J-A13010-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

HELEN JONES,                                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellant

                    v.

RON OTT AND OR EASTERN ELEVATOR
SERVICE AND SALES COMPANY,

                         Appellees                    No. 930 WDA 2015


              Appeal from the Judgment Entered May 27, 2015
              In the Court of Common Pleas of Cambria County
                      Civil Division at No(s): 2010-2490


BEFORE: OLSON, STABILE AND MUSMANNO, JJ.:

MEMORANDUM BY OLSON, J.:                       FILED SEPTEMBER 27, 2016

      Appellant, Helen Jones, appeals from the judgment entered on May

27, 2015, following a jury verdict in favor of Ron Ott (Ott) and/or Eastern

Elevator Service and Sales Company (collectively, Appellees). We affirm.

      The trial court briefly set forth the facts and procedural history of this

case as follows:

        […Appellant] commenced [a] negligence action for injuries
        that she allegedly sustained relative to a July 2, 2008 motor
        vehicle accident. At approximately 5:30 p.m. on this date,
        [Appellant] was operating her vehicle on State Route 219
        near Ebensburg, and was allegedly struck from behind by []
        Ott, who was operating a vehicle in his scope of
        employment as a maintenance technician for [] Eastern
        Elevator Service and Sales Company. At trial, [Appellant]
        testified that as a result of the accident, she suffered
        injuries to her back and neck, which required various
        surgeries.    [Appellant] stated that she continues to
        experience pain, stiffness, and swelling in the neck and
        shoulder, for which she still remains under the care of her
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         treating physicians.   Additionally, she alleged to be
         permanently disabled from employment as a registered
         nurse.

         In response, [Appellees] asserted that they did not cause
         the accident, that the impact from the accident was not
         significant, and that both [Appellant] and [] Ott left the
         scene in their own vehicles without calling law enforcement.
         Moreover, [Appellees] argued that the accident did not
         cause [Appellant’s] current medical condition.        Finally,
         [Appellees] presented expert testimony that [Appellant]
         could return to work at certain types of jobs, and
         emphasized that [Appellant’s] own doctors indicated that
         [Appellant] was healed from the various surgeries and could
         return to work with only minimal restrictions.

Trial Court Opinion, 8/10/2015, at 1-2. Following a three-day trial, a jury

rendered a verdict in favor of Appellees on April 29, 2015. On May 8, 2015,

Appellant filed a post-trial motion.           The trial court denied relief by order

entered on May 13, 2015. This timely appeal resulted.1

       On appeal, Appellant presents the following issues for our review:

         a. Whether the trial court erred in failing to charge the jury
            on [Appellant’s] [p]oints of [c]harge regarding
            negligence per se?

         b. Whether the trial court erred in failing to charge the jury
            on [Appellant’s] [p]oints of [c]harge regarding
            [f]ollowing too closely[,] 75 Pa.C.S.A. § 3310 of the
            Pennsylvania Motor Vehicle Code?


____________________________________________


1
  Appellant filed a notice of appeal on June 12, 2015. On June 15, 2015, the
trial court ordered Appellant to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied timely on
July 2, 2015. The trial court subsequently issued an opinion pursuant to
Pa.R.A.P. 1925(a) on August 10, 2015.



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        c. Whether the trial court erred in failing to charge the jury
           on [Appellant’s] [p]oints of [c]harge regarding [d]riving
           at a safe speed[,] 75 Pa.C.S.A. § 3361 of the
           Pennsylvania Motor Vehicle Code?

        d. Whether the jury’s verdict that [Appellees] were not
           negligent was against the weight of the evidence?

Appellant’s Brief at 4 (suggested answers omitted).

      Appellant’s first three issues challenge the trial court’s failure to charge

the jury with her “requested instructions regarding negligence per se,

following too closely, and driving [] at a safe speed.” Id. at 13.        We will

examine those issues together. Appellant claims that the trial court erred by

determining her “proposed points [for] charge were not warranted because

[the] parties’ testimony varie[d] greatly as to how the accident happened”

since “where there is disputed testimony, it is error not to instruct a jury

that [Ott] was negligent per se if they believe a provision of the Motor

Vehicle Code was violated.”     Id. at 14.    Appellant asserts that the three

aforementioned jury instructions should have been given “because there was

factual support in the record that [Appellant] was established in her lane and

[Ott] switched lanes and struck her from behind thereby failing to have due

regard for other vehicles on the roadway and failing to bring his vehicle to a

stop within the assured clear distance ahead.” Id. Appellant claims that the

trial court further erred when it found these issues waived because

Appellant’s counsel failed to make a specific objection in open court following

the jury instructions. Id. at 15. Appellant maintains that she preserved the

issues by filing written points for charge, which included the three requested


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instructions above, and then filing a post-trial motion raising these same

issues.   Id.   Appellant urges this Court not to consider the trial court’s

reference to off-the-record charge conference discussions in chambers

because there is no transcript of the exchange and, therefore, it is not a part

of the certified record. Id. at 16.

      “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.”            Czimmer v.

Janssen Pharmaceuticals, Inc., 122 A.3d 1043, 1052 (Pa. Super. 2015).

Pennsylvania Rules of Civil Procedure 227 provides:

          (a) It shall not be necessary on the trial of any action or
          proceeding to take exception to any ruling of the trial judge.
          An exception in favor of the party against whom the
          adverse ruling was made shall be deemed to have been
          taken with the same force and effect as if it had been
          requested, noted by the official stenographer and thereafter
          written out, signed and sealed by the trial judge.

          (b) Unless specially allowed by the court, all exceptions to
          the charge to the jury shall be taken before the jury retires.
          On request of any party all such exceptions and arguments
          thereon shall be made out of hearing of the jury.

Pa.R.Civ.P. 227.

      We have previously determined:

          Under Pa.R.C.P. 227(b), objections to jury instructions must
          be made before the jury retires to deliberate, unless the
          trial court specifically allows otherwise. Additionally, if a
          party fails to object specifically to a trial court's jury
          instruction, the objection is waived and cannot be raised in
          a subsequent appeal. Further, we will not consider a claim
          on appeal which was not called to the trial court's attention

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        at a time when any error committed could have been
        corrected. One must object to errors, improprieties or
        irregularities at the earliest possible stage of the
        adjudicatory process to afford the jurist hearing the case
        the first occasion to remedy the wrong and possibly avoid
        an unnecessary appeal to complain of the matter.

Krepps v. Snyder, 112 A.3d 1246, 1254–5125 (Pa. Super. 2015) (internal

citations, quotations and brackets omitted).

      Moreover, our Rules of Appellate Procedure provide, in pertinent part:

        A general exception to the charge to the jury will not
        preserve an issue for appeal. Specific exception shall be
        taken to the language or omission complained of.

Pa.R.A.P. 302(b).   An appellant is also required to comply with Rules of

Appellate Procedure 2117(c) and 2119(e) which specifically require that a

party’s brief contain, in both the statement of the case and the argument,

specific reference to the place in the record where the raising or preserving

of issues has occurred. See Pa.R.A.P. 2117(c); Pa.R.A.P. 2119(e); see also

McNeil v. Owens-Corning Fiberglas Corp., 680 A.2d 1145, 1149, (Pa.

1996) (failure to lodge a specific objection to the jury charge and to satisfy

the requirements of Rules 2117(c) and 2119(e) results in waiver).

      In this case, Appellant filed points for charge regarding negligence per

se, following too closely, and driving at a safe speed.          [Appellant’s]

Requested Points for Charge, 4/20/2015, at ¶¶ 4-6. However, because the

charging conference was off the record and there were no notes of testimony

transcribed, we may not consider what may or may not have transpired

therein. This Court previously decided:



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        The fundamental tool for appellate review is the official
        record of the events that occurred in the trial court. To
        ensure that an appellate court has the necessary records,
        the Pennsylvania Rules of Appellate Procedure provide for
        the transmission of a certified record from the trial court to
        the appellate court. The law of Pennsylvania is well settled
        that matters which are not of record cannot be considered
        on appeal. Thus, an appellate court is limited to considering
        only the materials in the certified record when resolving an
        issue. In this regard, our law is the same in both the civil
        and criminal context[.]

Parr v. Ford Motor Co., 109 A.3d 682, 695 (Pa. Super. 2014) (citations

omitted).

     We have also stated:

        If no report of the evidence or proceedings at a hearing or
        trial was made, or if a transcript is unavailable, the
        appellant may prepare a statement of the evidence or
        proceedings from the best available means, including his
        recollection. The statement shall be served on the appellee,
        who may serve objections or propose amendments thereto
        within ten days after service. Thereupon the statement and
        any objections or proposed amendments shall be submitted
        to the lower court for settlement and approval and as
        settled and approved shall be included by the clerk of the
        lower court in the record on appeal. Pa.R.A.P. 1923. The
        purpose of Rule 1923 is to provide a reviewing court with an
        equivalent picture of the proceedings when there is no
        transcript of the proceedings available. Absent a transcript
        of the proceedings or a Rule 1923 summary of the
        proceedings, this Court is without an adequate record to
        decide whether the issue in question has merit and, as
        such, the issue is waived for purposes of appeal.

Sovich v. Estate of Sovich, 55 A.3d 1161, 1165 (Pa. Super. 2012)

(internal citations, brackets, and some citations omitted).      Without the

ability to review what transpired at the charging conference, we cannot




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discern whether Appellant objected to the trial court’s decision to exclude

the three points for charge at issue.

       Moreover, after the trial court gave its instructions to the jury, it asked

if “there [was] anything with the charge that [] either [party] want[ed] to

put on the record?” N.T., 4/29/2015, at 25. Appellant’s counsel responded,

“I have no issues with the charge, Your Honor.” Id. As Appellant responded

in the negative when asked if any additions or corrections to the jury charge

needed to be made, we find Appellant waived appellate review of her first

three claims.2

____________________________________________


2
  We note that a plain reading of Pa.R.Civ.P. 227(b) does not make clear
whether an objection in chambers suffices to preserve a jury instruction
claim for appeal or whether objections must be renewed again before the
jury retires. Regardless, as there is no record of the in camera proceedings
before the trial court, we are unable to review what transpired at the
charging conference and, therefore, we do not know whether the trial court
denied the proposed points of charge or if Appellant acquiesced in their
exclusion. We reject Appellant’s reliance on our decision in Meyer v. Union
R. Co., 865 A.2d 857, 861 (Pa. Super. 2004) for the proposition that “when
a written proposed point for charge is submitted to the court and the
proposed charge is not included in the trial court’s charge, if a post-trial
motion is filed raising the court’s refusal to instruct the jury on the proposed
charge, the issue is preserved despite a failure to make a specific objection
following the charge.” Appellant’s Brief at 15. As the trial court astutely
noted:

         [I]n Meyer, the record contained discussions between the
         [c]ourt and counsel as to the charge conference, the
         requested point for charge, and an alternative requested
         point in the event the [c]ourt denied the original request.
         Here, the record is devoid of any discussion relative to the
         proposed charge.

(Footnote Continued Next Page)


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      In her final issue presented, Appellant claims the verdict was against

the weight of the evidence. Appellant’s Brief at 17-18. In sum, she avers:

         [Appellant] testified that she was established in the right
         lane on State Route 219 when she was struck from behind
         by [] Ott. [] Ott admitted in an automobile accident report
         completed immediately after the accident, that he switched
         into the slow lane and hit [Appellant’s] vehicle in the slow
         lane in front of him.       [Ott’s] original statement was
         consistent with [Appellant’s] testimony. [Ott] then stated in
         his deposition that he did not remember how the accident
         occurred. Then at trial for the first time [Ott] incredulously
         stated that [Appellant] merged into traffic in front of him.
         Presenting this theory, contrary to his prior statement, of

                       _______________________
(Footnote Continued)

Trial Court Opinion, 8/10/2015, at 5, citing Meyer, 865 A.2d at 861 n.3.

      We agree with the trial court’s assessment. Moreover, our decision in
Meyer relied upon our 1983 decision in Brancato v. Kroger Co., 458 A.2d
1377 (Pa. Super. 1983). In Brancato, we relied exclusively on Rule 227(a)
(without mention or analysis of subsection (b)) and concluded that an
argument challenging a trial court's denial of a requested charge was
preserved for review despite the plaintiff's failure to make a specific
objection following the charge because the plaintiff previously submitted the
request in writing and raised the court's denial of the requested points in a
post-trial motion. Subsequent decisions have clarified Brancato, however,
to conclude that the mere submission of a proposed charge is not enough to
automatically preserve an appellate claim of instruction error, unless an
express trial court ruling has been made.          See Thomas Jefferson
University v. Wapner, 903 A.2d 565, 571 (Pa. Super. 2006) (acquiescence
to an alternate jury instruction made it “unnecessary for the court to
rule[].”); see also Faherty v. Gracias, 874 A.2d 1239, 1249 (Pa. Super.
2005) (“[A] trial judge’s ruling against a proposed charge will indeed
preserve the issue for review. Yet, a ruling must be made.”)(emphasis in
original), citing Pa.R.Civ.P. 227(a)(“An exception in favor of the party
against whom the adverse ruling was made shall be deemed to have
been taken[.]”) Again, as noted previously, there is no transcript of the
charging conference and no record evidence that the trial court expressly
ruled against Appellant on her proposed points of charge.



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        how the accident occurred for the first time almost seven
        years after the accident was not credible.

Id. at 18.

      The law pertaining to weight of the evidence claims is well-settled:

        The weight of the evidence is a matter exclusively for the
        finder of fact, who is free to believe all, part, or none of the
        evidence and to determine the credibility of the witnesses. A
        new trial is not warranted because of a mere conflict in the
        testimony and must have a stronger foundation than a
        reassessment of the credibility of witnesses. Rather, the role
        of the trial judge is to determine that notwithstanding all
        the facts, certain facts are so clearly of greater weight that
        to ignore them or to give them equal weight with all the
        facts is to deny justice. On appeal, our purview is extremely
        limited and is confined to whether the trial court abused its
        discretion in finding that the jury verdict did not shock its
        conscience. Thus, appellate review of a weight claim
        consists of a review of the trial court's exercise of
        discretion, not a review of the underlying question of
        whether the verdict is against the weight of the evidence.
        An appellate court may not reverse a verdict unless it is so
        contrary to the evidence as to shock one's sense of justice.

Commonwealth v. Rosser, 135 A.3d 1077, 1090 (Pa. Super. 2016).

      Here, Appellant's claim is grounded entirely on her opinion that the

jury should have given more weight to her testimony than the evidence

offered by Appellees. We may not find that the trial court abused its

discretion in rejecting his weight of the evidence claim under such

circumstances. It was entirely within the jury's province as the finder-of-fact

to weigh the testimony and credit or reject the evidence presented by

Appellees. Accordingly, because Appellant cannot demonstrate that the

verdict so shocked one's sense of justice as to lead to the conclusion that




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the trial court abused its discretion in declining to grant relief, Appellant's

last claim fails.

      Judgment affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/27/2016




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