         [Appellant] was 10% negligent for the purposes of trial or
         arbitration on damages for Christian Capponi only.

Appellant’s Brief at 33.

      As can be seen from the above, Appellant does not claim that the jury

properly determined that Christian Capponi suffered no damages – and that

the trial court thus erred when it ordered a new trial on Christian Capponi’s

personal injury claims. Indeed, Appellant’s argument assumes that the trial

court was correct to order a new trial on Christian Capponi’s personal injury

claims. See id. Appellant simply claims that this Court should “determine

that David Capponi is 90% negligent and [Appellant] was 10% negligent for

the purposes of trial or arbitration on damages for Christian Capponi only.”

Id.

      This particular claim does not entitle Appellant to relief. Certainly, as

was explained above, the jury did not “fairly determine” the liability that was

attributable to Appellant and David Capponi.          Therefore, the trial court

properly ordered a new trial on the issue of liability.      Appellant’s claim on

appeal fails.


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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/11/2016




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