J-A19028-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

PETER GRENINGER AND CATHERINE                  IN THE SUPERIOR COURT OF
GRENINGER, HIS WIFE,                                 PENNSYLVANIA

                        Appellants

                   v.

LEANNE LISIEN,

                        Appellee                    No. 1798 WDA 2013


           Appeal from the Judgment Entered October 24, 2013
            In the Court of Common Pleas of Allegheny County
                    Civil Division at No(s): GD 11-19083

BEFORE: BENDER, P.J.E., OLSON and FITZGERALD,* JJ.

MEMORANDUM BY OLSON, J.:                          FILED AUGUST 22, 2014

      Appellants, Peter and Catherine Greninger, appeal from the judgment



      The trial court accurately summarized the factual background of this

case as follows:

      This matter arises from a claim for personal injuries allegedly
      suffered by Peter Greninger as the result of a collision between a
      bicycle ridden by [Peter] Greninger and a motor vehicle operated
      by [] Lisien on Forbes Avenue in Pittsburgh, Allegheny County,
      Pennsylvania, on October 20, 2009 at approximately 7:00 p.m.
      At that time and place, [Peter] Greninger was a bicyclist
      travelling eastbound on Forbes Avenue near its intersection with
      Dallas Avenue. At that location Forbes Avenue is a four lane
      roadway, with two lanes of travel in each direction.           The
      intersection of Forbes Avenue and Dallas Avenue is a four-way
      intersection controlled by a traffic light.

      As the same time, date, and location, [] Lisien was operating her
      motor vehicle in a westerly direction on Forbes Avenue. [] Lisien



* Former Justice specially assigned to the Superior Court.
J-A19028-14

        executed a left-hand turn from Forbes Avenue onto Dallas

        vehicle and [Peter] Greninger on his bicycle. [Peter] Greninger
        averred that, as a result of that collision, he sustained multiple
        injuries, including fractures to the bones around his left eye.

Trial Court Opinion, 1/21/14, at 1-2.

        The procedural history of this case is as follows.   On September 19,

2011, Appellants commenced this action via a writ of summons. On October

25, 2011, Appellants filed a complaint in which they alleged that Lisien

negligently caused the above described collision.         Trial commenced on

November 29, 2012.         The jury was instructed that it should find Lisien

negligent if it concluded that she had violated 75 Pa.C.S.A. § 3322, which

imposes on a driver who intends to make a left turn a duty to yield the right-

of-way to an oncoming vehicle which is so close as to pose a collision hazard

when the turn is executed.       On December 3, 2012, the jury returned a

verdict in favor of Lisien. On December 11, 2012, Appellants filed a post-

trial motion. On October 24, 2013, judgment was entered in favor of Lisien

pursuant to Pennsylvania Rule of Civil Procedure 227.4.1 This timely appeal

followed.2


1

praecipe of a party[ ] enter judgment upon . . . the verdict of a jury . . . if
. . . one or more timely post-trial motions are filed and the court does not
enter an order disposing of all motions within [120] days after the filing of


2
    On November 15, 2013, the trial court ordered Appellants to file a concise
                                                                          See
(Footnote Continued Next Page)


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      Appellants present one issue for our review:

      Whether it constituted an error of law and/or abuse of discretion

      motion . . . ?



      Appellants contend that the verdict was against the weight of the

evidence. As judgment was entered pursuant to Pennsylvania Rule of Civil

Procedure 227.4, our standard of review is de novo and our scope of review

is plenary.   See Hartner v. Home Depot USA, Inc., 836 A.2d 924, 930

(Pa. Super. 2003), appeal denied, 858 A.2d 110 (Pa. 2004) (citations



granted unless the verdict is so contrary

sense of justice; a mere conflict in testimony will not suffice as grounds for a

              Joseph v. Scranton Times, L.P., 89 A.3d 251, 274 (Pa. Super.

2014) (internal alteration and citation omitted).

      In this case, the verdict was not so contrary to the evidence to shock

our sense of justice. We find persuasive the decision made by a member of

this panel, while a member of the trial bench, in Younkin v. Pittsburgh

Sea Foods, Inc., 2009 Pa. Dist. & Cnty. Dec. LEXIS 206 (C.C.P. Allegheny

July 7, 2009), affirmed,           13 A.3d 997 (Pa. Super. 2010) (unpublished

                       _______________________
(Footnote Continued)
Pa.R.A.P. 1925(b). On November 20, 2013, Appellants filed their concise
statement. On January 21, 2014, the trial court issued its Rule 1925(a)

statement.



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J-A19028-14

memorandum). In Younkin, the defendant was traveling along Route 711.

Id. at *2. The defendant brought his vehicle to a stop to make a left turn

onto a perpendicular street.       Id.       There was nothing blocking the

                                         Id. at *3.   The defendant began to



traveling in the opposite direction on Route 711. Id. at *2.

      The trial court charged the jury on negligence per se.         Id. at *4.

Specifically, the jury was instructed that it should find the defendant

negligent if it concluded that he had violated 75 Pa.C.S.A. § 3322.

Younkin, 2009 Pa. Dist. & Cnty. Dec. LEXIS 206 at *4.                 The jury

determined that the defendant was not negligent, and the plaintiff filed a

post-trial motion arguing that the verdict was against the weight of the

evidence. Id. In Younkin, the trial court denied the plaintiff

new trial because, inter alia, the defendant testified that he did not see any

oncoming traffic prior to beginning his left turn. Id. at *7-8. The trial court

concluded that this testimony, if believed by the factfinder, was sufficient for

the jury to conclude that the defendant had not acted negligently.

      The fact pattern in the case sub judice is similar. Lisien stopped at the

intersection prior to beginning her left turn. Although there was an SUV in

the left lane of eastbound Forbes Avenue, Lisien testified that she had a

sufficiently clear view of the right hand lane of eastbound Forbes Avenue to

recognize that she needed to wait, as vehicles were passing the SUV. See



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N.T., 11/30/12, at 118-                                            for vehicles

behind [the SUV,] in front of it, off to the side, looking for any signs of

             Id. at 119. She re-

[she] ha[d] a space to go, but primarily looking behind the SUV [] and in

front of it off to the side, looking to check that [she] had a clear path to

        Id. at 120.      Lisien also testified that she continued to look for

vehicles while turning. Id. Finally, she testified that once she noticed Peter

Greninger she chose to stop because she believed that was the best way to

avoid a collision. Id.

      Contrary to the averments made by Appellants in their brief and at

oral argument, Lisien did not admit at trial that her actions were negligent.

To the contrary, the import of the above evidence clearly shows that she

testified that she was not negligent. The jury in this case was free to believe



oncoming traffic in both eastbound lanes of Forbes Avenue prior to making

her left turn onto Dallas Avenue, it could have reasonably determined that

she did not violate 75 Pa.C.S.A. § 3322, and therefore was not per se

negligent.

      This is markedly different than the situation in Pentarek v. Christy,

854 A.2d 970 (Pa. Super. 2004), vacated in part on other grounds, 874 A.2d

1160 (Pa. 2005) (per curiam), the lone case cited by Appellants in support of

their argument that the verdict was against the weight of the evidence. In



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J-A19028-14

Pentarek, the jury found that the defendant was negligent and expert



                         Id. at 972.    However, the jury returned a verdict



actions. Id. We concluded that this verdict was against the weight of the

evidence because at trial, witnesses for both parties agreed there was some



injuries. Id. As noted above, negligence was a hotly contested issue in this

case and, therefore, Pentarek is not controlling.3

       In sum, this is not a case in which witnesses for both parties agreed

that Lisien was negligent and that her negligence harmed Peter Greninger.

Instead, Appellants in this case        ask us to    overturn   the   credibility

determinations made by the jury in this case, and find Lisien negligent, and

therefore liable, as a matter of law. We refuse to do so. The verdict in this

case is not so contrary to the weight of the evidence as to shock our sense

of justice. Accordingly, we affirm.

       Judgment affirmed.




3
    Appellants acknowledge our declaration in Pentarek

Brief at 12, quoting Pentarek, 854 A.2d at 975.



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J-A19028-14

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/22/2014




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