J-A17025-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 TYRONE TILLMAN                           :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                    Appellant             :
                                          :
                                          :
              v.                          :
                                          :
                                          :
 SAMUEL BLANGO                            :   No. 3023 EDA 2018

           Appeal from the Judgment Entered November 13, 2018
    In the Court of Common Pleas of Philadelphia County Civil Division at
                         No(s): No. 17-02-02595


BEFORE: PANELLA, P.J., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.:                            FILED OCTOBER 1, 2019

      Appellant, Tyrone Tillman, appeals from the judgment entered on

November 13, 2018, in a personal injury lawsuit arising from an automobile

accident. We affirm.

      The trial court briefly summarized the facts and procedural history of

this case as follows:

      On February 10, 2017, Appellant commenced a civil action by
      filing a complaint against Appellee[, Samuel Blango (Blango)].
      Both parties completed discovery and on November 8, 2017, a
      panel of arbitrators found in favor of Appellant against [Blango] in
      the amount of $9,000.00. [Blango] filed a notice of appeal from
      the arbitrator’s award demanding a jury trial pursuant to
      Pennsylvania Rule of Civil Procedure 1311.1.

      On August 29, 2018, [] a jury verdict was rendered in favor of
      [Blango] against Appellant. On September 5, 2018, Appellant
      filed a timely post-trial motion with [the trial] court which was
      denied. On September 14, 2018, Appellant filed a notice of
      appeal[. O]n September 17, 2018, the [trial] court ordered
      Appellant to file a concise statement of errors complained of on
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       appeal pursuant to Pa.R.[A.]P. 1925(b)(1). [The trial court issued
       an opinion pursuant to Pa.R.A.P. 1925(a) on November 29, 2018.]

Trial Court Opinion, 11/29/2018, at 1-2 (parentheticals and superfluous

capitalization omitted).

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

       A) Whether the [trial] court committed an error of law and/or
          abused [its] discretion when it:

              1) Improperly instructed the jury on damages;

              2) Misread/failed to read [standard] jury charge 7.50 (Civ)
                 [regarding] [d]amages in [a] [c]ase of [u]ndisputed
                 [n]egligence and [i]njury[?]

       B) Whether the [trial] court committed an error of law and/or
          abused [its] discretion when it denied [Appellant’s] [m]otion
          for a [n]ew [t]rial because the verdict was against the weight
          of the evidence[?]

Appellant’s Brief at 9.1

       In his first issue, Appellant claims that the trial court committed an error

of law or abused its discretion regarding jury instructions. Appellant’s Brief at

21-27.     Appellant argues that the trial court erred by failing to give

Pennsylvania Standard Civil Jury Instruction 7.50 pertaining to damages in

cases involving undisputed negligence and injury. Id. at 24-27. Appellant

maintains that he submitted the requested jury charge prior to trial and that

it was error to refuse the instruction, because:

       [Appellant] believed that the lower court agreed and would read
       said charge, as the parties stipulated to negligence and both
____________________________________________


1 We have changed the order of Appellant’s issues as presented for clarity
and ease of discussion.

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      doctors, [Appellant’s] treating doctor and the [Independent
      Medical Examiner (IME,)] agreed that [Appellant] sustained an
      injury in the accident in the nature of a lower back sprain and
      strain, the injury was causally related to the [automobile] accident
      [at issue] and that the treatment was reasonable. However, the
      [trial] court completely failed to read Pennsylvania Standard Civil
      Jury Instruction 7.50 (Civ) and[,] in fact[,] instructed the jury in
      a matter contrary to the correct charge.

Id. at 24-25. Appellant argues that the trial court further erred by instructing

the jury that they were to decide whether to award damages and that

Appellant must have experienced pain and suffering in order to be eligible to

claim past and future noneconomic damages. Id. at 23-24. Appellant claims

that he submitted the proposed jury instruction before trial and, therefore, he

properly preserved the issue despite not making a specific objection to the

charges given at trial. Id. at 21-22.

      “[O]ur standard of review when considering the denial of jury

instructions is one of deference—an appellate court will reverse a court's

decision only when it abused its discretion or committed an error of law.”

Commonwealth v. Leaner, 202 A.3d 749, 782–783 (Pa. Super. 2019)

(citation omitted). Our Supreme Court recently determined:

      In order to preserve a jury-charge challenge for appellate review,
      a party must either: (1) lodge a contemporaneous objection on
      the record, Dilliplaine [v. Lehigh Valley Trust Co.], 322 A.2d
      [114,] 116-117 [(Pa. 1974)]; Pa.R.A.P. 302; Pa.R.C.P. 227,
      227.1, cmt.; or (2) make requested points for charge part of the
      record pursuant to Pa.R.C.P. 226(a), obtain an explicit trial court
      ruling upon the challenged instruction, and raise the issue in a
      post-trial motion. See Pa.R.A.P. 302(a); Pa.R.C.P. 226(a), 227,
      227.1.




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Jones v. Ott, 191 A.3d 782, 789 (Pa. 2018). “Taken together, our rules of

civil and appellate procedure, and our longstanding principles of preservation

and waiver, dictate that, while a jury-charge challenge can be preserved under

Pa.R.C.P. 227.1 by making proposed instructions part of the record and by

raising the issue in a post-trial motion, the challenge is waived when the

appellant fails to secure a record ruling from the trial court upon the proposed

charge.” Id. at 788.

      Here, upon review of the certified record, Appellant did not object to the

jury charges as given at trial. See N.T., 8/29/2018, at 95-115. Instead, when

asked if there were any concerns about the jury instructions, counsel for

Appellant responded, “I don’t believe so.”      Id. at 115.    Accordingly, we

conclude that without securing a record ruling from the trial court, Appellant

waived his claim of jury instruction error.

      Next, Appellant contends that he is entitled to a new trial because the

verdict was against the weight of the evidence presented. Appellant’s Brief at

15-21. He claims that the following evidence supports his position:

      [] Dr. Randall Smith [] stated that [A]ppellant presented on
      February 26, 2016 with complaints of pain and discomfort in the
      cervical spine, the thoracic spine and his lumbar spine, as well as
      pain in his right arm. On October 31, 2016, after eight months of
      treatment, Dr. Smith notes that [A]ppellant continue[d] to have
      intermittent low back pain.         Dr. Smith then diagnos[ed]
      [A]ppellant with sprain of ligaments of the cervical spine, sprain
      of ligaments of the thoracic spine and sprain of ligaments in his
      lumbar spine. Dr. Smith opine[d] that [A]ppell[a]nt’s prognosis
      [was] fair and that he ha[d] reached maximum medical
      improvement and [was] discharged. Finally, Dr. Smith opine[d]



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      that [A]ppellant will be left with chronic discomfort in his lower
      back brought on by certain positions and activities.

      Dr. Randall Smith wrote a subsequent report in January 2017
      which stated that [A]ppellant treated in his facility from February
      26, 2016 through October 31, 2016. He note[d] that [A]ppellant
      was seen for six physician visits and 29 therapy visits. He note[d]
      that [A]ppellant continues to complain of intermittent low back
      pain. He also note[d] within a reasonable degree of medical
      certainty the diagnosis is causally related to the motor vehicle
      accident of February 24, 2016.

      [Blango] had [A]ppellant [] examined by Dr. Daniel Goldstein, an
      orthopedic surgeon, on January 11, 2018. Dr. Goldstein’s report
      state[d] that the diagnosis of lumb[o]sacral sprain [was] correct
      and supported by the objective findings. The report notes that
      [A]ppellant’s length and frequency of treatment was appropriate.
      He also state[d] that the diagnosis [was] causally related to the
      accident. He further state[d] that within a reasonable degree of
      medical probability, the proximate cause of the injury and
      diagnosis [was] the car accident with whiplash mechanism for low
      back strain.

Id. at 16-17 (record citations omitted).

      Thus, Appellant argues:

      [T]aking the medical evidence set forth above in the light most
      favorable to [Blango], [A]ppellant [] suffered a strain and sprain
      injury to his lower back, had medical care and treatment for
      approximately eight (8) months, and still had ongoing complaints
      of low back pain. Furthermore, [A]ppellant’s treating physician
      Dr. Randall Smith and [Blango’s] IME doctor Dr. Daniel Goldstein
      both agree that [A]ppellant suffered a strain and sprain injury to
      his low back, the injury was causally related to the accident, and
      the treatment rendered was reasonable. The jury verdict of $0,
      which is ultimately a finding in favor of [Blango], is so contrary to
      the evidence to clearly shock one’s sense of justice.

Id. at 20.

      Our standard of review for a claim that the verdict was against the

weight of the evidence is as follows:

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     Appellate review of a weight 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.

     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 judgment notwithstanding the verdict or a new trial
     only when the jury's verdict is so contrary to the evidence as to
     shock one's sense of justice. In determining whether this standard
     has been met, appellate review is limited to whether the trial
     judge's discretion was properly exercised, and relief will only be
     granted where the facts and inferences of record disclose a
     palpable abuse of discretion. 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.

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

brackets, and quotations omitted).

     We previously determined:

     This Court recognizes that not all injuries are serious enough to
     warrant compensation, even though there may be some pain. The
     real test is whether the uncontroverted injuries are such that a
     conclusion that they are so minor that no compensation is
     warranted defies common sense and logic. Accordingly, such
     conclusions are made on a case by case basis. As this [C]ourt
     [further] noted []:

        [t]he existence of compensable pain is an issue of credibility
        and juries must believe that plaintiffs suffered pain before
        they compensate for that pain. A jury is not required to
        award a plaintiff any amount of money if it believes that the
        injury plaintiff has suffered in an accident is insignificant.

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         Insignificant means the jury could have concluded that any
         injury plaintiff suffered did not result in compensable pain
         and suffering. While a jury may conclude that a plaintiff has
         suffered some painful inconvenience for a few days or weeks
         after the accident, it may also conclude that the discomfort
         was the sort of transient rub of life for which compensation
         is not warranted.

      In this vein, in holding that a jury's award of medical expenses
      without compensation for pain and suffering should not be
      disturbed where the trial court reasonably may have found the
      jury did not believe the plaintiff suffered any pain and suffering or
      that a preexisting condition or injury was the sole cause of any
      alleged pain and suffering, our Supreme Court has stated a
      reversal of a jury verdict on the grounds of its inadequacy is
      appropriate only where the injustice of the verdict stands forth
      like a beacon.

Gold v. Rosen, 135 A.3d 1039, 1044 (Pa. Super. 2016) (internal citations

and quotations omitted).

      Here, the trial court noted that it was undisputed that Appellant

sustained some injury from the accident at issue.          Trial Court Opinion,

11/29/2018, at 7. However, the trial court found that “the jurors in this case

decided that Appellant’s injury was not serious enough to                warrant

compensation.” Id. The trial court ultimately concluded that “[t]he verdict

was entirely within the purview of the jury, and was not so contrary to the

evidence as to shock one’s sense of justice.” Id.

      Based upon the facts of this case as presented at trial, we discern no

error or abuse of discretion in ruling upon Appellant’s weight of the evidence

claim.   This case did not involve a violent collision, but rather involved a

relatively minor accident wherein Blango, travelling between five to 10 miles

per hour, struck Appellant from behind at a stop sign. N.T., 8/29/2018, at

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29-32 and 63. Appellant received chiropractic care for three months following

the accident, but continued to work four to seven days a week as a Greyhound

bus driver. Id. at 45-48. Although Appellant testified that he believed he

needed additional medical treatment, he had no future medical appointments

scheduled at the time of trial. Id. at 52. Moreover, Dr. Smith opined that

eight months after the accident, Appellant “reached maximum medical

improvement – meaning there’s nothing further that Dr. Smith can do for him

at that point – and [] discharged [Appellant] from therapy treatments[].” Id.

at 56. Dr. Goldstein opined that Appellant had a “full active range of motion,”

full strength of his spine with no tenderness, and “equal and symmetric

reflexes in the bilateral upper extremities.” Id. at 69. Dr. Goldstein noted

that Appellant had no physical impairments, required no further medical

treatment, could return to work without restrictions, and had fully recovered.

Id. at 70-71. Thus, Dr. Goldstein concluded that there were “no palpable or

physical findings on the exam consistent with low back pain” and that

Appellant’s “subjective complaints do not match the objective physical

findings.” Id. at 70.

      While the parties conceded that Blango’s negligence caused some harm

to Appellant, based upon the foregoing evidence, the jury did not find such

harm significant enough to warrant a monetary award. It was within the jury’s

purview to find that the discomfort Appellant experienced following the

accident was a transient rub of life. Hence, we conclude that the jury’s finding

was consistent with applicable law and the facts of this record. Accordingly,

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we hold that the trial court did not abuse its discretion or err as a matter of

law in denying Appellant’s request for a new trial. Appellant’s weight of the

evidence claim is, therefore, without merit.

      Judgment affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/1/19




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