Capponi, D. v. Berg, A. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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