J-A23017-16

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

KERIM AMADOU, AN INDIVIDUAL, 

SHAMAEL RAHAMANI, A MINOR 

INDIVIDUAL AND SHAKIB RAHAMANI, A 

MINOR INDIVIDUAL

 Appellants

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RONALD SARVER,

 Appellee

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IN THE SUPERIOR COURT OF 

PENNSYLVANIA

 No. 1683 WDA 2015

Appeal from the Judgment Entered September 25, 2015

in the Court of Common Pleas of Allegheny County 

Civil Division at No(s): GD 12-11773

BEFORE: LAZARUS, STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED MARCH 07, 2017

Kerim Amadou, Shamael Rahamani, and Shakib Rahamani (Appellants, 

collectively) appeal from the September 25, 2015 judgment entered 

following a jury trial in this motor vehicle collision case. We affirm in part, 

vacate in part, and remand for further proceedings consistent with this 

memorandum.

Appellee Ronald Sarver’s truck rear-ended Amadou’s vehicle when 

Amadou was stopped in traffic in Pittsburgh’s West End Circle with Shamael 

and Shakib, the minor children of his fiancée Fati Rahamani, in the back 

seat. Sarver admitted liability but contested damages. A jury determined 

that Sarver: (1) caused Shakib no injury, (2) caused injury without damages 
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to Shamael, and (3) caused injury to Amadou in the amount of $1,400. 

Appellants’ timely-filed post-trial motion was denied. This Court quashed an 

interlocutory appeal filed before judgment was entered on the verdict. After 

judgment was entered, Appellants timely filed another notice of appeal. 

Appellants present this Court with two questions for review, which we 

have reordered for ease of disposition:

[1.] Should a new trial be granted because the trial court 

refused to instruct the jury that evidence regarding a lack of 

seatbelt use cannot be used as a basis in refusing to provide 

damages for injuries caused by another’s negligence?

[2.] Should a new trial be ordered on the ground that the 

jury’s verdict is inadequate when the jury awarded economic 

damages for wages that were lost as a result of pain yet failed to 

award non-economic damages for pain and suffering?

Appellants’ Brief at 6 (trial court answers omitted).

We begin with our standard of review.

[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. 

* * *

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 well-settled, two-part 

analysis: 

We must review the court’s alleged mistake and 

determine whether the court erred and, if so, 
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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.

Gurley v. Janssen Pharm., Inc., 113 A.3d 283, 288-89 (Pa. Super. 2015) 

(citation omitted).

Appellants first claim that they are entitled to a new trial because the 

trial court refused to provide a curative instruction regarding evidence they 

claim was admitted in violation of 75 Pa.C.S. § 4581. Appellant’s Brief at 

31. That statute, which inter alia requires the use of child passenger 

restraint systems in vehicles, states in pertinent part the following:

(e) Civil actions.--In no event shall a violation or alleged 

violation of this subchapter be used as evidence in a trial of any 

civil action; nor shall any jury in a civil action be instructed that 

any conduct did constitute or could be interpreted by them to 

constitute a violation of this subchapter; nor shall failure to use a 

child passenger restraint system, child booster seat or safety 

seat belt system be considered as contributory negligence nor 

shall failure to use such a system be admissible as evidence in 

the trial of any civil action....

75 Pa.C.S. § 4581(e). 

This Court has held that the subsection (e) of the statute “clearly and 

unambiguously expresses the intent of the Legislature that evidence of nonuse of seat belts should be strictly prohibited in civil actions tried in 

Pennsylvania courts, for any purpose.” Gaudio v. Ford Motor Co., 976 

A.2d 524, 536 (Pa. Super. 2009) (holding, in case against vehicle 
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manufacturer for defective air bag, that the trial court erred in denying a 

motion in limine to exclude evidence that the decedent was not wearing his 

seat belt at the time his air bags deployed).

The trial court addressed Appellants’ argument as follows:

In the case at hand, defense counsel read an excerpt from a 

medical report that indicated that Shamael had been “sitting in 

back seat/car seat without seat belt fastened tightly.” (N.T., 

162). [Appellants] interposed no immediate objection to the 

excerpt read from the physician’s report. Following conclusion of 

all testimony and immediately before the jury was charged, 

however, [Appellants] requested a curative instruction. The 

court refused to provide such an instruction. The matter could 

have promptly and less conspicuously been addressed with a 

timely hearsay objection or sidebar reference to the pertinent 

statute. [Appellants’] belated[] request for a curative 

instruction[] invited an underscoring of what had been an 

incidental mention adequately rebutted by Ms. Rahamani’s 

insistence that “we always put her in the car seat” and “he [Mr. 

Amadou] always put her tightly [in the car seat].” (N.T., 162 -

163).

Further, [Appellants’] assignment of error presumes the 

legitimacy of [their] contention that [Sarver’s] allusion to a 

possibly unsecured restraint was improper. On the contrary, [] 

Amadou had made repetitive reference to having secured the 

children in their restraints; had suggested that the use of 

restraints may have contributed to his own injuries; and had 

stated that Shamael’s injuries, specifically, may have resulted 

from the proximity of her secured car seat to the rear of 

[Amadou’s] driver seat (N.T. 21, 50, 51-52, 53). That 

testimony, offered to explain the injuries that [Appellants] 

attributed to [Sarver’s] negligence, placed [Appellants] at risk of 

impeachment.

While, of course, [Appellants] might contend a curative 

instruction should have been given even in view of the 

appropriateness of [Sarver’s] effort at impeachment, there is 

little indication of actual harm to [Appellants]. As to Shamael, 

proof of any harm related to the accident was tenuous.
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Trial Court Opinion, 7/17/2014, at 8-9.

We are convinced neither that the trial court erred in declining the 

instruction nor that Appellants were prejudiced by its absence. First, 

Appellants have failed to establish the complained-of reference alleges a 

violation of section 4581 that is prohibited by subsection (e). As quoted 

above, the statute has been construed to prohibit evidence of non-use of 

restraint systems. Gaudio, 976 A.2d at 536. Here, the jury heard that 

Shamael was not tightly fastened into her car seat, not that there was any 

failure to use a car seat. Furthermore, it would be fundamentally unfair to 

allow Appellants to use the statute as both a sword and a shield, offering 

evidence that there were injuries in spite of, or even because of, the use of 

restraint systems, yet invoking the statute to preclude evidence that the 

testimony the jury heard about such use was incomplete or false. Accord 

Commonwealth v. Spiewak, 617 A.2d 696, 702 (Pa. 1992) (“The [rape 

shield] statute cannot be both shield and sword. Here a statute is so 

designed to protect the witness’s interest in preventing prejudicial disclosure 

of the witness’s past behavior. It cannot at the same time preclude a 

defendant from offering evidence which is so highly probative of the 

witness’s credibility that such evidence is necessary to allow/permit a jury to 

make a fair determination of the defendant’s guilt or innocence.”). 
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Even if the trial court did err in refusing the instruction, Appellants 

failed to show any prejudice. They baldly assert that, because Shamael was 

awarded no damages, “[i]t is clear that the trial court’s refusal to provide 

this instruction operated to Appellants’ prejudice.” Appellants’ Brief at 31-

32. They offer no citation to evidence that counters the trial court’s 

representation that proof that Shamael suffered any harm caused by the 

accident was “tenuous.” Trial Court Opinion, 7/17/2014, at 9. Indeed, it 

appears to us more likely that potential prejudice was avoided, rather than 

created, by the trial court’s declining to reference the irrelevant issue of 

restraints in its charge to the jury. Without a showing of prejudice, 

Appellants are not entitled to relief. Maya v. Johnson & Johnson, 97 A.3d 

1203, 1218-19 (Pa. Super. 2014) (“A reviewing court will not grant a new 

trial on the ground of inadequacy of the charge unless there is a prejudicial 

omission of something basic or fundamental.”). 

Because Appellants have not demonstrated either an error of law or 

abuse of discretion in the refusal to charge the jury pursuant to 75 Pa.C.S. 

§ 4581(e), we decline to reverse on that basis the trial court’s denial of their 

motion for a new trial. 

However, we reach a different conclusion as to Appellants’ claim that 

the award of only lost wages to Amadou was against the weight of the 

evidence. This Court’s decision in Marsh v. Hanley, 856 A.2d 138, 139 (Pa. 

Super. 2004), warrants Amadou a new damages trial. 
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The instant case is factually similar to Marsh. In that case, Hanley’s 

vehicle collided with Marsh’s, Hanley admitted liability, and the jury awarded 

Marsh $2,900 in damages. Marsh appealed after the trial court denied her a 

new trial on damages.

In her appeal, [Marsh] argue[d] that the trial court erred

when it denied her motion for a new trial. She claim[ed] that 

the jury’s award apparently compensated her for lost wages 

only, and that the jury improperly awarded zero damages for 

pain and suffering. The jury’s verdict slip did not identify the 

specific nature of the award. However, the precise amount of 

lost wages was $2909.88, and in closing argument, [Marsh’s] 

counsel rounded the request for lost wages to $2900.00. It 

seems clear that the jury’s award was for lost wages only, and 

that they awarded zero dollars for pain and suffering. 

Id. at 139. In reviewing the claim, this Court offered the following analysis 

of the pertinent authority.

In Majczyk v. Oesch, 789 A.2d 717 (Pa. Super. 2001), an 

en banc panel of this Court upheld a jury award of zero dollars 

for pain and suffering. The court acknowledged that not all 

injuries are serious enough to merit compensation. The Court 

held that under the facts of that case it was not reversible error 

to award zero damages for pain and suffering. The plaintiff in 

Majczyk claimed she suffered a herniated disc in a minor 

accident, causing ongoing pain and suffering, and requiring 

surgery. Though both sides’ experts conceded that plaintiff 

suffered some injury in the accident, the jury found in favor of 

the defendant, whose expert opined the herniated disc was not 

caused by the accident, and that plaintiff’s accident-related 

injuries were actually less severe, a mere “cervical strain.”

The Majczyk Court specifically held that the jury may find 

for the defendant despite his obvious negligence when it does 

not believe the plaintiff’s pain and suffering, or that her injury is 

the sort that is compensable. The Court quoted ... the 

proposition that some injuries are the sort of “transient rub of 

life for which compensation is not warranted.” The Court further 
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held that “the determination of what is a compensable injury is 

uniquely within the purview of the jury.” The Court confirmed 

that credibility determinations lie within the province of the fact 

finder, and a jury is always free to believe all, part, some or 

none of the evidence presented. The Court concluded that, 

based on this record, the jury properly found that plaintiff’s 

accident-related injuries were minor, causing only a few days or 

weeks of discomfort, and not the sort that require compensation. 

See also, Davis v. Mullen, [] 773 A.2d 764 ([Pa.] 2001) (jury 

may decide that no pain and suffering damages are due, even 

where medical expenses are awarded).

However, the instant case is different from Majczyk where 

the injury was not significant, and where the accident involved a 

minor rear end collision. This case is controlled by Burnhauser 

v. Bumberger, 745 A.2d 1256 (Pa. Super. 2000). In 

Burnhauser, as here, the jury’s minimal damages award 

matched exactly the amount of plaintiff’s unreimbursed medical 

expenses ($1257.24). The Court concluded that the jury 

therefore awarded zero dollars for pain and suffering, and this 

award bore no reasonable relationship to the loss suffered in a 

head-on collision, soft tissue injuries with pain that lasted for 6 

months. Essentially, the Court held as a matter of law that this 

was a compensable injury, the jury’s verdict of zero damages for 

pain and suffering was contrary to the evidence, and affirmed 

the trial court’s grant of a new trial. Like in Burnhauser, the 

instant case involved more than a minor rear end collision. 

Appellant’s car was struck twice on the driver’s side. An 

ambulance transported appellant to the hospital; she suffered 

injuries which required her to take medications; her symptoms 

did not ameliorate for almost six months; and she lost 

considerable time from work. Unlike the plaintiff in Majczyk,

appellant here suffered compensable injury, and we hold 

Burnhauser controls. We therefore reverse the trial court’s 

order denying a new trial on damages.

Marsh, 856 A.2d at 139-40 (footnote and some citations omitted; some 

capitalization added).

Applying this law to the case at hand, we first note that because the 

jury concluded that Sarver’s negligence caused injury to Amadou and 
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awarded him damages, there is no question that the jury determined that 

Amadou did suffer a compensable injury. Accordingly, the trial court’s 

reliance upon cases such as Majczyk, in which the jury found that the 

plaintiff suffered no compensable injury, is misplaced. 

Similarly, the Davis case cited in Marsh and relied upon by Sarver in 

his brief,1is materially distinguishable. In Davis, the jury awarded medical 

expenses and property damages, but none for pain and suffering. Because 

the evidence was such that the jury could have concluded either that Davis 

suffered no pain or that the pain was not related to the accident, our 

Supreme Court held that the trial court properly exercised its discretion in 

denying Davis’s motion for a new trial. Davis, 773 A.2d at 766-67.

The Davis result is logical: the facts that the vehicle was damaged and 

the driver, who missed no work, eventually went to a medical provider do 

not necessarily mean that the driver experienced any lasting discomfort as a 

result of the collision. Pain and suffering do not necessarily follow property 

damage and medical expenses.

That is not true for the economic damages awarded in the instant 

case. The only evidence the jury heard about the cause of Amadou’s lost 

wages was his testimony that he was unable to go to work was because he 

was experiencing pain, and that the pain medication made him too dizzy to 

drive. N.T., 1/10/2014, at 58-63. Amadou’s economic loss was not 

 

1 See Sarver’s Brief at 39-40, 54-55.
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separable from his pain; it was the result of his pain. Therefore, in choosing 

to award Appellant lost wages, the jury necessarily had to believe that 

Amadou experienced pain and suffering as a result of Sarver’s negligence. 

Yet it gave him no award for that pain. Under Marsh, such a verdict is 

against the weight of the evidence and warrants a new trial on damages. 

Accordingly, we vacate the judgment as to Amadou, and remand for a new 

trial to determine the amount of damages he suffered as a result of Sarver’s 

negligence.

Judgment affirmed in part2and vacated in part. Case remanded for 

further proceedings consistent with this memorandum. Jurisdiction 

relinquished.

Judge Lazarus joins.

Judge Stabile files a concurring and dissenting memorandum. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/7/2017

 

2 The record does not indicate that the jury necessarily found that Shamael 

and Shakib suffered compensable injury. Accordingly, the new trial shall be 

limited to determining the amount of damages suffered by Amadou. We do 

not disturb the judgment as to Shamael and Shakib.