J-A28005-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DAWN GILLEY IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
ALYSA WOLOSZYN
Appellee No. 437 EDA 2016
Appeal from the Judgment Entered January 27, 2016
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): May Term, 2014 1405-02943
BEFORE: PANELLA, J., SHOGAN, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED MARCH 29, 2017
Appellant, Dawn Gilley, appeals from the judgment entered January
27, 2016, in favor of Appellee, Alysa Woloszyn, in this motor vehicle
accident, personal injury lawsuit.1 Specifically, she argues that the trial
court should have granted her post-trial motion for judgment
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*
Retired Senior Judge assigned to the Superior Court.
1
Appellant purports to appeal from the order denying her motion for post-
trial relief. However, an appeal is properly taken from the final judgment
entered after post-trial relief is denied. See Growall v. Maietta, 931 A.2d
667, 669 n.1 (Pa. Super. 2007), appeal denied, 951 A.2d 1164 (Pa. 2008).
Here, the trial court denied Appellant’s post-trial motion, and entered
judgment in favor of Appellee, on January 27, 2016. (See Order, 1/27/16).
Although Appellant filed a praecipe to enter judgment on February 15, 2016,
which the prothonotary entered, because the court already entered
judgment, the February 15, 2016 entry of judgment is a legal nullity. We
have amended the caption accordingly.
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notwithstanding the verdict (JNOV) following the September 18, 2015, jury
verdict, which found that Appellant, whose car was hit by Appellee, was
sixty-percent negligent. We affirm.
We take the factual and procedural history in this matter from our
review of the certified record, and the trial court’s May 4, 2016 opinion.
On May 20, 2013, [Appellant] and [Appellee] were
involved in an automobile accident. [Appellant] is a real estate
agent and testified that[,] at the time of the accident[,] she was
on her way to a client meeting. She testified that the accident
happened at a stop light near the City Avenue exit in
Philadelphia, [Pennsylvania]. [Appellant] testified that she was
stopped at the light when a car hit her from behind, and as a
result, she struck her head on the steering wheel and her cell
phone was broke[n] after hitting the windshield. [Appellant]
testified that[,] after the accident[,] she was disoriented and
hurt. She also testified on different occasions, that at the point
of impact [Appellee] was going anywhere from twenty, forty, or
seventy miles an hour, but argued she did not intend to mislead
anyone when making such conflicting testimony. [Appellant]
made the varied statements in her deposition, emergency room,
and physician records. After her car was struck, [Appellant]
moved her car out of the way of traffic and called 911[;]
however[,] the police did not arrive at the scene of the accident
while the parties were there.
[Appellant] testified that she had a hands free cell phone
that she used in her car and never took her hands off of the
steering wheel when using her cell phone. She further testified
that she was not on her cell phone at the time of the accident.
During her cross-examination, she testified that she signed a
form at the hospital after the accident stating the accident
occurred at 10:02 a.m. [Appellant’s] cell phone records revealed
that she had a two[-]minute cell phone call that began at 10:01
a.m.
Additionally, during [Appellant’s] deposition[,] she stated
that she had the following injuries: (1) her forehead and mouth
were bleeding and she had to pick glass out of her forehead, (2)
her face was bruised under her eyes and nose, (3) her right
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hand was bleeding, (4) her left thumb nail was lost in the
accident, (5) her wrist was cut open from digging her nail into it,
[and (6)] her tooth was broken. However, none of the injuries
were listed in [Appellant’s] emergency room records.
At the time of the accident, [Appellee] was on her way to
work as well. [Appellee] testified that she exited the expressway
at City Avenue and[,] at the end of the ramp, she stopped at the
red light where no cars were in front of her. The light turned
green and [Appellee] turned right onto City Avenue. She
testified that her attention was partly on a Mack truck that was
also making the turn next to her to make sure the truck would
not hit her[,] and then put her attention back on City Avenue,
and as she rounded the corner, she saw [Appellant’s] car
stopped close in front of her. After seeing [Appellant’s] car
stopped in the road, [Appellee] tried to brake and veer to the
right in an effort to avoid [Appellant’s] car. [Appellee] admitted
to bumping [Appellant’s] car. She testified that the contact was
minimal and could be described as a fender bender. [Appellee]
stated that as she turned the curve, she was going between ten
and twenty miles per hour. There was no damage to
[Appellee’s] car from the accident. [Appellee] further testified
that when she and [Appellant] exited their cars after the
accident, [Appellant] was not bleeding on any part of her body[,]
nor were there any abrasions or glass in her forehead. Both
[Appellant] and [Appellee] remained at the scene of the accident
for about fifteen minutes after the accident occurred.
[Appellant’s] counsel filed a motion for directed verdict on
the issue of liability because [Appellee] admitted to bumping
[Appellant’s car] with her car and causing the accident in part.
After considering [Appellant’s] motion and [Appellee’s] response,
the [trial court] denied the motion and let the case go to the
jury. After deliberation, the jury returned a verdict attributing
sixty percent negligence to [Appellant] and forty percent
negligence to [Appellee].
On January 27, 2016, [the trial court] heard oral argument
on [Appellant’s] Motion for Post Trial Relief. [Appellant’s]
attorney presented the motion and requested a judgment
notwithstanding the verdict. [Appellant’s] counsel argued that
the evidence did not support the jury verdict and [Appellee] did
not satisfy her burden of proving [Appellant’s] negligence.
[Appellee] opposed [Appellant’s] Motion for Post Trial Relief[,]
and argued that there was substantial evidence at trial to
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support the verdict. [On January 27, 2016, the trial court denied
the motion and entered judgment in favor of Appellee. This
timely appeal followed.2]
(Trial Court Opinion, 5/04/16, at 3-5) (record citations omitted).
Appellant raises two questions on appeal.
[1.] Did the trial court err in denying the motion for post trial
relief and failing to enter a judgment notwithstanding the verdict
where: (1) the evidence was such that no two reasonable minds
could disagree that the verdict should have been rendered in
favor of [Appellant]; and (2) the evidence presented at trial was
insufficient to sustain the verdict by the jury that [Appellant]
was sixty (60%) percent negligent?
[2.] Did the trial court err in denying the motion for post trial
relief where: (1) [Appellee] failed to develop any evidence or
testimony to support her allegation that [Appellant] was at fault
for the accident; (2) [Appellee] failed to provide the jury with a
factual basis for its decision; and (3) the verdict is contrary to
the evidence, shocks one’s sense of justice[,] and is an abuse of
discretion?
(Appellant’s Brief, at 5) (unnecessary capitalization omitted).
In her first issue, Appellant contends that the court erred in not
granting her post-trial motion and entering JNOV in her favor. (See
Appellant’s Brief, at 12-20).3 Specifically, she claims that based on the
evidence at trial, no two reasonable minds could disagree that she was not
sixty-percent negligent, and that the evidence at trial was insufficient to
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2
Pursuant to the court’s order, Appellant filed a statement of errors
complained of on appeal, on March 4, 2016. See Pa.R.A.P. 1925(b). The
trial court entered its opinion on May 4, 2016. See Pa.R.A.P. 1925(a).
3
We note that Appellant failed to comply with the requirement of Pa.R.A.P.
2119(a), that she organize her brief according to the questions presented.
See Pa.R.A.P. 2119(a).
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support a conclusion that she was sixty-percent negligent. (See id.). We
disagree.
Our standard of review concerning denial of a motion for JNOV is well-
settled.
When reviewing the propriety of an order granting or
denying judgment notwithstanding the verdict, we must
determine whether there is sufficient competent evidence to
sustain the verdict. We must view the evidence in the light most
favorable to the verdict winner and give the verdict winner the
benefit of every reasonable inference arising therefrom while
rejecting all unfavorable testimony and inferences. . . .
Pennsylvania law makes clear that a judgment
notwithstanding the verdict is proper only in clear cases where
the facts are such that no two reasonable minds could disagree
that the verdict was improper. Questions of credibility and
conflicts in evidence are for the fact-finder to resolve. This Court
will not substitute its judgment based upon a cold record for that
of the fact-finder where issues of credibility and weight are
concerned.
Dubose v. Quinlan, 125 A.3d 1231, 1237–38 (Pa. Super. 2015), appeal
granted in part, 138 A.3d 610 (Pa. 2016) (citations omitted). Furthermore,
“the burden to establish the plaintiff’s conduct as a contributing factor in his
injury rests with the defendant, who must show both the negligence of the
conduct alleged and the causal relationship of that conduct to the injuries for
which damages are sought.” Angelo v. Diamontoni, 871 A.2d 1276, 1280
(Pa. Super. 2005), appeal denied, 889 A.2d 87 (Pa. 2005) (citation omitted).
Here, Appellee admitted to bumping into Appellant’s car after exiting I-
76 West onto City Avenue, prior to turning right onto Presidential Boulevard.
(See N.T. Trial, 9/14/15, at 27-28; N.T. Trial, 9/16/15, at 97). Appellee
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explained that she was the first car stopped at a red light at the end of the I-
76 exit ramp, waiting to turn right onto City Avenue, and there were no
other vehicles in front of her. (See N.T. Trial, 9/14/15, at 33-34; N.T. Trial,
9/15/15, at 16-17; N.T. Trial, 9/16/15, at 98). When the light turned green,
she made a right turn onto City Avenue where she saw Appellant’s car
stopped in the roadway with no cars in front of it. (See N.T. Trial, 9/14/15,
at 32-33; N.T. Trial 9/16/15, at 98). Appellee testified that she hit
Appellant’s car while driving about ten miles per hour. (See N.T. Trial,
9/16/15, at 100). Appellant testified that she signed a form at the hospital
stating that the accident occurred at 10:02 a.m., and that she placed a two-
minute phone call at 10:01 a.m. (See N.T. Trial, 9/16/15, at 48-49).
Viewing the evidence in the light most favorable to Appellee, as verdict
winner, and giving her the benefit of every reasonable inference, we
conclude that the evidence supports Appellee’s theory that Appellant’s car
was stopped in a roadway, with no cars in front of her, while she was talking
on her cell phone with her assistant. See Angelo, supra at 1280; Dubose,
supra at 1237-38. Thus, there is sufficient evidence to support the jury’s
conclusion that Appellant was acting negligently, and that her contributory
negligence was sixty-percent the cause of the accident. Accordingly, we
conclude that this is not a case where no two reasonable minds could
disagree that the verdict was improper, and the trial court did not err or
abuse its discretion when it denied Appellant’s motion for JNOV. See
Dubose, supra at 1237-38. Appellant’s first issue does not merit relief.
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In her second issue, Appellant argues that the trial court erred in
denying her post-trial motion for a new trial. (See Appellant’s Brief, at 14-
17, 19, 22). Specifically, Appellant argues that Appellee failed to present
evidence that she was at fault for the accident, and therefore Appellant
claims she is entitled to a new trial because the verdict shocked one’s sense
of justice. (See id. at 14-16). We disagree.
Appellant’s claim challenges the weight of the evidence, for which our
standard of review is well settled.
[A]ppellate 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.
Phillips v. Lock, 86 A.3d 906, 919 (citation omitted). “A new trial is
warranted when the jury’s verdict is so contrary to the evidence that it
shocks one’s sense of justice. . . . [A] new trial should not be granted
because of a mere conflict in testimony or because the trial judge on the
same facts would have arrived at a different conclusion.” Martin v. Evans,
711 A.2d 458, 461 (Pa. 1998) (citations and internal quotation marks
omitted).
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Here, the trial court addressed Appellant’s post-trial motion for a new
trial and concluded that it
. . . did not err by denying [Appellant] a new trial because the
jury’s verdict was not so contrary to the evidence as to shock
one’s sense of justice. The jury took into account that
[Appellee] admitted to bumping [Appellant’s] car and partially
causing the accident, as she was found to be forty percent
negligent. The jury was free to find [Appellee’s] account of
events more credible than [Appellant’s] testimony. [Appellee]
testified that she was driving at about ten to twenty miles an
hour as she turned the curve onto City Avenue and attempted to
avoid [Appellant’s] car, which was stopped in the street. There
was also evidence that [Appellant] was talking on her cell phone
at the time of the accident. Because of this evidence, it cannot
shock one’s sense of justice to find [Appellant] sixty percent
negligent in the cause of this accident. Therefore, the jury
verdict was not against the weight of the evidence and [the trial
court] did not err by not granting a new trial.
(Trial Ct. Op., at 8).
We agree with the reasoning of the trial court and will not re-weigh the
evidence. See Phillips, supra at 919. Accordingly, based on the foregoing
and our own independent review of the record, we conclude that the trial
court did not abuse its discretion or commit an error of law when it found
that Appellant is not entitled to a new trial. Appellant’s second issue does
not merit relief.
Judgment affirmed.
Judge Shogan joins the Memorandum.
Judge Panella files a Dissenting Memorandum.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/29/2017
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