J-A23017-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellants

v.

RONALD SARVER

Appellee 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: GD 12-11773

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

CONCURRING AND DISSENTING MEMORANDUM BY STABILE, J.:

 FILED MARCH 07, 2017

I agree with the Majority’s conclusion that Appellants are not entitled 

to a new trial based on the trial court’s refusal to instruct the jury pursuant 

to 75 Pa.C.S.A. § 4581(e), relating to seat belt use. I also agree with the 

Majority’s determination that Appellants, Shamael Rahamani and Shakib 

Rahamani, are not entitled a new trial on damages. However, I disagree 

with the Majority’s decision to award a new trial on damages to Appellant, 

Kerim Amadou (“Amadou”). Therefore, I concur in part and dissent in part. 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
J-A23017-16

- 2 -

On September 3, 2011, Amadou was stopped at an intersection in 

Pittsburgh when his Nissan Altima was struck from behind by a pick-up truck 

operated by Appellee Ronald Sarver (“Sarver”). Sarver admitted liability. 

On January 13, 2014, a jury found Sarver’s negligence was the factual cause 

in bringing about injury to Amadou and awarded Amadou $1,440 in 

damages.1 This damage award did not distinguish between economic and 

non-economic damages. 

As this Court reiterated in Brown v. Trinidad, 111 A.3d 765 (Pa. 

Super. 2015); 

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 

____________________________________________

1 Amadou testified that he missed 13 days of work as an independent 

contractor cab driver following the accident, N.T., 1/10/14, at 60, and on 

average earned approximately $120 to $150 per day. N.T., 1/10/14, at 74-

75. During closing argument, Amadou’s counsel suggested to the jury that 

Amadou might have missed only 12 days of work and proposed that the jury 

consider 12 days of work missed at $120 per day. N.T., 1/13/14, at 254-55. 

Although the jury did not designate its damages award as an award of lost 

wages, it is not lost on us that 12 days at $120 per day results in a wage 

loss of $1,440. Neverthless, it is not this Court’s role to speculate as to 

whether the jury awarded Amadou wage loss, whether the jury entered into 

a compromise verdict and settled on that amount as a compromise, or 

whether the jury simply did not believe Amadou was injured or experienced 

pain and suffering.
J-A23017-16

- 3 -

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.

Id. at 770 (quoting Haan v. Wells, 103 A.3d 60, 70 (Pa. Super. 2014), in 

turn quoting In re Estate of Smaling, 80 A.3d 485, 490 (Pa. Super. 2013) 

(en banc) (additional citations omitted)). In Brown, this Court further 

quoted Haan, noting:

“The factfinder is free to believe all, part, or none of the 

evidence and to determine the credibility of the witnesses.” 

Samuel–Bassett v. Kia Motors Am., Inc. [613 Pa. 371], 34 

A.3d 1, 39 (Pa. 2011). “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.” Id. (citing Commonwealth v. Cousar [593 Pa. 

204], 928 A.2d 1025, 1035–36 (Pa. 2007)). 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.” Farelli v. Marko [349 Pa. Super. 102], 502 A.2d 

1293, 1295 (Pa. Super. 1985) (quoting Green v. Johnson [424 

Pa. 296], 227 A.2d 644, 645 (Pa. 1967)).

Id. 

The trial court acknowledged Amadou’s contention that the verdict was 

“manifestly inadequate” because “the verdict amount merely replicated 

Amadou’s out-of-pocket expense,” reflecting the jury’s disregard of 

Amadou’s “proof of pain and suffering.” Trial Court Rule 1925(a) Opinion 

(“T.C.O.”), 7/17/14, at 3. The trial court rejected Amadou’s reliance on 
J-A23017-16

- 4 -

Marsh v. Hanley, 856 A.2d 138 (Pa. Super. 2004), in which this Court 

reversed the trial court’s denial of a new trial following a jury verdict 

awarding lost wages but no damages for pain and suffering. In Marsh, the 

appellant’s car was struck on the driver’s side by another car, causing the 

appellant’s car to spin 180 degrees before being struck a second time. 

There, the appellant was taken to the hospital by ambulance for treatment. 

Both parties’ experts conceded that the appellant suffered soft tissue injuries 

of the cervical and lumbar spine in the accident. The trial court found the 

instant factual situation more analogous to Majczyk v. Oesch, 789 A.2d 

717 (Pa. Super. 2001) (en banc), where this Court upheld a jury award of 

zero dollars for pain and suffering. Quoting this Court’s opinion in Marsh, 

the trial court recognized:

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 from Boggavarapu 

v. Ponist, 518 Pa. 162, 167, 542 A.2d 516, 518 (1988), for the 

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

life for which compensation is not warranted.” The [C]ourt first 

held that “the determination of what is a compensable injury is 

uniquely within the purview of the jury.” Majczyk, supra at 

726. The [C]ourt 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. 

Majczyk, supra at 725-26. The [C]ourt concluded that, based 

on this record, the jury properly found that plaintiff’s accidentrelated injuries were minor, causing only a few days or weeks of 

discomfort, and not the sort that require compensation. See 

also, Davis v. Mullen, 565 Pa. 386, 773 A.2d 764 (2001) (jury 

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

where medical expenses are awarded).
J-A23017-16

- 5 -

T.C.O., 7/17/14, at 4-5 (quoting Marsh, 856 A.2d at 140).

The trial court determined that “[t]he minor rear end collision in the 

matter at hand renders Majczyk a more apt comparable than Marsh.” Id. 

at 5. The court reasoned:

The jury might well have concluded from Amadou’s own 

testimony that the impact and any resultant injury in this matter 

were insubstantial. Indeed, on direct examination, despite 

repetitive inquiries from his own counsel, Amadou failed to 

confirm either a significant impact or any immediate pain. (N.T., 

49-51). The devaluing consequences of a plaintiff’s repeated 

responses of “I can’t recall” during direct examination regarding 

the severity of impact and his immediate physical sensation 

resulting from that impact cannot be overlooked when 

questioning the adequacy of a verdict.

Further, Amadou’s treating chiropractor, Dr. Novak, and primary 

care physician, Dr. McCollum, did not so persuasively establish a 

nexus between the complaints of pain voiced by Amadou and 

any injury from the accident that it can be concluded that the 

verdict amount was against the weight of the evidence. As 

[Sarver] notes, Dr. Novak, Amadou’s principal treatment 

provider following the accident, did not relate a lumbar injury to 

that accident. That failed testimony is in contrast to the 

certainty of [Sarver’s] expert, a board-certified orthopedic 

surgeon, who did not relate the complaint of a lumbar injury to 

the accident. 

Generally, a new trial is [] appropriate only when the jury’s 

verdict is so against the weight of the evidence as to shock one’s 

sense of justice and a new trial is, therefore, required to rectify 

that manifest wrong. Consequently, a court is not required to 

consider the evidence in the light most favorable to the verdict 

winner when considering whether a verdict might be against the 

weight of the evidence. Where the evidence is conflicting and 

the fact-finder could have decided in favor of either party, a new 

trial will not be granted on the ground that the verdict was 

against the weight of the evidence. See, Lanning v. West, 803 

A.2d 753 (Pa. Super. 2002)[;] S.N.T. Industries, Inc. v. 

Geanopulos, 363 Pa. Super. 97, 525 A.2d 736 (1987), app. 
J-A23017-16

- 6 -

den. 520 Pa. 577, 549 A.2d 137 (1988). The factual record in 

this case did not compel the grant of a new trial as to damages. 

Id. at 5-6.

The Majority rejects the trial court’s reliance on Majczyk, finding 

Marsh more factually similar and controlling. However, as this Court 

recognized in Marsh, that case “involved more than a minor rear-end 

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

ambulance transported [Marsh] 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.” Marsh, 856 

A.2d at 140. Therefore, we held the case was controlled by Burnhauser v. 

Bumberger, 745 A.2d 1256 (Pa. Super. 2000), where a zero award for pain 

and suffering “bore no reasonable relationship to the loss suffered in a headon collision, soft tissue injuries with pain that lasted for 6 months.” Id. 

I believe this case is more analogous to Majczyk and Davis v. 

Mullen, 773 A.2d 764 (Pa. 2001). In Davis, a jury awarded the plaintiff a 

sum that equaled his medical expenses and property damage resulting from 

an automobile accident. The trial court denied the plaintiff’s motion for a 

new trial based on weight of the evidence. Our Court reversed—finding the 

damage award was inconsistent with the evidence presented, vacated the 
J-A23017-16

- 7 -

judgment, and remanded for new trial.2 Our Supreme Court reversed, 

concluding that “the trial court properly exercised its discretion when it 

denied Davis’ motion for a new trial because there was a reasonable basis 

for the jury [to] believe: (1) that Davis did not suffer pain and/or (2) that 

his alleged injury was not caused by the negligence of the defendant.” Id. 

at 770. Our Supreme Court reiterated: 

In reviewing an order denying a motion for a new trial, an 

appellate court should not set aside a trial court’s decision unless 

the trial court’s decision was an abuse of discretion. A new trial 

should be granted only where the verdict is so contrary to the 

evidence as to shock one’s sense of justice and not where the 

evidence is conflicting or where the trial judge would have 

reached a different conclusion on the same facts. 

We have held that it is the duty of the trial court to control the 

amount of the verdict; it is in possession of all the facts as well 

as the atmosphere of the case, which will enable it to do more 

evenhanded justice between the parties than can an appellate 

court. Thus, a jury verdict is set aside for inadequacy when it 

appears to have been the product of passion, prejudice, 

partiality, or corruption, or where it clearly appears from 

uncontradicted evidence that the amount of the verdict bears no 

reasonable relation to the loss suffered by the plaintiff. Hence, a 

“reversal on grounds of inadequacy of the verdict is appropriate 

only where the injustice of the verdict stands forth like a 

beacon.” Hawley v. Donahoo, 416 Pa.Super. 469, 611 A.2d 

311, 312 (1992). 

Id. at 766 (some citations and internal quotations omitted; brackets 

removed). See also Gold v. Rosen, 135 A.3d 1039, 1044 (Pa. Super. 

____________________________________________

2 See Davis v. Mullen, 755 A.2d 693 (Pa. Super. 2000).
J-A23017-16

- 8 -

2016) (affirming denial of new trial following award of zero damages for pain 

and suffering for a relatively minor accident and stating, “While the jury's 

verdict slip indicates that it concluded Rosen’s negligence caused some harm 

to Gold, it did not find such harm significant enough to warrant a monetary 

award, and it is within a jury’s purview to make such an essential 

determination.”); Van Kirk v. O'Toole, 857 A.2d 183, 185 (Pa. Super. 

2004) (affirming denial of motion for new trial following award of zero 

damages for neck and back strain and sprain and noting that “[t]he 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.”).

Based on my review of the trial testimony, I conclude the trial court 

did not abuse its discretion by denying a new trial on the grounds that the 

verdict was against the weight of the evidence. As the trial court 

recognized, Amadou’s own testimony could have led the jury to conclude 

that the impact and resulting injury from this minor rear-end collision were 

insubstantial or non-existent.3 Moreover, testimony from his treating 

chiropractor, Dr. Novak, revealed that he had treated Amadou in 2000. N.T. 

Videotaped Deposition, 12/17/13, at 38. In addition, x-rays from the date 

____________________________________________

3 Cf. Casselli v. Powlen, 937 A.2d 1137, 1147 (Pa. Super. 2007) (trial 

court erred by denying a new trial based on weight of the evidence following 

an award of zero dollars when evidence revealed the appellant suffered a 

broken bone in his foot due to appellee’s negligence). 
J-A23017-16

- 9 -

of the accident revealed loss of curvature of the spine, indicating a preexisting condition and degenerative changes. Id. at 21-22, 91. Dr. Novak’s 

treatments addressed complaints in the cervical and thoracic areas of 

Amadou’s spine but not in the lumbar area. Id. at 21-22, 60, 75. However, 

Amadou registered complaints of lumbar pain when examined by Sarver’s 

expert orthopedic surgeon, Dr. Levy, and Amadou reported to Dr. Levy that 

he had previously been injured in a car accident, for which he sought 

chiropractic care. N.T. Videotaped Deposition, 12/18/13, at 12-13, 15.

It is well settled that “the power to grant or deny a new trial lies 

inherently with the trial court, and we will not reverse its decision absent a 

clear abuse of discretion or error of law which controlled the outcome of the 

case.” Johnson v. Frazier, 787 A.3d 433, 435 (Pa. Super. 2001). I find no 

abuse of discretion or error of law in the trial court’s conclusion that the 

record in this case did not compel the grant of a new trial as to damages. 

Therefore, I dissent from the Majority’s award of a new trial on damages to 

Amadou.