J-A23032-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    MALLORY J. MOHNKERN,                       :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    MICHAEL A. GOULD                           :      No. 1767 WDA 2018

             Appeal from the Judgment Entered December 6, 2018
              in the Court of Common Pleas of Allegheny County
                    Civil Division at No(s): GD 17-003538

BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                         FILED DECEMBER 12, 2019

       Mallory J. Mohnkern (“Mohnkern”) appeals from the Judgment,1 in the

amount of $15,569.52, entered in her favor, and against Michael A. Gould

(“Gould”). We affirm.

       Mohnkern and Gould were involved in a motor vehicle accident on

February 12, 2016, during which Gould rear-ended Mohnkern while she was

stopped in traffic on Freeport Road in Allegheny County, Pennsylvania.2



____________________________________________


1 Mohnkern purports to appeal from the Order denying her Motion for Post-
Trial Relief. However, an appeal properly lies from the entry of judgment,
rather than the denial of post-trial motions. See Nitardy v. Chabot, 195
A.3d 941, 944 n.1 (Pa. Super. 2018). Because the trial court entered
Judgment in this case before Mohnkern filed the instant appeal, the appeal is
properly before us.

2At trial, Gould admitted that he was at fault for the accident. See N.T.,
11/13/18, at 60.
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      On March 7, 2017, Mohnkern filed a Complaint in negligence, claiming

that she had suffered various injuries as a result of the accident, including,

inter alia, traumatic brain injury, headaches, dizziness, panic attacks, and

injury to the head, neck and spine. Mohnkern also alleged damages including,

inter alia, pain and suffering, lost wages and earning potential, and continued

medical expenses.

      Gould filed an Answer and New Matter on March 28, 2019, asserting

that some or all of Mohnkern’s injuries were unrelated to the accident.

Mohnkern filed a Reply.

      Following additional procedural history not relevant to this appeal, the

matter proceeded to a jury trial on November 13, 2018. Prior to the start of

trial, Gould presented several Motions in limine. Relevantly, Gould sought to

exclude evidence concerning Mohnkern’s medical expenses and wage loss.

The trial court granted the Motions in limine.

      Before the start of closing arguments, Mohnkern presented a Motion to

Permit Counsel to Argue for a Specific Dollar Amount for Non-Economic

Damages During Closing Argument, asserting that the jury would have no

evidence to guide them in choosing an amount of damages, and that selecting

an amount would require speculation. The trial court denied the Motion. On

November 15, 2018, the jury returned a verdict in favor of Mohnkern,




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reflecting awards of $7,500.00 for past pain and suffering, and $7,500.00 for

mental anguish.3

       Mohnkern filed a Motion for Post-Trial Relief, requesting a new trial

during which her counsel could argue for a specific dollar amount for non-

economic damages. The trial court denied Mohnkern’s Motion.

       The trial court entered Judgment, upon Praecipe by Mohnkern, on

December 6, 2018. Mohnkern thereafter filed a timely Notice of Appeal and a

court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of

on appeal.

       Mohnkern now raises the following question for our review: “Whether

the parties in an action involving non-economic damages for personal injuries

can argue to the jury for a specific amount of damages during closing

arguments to the jury?” Brief for Appellant at vi.

       “[W]hen reviewing the denial of a motion for new trial, we must

determine if the trial court committed an abuse of discretion or error of law

that controlled the outcome of the case.” Long v. Mejia, 896 A.2d 596, 599

(Pa. Super. 2006). Further,

       [u]pon review, the test is not whether this Court would have
       reached the same result on the evidence presented, but, rather,
       after due consideration of the evidence found credible by the trial
       court, and viewing the evidence in the light most favorable to the
       verdict winner, whether the court could reasonably have reached
       its conclusion.
____________________________________________


3 The verdict was subsequently molded to a total of $15,569.52, to reflect
delay damages.

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J-A23032-19



B & L Asphalt Indus., Inc. v. Fusco, 753 A.2d 264, 267 (Pa. Super. 2000)

(citation and quotation marks omitted).

      Mohnkern argues that her counsel should have been permitted, during

closing arguments, to argue to the jury for a specific amount of money for

non-economic damages. See Brief for Appellant at 7-23. Mohnkern claims

that, due to the evidence presented at trial, “the jury had no monetary amount

on which to start their deliberation.” Id. at 8. Mohnkern acknowledges that

existing case law prohibits counsel from requesting a particular amount of

money for non-economic damages, but points out that the key cases were

decided more than a century ago, and asserts that the issue should be

revisited.   Id. at 9, 10-11, 16.   Additionally, Mohnknern points out that

Pennsylvania is one of a minority of states that prohibit counsel from arguing

for a specific lump sum or a per diem amount relating to non-economic

damages. Id. at 9, 16-17.

      Counsel in civil cases are prohibited from making statements to the jury,

during closing arguments, concerning the amount of non-economic damages

expected. See Nelson v. Airco Welders Supply, 107 A.3d 146, 161-62 (Pa.

Super. 2014) (en banc); see also Stassun v. Chapin, 188 A. 111, 111 (Pa.

1936); Joyce v. Smith, 112 A. 549, 550-51 (Pa. 1921). Underlying this rule

is the idea that a jury should determine the amount of non-economic damages

to award based on the evidence presented at trial, rather than at the

suggestion of counsel. See Wilson v. Nelson, 258 A.2d 657, 659-60 (Pa.

1969) (stating that “[j]urors should render their verdict on the basis of

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deductions from the evidence presented and not on the basis of some

calculation, independently proposed and arrived at by trial counsel.”); see

also Joyce, 112 A. at 551; Bullock v. Chester & Darby Telford Road Co.,

113 A. 379, 380 (Pa. 1921). Our Supreme Court has also stated that “any

statement to the jury by counsel that calls the juror’s attention to claims or

amounts not supported by the evidence is error.” Wilson, 258 A.2d at 660

(emphasis added). Thus, counsel may not request a specific award, ask the

jury to apply a particular formula for calculating damages, or otherwise

provide a suggestion concerning the amount claimed or expected.            See

Nelson, 107 A.3d at 164 (concluding that, where plaintiff’s counsel “provided

the jury with a formula to calculate damages and an amount to plug into that

formula[,]” and requested at least $1 million for each category of non-

economic damages, the trial court abused its discretion by failing to issue a

curative instruction or grant a mistrial); Wilson, 258 A.2d at 659-60 (stating

that trial court did not err in requiring, during closing arguments, plaintiff’s

counsel to remove a chart depicting dollar figures for various damages,

because the proposed figure for loss of future wages was unsupported by

evidence); Bullock, 113 A. at 380 (requiring a new trial where plaintiff’s

counsel argued specific amounts of lost wages, including future wages, to the

jury during closing arguments); Joyce, 112 A. at 550-51 (concluding that

counsel’s suggestion that plaintiff was entitled to “thousands of dollars” for

pain and suffering was improper).        But see Clark v. Phila. Coll. of

Osteopathic Med., 693 A.2d 202, 206 (Pa. Super. 1997) (concluding that

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J-A23032-19



the trial court properly declined to grant a mistrial after plaintiff’s counsel,

referring to a drawing of a triangle with a horizontal line drawn through it,

argued to the jury that plaintiff’s medical expenses were only the “tip of the

iceberg,” and her non-economic damages remained below the horizontal

“water line,” because the statement did not suggest a specific sum).

         The trial court denied Mohnkern’s Motion to Permit Counsel to Argue for

a Specific Dollar Amount for Non-Economic Damages During Closing

Argument, and Motion for Post-Trial Relief, on the basis that any request for

a particular sum of damages would be improper. See Trial Court Opinion,

2/5/19, at 2-4. While we are sympathetic to Mohnkern’s assertions, we must

agree that any such statements or requests by counsel during closing

arguments are prohibited under the current law of this Commonwealth.4

Therefore, we are constrained to conclude that the trial court did not commit

legal error or abuse its discretion in denying Mohnkern’s request for a new

trial.

         Judgment affirmed.




____________________________________________


4 We observe that, without any guidance or evidence concerning a requested
amount of non-economic damages, a jury’s verdict may be no less arbitrary
than an amount specified and proposed by plaintiff’s counsel at trial. Cf.
Joyce, 112 A. at 551 (cautioning against “any suggestion to the jury of an
arbitrary amount”). We therefore urge our Supreme Court to revisit this issue.

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J-A23032-19




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/12/2019




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