J-A30030-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CHANDRA MCWHORTER IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

GREENWOOD GAMING AND

ENTERTAINMENT, INC. D/B/A PARX 

CASINO

Appellant No. 860 EDA 2015

Appeal from the Order February 27, 2015

In the Court of Common Pleas of Bucks County

Civil Division at No(s): No. 2012-07571

BEFORE: MUNDY, J., JENKINS, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.: FILED JANUARY 20, 2016

Appellant, Greenwood Gaming and Entertainment, Inc., d/b/a Parx 

Casino (Parx Casino), appeals from the February 27, 2015 order denying its 

post-verdict motions, following the entry of a jury verdict in favor of 

Appellee, Chandra McWhorter, in her personal injury action, which stemmed 

from her March 7, 2010 fall from a defective chair while at Parx Casino.1 

After careful consideration, we affirm. 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 We note that Parx Casino’s notice of appeal, having been filed before the 

entry of judgment, is premature. Ruffing v. 84 Lumber Co., 600 A.2d 

545, n.2 (Pa. Super. 1991); See Pa.R.A.P. 301. As such, it is subject to 

quashal. Dennis v. Smith, 431 A.2d 350, 350-351 (Pa. Super. 1981). 

However, in the interest of judicial economy and fairness, this Court has 

(Footnote Continued Next Page)
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From the certified record, we summarize the procedural history of this 

case as follows. Appellee commenced the instant action by filing a complaint 

in Philadelphia County on July 1, 2011. The case was subsequently 

transferred to the Bucks County Court of Common Pleas on August 23, 

2012. Following completion of discovery, the matter proceeded to 

arbitration pursuant to Bucks County Local Rules 1301-1308. The 

Arbitrators returned an award in favor of Appellee for $40,000.00 on 

September 23, 2014. Parx Casino appealed, and the matter proceeded to a 

de novo jury trial. On January 20, 2015, Parx Casino filed a motion in limine 

seeking to preclude any evidence of the recent deaths by homicide of 

Appellee’s two daughters and any evidence of medical treatment Appellee 

received dealing with the impact those deaths had on her. Prior to trial, the 

trial court denied the motion in part, permitting evidence that Appellee’s 

daughters had recently died, but granting the motion in all other respects. 

The case was tried on February 4, 2015. The trial court summarized 

the facts adduced at trial as follows.

Following her backwards fall from a mounted chair at 

a slot machine, [Appellee] filed a Complaint against 

[Parx Casino] sounding in negligence. The 

(Footnote Continued) _______________________

held, “there are some instances wherein a party has failed to enter judgment 

and our appellate courts may regard as done that which ought to have been 

done.” Fanning v. Davne, 795 A.2d 388, 392, (Pa. Super. 2002), appeal 

denied, 825 A.2d 1261 (Pa. 2003). In light of Fanning, we will deem 

judgment to have been properly entered as of March 11, 2015 and proceed 

to decide the instant appeal.
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Complaint asserted that [Parx Casino] had 

knowledge of the chair’s defective condition, yet 

allowed it to remain on the casino floor. The 

Complaint alleged that on March 7, 2010, while 

[Appellee] sat and played a slot machine, the loose, 

broken, or otherwise defective chair in which she 

was seated caused her to fall backwards and sustain 

injuries to her neck, back and right side. [Appellee] 

testified as follows: 

“...when I went to sit down, the chair moved. 

The back swiveled and it was throwing me 

back. And I was trying to hold myself from 

falling. And-but I mean I was on the 

floor...When I fell and I hit the ground, I hit my 

head, and I fell on my right side. And I just 

had pains running down. I hit my knee and 

my ankle. And it was a really hard fall... The 

ambulance came. I was crying because I was 

hurting on my right side. And they put me on 

a stretcher, they put the neck brace around my 

neck, and took me to Frankford Hospital”

(N.T. 2/3/15, pp. 41 -43).

[Appellee’s] friend, Cynthia Prescod 

(hereinafter “Ms. Prescod “), who was seated next to 

the chair from which [Appellee] fell, testified about 

[Appellee’s] fall. Ms. Prescod testified that “...the 

back of the chair went back. She fell out.” (N.T. 

2/4/15, p. 12). Ms. Prescod also testified that 

another casino patron who saw Appellee fall first got 

the attention of a Parx security guard and that when

“...he [the security guard] looked at the chair, 

he shook the chair, and he’s like, ‘why is this 

F’ing chair on this floor? Why is this F’ing chair 

on this floor ?’ Because the back of the chair, 

like this back of the chair, was going back this 

way (indicating). And the bottom of the chair 

was shaking from the floor.” (N.T. 2/4/15, p. 

15).

The jury also heard testimony from two 

members of [Parx Casino’s] security force who were 
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involved with [Appellee] on the day of the accident, 

and from two (2) doctors who treated [Appellee] 

after the accident.

On February 12, 2015, [Parx Casino] filed its 

Motion for Post -Trial Relief, which this Court denied 

in all respects on February 27, 2015. On March 24, 

2015, [Parx Casino] filed its timely Notice of Appeal 

to the Superior Court of Pennsylvania from our 

February 27, 2015 Order.

Trial Court Opinion, 6/8/15, at 1-2.

The jury returned a verdict in favor of Appellee in the amount of 

$108,736.00. The jury attributed 88% of the causal negligence to Parx 

Casino and the remaining 12% to Appellee. Consequently, on February 9, 

2015, the trial court molded the verdict to $95,687.68 to reflect the jury’s 

apportionment. Parx Casino filed post-verdict motions on February 12, 

2015, seeking a new trial based on perceived errors by the trial court 

relative to the issues now presented on appeal. The trial court denied the 

motions by order filed on March 4, 2015. On March 11, 2015, the trial court 

again molded the verdict to $106,005.34, in response to Appellee’s February 

11, 2015 petition for delay damages. Parx Casino filed a notice of appeal on 

March 24, 2015.2

On appeal, Parx Casino raises the following issues for our review.

1) Did the [trial c]ourt err in denying the 

Motion in Limine of [Parx Casino] to Preclude Any 

Evidence, Testimony, or Reference to the Death or 

____________________________________________

2 Appellant and the trial court have complied with Pennsylvania Rule of 

Appellate Procedure 1925.
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Murder of [Appellee’s] Daughters, the Impact of the 

Murders on [Appellee] and permit[ting] Appellee[] to 

introduce evidence of her daughters’ deaths and 

evidence concerning the treatment that was 

rendered to her as a result of the deaths, where such 

evidence was irrelevant to the claims [Appellee] 

presented against [Parx Casino], and/or where the 

probative value of the evidence was outweighed by 

the danger of unfair prejudice it presented to [Parx 

Casino]?

2) Did the [trial c]ourt err by overruling 

[Parx Casino’s] objections to the [trial c]ourt’s 

instruction to the jury that it could award damages 

for future pain and suffering and proceeding to 

provide that charge to the jury, where [Appellee] 

submitted no evidence that [Appellee] would suffer 

such damages in the future as a result of the alleged 

accident?

3) Did the [trial c]ourt err by overruling 

[Parx Casino’s] objections to the [trial c]ourt’s 

instruction to the jury that it could award damages 

for embarrassment and/or humiliation and 

proceeding to provide that charge to the jury, where 

[Appellee] submitted no evidence that [Appellee] 

would suffer such damages in the future as a result 

of the alleged accident?

Parx Casino’s Brief at 4.

Parx Casino’s challenges involve the trial court’s denial of its postverdict motions for a new trial on three grounds. Parx Casino’s Brief at 24.

In reviewing a trial court’s denial of a motion for a 

new trial, the standard of review for an appellate 

court is as follows:

[I]t is well-established law that, absent a clear 

abuse of discretion by the trial court, appellate 

courts must not interfere with the trial court’s 

authority to grant or deny a new trial.
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* * *

Thus, when analyzing a decision by a trial 

court to grant or deny a new trial, the proper 

standard of review, ultimately, is whether the 

trial court abused its discretion.

Moreover, our review must be tailored to a wellsettled, two-part analysis:

We must review the court’s alleged mistake 

and determine whether the court erred and, if 

so, whether the error resulted in prejudice 

necessitating a new trial. If the alleged mistake 

concerned an error of law, we will scrutinize for 

legal error. Once we determine whether an 

error occurred, we must then determine 

whether the trial court abused its discretion in 

ruling on the request for a new trial.

ACE Am. Ins. Co. v. Underwriters at Lloyds and 

Cos., 939 A.2d 935, 939 (Pa. Super. 2007) (citations 

omitted), affirmed, 601 Pa. 95, 971 A.2d 1121 

(2009).

Czimmer v. Janssen Pharmaceuticals, Inc., 122 A.3d 1043, 1051 (Pa. 

Super. 2015).

Parx Casino first asserts the trial court erred by partially denying its 

motion in limine to exclude any evidence of the fact that Appellee’s two 

daughters had been murdered a short time before her fall at the Parx 

Casino. Parx Casino’s Brief at 15. Parx Casino specifically asserts, the 

“[e]vents and circumstances that happened to [Appellee] prior to suit -no 

matter how tragic- did not make the existence of any fact in the case more 

or less probable than they would have been without the evidence.” Id. at 
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17, citing Pa.R.E. 401. In the alternative, Parx Casino argues the 

information was unduly prejudicial. Id.

Here, the danger of unfair prejudice to [Parx Casino] 

was significant. Permitting any evidence of the 

deaths of [Appellee’s] daughters to be introduced 

would have caused the jury to feel sympathetic 

toward [Appellee]. Moreover, introduction of such 

evidence stood to confuse or mislead the jury into 

believing that the deaths had any impact on 

[Appellee’s] alleged fall inside the casino or caused it 

to occur in any way. 

Id. at 18. “[T]he trial court erred by failing to properly balance these 

factors and excluding the evidence of the deaths during trial.” Id. at 17.

We address this issue mindful of the following additional standards.

A motion in limine is used before trial to obtain a 

ruling on the admissibility of evidence. It gives the 

trial judge the opportunity to weigh potentially 

prejudicial and harmful evidence before the trial 

occurs, thus preventing the evidence from ever 

reaching the jury. A trial court’s decision to grant or 

deny a motion in limine is subject to an evidentiary 

abuse of discretion standard of review.

Parr v. Ford Motor Co., 109 A.3d 682, 690 (Pa. Super. 2014) (en banc) 

(internal quotation marks and citations omitted), appeal denied, 123 A.3d 

331 (Pa. 2015), cert. denied, ---U.S.---, (2015) 2015 WL 6001619.

Admission of evidence rests within the trial court’s 

discretion, and we will reverse only if we find an 

abuse of discretion. Thus our standard of review is 

very narrow[.] To constitute reversible error, an 

evidentiary ruling must not only be erroneous, but 

also harmful or prejudicial to the complaining party.
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Ely v. Susquehanna Aquacultures, Inc., ---A.3d---, 2015 WL 7571961, 

at *10 (Pa. Super. 2015) (internal quotation marks and citations omitted).

Admissibility depends on relevance and probative

value. Evidence is relevant if it logically tends to 

establish a material fact in the case, tends to make a 

fact at issue more or less probable or supports a 

reasonable inference or presumption regarding a 

material fact. Evidence, even if relevant, may be 

excluded if its probative value is outweighed by the 

potential prejudice. ‘Unfair prejudice’ supporting 

exclusion of relevant evidence means a tendency to 

suggest decision on an improper basis or divert the 

jury’s attention away from its duty of weighing the 

evidence impartially. The function of the trial court 

is to balance the alleged prejudicial effect of the 

evidence against its probative value and it is not for 

an appellate court to usurp that function.

Klein v. Aronchick, 85 A.3d 487, 498 (Pa. Super. 2014) (internal quotation 

marks and citations omitted), appeal denied, 104 A.3d 5 (Pa. 2014).

As noted, the trial court granted Parx Casino’s motion in limine in 

substantial part. See Trial Court Opinion, 6/8/15, at 6. The trial court 

explained the limited purpose for which it allowed evidence of the fact 

Appellee’s daughters had died to come in. 

[The trial court’s] rulings here were narrowly tailored 

to provide the jury with probative context as to 

[Appellee’s] circumstances of being out with friends 

for recreation for the first time in several months, 

since losing her daughters, and gave the jury context 

as to why [Appellee] was raising her then infant 

granddaughter on her own, and how her accidentrelated injuries sustained in the March 7, 2010 fall 

affected her ability to do so. [The trial court] crafted 

and enforced strict parameters to ensure no 

testimony or evidence was unduly prejudicial. 
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Id. at 7.

We discern no abuse of discretion by the trial court. The mention of 

her daughters’ deaths in the testimony was brief and within the limited 

confines permitted by the trial court. Appellee’s direct examination 

testimony in this regard consisted of the following.

Q. Now, the panel heard, the jury hears, 

that this accident, this incident on March 7th, took 

place late at night, or early in the morning, about 

4:30 in the morning. Is that correct?

A. Yes. Yes, it did. I had lost my -- I lost 

my two daughters, and I was always staying in the 

house. I wouldn’t go anywhere. And that’s when 

my ex-supervisor and my sister told me I need to 

get out of the house.

Q. Are you all right?

A. Because I was very depressed. And I 

wouldn’t never come outside. Because I lost my 

daughters.

Q. Okay. And this was the first night that 

you were able to come out. They took you out.

A. Uh -huh. Yes.

...

Q. And the panel saw – the jury saw now 

that you have a walker. That has nothing to do with 

this.

A. No, it doesn’t. This doesn’t have – I 

developed vertigo, and I’m a medical alert because I 

walk now and I fall. And it’s due to the stress that I 

was going through from my daughters.
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N.T., 2/3/15, at 53-54.

Q. Now, at the time you had -- you were 

taking care of your granddaughter?

A. Yes.

Q. In 2010?

A. Yes.

Q. And it was -- you now are her mother? ...

A. Yes, I’m her -- yes.

Id. at 55.

On cross-examination, defense counsel elicited the following.

Q. Okay. ... I asked you some questions 

about whether you’d ever been to Parx before the 

date of the accident.

A. I didn’t go -- I haven’t been to Parx – I 

didn’t go to Parx until March. I didn’t go around 

January and before that, like -- after the tragedy I 

had with my daughters.

Id. at 64.

Cynthia Prescod, who was a friend of Appellee and a witness to her 

fall, testified on direct examination as follows. 

Q. Okay. Now, Ms. Prescod, let me draw 

your attention back to March of 2010. Could you tell 

the panel, tell the jury, what happened that day?

A. Well, that night, actually, March 2010, I 

knew Chandra a while back and I knew she had lost 

her daughters, and I knew she was like depressed 

and didn’t want to go out, didn’t want to hang out 
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with her friends, so I had called her up and I told her 

I was going to take her out.

N.T., 2/4/15, at 8.

We conclude the trial court properly weighed the legitimate probative 

value of the fact of the death of Appellee’s daughters, which gave context to 

her visit to the casino and explained her primary caregiving role to her 

grandchild, with any prejudicial influence that the evidence might derive. 

We will not usurp the trial court’s function. See Klein, supra.

In its remaining two issues, Parx Casino challenges certain instructions 

the trial court gave to the jury. Parx Casino’s Brief at 19, 22.

Our standard of review regarding jury

instructions is limited to determining whether 

the trial court committed a clear abuse of 

discretion or error of law which controlled the 

outcome of the case. Error in a charge occurs 

when the charge as a whole is inadequate or 

not clear or has a tendency to mislead or 

confuse rather than clarify a material issue. 

Conversely, a jury instruction will be upheld if 

it accurately reflects the law and is sufficient to 

guide the jury in its deliberations.

The proper test is not whether certain 

portions or isolated excerpts taken out of 

context appear erroneous. We look to 

the charge in its entirety, against the 

background of the evidence in the 

particular case, to determine whether or 

not error was committed and whether

that error was prejudicial to the 

complaining party.

In other words, there is no right to have any 

particular form of instruction given; it is 
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enough that the charge clearly and accurately 

explains the relevant law.

Krepps v. Snyder, 112 A.3d 1246, 1256 (Pa. 

Super. 2015) (citations and internal quotation marks 

omitted). Further, “to obtain a new trial based on 

the trial court’s treatment of a jury’s question, the 

moving party must demonstrate in what way the trial 

error caused an incorrect result.” Jeter v. Owens–

Corning Fiberglas Corp., 716 A.2d 633, 636 (Pa. 

Super. 1998) (citation omitted).

Czimmer, supra at 1052. 

Pennsylvania law makes clear that the court is bound 

to charge the jury only on the law applicable to the 

factual parameters of a particular case and that it 

may not instruct the jury on inapplicable legal issues. 

Consequently, where the record [evidence fails] to 

satisfy the elements of a particular legal doctrine, 

the court may not discuss that doctrine in its charge. 

MacNutt v. Temple University Hosp., Inc., 932 A.2d 980, 991 (Pa. 

Super. 2007) (internal quotation marks and citations omitted), appeal 

denied, 940 A.2d 365 (Pa. 2007). “[An] appellant must make a timely and 

specific objection to a jury instruction to preserve for review a claim that the 

jury charge was legally or factually flawed.” McManamon v. Washko, 906 

A.2d 1259, 1282, (Pa. Super. 2006) (citation omitted), appeal denied, 921 

A.2d 497 (Pa. 2007).3

Parx Casino first claims the trial court’s instruction to the jury that 

they could find damages for future non-economic loss was erroneous 

____________________________________________

3 Appellant preserved its challenges to the trial court’s instructions with 

timely objections at trial. N.T., 2/4/15, at 78, 81, 84-85.
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because “[Appellee] did not present any evidence that she stands to suffer 

pain in the future, or that she will need any medical treatment in the future 

from injuries relating to this alleged accident. Nor did [McWhorter] submit 

any testimony from a physician or otherwise to suggest that she will require 

future medical care or that any pain and/or suffering will be likely to occur in 

the future.” Parx Casino’s Brief at 20.

The trial court determined there was sufficient evidence presented at 

trial to require the charge to the jury on future non-economic damages. 

Trial Court Opinion, 6/8/15, at 20.

The above-noted pain and suffering testimony, 

referencing continuing pain, discomfort, and other 

symptoms experienced by [Appellee] nearly five (5) 

years post-accident, clearly indicated that the jury 

could reasonably infer that [Appellee] would continue 

to suffer such non-economic damages in the future.4

__________________

4 Additionally, we note that [Appellee’s] treating 

physician, Dr. Paul Steinfield, testified that he 

concluded after examining [Appellee] multiple times 

after the accident of March 7, 2010 that she suffered 

from chronic pain which did not respond to 

treatment. The testimony of [Appellee’s] second 

treating physician, Dr. Bruce Lizerbram, was to the 

same effect.

Trial Court Opinion, 6/8/15, at 10. 

Our review of the record leads us to conclude there was sufficient 

testimony about Appellee’s lingering and chronic effects from the accident to 

justify the trial court to give a charge on future non-economic damages. It 
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was for the jury to determine if that evidence was credible and if any such 

damages should be awarded. See Pa.R.C.P. 223.3 (prescribing the charge 

to be given when non-economic damages are at issue in a case for personal 

injury). We note Parx Casino does not claim that the trial court’s instruction 

was legally inaccurate or misleading. Rather, Parx Casino suggests the 

instruction somehow invited the jury to award future non-economic damages 

based on sympathy, revisiting its first argument. Parx Casino’s Brief at 21. 

We reject the contention. Viewing the trial court’s instructions as a whole, 

we conclude they were legally correct and did not serve to confuse, distract, 

or mislead the jury. See Czimmer, supra at 1052.

In its final issue, Parx Casino makes a similar claim that the trial 

court’s instruction regarding damages for embarrassment and humiliation 

was unwarranted based on the facts presented at trial. Parx Casino’s Brief 

at 22. “Absent any testimony from [Appellee] that she felt embarrassed or 

humiliated following the accident, the jury had no evidence upon which to 

base an award for [embarrassment and humiliation].” Id. Embarrassment 

and humiliation are potential components of non-economic damages. 

Giordano v. A.C. & S. Inc., 666 A.2d 710, 713 (Pa. Super. 1995), appeal 

denied, 674 A.2d 1072 (Pa. 1996); see also Pa.R.C.P. 223.3. The trial 

court cites testimony relating the circumstances surrounding the fall in a 

public place during which some witnesses were laughing. Trial Court 

Opinion, 6/8/15, at 10, citing, N.T., 2/3/15, at 42, 71; N.T., 2/4/15, at 13. 
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We found that the [] testimony undeniably 

warranted a jury instruction regarding 

embarrassment and humiliation. Additionally, we 

found [Appellee’s] testimony as to residual pains and 

struggles to, at the very least, infer that she would 

experience continuing embarrassment and/or 

humiliation in the future. Certainly as a matter of 

inferential and even deductive logic, the jury was 

entitled to so find. 

Id. at 10-11 (footnote omitted). We discern no abuse of discretion. The 

evidence was sufficient to place the issue of Appellee’s embarrassment and 

humiliation before the jury. See Giordano, supra (holding a jury charge 

for damages from plaintiff’s embarrassment and humiliation was proper 

where plaintiff’s injuries from asbestos exposure “prevented them from 

socializing and forced family and friends to take over tasks they used to 

do”). 

For the reasons expounded above, we conclude the trial court did not 

abuse its discretion in permitting a limited reference to the death of 

Appellee’s daughters or by over-ruling Parx Casino’s objections to its charge 

on non-economic damages. Consequently, we conclude the trial court did 

not err or abuse its discretion in denying Parx Casino’s post-verdict motions. 

We therefore affirm the trial court’s February 27, 2015 order.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/20/2016