J-S74002-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MARGARET THEMENS

v.

SONJA G. SPRANGER AND HANNO 

W. SPRANGER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1675 EDA 2017

Appeal from the Order Entered April 27, 2017

In the Court of Common Pleas of Chester County Civil Division at No(s): 

2015-00415-CV

BEFORE: BOWES, J., LAZARUS, J., and RANSOM, J.

MEMORANDUM BY BOWES, J.: FILED APRIL 30, 2018

Sonja G. Spranger and her husband, Hanno W. Spranger (“the 

Sprangers”), appeal from the April 27, 2017 order granting Margaret 

Themens a new trial on damages. After careful review, we affirm. 

This action arises from an automobile accident that occurred on 

November 15, 2012, at the intersection of Coldstream and Charlestown 

Roads in Charlestown Township, Chester County, Pennsylvania. Mrs. 

Spranger stopped at a posted stop sign on Coldstream Road. She proceeded 

to turn left into the southbound lanes of Charlestown Road where she struck 

the right front of a car driven by Mrs. Themens that she admittedly failed to 

see. The impact sent Mrs. Themens’ vehicle across the northbound lanes of 

travel into a grassy area between two trees. 
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Mrs. Themens was taken by ambulance to Paoli Hospital, where she 

underwent various tests and was diagnosed with cervical and lumbar 

strain/sprain and a whiplash-type injury. She was prescribed medication 

and physical therapy, and was directed to follow up with her personal 

physician. At the time of trial four years later, Mrs. Themens still had 

complaints of sciatica, a debilitating low back and right leg pain, as well as 

neck and right shoulder pain.

Mrs. Themens commenced an action for negligence in the magisterial 

district court, and on December 18, 2014, she was awarded $12,160 in 

damages. The Sprangers appealed, and a panel of arbitrators found in Mrs. 

Themens’s favor and awarded her $25,000. The Sprangers appealed to the 

court of common pleas. Prior to trial, Mrs. Spranger stipulated that she was 

negligent, and the case was presented to a jury on the issues of causation 

and damages only. 

Mrs. Themens presented testimony from Eric Hughes, an insurance 

adjustor, who examined the vehicles following the accident and 

authenticated photographs depicting their condition following the accident. 

Mrs. Themens testified about the accident, her injuries at the time, and the 

sciatica, and neck and shoulder pain she continued to experience. Initially, 

she could not perform secretarial duties for her husband’s business, babysit 

her grandchildren, or visit her mother. She was able to resume some of 

those activities later, but not to the same degree. Mr. Themens confirmed 
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that his wife was not back to her pre-accident physical condition, “not even 

close.” Id. at 81. 

Mrs. Themens explained that she stopped going to physical therapy 

because the therapist “was causing me more pain, getting too aggressive 

with his exercises he wanted me to do, and I went home worse off.” Id. at 

69. However, she demonstrated the stretching exercises she performs twice 

daily, and explained that she felt she had been improving on her own. Id. 

at 71. She stated she did not see medical specialists because she was not 

interested in surgery or strong medications. 

Counsel for Mrs. Themens offered, by stipulation, the report of Vincent 

DiStefano, M.D., which was admitted and read to the jury. See Plaintiff’s 

Exhibit 6. The report indicated that Dr. DiStefano examined Mrs. Themens 

on April 30, 2016, and, at that time, her primary complaints were pain at the 

right side of her neck to the top of her shoulder, and a burning pain in her 

lower back and right buttock with a stabbing pain down her right leg. Id. at

85, 88. She had experienced right-sided sciatica thirty-eight years before, 

but she had recovered and remained asymptomatic until the accident. Id. 

at 86. Dr. DiStefano diagnosed “sprain/strain of the cervical spine with 

residual symptoms suggestive of cervical spondylosis and degenerative disc 

disease.” Id. at 91. He also found “strain/sprain of the lumbar spine and 

radiculitis of the right lower extremity. Possible herniated nucleus 

pulposus/spinal stenosis.” Id. The physician opined that Mrs. Themens had 
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“not returned to pre-injury baseline” and that her prognosis for significant 

recovery was poor. Id. Dr. DiStefano recommended further studies and 

referral to pain management. It was his opinion, rendered within a 

reasonable degree of medical certainty, that Mrs. Themens’s present 

complaints were a direct result of the injuries she sustained in the motor 

vehicle accident. Id. 

Mrs. Spranger briefly testified regarding the circumstances of the 

accident. The defense introduced, again by stipulation, the August 10, 2015 

report of John F. Perry, M.D., and read it to the jury. Dr. Perry characterized 

Mrs. Themens’ chief complaint as low back and right leg pain. She reported 

reported heel pain and tingling in her toes, arm pain while working at the 

computer, and tenderness in the bicep area of the right shoulder. Dr. Perry 

also reviewed Mrs. Themens’s medical records, and arrived at a diagnosis of 

“Motor vehicle accident with somatic complaints.” Id. at 103-04. After 

pointing out the absence of objective findings, he hypothesized “that the 

symptoms are suggestive of a possible intermittent radiculopathy and low 

back pain dysfunction.” Id. at 104. He recommended no treatment, and he 

was unable to “identify a condition that would produce a disability related to 

the motor vehicle accident.” Id. 

On December 8, 2016, the jury awarded Mrs. Themens damages in the 

amount of $2,000 for past, present and future pain and suffering, 

embarrassment and humiliation, and loss of enjoyment of life. She filed a 
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timely motion for post-trial relief, claiming that the damage award was 

grossly inadequate to compensate her fairly for the injuries she suffered in 

the accident. On April 27, 2017, the trial court agreed, and granted Mrs. 

Themens a new trial. 

The Sprangers timely appealed to this Court and complied with the 

trial court’s order directing them to file a Pa.R.A.P. 1925(b) concise 

statement of errors complained of on appeal. The trial court authored its 

Rule 1925(a) opinion, and the matter is ripe for our review. The Sprangers 

present one issue for our review: 

Whether the trial court committed an error of law and/or abused 

its discretion in granting a new trial on damages where the jury 

verdict did not shock the conscience and the damages were not 

against the weight of the evidence. 

Appellants’ brief, at 2. 

A trial court may set aside a jury verdict “as inadequate where it 

clearly appears from uncontradicted evidence that the amount of the verdict 

bears no reasonable relationship to the loss suffered by the plaintiff.” 

Hobbs v. Ryce, 769 A.2d 469, 473 (Pa.Super. 2001). As our Supreme 

Court stated in Criswell v. King, 834 A.2d 505, 512 (Pa. 2003): 

The basis for a weight claim derives from the fact that the trial 

court, like the jury, had an opportunity to hear the evidence and 

observe the demeanor of the witnesses; the hope and 

expectation animating a weight challenge is that the trial court 

will conclude that the verdict was so contrary to what it heard 

and observed that it will deem the jury’s verdict such a 

miscarriage of justice as to trigger the court’s time-honored and 

inherent power to take corrective action. 
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Our Supreme Court cautioned, however, that in granting a new trial on this 

basis, a trial court must leave no doubt “that the evidence and the verdict on 

that evidence represents an injustice.” Boggavarupo v. Ponist, 542 A.2d 

516, 519 (Pa. 1988). 

The trial court found that the evidence of Mrs. Themens’s pain and 

suffering due to Mrs. Spranger’s negligence was “clear, credible, and 

essentially uncontradicted.” Trial Court Opinion, 7/13/17, at 6. It concluded 

that, “the jury’s award of only $2,000.00 for past, present and future pain 

and suffering, embarrassment and humiliation, and loss of enjoyment of life 

did shock our conscience, was against the weight of the evidence, and in our 

view mandated the grant of a new trial.” Id. at 2 (emphasis in original). 

When this Court reviews a trial court’s grant of a new trial based on 

the weight of the evidence, we

will not reverse the trial court’s grant or reversal of a new trial 

unless its decision presents a gross abuse of discretion or an 

error of law. An abuse of discretion exists when the trial court 

has rendered a judgment that is manifestly unreasonable, 

arbitrary, or capricious, has failed to apply the law, or was 

motivated by partiality, prejudice, bias or ill will. 

Kopytin v. Aschinger, 947 A.2d 739, 742 (Pa.Super. 2008) (citations 

omitted).

The Sprangers’ sole contention is that the jury heard conflicting expert 

opinions in this case regarding Mrs. Themens’s injuries. Consequently, they 

argue that the verdict rendered by the jury did not shock the conscience or 

one’s sense of injustice. In support of their position that there was an 
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evidentiary basis for the jury’s determination, and that the grant of a new 

trial was an abuse of discretion, they direct our attention to this Court’s 

decision in Henery v. Shadle, 661 A.2d 439, 442 (Pa.Super. 1995). 

In Henery, the plaintiff alleged that he suffered neck and back pain in 

an automobile accident caused by defendant. Plaintiff offered the testimony 

of his family physician in support of his injuries. The defendant presented 

the testimony of a board-certified orthopedic surgeon that the plaintiff 

suffered from pre-existing degenerative disc disease that had not been 

affected by the accident. The jury returned a verdict in favor of the 

defendant and awarded zero damages, and the trial court denied plaintiff’s 

motion for a new trial. This Court affirmed the trial court’s refusal to disturb 

the verdict, finding “there was a sure and certain evidentiary basis for the 

determination[,]” namely the contrary expert medical testimony from the 

defendant’s orthopedic surgeon that the defendant’s negligence was not a 

substantial factor in plaintiff’s injuries. Id. at 442.

We find Henery inapposite. In the instant case, Mrs. Spranger 

stipulated that she was negligent. Mrs. Themens offered expert medical 

testimony that the negligence was a substantial factor in her injuries. Unlike 

the expert medical evidence in Henery, however, Mrs. Themens’s expert 

medical testimony herein was uncontroverted. We define uncontroverted 

evidence as “evidence which is unopposed or unchallenged, not merely 

uncontradicted.” Carroll v. Avallone, 939 A.2d 872, 874-75 (Pa. 2007) 
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(citations omitted). It is not necessary that the opposing party introduce 

affirmative countervailing evidence; effective cross-examination and 

argument may suffice. Id. 

The Sprangers contend that the jury heard conflicting expert opinions 

in this case since their expert, John F. Perry, M.D., opined that there were 

no objective physical findings present. Appellants’ brief at 15. Dr. Perry 

opined that Mrs. Themens’s “[c]urrent clinical findings and her complaints 

are only related to the accident based on her report of the same.” N.T., 

12/8/16, at 104. Not only did Dr. Perry fail to offer expert opinion that the 

automobile accident was not a substantial contributing factor in Mrs. 

Themens’s injuries, his diagnosis was a “[m]otor vehicle accident with 

somatic complaints.” N.T. Jury Trial, 12/18/16, at 103-04. Noting that Mrs. 

Themens had a pre-existing condition of sciatica, he opined that her 

subjective complaints “are suggestive of a possible intermittent 

radiculopathy and low back pain dysfunction[,]” but he could not “identify a 

condition that would produce a disability related to the motor vehicle 

accident.” Id. at 104. 

The trial court found, and the record supports, that Mrs. Themens’s

expert medical testimony was essentially uncontroverted. Dr. Perry offered 

no opinion that Mrs. Themens was not injured in the accident; only that her 

complaints were subjective. Dr. Perry had no opinion regarding a causal 
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relationship between Mrs. Themens’s injuries and the accident because he 

did not have objective data to confirm (or refute) such a determination. 

Mrs. Themens’s medical expert, Dr. DiStefano, opined in his report 

that “Mrs. Themens sustained the following injuries: Sprain/strain of the 

cervical spine with residual symptoms suggestive of cervical spondylosis and 

degenerative disc disease. Second: Strain/sprain of the lumbar spine and 

radiculitis of the right lower extremity. Possible herniated nucleus 

pulposus/spinal stenosis.” N.T. Jury Trial, 12/18/16, at 91. Furthermore, 

Dr. DiStefano opined with a reasonable degree of medical certainty that Mrs. 

Themens’s prognosis for recovery is poor, she has not returned to her preinjury baseline, and her current complaints are a direct result of the injuries 

she sustained in the automobile accident. Id. The Sprangers did not 

challenge Dr. DiStefano’s opinion at trial, largely because the admission of 

expert reports precluded any cross-examination of the expert. 

We find ample record support for the trial court’s conclusion that Dr. 

DiStefano’s expert opinion that the automobile accident was a substantial 

factor in causing Mrs. Themens’s injuries was uncontroverted. The court 

also recounted Mrs. Themens’s testimony regarding her pain and suffering 

and her loss of enjoyment of life, both in the past and ongoing into the 

future:

Mrs. Themens offered significant evidence of the injuries she 

suffered in the accident, as well as the continuing pain and 

physical limitations caused by those injuries. The accident itself 

felt to Mrs. Themens like a “bomb” had gone off, and she 
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suffered immediate pain to her chest, back, neck, shoulder and 

arms that required a trip to the emergency room. At the 

emergency room she was prescribed pain medication and muscle 

relaxers. For two weeks she continued to experience pain, 

including sciatica pain that started the day after the accident, at 

which point she saw her personal physician. Her physician 

recommended physical therapy and prescribed muscle relaxers 

and anti-inflammatory medication. Mrs. Themens attended 

three physical therapy appointments after which she decided to 

treat herself at home. 

Mrs. Themens testified that for the first month after the accident 

her lifestyle “stopped,” and that [she] was unable to continue 

her secretarial work for her husband’s business, babysitting her 

grandchildren, and caring for her 90 year-old mother. Four 

years after the accident, Mrs. Themens is still unable to lift her 

grandchildren. Four years after the accident Mrs. Themens is 

still unable to comfortably ride in an automobile for any 

significant amount of time. Four years after the accident, Mrs. 

Themens can no longer swim laps, an activity she enjoyed four 

times a week prior to her accident. . . . [H]er ability to garden, 

houseclean, cook and even sleep are still negatively impacted by 

the accident. . . . [She] continues to perform daily a series of 

stretching exercises in an attempt to alleviate some of her 

symptoms. . . . [She] continues to suffer sciatica pain that can at 

times be “excruciating.”

Trial Court Opinion, 7/31/17, at 3-4. 

The trial court concluded that, in light of the admitted negligence and 

the uncontroverted evidence of injuries sustained in the accident, the jury’s 

award of $2,000 was inadequate, against the weight of the evidence, and 

shocking to the conscience. In explaining its decision to grant a new trial 

based on the inadequacy of a jury verdict, the court professed a clear 

conviction that that the $2000 verdict was unjust. 

We find that the record supports the trial court’s determination that 

the jury’s verdict was an injustice that bore no reasonable relationship to the 
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loss suffered by Mrs. Themens. Hence, we find no abuse of discretion in the 

grant of a new trial. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/30/18