IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Constance Worley and :

Leonard Worley, H/W, :

Appellants : No. 2111 C.D. 2016

: Argued: October 19, 2017

v. :

:

County of Delaware and Michael Gura :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE SIMPSON FILED: November 28, 2017

In this appeal, Constance Worley1(Plaintiff) asks whether the Court of 

Common Pleas of Delaware County2(trial court) erred in denying her post-trial 

motion seeking a new trial after a jury verdict in favor of the County of Delaware 

(County) and its employee, Michael Gura (Gura) (collectively, Defendants). A jury 

found that Gura was not negligent in this suit arising from a motor vehicle accident 

between Plaintiff and Gura, who was operating a County-owned truck. Plaintiff 

primarily challenges the trial court’s rulings relating to the admission of testimony 

by Defendants’ witnesses. Discerning no merit in Plaintiff’s challenges, we affirm.

I. Background

A. Factual and Procedural History

 

1 When resting their case at the trial, Plaintiffs’ counsel withdrew a loss of consortium 

claim on behalf of Plaintiff Leonard Worley; therefore, he is not a party to this appeal.

2 Senior Judge Charles B. Burr, II presided.
2

The trial court set forth the following background to this matter. 

Through her trial testimony and complaint, Plaintiff asserted that, on June 3, 2013, 

while she was operating her motor vehicle that was stopped first in line in the middle 

lane of the intersection of Chester Pike and Ashland Avenue in the Borough of 

Glenolden, her vehicle was struck on the right passenger side by a vehicle driven by 

Gura, while in the course of his employment with the County. Plaintiff alleged, 

among other related physical complaints, that she sustained cervical nerve damage 

requiring cervical fusion surgery as a result of the impact. Defendants denied 

Plaintiff’s negligence claims and raised common law and statutory defenses in new 

matter.

Shortly before commencement of trial on June 15, 2016, the trial court 

denied Plaintiff’s motions in limine seeking to: exclude the testimony and any 

reference to debris on the road at the accident site; exclude the testimony of Michael 

Berkovitz, Defendants’ accident reconstruction expert, because it failed to meet the 

Frye3test; and, exclude the testimony of Michael Berkovitz in its entirety. The trial 

court granted Plaintiff’s motion in limine seeking an adverse inference instruction 

resulting from the spoliation of evidence, Defendants’ failure to produce the names 

and contact information of the four passengers who were in Gura’s vehicle at the 

time of the accident.

Further, after the conclusion of trial, the trial court dismissed as moot 

Plaintiff’s motion in limine to exclude the Glenolden Police Incident Report, the 

Delaware County Park Police Incident Report, and the testimony of Officer Joseph 

 

3 See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
3

Thompson, formerly of the Glenolden Police Department, who investigated this 

accident. With the exception of the order allowing for an adverse inference 

instruction to the jury as to Defendants’ spoliation of evidence, these rulings are 

relevant to the issues Plaintiff raises in this appeal.

At trial, Plaintiff testified on her own behalf. She explained that she 

was stopped on Chester Pike at the intersection of Ashland Avenue while driving to 

work around 8:00 a.m., in light rain on June 3, 2013. According to Plaintiff, when 

the light changed to green Gura’s vehicle, a large truck that was stopped “hand close” 

to her right, struck her vehicle while moving to the left to make a wide right turn 

onto Ashland Avenue. Tr. Ct., Slip Op., 2/21/17, at 3 (citing Notes of Testimony 

(N.T.), 6/15/16, at 108-09, 112; N.T., 6/16/16, at 22). Plaintiff testified she saw 

Gura’s truck strike her car and the impact caused her body to slam “into the driver’s 

side, left side, whipped to the left, and [her] neck and back were towards the door.” 

Id. (citing N.T., 6/15/16, at 109-10). Plaintiff added that her shoulder hit the door 

and her knees hit her vehicle’s steering console.

Plaintiff indicated that after the impact Gura parked his truck across the 

street and two of his passengers assisted Plaintiff in removing a metal obstacle from 

the wheel of her vehicle so she could move her vehicle across the street. Plaintiff 

testified she sustained damage to her vehicle on “the right side passenger fender. 

Everything is right side passenger fender, right side light, right side pillars and 

rockers, right side [and rear] passenger door[s]. ...” Id. (citing N.T., 6/15/16, at 112-

15). Plaintiff testified that when speaking to police at the scene, she refused an 
4

ambulance, and, when Gura approached her to ask if she was alright, he seemed 

“apologetic.” Id. (citing N.T., 6/15/16, at 118-19).

Plaintiff testified she felt “jittery” at the scene because she was never 

in an accident of that kind before, and she felt pain in her back and neck. Id. (citing 

N.T., 6/15/16, at 120). She also testified she never injured her neck or received any 

treatment for her neck before the accident. Plaintiff testified her son drove her in 

her car to an auto body shop near where the accident occurred, and she was 

immediately issued a rental car by her insurance company and drove it to her home.

Plaintiff testified she suffered prior back pain as a result of the 

correction of her gait from a left knee problem that eventually resulted in knee 

replacement surgery. Plaintiff testified that because of knee, shoulder, headaches 

and neck pain from the accident, she went to the emergency room between 3:00 and 

5:00 p.m. on the day of the accident after her husband returned home from work. 

Plaintiff indicated that the emergency room staff performed a CAT scan of her head, 

put her neck in a brace, gave her medication and discharged her with instructions to 

follow up with her doctor. Plaintiff testified “she was feeling terrible the next day, 

really stiff and in a lot of pain, hurting everywhere like she was beat up[.]” Id. at 4 

(citing N.T., 6/15/16, at 125-26; N.T., 6/16/16, at 13). She followed up with a visit 

to Delaware County Pain Management where she complained of “wrist pain, neck, 

back, lower back, shooting pain going down my arms and to my hands, and it was 

tingling, and my lower, in my legs, it was shooting pain going down there too” that 

she claimed she experienced for the first time in her life. Id. (citing N.T., 6/15/16, 

at 125-26; N.T., 6/16/16, at 13). Plaintiff testified she treated at Delaware County 
5

Pain Management for six to seven months and was examined and treated by several 

other physicians during and after that time.

Plaintiff further testified that because none of the treatments, including 

trigger point injections and epidurals, relieved her pain from the injury to her neck 

emanating from the date of the injury, she treated with Dr. Andrew Freese, a 

neurosurgeon, in September 2015. Dr. Freese recommended disc removal surgery, 

which he performed about a month later. Plaintiff indicated that, while the surgery 

stopped the shooting pain, numbness and tingling from her neck, she still 

experienced numbness in her left shoulder for which she received treatment from 

two other physicians. Plaintiff testified she returned to work two months after the 

accident and six months after the surgery. Plaintiff testified the injury prevented her 

from performing numerous daily activities, and some of these activities continue to 

give her difficulties because she continues to have pain in her lower back and down 

her legs.

On cross-examination, Plaintiff testified that Gura’s truck was much 

bigger, taller and longer than her vehicle. When asked whether her vehicle moved 

as a result of the contact with Gura’s truck, Plaintiff stated, “[a]ll I know, [is that] it 

rocked back and forth.” Id. at 5 (citing N.T. 6/16/16, at 4-6). However, when shown 

the transcript of her deposition testimony stating her car did not move, she replied, 

“[c]orrect.” Id. Plaintiff testified she did not call police to the accident scene, and 

she told the responding officer that she did not want an ambulance and her husband 

would take her to the hospital later in the afternoon. When asked why, despite 

experiencing immediate pain from the accident, she did not have her son or the police 
6

officer drive her to the hospital, Plaintiff responded that she preferred to wait for her 

husband to take her when he came home from work. Plaintiff also testified she never 

received treatment from her personal physician for the injuries alleged in this 

accident, even though this physician examined her in 2014. The trial court noted 

that Plaintiff’s testimony as to whether she actually told her physician about the 

accident was evasive and amounted only to “I don’t remember” and “I don’t recall.” 

Id. at 6 (citing N.T. 6/16/16, at 11-12). Plaintiff also testified she contacted her 

lawyer two days after the accident.

When asked whether it was the running board or “step down” along the 

side of Gura’s truck that struck her vehicle when Gura made the right turn, Plaintiff 

replied she was “not sure.” Id. (citing N.T. 6/16/16, at 24-25). When shown 

photographs of her vehicle taken by her husband at the body shop that showed no 

cracked or broken headlight or visible damage to the passenger side of the vehicle, 

Plaintiff asserted the photographs were “grainy” and she declined to agree that the 

photographs depicted merely reflected light rather than dents to the side of her 

vehicle. Id. (citing N.T. 6/16/16, at 25-30; Exs. P-1, P-1A-C). When shown 

photographs of Gura’s truck, Plaintiff agreed that the step down from the truck’s 

driver side door did not extend beyond the side of the truck. Defendants’ counsel 

used a juxtaposition of paper envelopes to represent the two vehicles and to posit 

various scenarios regarding the place and effect of the striking of the side of 

Plaintiff’s vehicle by the truck’s running board. In response, Plaintiff could not be 

shaken from her belief that her vehicle was struck by the side rather than the back of 

the truck, and that her vehicle did not move in any direction, but rather merely rocked 

in place from the impact.
7

Plaintiff also submitted the videotape deposition testimony of Dr. 

Freese, the neurosurgeon who performed cervical disc fusion surgery on Plaintiff’s 

neck in October 2015, as her expert in neurological disorders, neurosurgery, 

conditions of the spine, and bioengineering. Dr. Freese described the symptoms with 

which Plaintiff presented on her first visit and the reasons for his conclusion that she 

suffered “moderate distress,” meaning “she’s not writhing in pain, but she’s clearly 

uncomfortable.” Id. at 7 (citing N.T., 6/16/16 at 56-60; Freese Dep., 6/10/16, Exs. 

1, 2).

Dr. Freese opined that, after a review of all of Plaintiff’s medical 

records he received and an MRI scan showing disc herniations and degenerative 

changes in Plaintiff’s neck, “it was clear that [Plaintiff] had not had neck or 

significant low back symptoms prior to this accident,” and Plaintiff should strongly 

consider surgery in her neck. Id. (citing N.T., 6/16/16, at 62-71; Freese Dep. Exs. 3, 

4). Dr. Freese opined that Plaintiff “had an underlying condition of [significant disc] 

degeneration in her neck and degenerative changes or arthritis in her neck and low 

back. She was fragile. And this injury was sufficient to push her over the edge.” Id.

(citing N.T., 6/16/16, at 71, 76-78; Freese Dep. Exs. 1, 2). Dr. Freese opined Plaintiff 

suffered bodily function impairments of strength and sensation in her upper 

extremities, and to some degree, lower extremities with disc abnormalities in her 

lower back. He further opined Plaintiff would require future medical care related to 

her neck and her lower back.
8

Plaintiff’s son, Leonard Worley, Jr. (Son), also testified. He provided 

testimony consistent with Plaintiff regarding road, weather conditions and other 

surrounding circumstances when he arrived to provide her assistance after the 

accident.

After Son’s testimony, Plaintiff rested. The trial court granted 

Defendants’ unopposed motion for nonsuit on behalf of the County as to Plaintiff’s 

claims for negligent supervision and negligent entrustment of the truck to Gura at 

the time of the accident.

For their part, Defendants presented the testimony of Gura, who 

explained that, at the time of the accident, he was transporting four individuals to a 

community service project in his capacity as Coordinating Supervisor for the 

Delaware County Community Service Program. Gura testified he did not know or 

remember the names of his passengers because one year after serving their 

community service obligations, their records are routinely destroyed. Gura testified 

he did not swing his truck to the left on Chester Pike when making the right turn 

onto Ashland Avenue at the time of the accident, and he did not tell Plaintiff when 

speaking with her afterward that the accident was his fault.

On cross-examination, Gura testified the vehicle he was driving at the 

time of the accident was a Ford F-650 truck, which was approximately 28-feet long 

and 8-feet wide, a “very large” box truck. Tr. Ct., Slip Op., at 12 (citing N.T., 

6/16/16, at 142). Gura agreed that the running board/step onto the truck is about two 

feet off the ground, and he never received training or a driving test for driving this 
9

specific truck. Gura testified consistently with Plaintiff that it was raining on the 

day of the accident, but he did not see her vehicle positioned to the left, front, or in 

the mirrors of the truck as he passed her to her right. Gura was completely unaware 

of Plaintiff’s vehicle’s presence until he heard a noise from the impact when he was 

turning right onto Ashland Avenue from Chester Pike on a green traffic signal.

When shown Plaintiff’s proffered pictures of the truck, Gura testified 

they showed no damage as a result of the impact with Plaintiff’s vehicle. Gura 

further testified he did not observe Plaintiff’s vehicle in the mirrors on his truck, and 

he did not agree he struck Plaintiff’s vehicle as she was stopped.

On re-direct examination, Gura testified he would characterize the 

accident impact as “just a thump” he felt when he pulled up to the intersection and 

made his right turn. Id. at 13 (citing N.T., 6/16/16, at 161). Gura indicated the step 

down on the side of the truck showed no damage from the impact, and it did not 

extend beyond the side of the truck as shown in the photograph marked as Exhibit 

D-1.

Prior to the testimony of Defendants’ next witness, Officer Joseph 

Thompson, formerly of the Glenolden Police Department, Plaintiff’s counsel 

requested a sidebar in which the following discussion ensued:

[Plaintiff’s counsel]: I want to place on the record my 

objections to the police officer that I made during my 

motion in limine. And also specifically object to any 

opinion testimony as to who caused the accident, any 

questions eliciting any testimony regarding the number 

[of] the vehicles as that indicates the one who would have 

caused the accident, any questions that would lead to any 

answers to any testimony relating [it] to be a minor impact 
10

because that’s all opinion testimony and beyond what the 

police officer may -

THE COURT: What did you agree to limit his testimony 

... I think back in the robing room yesterday in the motion.

[Defendants’ Counsel]: I cannot qualify him as an accident 

investigation officer and I have no intention of asking him 

for his opinion.

[Plaintiff’s counsel]: No, I understand. I want to place on 

the record. I just also, you know, I think it would be 

appropriate for an instruction out of [sic] the jury that he’s 

not, you know, making reference to an opinion or minor -

THE COURT: He just said that.

Tr. Ct., Slip Op., at 13-14 (citing N.T., 6/16/16, at 164). This exchange concluded 

with an agreement that Plaintiff’s counsel would raise an objection if Officer 

Thompson’s testimony included an expression of opinion as to the circumstances 

surrounding the accident.

After Officer Thompson testified that his memory of the accident went 

no further than what he related in his report, Defendants’ counsel provided him with 

the report, without objection from Plaintiff’s counsel, to refresh his recollection. 

Defendants’ counsel laid a foundation to ensure Officer Thompson prepared the 

report in the normal course of an accident investigation, after which Officer 

Thompson testified he could explain the report, but he did not have an independent 

recollection of the accident. Plaintiff’s counsel objected to the admission of Officer 

Thompson’s testimony on ground that his memory of the accident was not refreshed. 

After argument, which established Defendants were not offering the report into 

evidence, and that the report was a contemporaneously made record of the accident, 
11

the trial court allowed the testimony. Officer Thompson testified he remembered 

the parties upon seeing them in the courtroom, but he could not remember the 

accident itself other than what he documented in his report. Officer Thompson 

further testified he observed debris in the right lane where Gura’s truck traveled 

nearest to the curb at the intersection of Ashland Avenue and Chester Pike.

On cross-examination, Officer Thompson testified he did not witness 

the accident and he did not recall the weather on the date of the accident. Further, a 

drawing of a diagram of the debris on his report was not essential for an accident of 

this type. On further questioning by Plaintiff’s counsel, Officer Thompson indicated 

he did not describe the debris or its size, color, state or its exact location in his report, 

nor did he take any measurements to show how far away the debris was from the 

curb, the traffic lines, or any of the vehicles involved in the accident. Officer 

Thompson had no knowledge as to which vehicle the debris may have come from, 

whether there was any other debris on the road or if the debris was vehicle debris or 

any other type.

Defendants next presented the videotape deposition testimony of their 

medical expert, Dr. Karl Rosenfeld, an orthopedic surgeon, without objection. The 

trial court noted Plaintiff’s counsel offered no objection that Dr. Rosenfeld was not 

a neurosurgeon or that he never performed cervical fusion surgery. Dr. Rosenfeld 

testified that, in preparation for his testimony, he reviewed many of Plaintiff’s 

medical records and Plaintiff’s deposition. He also obtained a history and performed 

a physical examination.
12

Dr. Rosenfeld initially indicated that Plaintiff reported that the accident 

occurred when the rear of the truck struck her vehicle when it made a right turn, but 

she later indicated the truck brushed her vehicle as it drove by. Dr. Rosenfeld 

testified he examined Plaintiff three months after her neck surgery, and his 

impressions were affected by his lack of knowledge as to whether her limited neck 

motion was a result of the accident or the surgery. Dr. Rosenfeld testified that, 

because Plaintiff did not express any problems with her low back, he did not examine 

it. He further opined, upon review of MRI studies of Plaintiff’s lumbar spine taken 

eight days after the accident, he observed some thoracic disc protrusions, as well as 

protrusion of the discs at C5-C6 with some degenerative changes and a right lateral 

disc herniation at C6-C7 at the right neural foramen.

Dr. Rosenfeld opined Plaintiff was “overly treated [for] the accident.” 

Id. at 17 (citing Rosenfeld Dep. at 26). He testified he wrote the following in his 

report in that regard:

The accident as described does not sound like a significant 

one. Her car was struck on the side. She did not have any 

significant damage to the car, as I understand it. She may 

have had some neck pain, and I wrote sprain along with 

other problems from the accident, but here’s the gist .... 

For her to go on and have a cervical fusion, a rather 

significant mode of treatment, I find difficult to 

understand. And then I wrote: ‘in these kinds of cases I’m 

asked to state my opinion with reasonable medical 

certainty.’ And I wrote: ‘[a]lthough anything is possible, 

including the possibility [that] the neck fusion was 

necessary as a result of the accident, with reasonable 

medical certainty, based on the mechanism of injury, I 

have a problem with this, and therefore, do not believe the 

accident in and of itself caused a problem that [Plaintiff] 

had, including the cervical fusion.’
13

Id. at 17 (quoting Rosenfeld Dep. at 27-28).

Dr. Rosenfeld was then presented with a copy of the report of Michael 

Berkovitz, Defendants’ accident reconstruction expert, and was asked to comment 

on the written addendum to Dr. Rosenfeld’s report, which was appended as an 

exhibit to his deposition. He responded:

Berkovitz went over the accident in question in great 

detail. The last page of his report, he states, I’m quoting 

him, ‘The forces from the minor impact to the sheet metal 

of [Plaintiff’s] vehicle would not have transmitted to the 

driver’s position of [Plaintiff].’ What he’s saying in 

layman’s terms is he doesn’t see enough impact to get 

from where she got hit to go up to her neck, simply stated. 

And then I wrote: ‘I reviewed my letter to you, and 

expressed as I just did in my concluding paragraph of my 

report, that I also had trouble, not as a mechanical genius, 

but as a doctor, to understand how she could go on and 

have all of these problems.’ And therefore, I wrote that 

his letter - in fact, I'll read: ‘Therefore, as I ended my report 

on page 7, noting that a problem with the accident caused 

her neck problems, I now have less of a problem and am 

fortified by this report that the accident in question was not 

the reason for her neck pain or the subsequent treatment 

she was receiving and is receiving.’

Id. (quoting Rosenfeld Dep. at 31).

On cross-examination, Dr. Rosenfeld agreed that in all the records in 

Defendants’ counsel’s possession and provided to him, there was no mention of any 

neck problem or pain or any treatment for Plaintiff’s neck pain prior to the accident. 

Dr. Rosenfeld stated he missed a reference to Plaintiff’s neck pain being “severe” as 

reported during her visit to the emergency room on the date of the accident, 

suggesting it may have appeared on a page that was missing from that report. When 
14

shown a six-page copy of Plaintiff’s hospital record, Dr. Rosenfeld acknowledged 

that the language “neck pain, severe, muscular in nature?” appeared on page two. 

Id. at 18 (citing Rosenfeld Dep. at 18). Dr. Rosenfeld emphasized Plaintiff was 

forthright about her complaints, and he concluded she was experiencing pain, but 

the surgery on her neck was not related to the accident.

On re-direct examination, Dr. Rosenfeld opined that EMG tests, which 

reflect highly subjective reports of pain, can have different interpretations when 

conducted by different examiners. Dr. Rosenfeld again opined the records showed 

that Plaintiff’s shoulder and left arm weakness were secondary to the surgery and 

not a result of the accident and he based this opinion on what Plaintiff reported to 

him.

Defendants next presented the testimony of their accident 

reconstruction expert, Michael Berkovitz. At sidebar, Plaintiff’s counsel argued:

I’m placing my objection on the record as to the report and 

opinions of [Berkovitz]. He is not a medical doctor and 

provides opinion on the body based upon forces and how 

– on what kind of injury she would have sustained based 

on those forces and also pursuant to [Pennsylvania Rule of 

Evidence] 705, an expert must provide calculations for his 

data and his opinion is devoid of any calculations and I’m 

just renewing my objections and plac[ing] them on the 

record based on my motions in limine that I filed and my 

objections to qualifications and to his actual testimony 

today.

Id. at 19 (citing N.T., 6/16/16, at 180). Defendants’ counsel responded, “this is an 

issue dealt with in the motion in limine, but in addition[,] he’s not going to give a 

medical opinion. He’s going to testify as a biomechanical engineer as an accident 
15

reconstruction expert.” Id. Noting Plaintiff’s counsel’s objection and that Plaintiff 

did not submit her motions in limine for the trial record, the trial court permitted 

Berkovitz to testify.

During voir dire, Berkovitz related that his expertise includes 

determining “occupant kinematics,” a term for how people move around inside a 

vehicle based on forces from the outside, using photographs, site views and 

testimony from the individuals. Id. (citing N.T., 6/16/16, at 184-86). Plaintiff’s 

counsel questioned Berkovitz as to any education he may have had in medicine and 

biomedical engineering, and when the witness answered in the negative, Plaintiff’s 

counsel renewed his objection to the presentation of Berkovitz’s testimony. The trial 

court again overruled the objection. Berkovitz indicated his opinions would be 

founded on review of reports of the accident, including that of Officer Thompson, 

with its notation of debris in the right lane at the scene, photographs of the scene, a 

trip to the accident scene, photographs of Plaintiff’s vehicle and Defendants’ truck 

and his inspection of the vehicles. He also relied on the specifications for Plaintiff’s 

vehicle, the parties’ depositions, Plaintiff’s medical records, records of Plaintiff’s 

vehicle and some legal correspondence.

Berkovitz testified debris found at the location of a low speed collision 

is “dirt that’s under the fenders or the [dirt] that’s in the undercarriage of the vehicle 

[that] will drop down onto the roadway,” meaning in this instance, the two vehicles 

came together in the right lane of travel. Id. at 20 (quoting N.T., 6/16/16 at 189-

90). Berkovitz opined, within a reasonable degree of engineering certainty, that at 

least part of Plaintiff’s vehicle was in the right lane at the time of impact. When 
16

asked to state within a reasonable degree of engineering certainty whether the impact 

would have caused injury to Plaintiff, Berkovitz replied “the Delta-v or the change 

in velocity due to the impact or collision would have been so low [that] the forces 

should not have come across into her passenger seating area.” Id. (quoting N.T., 

6/16/16, at 190-91).

On cross-examination, Berkovitz stated he never saw a diagram 

showing the appearance of the debris or its exact location on the road or its relation 

to either vehicle. Berkovitz admitted he did not know the origin of the debris or its 

distance from the curb or traffic lines, nor its quantity, color, or state because “no 

radiators or oil or parts of the vehicle that would produce liquid were involved in 

this accident.” Id. (quoting N.T., 6/16/16, at 193-94). Berkovitz acknowledged it 

rained on the date of the accident, but that information did not factor into the 

formulation of his conclusions. Berkovitz testified he only knew that debris was 

observed in the right lane and nowhere else on the road. Berkovitz indicated he had 

no information that would show where Gura’s truck was situated in the right lane 

when the impact occurred. Additionally, he did not know if there was running water 

on the road from the rain or whether it would have moved the debris to or from any 

other location or affected it in any way. Although debris was observed in the right 

lane, Berkovitz replied he did not know whether Gura’s passengers, who 

manipulated the metal away from Plaintiff’s passenger side wheel so she could move 

her vehicle, could have pulled the debris off her car in that place.

Further, citing page 1730 of the Northwestern Traffic Investigation 

Manual issued by the institution where Berkovitz received his training, Plaintiff’s 
17

counsel asked Berkovitz whether he would agree that “if the vehicle’s body is 

moving when underbody debris is dislodged, the debris is also moving and so does 

not drop straight to the ground”; Berkovitz answered affirmatively. Id. at 21 

(quoting N.T., 6/16/16, at 198-200). Berkovitz stated he included no calculations in 

his report because there “were no calculations to be made in this collision” as there

were “no physical facts that were documented to say how it happened” and “no 

forces involved in a sideswipe type collision” where there was no oppositional Deltav force that would reduce the speed of the vehicle doing the striking. Id. at 21-22 

(quoting N.T., 6/16/16, at 200-01). Berkovitz also acknowledged he did not know 

the weight of Defendant’s truck, and he used a 2013 Hyundai Sonata four-door sedan 

instead of the Plaintiff’s 2000 Hyundai Sonata in formulating his opinion. Berkovitz 

opined that the outer shell of Plaintiff’s right front fender was the only point on 

Plaintiff’s vehicle that was struck in the accident.

Ultimately, after 30 minutes of deliberation, the jury returned a 

unanimous verdict that Defendants were not negligent with regard to the accident. 

The jury did not reach the questions of causation and damages. Plaintiff filed posttrial motions, which the trial court denied. Plaintiff then appealed to this Court.

B. Trial Court’s Opinion

The trial court subsequently directed Plaintiff to file a concise statement 

of the errors complained of on appeal, which she did. The trial court then issued an 

opinion pursuant to Pa. R.A.P. 1925(a). In its opinion, the trial court noted, although 

Plaintiff set forth numerous issues in her Pa. R.A.P. 1925(b) Statement, she mainly 

challenged the trial court’s admission of the testimony of Officer Thompson, 

Berkovitz and Dr. Rosenfeld.
18

As to Officer Thompson, the trial court explained, Plaintiff asserted the 

trial court erred in: (1) allowing Officer Thompson to testify as to his opinion 

regarding the accident, which he did not witness and about which he had no 

independent recollection, inasmuch as his memory was not refreshed by a reading 

of his police report; (2) failing to instruct the jury as to Officer Thompson not being 

allowed to give his opinions concerning the accident; (3) allowing Officer 

Thompson to testify the accident was “insignificant” in nature and instructing the 

jury to disregard that statement only after this testimony was heard; (4) allowing 

Officer Thompson to testify, even though he was never qualified as an expert, 

without any expertise in accident reconstruction or investigation; and, (5) allowing 

Officer Thompson to provide speculative testimony that there was debris present at 

the point of impact at the accident scene when he was unable to specifically state 

what it was or where it came from.

The trial court pointed out that Plaintiff’s counsel cited Section 

3751(b)(4) of the Vehicle Code, 75 Pa. C.S. §3751(b)(4), which prohibits admission 

of a police report in an action for damages arising out of a motor vehicle accident, 

and Rox Coal Co. v. Workers’ Compensation Appeal Board (Snizaski), 807 A.2d 

906, 914 (Pa. 2002), for the proposition that “a police report prepared by an officer 

who is not a witness to the accident is inadmissible hearsay evidence and should not 

be admitted into evidence.”

Plaintiff also cited Brodie v. Philadelphia Transportation Co., 203 A.2d 

657, 658 (Pa. 1964), for the Supreme Court’s holding that the testimony of noneyewitness police officers as to the cause of accidents is “grossly speculative and an 
19

invasion of the jury’s exclusive prerogative.” Plaintiff also faulted the trial court’s 

curative instruction provided at Plaintiff’s counsel’s request to disregard Officer 

Thompson’s spontaneous remark that this was an insignificant accident for not 

having the “desired effect” under Kelly v. Buckley, 421 A.2d 759, 762 (Pa. Super. 

1980) (despite curative instructions, inadmissible evidence may influence a jury’s 

decision). Finally, Plaintiff challenged the admissibility of Officer Thompson’s 

testimony as to the presence of debris on the roadway as allowing him to 

impermissibly speculate as to the cause of the accident.

Responding to these assertions, the trial court explained that its review 

of Officer Thompson’s testimony revealed that: (1) his police report was neither 

offered nor admitted into the evidence; (2) he proffered no opinion as to the cause 

of the accident; (3) Defendants never offered him as an expert witness and he did 

not offer expert testimony; and, (4) the trial court issued a curative instruction when 

requested.

Further, Officer Thompson testified only as to what he observed at the 

scene in accordance with its memorialization in his report. The trial court stated 

such testimony was admissible as an exception to the hearsay rule under 

Pennsylvania Rule of Evidence 803.1(3) (“Recorded Recollection of Declarant 

Witness”).

Here, the trial court explained, Plaintiff “continuously waged a tortured 

attempt to twist Officer Thompson’s every statement into a proof of claim that he 

was stating an ‘opinion’ about or regarding the accident and its cause, including 
20

testimony that he was merely interpreting the meaning of his own statements written 

in his report.” Tr. Ct., Slip Op., at 27 (citing Hr’g on Post-Trial Motions, N.T., 

11/4/16, at 4-16). Moreover, Plaintiff’s counsel ignored his pre-existing agreement 

with Defendants’ counsel that he would move to strike any testimony he found 

objectionable. Id. (citing N.T., 6/16/17, at 164-65). The trial court noted Plaintiff’s 

counsel moved to strike, and the trial court instructed the jury that it struck, Officer 

Thompson’s unsolicited and blurted out comment that he could not personally 

remember the accident because it would have been an insignificant accident and 

arguably unreportable. Id. (citing N.T., 6/16/16, at 171-72).

Further, Plaintiff conducted an extensive cross-examination of Officer 

Thompson that included numerous questions about the “debris” in the roadway, thus 

eliciting the same testimony that Plaintiff now claimed was objectionable and an 

inadmissible expression of opinion. Id. (N.T., 6/16/16, at 173-78). The trial court 

stated it is axiomatic that, in general, a party may not object to improper testimony 

she herself elicits. Oko v. Krzyzanowski, 27 A.2d 414, 419 (Pa. Super. 1942). For 

these reasons, the trial court stated Plaintiff’s objections to Officer Thompson’s 

testimony lacked merit.

Next, as to Berkovitz, Defendants’ accident reconstruction expert, 

Plaintiff asserted entitlement to a new trial on the grounds that the trial court: (1) 

improperly disallowed a Frye hearing on Berkovitz’s proposed testimony; (2) did 

not limit his testimony at the time of trial; (3) improperly allowed Berkovitz to testify 

when he was not qualified to testify about forces and did not provide calculations to 

support his findings in violation of Pennsylvania Rule of Evidence 705; and, (4) 
21

Berkovitz based his opinion on the contents of Officer Thompson’s inadmissible 

police report. The trial court stated that Plaintiff asserted Berkovitz improperly 

based his opinion that minimal forces were involved in this collision that should not 

have resulted in the injury Plaintiff complained of solely on speculative evidence 

and mere conjecture. Plaintiff contended Berkovitz’s testimony should have been 

limited because he failed to disclose the calculations and methodologies from which 

his opinion derived.

The trial court determined it was patently clear that a majority of 

Plaintiff’s contentions regarding Berkovitz’s testimony went to the weight of that 

testimony, and not its admissibility. The trial court also rejected Plaintiff’s 

objections to Berkovitz’s use of the police report in formulating his opinion.

In addition, the trial court explained, Plaintiff’s claimed denial of a Frye

hearing, so as to ascertain whether the methods Berkovitz employed in formulating 

his opinion were generally accepted in the accident reconstruction field, was never 

made, and, therefore, was waived. To that end, the trial court stated Plaintiff’s 

motion in limine to exclude Berkovitz’s testimony because it failed to meet the Frye

test was filed shortly before trial. The motion contained no request for a Frye

hearing; rather, Plaintiff merely requested a ruling that the trial court agree with 

Plaintiff’s conclusion that Berkovitz’s findings were unreliable for failure to follow 

“from a scientific methodology which requires a hypothesis supported and tested by 

available facts or data and which has been selectively chosen because they fit with 

the theory.” Trach v. Fellin, 817 A.2d 1102, 1113 (Pa. Super. 2003); Tr. Ct., Slip 

Op., at 29. The trial court noted that the ad damnum clause at the conclusion of 

Plaintiff’s memorandum of law in support of her motion stated, “[b]ased upon the 
22

foregoing ... Plaintiffs respectfully request that this Court enter an order precluding 

[Berkovitz] from offering any testimony on the forces and causes of the crash.” Tr. 

Ct., Slip Op., at 29-30.

The trial court explained that the record revealed Berkovitz was 

eminently qualified as an expert to provide testimony in the field of accident 

reconstruction, and he reviewed a wide array of records and information reasonably 

relied on by professionals in the field to assist him in formulating his opinion that 

the forces involved in the impact were insufficient to cause Plaintiff’s alleged

injuries. The trial court stated this was a sufficient basis for the trial court to rule 

that Berkovitz possessed the requisite degree of specialized knowledge in the field 

of accident reconstruction. Cf. In re Glasser Bros., Inc., 555 A.2d 129 (Pa. Super. 

1989). The trial court determined Berkovitz had a sufficient basis to conclude that 

the impact here occurred in the right lane occupied by Gura, a conclusion the jury 

was free to accept or reject.

For these reasons, the trial court determined Plaintiff did not meet her 

burden of showing Berkovitz’s testimony was improperly admitted.

As to the testimony of Dr. Rosenfeld, Plaintiff asserted entitlement to a 

new trial on the grounds that the trial court improperly admitted or failed to limit his 

testimony where he never performed a cervical fusion surgery and was unqualified 

to testify on Defendants’ behalf as to the injury suffered here. Plaintiff also argued 

Dr. Rosenfeld should not have been allowed to file a supplemental report to show 

his agreement with Berkovitz’s purportedly inadmissible opinion that the forces 
23

involved in the collision here were not strong enough to cause an injury that would 

require cervical fusion surgery.

First, the trial court responded, when Defendants presented Dr. 

Rosenfeld’s videotape deposition at trial, Plaintiff did not object to its admission, 

nor did Plaintiff raise an issue at the close of trial when acquiescing to the trial 

court’s final instructions or to the verdict after the jury was polled. The trial court 

stated Plaintiff should have raised her objection before or after the jury’s verdict was 

delivered but not yet certified, but Plaintiff did not do so; therefore, any such 

objection was waived. Dilliplaine v. Lehigh Valley Trust Co., 322 A.2d 114 (Pa. 

1974).

Further, the trial court explained, a review of the printed copy of Dr. 

Rosenfeld’s deposition, admitted into evidence, showed numerous markings the trial 

court made in order to limit Dr. Rosenfeld’s testimony in response to Plaintiff’s 

objections, so these contentions must be deemed waived or lacking a factual 

foundation.

The trial court also stated, a review of the objections submitted in 

Plaintiff’s post-trial motions, her supporting memorandum, and at the hearing on 

post-trial motions, revealed the objections were barebones and unsupported by 

citation to relevant authority and must also be deemed waived for that reason. The 

trial court further pointed out, although Dr. Rosenfeld was well-qualified to present 

his opinion as to the alleged injuries, the jury did not reach the issue of damages, so 

this testimony could not have prejudiced Plaintiff.
24

As a final issue, Plaintiff argued a new trial was warranted as no 

evidence was presented to refute her testimony that she was stopped at the time of 

the accident or to prove she was at fault. To be sure, the trial court stated, the jury 

found no one at fault or negligent in this accident. The trial court explained its 

exhaustive review of all of the evidence submitted by both parties revealed Plaintiff 

never met her burden of showing by a preponderance of the evidence that she was 

entitled to a decision in her favor.

To that end, Plaintiff was never able to definitively describe how the 

accident occurred, and Gura vehemently refuted her claim that he swung the truck 

to the left to make his right turn. Gura testified that, while approaching the 

intersection he felt, and did not hear, a thump to the side of the truck. The trial court 

indicated Plaintiff’s assertion of sitting in the center lane at the intersection of 

Chester Pike and Ashland Avenue was further contradicted by admissible evidence 

from Officer Thompson and Berkovitz as to the presence of debris in the right lane, 

which allowed for the circumstantially permissible inference that Plaintiff’s vehicle 

entered the right lane and struck the truck. The trial court stated it could not usurp 

the jury’s role in evaluating credibility determinations that may have been weighed 

against Plaintiff nor would it attempt to do so with regard to the question as to 

whether anyone involved in the accident was at fault. Moreover, the law is 

longstanding that the mere occurrence of an accident raises no presumption that 

negligence was involved. Mitchell v. Scharf, 115 A.2d 774 (Pa. Super. 1955).

This matter is now before us for disposition.

II. Issues
25

On appeal, Plaintiff raises the following issues:

1. Whether it is reversible error that the [trial court] 

allowed Officer Thompson to testify when he had no 

independent recollection of this matter and his memory 

was not refreshed by looking at his police report resulting 

in the following additional errors:

A) allowing the Officer to testify without 

instruction, thus allowing the [O]fficer to interject 

his [o]pinions of the severity of the accident; and

B) allowing the Officer to testify to debris when the 

[O]fficer had no recollection and no information as 

to the debris; and

C) allowing the [p]olice report to come into 

evidence in an indirect manner?

2. Whether it was reversible error that the [trial court] 

allowed Michael Berkovitz to testify and/or failed to limit 

his testimony resulting in the following additional 

errors[:]

A) allowing him to testify when he was not properly 

qualified to testify in this matter;

B) allowing him to testify as to a medical opinion 

when he was not qualified to nor proffered as a 

medical expert;

C) allowing him to testify when his opinions did not 

meet the requisite standard to allow him to testify;

D) allowing him to testify when his testimony was 

based upon inadmissible evidence, [i.e.,] the 

[p]olice report; and

E) allowing him to testify when he failed to provide 

the required proof of an expert as to his 

conclusions?
26

3. Whether it is reversible error that the [trial court] 

allowed Dr. Karl Rosenfeld to testify at the time of trial 

when he was not qualified to testify as to the necessity of 

[c]ervical [f]usion [s]urgery since the Doctor had never 

performed such surgery in his entire career, and should not 

have been allowed to testify as to his supplemental report 

as it was based upon inadmissible evidence.

4. Whether [the trial court] erred in denying [Plaintiff’s] 

Post-Trial Motion for a New Trial when the verdict was 

against the weight of the evidence?

Appellants’ Br. at 5-6.

III. Discussion

At the outset, we note, in responding to a request for a new trial, a trial 

court must follow a two-step process. Daddona v. Thind, 891 A.2d 786 (Pa. Cmwlth. 

2006). First, it must decide whether one or more mistakes occurred at trial. Id. 

Second, if the court concludes a mistake occurred, it must determine whether the

mistake was a sufficient basis for granting a new trial. Id. The harmless error 

doctrine underlies every decision to grant or deny a new trial. Id. A new trial is not 

warranted merely because some irregularity occurred during the trial or another trial 

judge would rule differently; the moving party must show prejudice resulting from 

the mistake. Id.

As an appellate court, to review the two-step process of the trial court 

for granting a new trial, we also employ a two-prong analysis. Id. First, we examine 

the decision of the trial court that a mistake occurred. In so doing, we must apply 

the appropriate standard of review. Id. If the alleged mistake involved an error of 

law, we must scrutinize for legal error. Id. If, on the other hand, the alleged mistake 
27

involved a discretionary act, we must review for an abuse of discretion. Id. If there 

were no mistakes at trial, we must affirm a decision by the trial court to deny a new 

trial as the appellate court cannot order a new trial where no error of law or abuse of 

discretion occurred. Id.

Further, in reviewing Plaintiff’s evidentiary issues, we apply the 

following standard:

The admission or exclusion of evidence, including the 

admission of testimony from an expert witness, is within 

the sound discretion of the trial court. Thus[,] our standard 

of review is very narrow; we may only reverse upon a 

showing that the trial court clearly abused its discretion or 

committed an error of law. To constitute reversible error, 

an evidentiary ruling must not only be erroneous, but also 

harmful or prejudicial to the complaining party.

Crespo v. Hughes, 167 A.3d 168, 181 (Pa. Super. 2017) (citations omitted).

A. Officer Thompson

1. Contentions

Plaintiff first contends the trial court erred in allowing Officer 

Thompson to testify when he had no independent recollection of the accident and 

his report did not refresh his memory, all over Plaintiff’s objections and the denials 

of Plaintiff’s motions in limine. Plaintiff asserts Officer Thompson was allowed to 

testify, without instruction, and thus gave his opinions of the accident, its cause and 

severity, thereby tainting the jury and prejudicing Plaintiff. Plaintiff maintains 

Officer Thompson’s entire testimony was inadmissible hearsay. She contends 

Officer Thompson admitted his report did not refresh his recollection and it was his 

interpretation of the accident. Also, Plaintiff argues it was error to allow Officer 
28

Thompson to testify as to debris at the scene, which allowed him to interject his 

opinion as to the point of impact, without witnessing the accident or having any 

information as to what the debris was, whose debris it was, where it was located at 

the scene, or any independent recollection of the debris.

Plaintiff contends that, allowing Officer Thompson to continue to 

testify, over her objections, was improper as it allowed hearsay to be stated to the 

jury and allowed Officer Thompson’s police report to be entered into evidence 

indirectly, as testimony. Plaintiff notes that the trial court, in its opinion and during 

testimony, opined that Officer Thompson’s testimony was proper under 

Pennsylvania Rule of Evidence 803.1(3) as he testified only regarding what he 

observed at the scene in accordance with its memorialization in his report. Plaintiff 

asserts this is incorrect as Officer Thompson testified that it was his interpretation

of the accident; he did not testify it was what he observed.

Further, Plaintiff asserts, although the trial court stated the rule in 

Pennsylvania Rule of Evidence 803.1(3), the explanatory comments make clear that, 

to qualify a recorded recollection as an exception to the rule against hearsay, the 

witness must testify the record correctly reflects knowledge the witness once had. 

In other words, the witness must vouch for the record’s reliability. Here, Plaintiff 

contends, Officer Thompson never did so. See N.T., 6/16/16, at 167. Plaintiff argues 

Officer Thompson cannot vouch for the reliability of the record as it was his 

interpretation of the accident, not his actual observation. The report contained no 

diagrams and no markings to refresh his memory and he admitted as such.
29

Plaintiff maintains the general rule in Pennsylvania is that an 

investigating officer who did not witness a motor vehicle accident is not competent 

to render an opinion at trial as to its cause. See, e.g., Brodie. Plaintiff argues the 

Superior Court examined a very similar situation as to statements made by a police 

officer in Davis v. White, 156 A.3d 1261 (Pa. Super. 2017). There, she contends the 

Superior Court made clear that when an officer has no independent recollection of 

an accident, and a report does not refresh an officer’s memory, the testimony and 

statements do not present competent evidence, are speculative, and are not 

admissible. By allowing Defendants’ counsel to continually question Officer 

Thompson, Plaintiff argues, the trial court allowed Defendants to have Officer 

Thompson’s inadmissible report entered into evidence indirectly resulting in 

prejudice.

Plaintiff also contends Section 3751(b)(4) of the Vehicle Code 

specifically states that a police report shall not be admissible as evidence in any 

action for damages arising out of a motor vehicle accident. And, a police report 

prepared by an officer who is not a witness to the accident is inadmissible hearsay 

and should not be admitted into evidence. Rox Coal. Nor should a party be able to 

submit such a report into evidence indirectly. Id.

Plaintiff maintains the trial court erred in allowing Officer Thompson 

to testify without instruction thereby allowing him to interject his opinions as to the 

severity of the accident to the jury. Based on Officer Thompson’s deposition 

testimony, Plaintiff argues, her counsel was aware Officer Thompson was going to 

interject his opinion as to the severity of the accident. In his deposition, Officer 
30

Thompson testified he had no independent recollection of the accident and his report 

did not refresh his memory. Plaintiff asserts she requested a specific instruction be 

given to Officer Thompson so he did not prejudice Plaintiff by stating his opinion as 

to the severity of the impact. Despite this request, no such instruction was given, 

and Officer Thompson was allowed to testify.

Further, Plaintiff maintains Defendants’ counsel elicited opinion 

testimony from Officer Thompson including testimony that the accident was 

“insignificant.” N.T., 6/16/16, at 163-65. Plaintiff notes that, after Officer 

Thompson was allowed to testify as to the insignificant nature of the accident, the 

trial court instructed the jury that this testimony was stricken; however, the harm 

already occurred and the jury was permitted to hear this highly prejudicial opinion 

testimony. Plaintiff contends the exact situation occurred in Kelly, and the Superior 

Court held that, despite a curative instruction, the jury was influenced by the 

inadmissible evidence. Plaintiff asserts Officer Thompson was never qualified as an 

expert nor did he have any expertise in accident reconstruction. Plaintiff argues new 

trials were granted in numerous cases where an officer was allowed to testify as to 

his opinion of an accident. See, e.g., Brodie.

Plaintiff further maintains the trial court erred in allowing Officer 

Thompson to testify as to debris on the road when he had no recollection and no 

information regarding the nature of the debris. Plaintiff contends Defendants’ 

counsel’s purpose in eliciting testimony from Officer Thompson as to the debris was 

tantamount to the officer providing his opinion as to where the impact occurred. 

Plaintiff argues that Pennsylvania courts deem this type of testimony inadmissible 
31

where the officer did not witness the accident. In fact, she asserts a similar situation 

arose in Anderson v. Russell, 33 Pa. D. & C.3d 308 (C.P. Cumberland 1983), and 

the common pleas court granted a new trial. Plaintiff also argues that, when the trial 

court allowed this testimony to be admitted, Plaintiff had no choice but to crossexamine Officer Thompson about the debris, and the trial court improperly 

determined Plaintiff waived this issue by cross-examining Officer Thompson.

2. Analysis

No error is apparent in the trial court’s admission of Officer

Thompson’s testimony. More particularly, our review of the record supports the 

trial court’s determinations that: (1) Officer Thompson’s police report of the 

accident was neither offered nor admitted into evidence; (2) Officer Thompson 

proffered no opinion as to the cause of the accident; (3) Defendants did not tender 

Officer Thompson as an expert witness and he did not offer any expert testimony; 

and, (4) when Plaintiff requested a curative instruction in response to Officer 

Thompson’s unsolicited and blurted out statement that the accident was 

insignificant, the trial court struck that statement. N.T., 6/16/16, at 165-78.

Further, our review of the trial transcript confirms the trial court’s 

statement that Officer Thompson “testified only as to what he observed at the scene 

in accord with its memorialization in his report and nothing more.” Tr. Ct., Slip Op., 

at 26. Most importantly, this included Officer Thompson’s testimony, as 

documented in his report, that he observed debris in the right lane at the accident 

scene, which was the lane occupied by Gura’s truck at the time of the accident. N.T., 
32

6/16/16, at 172. Plaintiff objected that Officer Thompson’s testimony concerning 

information set forth in his report constituted hearsay.

Hearsay, defined as a declarant’s out-of-court statement or assertion 

offered into evidence to prove the truth of the matter asserted, is generally 

inadmissible unless an exception applies. See Pa. R.E. 801(a)-(c), 802. Here, the 

trial court determined Officer Thompson’s testimony concerning the 

memorialization of his observations at the accident scene was admissible as a 

recorded recollection under Pennsylvania Rule of Evidence 803.1(3). That Rule 

states:

The following statements are not excluded by the rule 

against hearsay if the declarant testifies and is subject to 

cross-examination about the prior statement:

* * * *

(3) Recorded Recollection of Declarant-Witness. A 

memorandum or record made or adopted by a declarantwitness that:

(A) is on a matter the declarant-witness once knew about 

but now cannot recall well enough to testify fully and 

accurately;

(B) was made or adopted by the declarant-witness when 

the matter was fresh in his or her memory; and

(C) the declarant-witness testifies accurately reflects his or 

her knowledge at the time when made.

If admitted, the memorandum or record may be read into 

evidence and received as an exhibit, but may be shown to 

the jury only in exceptional circumstances or when offered 

by an adverse party.
33

Id. (emphasis added).

Here, our review of Officer Thompson’s testimony regarding his report 

reveals that it satisfies each of the above criteria to qualify as a recorded recollection. 

N.T., 6/16/16, at 167, 171-72. Specifically, Officer Thompson testified: (1) his 

report related to the accident, which he responded to, but could not presently recall, 

id. at 167; (2) he prepared his report when investigating the accident, id. at 171; and, 

(3) what he documented in his report accurately depicted what he observed at the

accident scene. Id. at 172.

Nevertheless, at oral argument before this Court, Plaintiff asserted that 

Section 3751(b)(4) of the Vehicle Code should control over Pennsylvania Rule of 

Evidence 803.1(3) because Section 3751(b)(4) is a more specific provision than the 

general evidentiary rule set forth in Rule 803.1(3). We disagree. Section 3751(b)(4) 

of the Vehicle Code states: “The copy of the [police accident] report shall not be 

admissible as evidence in any action for damages or criminal proceedings arising 

out of a motor vehicle accident.” 75 Pa. C.S. §3751(b)(4). Here, a copy of Officer 

Thompson’s police report was neither offered nor admitted at trial. Further, Officer 

Thompson, who testified and was subject to cross examination, testified only as to 

his firsthand recorded recollection regarding debris on the roadway and its location 

as he memorialized those observations in his report. Officer Thompson offered no 

opinion testimony regarding the cause of the accident nor did he opine that the 

existence of debris in the right lane on the roadway corresponded with the point of 

impact.
34

To that end, at trial, Defendants presented the testimony of Berkovitz, 

their accident reconstruction expert, regarding the cause of the accident. As 

explained more fully below, in rendering his opinion on causation, Berkovitz relied 

on, among other things, Officer Thompson’s police accident report, including its 

notation regarding the existence of debris and its location on the roadway. N.T., 

6/16/16, at 230. “An expert is permitted to reasonably rely on a police accident 

report in reconstructing the accident pursuant to Pa.R.E. 703 ....” Harris v. Phila. 

Facilities Mgmt. Corp., 106 A.3d 183, 191 (Pa. Cmwlth. 2014). Thus, Berkovitz 

could properly consider the facts in Officer Thompson’s police accident report in 

rendering his opinion. Id. As a result, even if the trial court erred in admitting 

Officer Thompson’s testimony concerning his recorded observation of debris and its 

location on the roadway, Berkovitz was permitted to rely on the facts set forth in the 

police accident report in rendering his opinion. Id. Thus, any alleged error 

concerning the admission of Officer Thompson’s testimony as to debris was 

harmless and would not warrant a new trial. As stated above, the harmless error 

doctrine underlies every decision to grant or deny a new trial. Daddona.

Further, as the trial court explained:

Plaintiff ... has continuously waged a tortured attempt to 

twist [Officer] Thompson’s every statement into a proof 

of claim that he was stating an ‘opinion’ about or 

regarding the accident and its cause, including testimony 

that he was merely interpreting the meaning of his own 

statements written in his report. (Post-Trial Motion 

Hearing 11/4/16 N.T. 4-16). Moreover, Plaintiff’s counsel 

ignores his pre-existing agreement with opposing counsel 

that he would move to strike any of that testimony he 

found objectionable. (6/16/17 N.T. 164-165).
35

Plaintiff’s counsel did so move, and the [trial] 

[c]ourt instructed the jury that [it] had stricken [Officer] 

Thompson’s unsolicited and blurted out comment that he 

could not personally remember the accident scene because 

it would have been an insignificant accident and arguably 

unreportable. (Id., 171-172). However, [Plaintiff] 

thereafter proceeded to conduct an extensive crossexamination of [Officer] Thompson that included 

numerous questions about the ‘debris’ in the roadway, thus 

eliciting the selfsame testimony that is now claimed to 

have been deemed objectionable and an inadmissible 

expression of opinion. (Id., 173-178). ...

Tr. Ct., Slip Op., at 27.

Moreover, the cases cited by Plaintiff4 are inapposite here. In those 

cases the officers provided opinion testimony as to causation (and in one case the 

claimed point of impact of the accident) despite the fact that they did not witness the 

accidents, or they provided testimony as to the issuance of traffic citations in 

connection with the accidents. Here, Officer Thompson provided no such testimony. 

N.T., 6/16/16, at 165-78.

In addition, unlike in Kelly, where the Superior Court held that a trial 

judge’s curative instruction was insufficient where one officer testified as to 

causation although he did not witness the accident and another officer testified to his 

issuance of a citation, here Officer Thompson provided no such testimony. Rather, 

the trial court here instructed the jury to disregard Officer Thompson’s unsolicited 

remark that he could not recall the accident “because to me it would have been an 

 

4 Brodie v. Phila. Transp. Co., 203 A.2d 657 (Pa. 1964); Smith v. Clark, 190 A.2d 441 

(Pa. 1963); Johnson v. Peoples Cab Co., 126 A.2d 720 (Pa. 1956); Davis v. White, 156 A.3d 1261 

(Pa. Super. 2017); Reed v. Hutchinson, 480 A.2d 1096 (Pa. Super. 1984); Lesher v. Henning, 449 

A.2d 32 (Pa. Super. 1982); Kelly v. Buckley, 421 A.2d 759 (Pa. Super. 1980); Andrews v. Jackson, 

235 A.2d 452 (Pa. Super. 1967); Anderson v. Russell, 33 Pa. D. & C. 3d 308, 311-12 (C.P. 

Cumberland 1983).
36

insignificant accident as indicated at [sic] non-reportable so I --” N.T. at 171, 172. 

It is well-settled that a jury is presumed to follow the court’s instructions. Paves v. 

Corson, 801 A.2d 546 (Pa. 2002).

Of further note, Rox Coal is distinguishable because in that case our 

Supreme Court excluded a police accident report where, among other things, neither 

of the parties “ever called the State Trooper who authored the report as a witness.” 

Id. at 914. Here, Officer Thompson testified and was subject to cross-examination.

For these reasons, no error is apparent in the trial court’s rulings 

concerning Officer Thompson’s testimony.

B. Michael Berkovitz

1. Contentions

Plaintiff next argues the trial court committed reversible error in 

allowing Berkovitz, Defendants’ accident reconstruction expert, to testify, despite 

objections and denials of motions in limine and a Frye motion, when Berkovitz failed 

to provide the required proofs for his opinions. Plaintiff asserts Berkovitz could not 

have been properly qualified to testify when he did not provide the required 

competent evidence to support his conclusions. Additionally, Plaintiff contends the 

trial court allowed Berkovitz to offer opinions and conclusions based on the 

impermissible testimony and opinions of Officer Thompson. Plaintiff argues that, 

in failing to grant her Frye motion or her motion in limine, the trial court failed to 

provide Plaintiff with the opportunity to disqualify Berkovitz, not in open court, and 

allowed Berkovitz to provide all of his opinions, including opinions beyond the 

scope of his expertise, thus tainting the jury.
37

Plaintiff contends an expert may not testify as to his opinions if that 

expert cannot provide proof of such opinions. Plaintiff argues her objections to 

Berkovitz’s testimony should have been sustained as it was highly prejudicial to 

allow Berkovitz to testify as to forces involved in the accident and as to debris, when 

he had no supporting evidence and his conclusions were merely speculation rather 

than based on evidence either within or beyond the record. Rather, all of Berkovitz’s 

testimony stemmed from the inadmissible hearsay testimony of Officer Thompson.

Plaintiff further argues Berkovitz is not a medical doctor, yet he was 

allowed to provide opinion testimony as to the movement of the body and what kind 

of injury Plaintiff would have sustained. Plaintiff asserts Berkovitz’s background 

did not provide any of the requisite expertise to provide testimony as to whether 

Plaintiff suffered injury in this accident. He was not proffered as a medical expert, 

yet he was allowed to testify as to an injury or lack thereof. Plaintiff contends it was 

highly prejudicial to allow Berkovitz to testify when he testified as to an area of 

expertise outside his field.

Further, Plaintiff argues, Berkovitz had no degrees or requisite 

qualifications in biomechanical engineering and should not have been qualified to 

give such testimony, especially in light of the fact that he provided no basis for his 

opinions. Plaintiff asserts that Pennsylvania Rule of Evidence 705 requires an expert 

to state the facts or data on which his opinion is based. She contends Pennsylvania 

courts interpret this Rule to require disclosure of the facts and data underlying an 

expert’s opinion so a jury can properly serve as fact-finder. See Hansen v. Wyeth, 
38

Inc., Nos. 1063 DEC. TERM 2002, 1207 DEC. TERM 2002, 1202 DEC. TERM 

2002 (C.P. Phila. Oct. 10, 2005), 2005 WL 3068256; see also Lewis v. Philly Car 

Share, Inc., Nos. 100301088, 01119 (C.P. Phila. July 23, 2013), 2013 WL 4502733.

Here, Plaintiff contends Berkovitz conceded he had no calculations to 

support his conclusions of the forces involved in the accident. N.T., 6/16/16, at 201. 

Plaintiff argues this testimony was the basis of her motions in limine and objections. 

Because the trial court denied her motions in limine and overruled her objections, 

Plaintiff maintains, she was only left with attempting to diminish the witness; 

however, the prejudice was already too great.

Plaintiff further argues Berkovitz’s conclusion that the forces from the 

minor impact to the sheet metal of Plaintiff’s vehicle would not have been 

transmitted to Plaintiff’s driver side was borne of a novel and unreliable 

methodology that is not generally accepted. See Grady v. Frito Lay, 839 A.2d 1038 

(Pa. 2003). Additionally, she asserts Berkovitz’s lack of scientific methodology is 

borne out by his failure to review or acknowledge the extensive damage to Plaintiff’s 

vehicle, which did not involve solely the right front fender. Plaintiff contends the

lack of full disclosure as to property damage is not a method of analysis accepted in 

the scientific community.

Plaintiff further argues Berkovitz took evidence out of context, only 

reviewing photographs of Plaintiff’s vehicle as proof of his conclusions. She asserts 

Berkovitz never reviewed the actual damage repair log, which revealed the damage 

was much greater than simply the outer shell of the right front fender. Plaintiff 

contends Berkovitz did not cite the weights of the vehicles or the angles of impact. 
39

Rather, he selectively chose from incomplete evidence and failed to account for 

Gura’s testimony, accepting evidence that favored his hypothesis and discarding 

other evidence that belied his overarching conclusion that Plaintiff caused the 

accident. Plaintiff maintains this approach differs from the “scientific method in 

proceeding from hypothesis through scientific proof in support of his conclusions.” 

Betz v. Pneumo Abex, LLC, 44 A.3d 27, 31 (Pa. 2012).

Further, Plaintiff contends, calculating Delta-V, which Berkovitz cites 

without proof, is a complex process requiring consideration of numerous variables, 

none of which Berkovitz accounted for in reaching his conclusions. Plaintiff argues 

Berkovitz needed to provide a foundation to quantify his results, yet he did not 

provide a damage profile, data from crash tests, stiffness characteristics, weight of 

the vehicles or other necessary information, all of which are factors an expert must 

use to reach a conclusion.

Plaintiff also contends the trial court erred in allowing Berkovitz to 

testify directly from an inadmissible document, the police report, and in allowing 

Berkovitz to render an opinion as to debris that was based on mere speculation. 

Plaintiff argues the report did not contain a scintilla of evidence of what the debris 

was or if it was from this accident. Plaintiff asserts Berkovitz, relying solely on 

Officer Thompson’s inadmissible evidence had no facts, other than the hearsay 

police report, for his conclusions on debris and impact points. Plaintiff maintains 

there are no record facts supporting Berkovitz’s conclusion that the debris was from 

either vehicle, and he did not observe the debris. Plaintiff contends Berkovitz’s 

testimony should have been excluded. She argues it was highly prejudicial for 
40

Berkovitz, who was allowed to testify as an expert, to speculate as to what the debris 

was, where he admitted at trial he did not know what it was and when he prepared 

his expert report he had no information about the debris.

2. Analysis

Upon review, we discern no error in the trial court’s rulings concerning 

Berkovitz’s testimony. First, as to Plaintiff’s claim that the trial court erred in failing 

to hold a Frye hearing, our review of the record confirms the trial court’s 

determination that, through her “Motion in Limine to Exclude the Testimony of 

Michael Berkovitz Because It Fails to Meet the Frye Test” (filed less than a week 

before trial), Plaintiff did not request a hearing. R.R. at 55-57. Rather, Plaintiff 

requested that the trial court preclude Berkovitz’s testimony based on the averments 

set forth in the motion. Id. In the absence of a request for a hearing, no error is 

apparent in the trial court’s failure to conduct a Frye hearing here.

In addition, the issue of whether a particular witness qualifies as an 

expert is a matter within the discretion of the trial court. Ruzzi v. Butler Petroleum 

Co., 588 A.2d 1 (Pa. 1991). A decision on competency of an expert will not be 

reversed on appeal absent a clear abuse of discretion. Id. Further, in reviewing the 

trial court’s exercise of its discretion, we are mindful that Pennsylvania law 

“imposes a liberal standard for qualification of an expert, allowing a witness to 

testify as an expert if he has any reasonable pretension of specialized knowledge on 

the subject under investigation.” Rigler v. Treen, 660 A.2d 111, 116 (Pa. Super. 

1995) (citation omitted). “Although the witness must demonstrate some special 

knowledge or skill, there is no requirement that a witness acquire that knowledge as 

a result of formal schooling; expertise acquired by experience is expertise 
41

nonetheless.” James v. Albert Einstein Med. Ctr., 170 A.3d 1156, 1162 (Pa. Super. 

2017) (citation and emphasis omitted).

At trial here, Defendants established that Berkovitz, who holds a 

Bachelor of Science degree in civil engineering, worked in the field of accident 

reconstruction for 33 years. R.R. at 602-04. Berkovitz testified he possessed 

significant experience and education in accident reconstruction and causation, 

occupant kinematics (the way in which people move inside of a vehicle), and 

biomechanical engineering, and he testified to these matters over 100 times in 

various courts. R.R. at 605-06. The trial court accepted Berkovitz as an expert in 

the fields of accident reconstruction and biomechanical engineering over Plaintiff’s 

objection. R.R. at 607. No abuse of discretion is apparent in that ruling. Indeed, 

Berkovitz’s qualifications and experience clearly establish his competency.

Nevertheless, Plaintiff asserts Berkovitz did not disclose the 

calculations underlying his opinions in violation of Pennsylvania Rule of Evidence 

705. That Rule states: “If an expert states an opinion the expert must state the facts 

or data on which the opinion is based.” Id. “[E]xpert opinion testimony is proper if 

the facts upon which it is based are of record.” Harris, 106 A.3d at 188 (quoting 

Commonwealth v. Rounds, 542 A.2d 997, 999 (Pa. 1988)).

Here, Berkovitz testified that, in formulating his opinion, he reviewed 

the police accident report, photographs of the accident scene, photographs of the 

vehicles, performed an inspection of Gura’s vehicle, examined the specifications of 

Plaintiff’s vehicle, reviewed both Plaintiff’s deposition and Gura’s deposition, and 
42

Plaintiff’s medical records. R.R. at 608-09. Berkovitz also conducted a site visit of 

the accident scene. R.R. at 608. He noted that the existence of debris in the right 

lane of travel as documented in Officer Thompson’s police accident report was 

significant. R.R. at 609. More particularly, he testified:

Debris in a low speed collision and this was a low speed 

collision because [Plaintiff] stated in her deposition that 

she was stopped and [Gura] said that he -- the light 

changed and he just had started up. So, it’s a low speed 

collision and low speed collisions the vehicles come 

together the dirt that’s under the fenders or the dirt’s [sic] 

that’s in the undercarriage of the vehicle will drop down 

onto the roadway. So, if there is debris that was located in 

the right lane, it means the two vehicles came together in 

the right lane of travel.

Id. Berkovitz opined that the existence of debris in the right lane of travel indicated 

that the right side of Plaintiff’s vehicle came into the right lane of travel where 

Gura’s truck was situated and the impact occurred in the right lane. R.R. at 610. 

Additionally, he explained that the traffic accident investigation manual he used, 

published by the Northwestern University Traffic Institute, indicated that in some 

low speed collisions debris may be the only indicator of the area of impact. R.R. at 

630. Thus, Berkovitz provided the facts upon which he based his ultimate opinion 

that the right side of Plaintiff’s vehicle came into Gura’s lane of travel, and the 

collision occurred in Gura’s lane. R.R. at 610.

In addition, Berkovitz opined that the accident would not have caused 

an injury to Plaintiff, stating:

There shouldn’t have been any forces involved. The 

vehicle itself the frame absorbs the forces in a collision. 

[Plaintiff] [is] sitting approximately six feet from the 
43

impact point. The frame of the vehicle since it’s such a 

low speed collision would have absorbed the energy from 

the collision and would not have been transmitted into the 

passenger compartment or in this instance the driver’s seat 

of the passenger’s compartment. ...

The Delta-v[5] or the change in velocity due to the impact 

or the collision would have been so low the forces should 

not have come across into her passenger seating area.

R.R. at 611. Moreover, when questioned regarding the lack of calculations in his 

report as to the forces involved, Berkovitz stated, “[t]here’s no forces involved in a 

sideswipe type accident.” R.R. at 621.6

In addition, contrary to Plaintiff’s assertions, Berkovitz testified that he 

did, in fact, reference, but did not rely upon, the repair report for Plaintiff’s vehicle, 

and he explained the reasons why accident reconstruction experts do not rely on 

repair records in formulating their opinions. R.R. at 625.

 

5 On cross-examination, Berkovitz further explained that Delta-v is

[t]he change in velocity. Example is a football team runs out 

and it's the beginning of the game and they run through the crepe 

paper banner. They’re running at 10 miles an hour. They go through 

it. They knock it down. Their velocity is still 10 miles an hour. The 

change of velocity is zero. But if they run out onto the field and hit 

a brick wall at 10 miles an hour, their velocity change is 10 because 

they’re going to stop. Delta-v is the calculation of the change in the 

forces of the vehicle and what the vehicle would have undergone.

R.R. at 621.

6

“[T]he Frye court recognized that the essence of admissibility is general acceptance,” by 

the scientific community, of the principles and methodology employed by the expert. Trach v. 

Fellin, 817 A.2d 1102, 1110 (Pa. Super. 2003). The Frye test is employed by courts to ensure that 

novel scientific evidence has obtained acceptance in the scientific community. Id. However, “a 

Frye analysis is not triggered every time science enters the courtroom; it only applies when an 

expert seeks to introduce novel scientific evidence.” Commonwealth v. Dengler, 843 A.2d 1241, 

1243 (Pa. Super. 2004). Here, there is simply no indication that Berkovitz sought to introduce 

novel scientific evidence or that the methodology underlying Berkovitz’s opinions and conclusions 

lacked general acceptance in the scientific community.
44

Further, Plaintiff’s assertions that Berkovitz improperly relied on 

Officer Thompson’s accident report (and specifically its reference to debris in the 

right lane) in formulating his opinion lacks merit. An expert is permitted to 

reasonably rely on a police accident report in reconstructing the accident pursuant to 

Pennsylvania Rule of Evidence 703. Harris. Rule 703 states:

An expert may base an opinion on facts or data in the case 

that the expert has been made aware of or personally 

observed. If experts in the particular field would 

reasonably rely on those kinds of facts or data in forming 

an opinion on the subject, they need not be admissible for 

the opinion to be admitted.

Id.

Thus, as the trial court correctly observed, “[e]ven if evidence used by 

the expert may not itself be admissible, it can be used to support an expert’s opinion.” 

Tr. Ct., Slip Op., at 30. Moreover, as set forth above, Officer Thompson’s reference 

to his observation of debris in the right lane, was admissible as a recorded 

recollection under Pennsylvania Rule of Evidence 803.1(3).

Finally, the remainder of Plaintiff’s assertions on this point attack the 

weight to be afforded Berkovitz’s testimony, not its competency. However, factual 

determinations and issues of credibility of witnesses are left to the jury as fact-finder. 

Douglass v. Licciardi Constr. Co., Inc., 562 A.2d 913 (Pa. Super. 1989). As such, 

the jury was free to believe all, some or none of Berkovitz’s testimony. Id.
45

For these reasons, we discern no error or abuse of discretion in the trial 

court’s admission of Berkovitz’s testimony.

C. Dr. Karl Rosenfeld

1. Contentions

Plaintiff also contends the trial court erred in allowing Dr. Rosenfeld to 

testify when he was not properly qualified to offer a medical opinion as to the 

causality of Plaintiff’s cervical fusion surgery, where he admitted he never 

performed such surgery in his entire career. Plaintiff also asserts she was suffering 

from neurological issues, and Dr. Rosenfeld was not a neurologist or neurosurgeon, 

only an orthopedist.

Plaintiff contends that, as an expert with no personal knowledge, 

because he never performed cervical fusion surgery, Dr. Rosenfeld should have been 

disqualified from providing his opinions as to the necessity of such surgery. 

Dambacher ex rel. Dambacher v. Mallis, 485 A.2d 408, 418 (Pa. Super. 1984) (“It 

may appear that the scope of the witness’s experience and education may embrace 

the subject in question in a general way, but the subject may be so specialized that 

even so, the witness will not be qualified to testify.”); see Kovalev v. Sowell, 839 

A.2d 359 (Pa. Super. 2003) (doctor with general medical training unqualified to 

testify about orthopedic injuries); Yacoub v. Lehigh Valley Med. Assocs., 805 A.2d 

579 (Pa. Super. 2002) (plaintiff did not show neurosurgeon was qualified to render 

expert opinion about standard of care appropriate to internal medicine or special unit 

care nursing); Dierolf v. Slade, 581 A.2d 649 (Pa. Super. 1990) (orthodontist lacked 

training and experience necessary to present expert testimony regarding oral 

surgery); McDaniel v. Merck, Sharp, & Dohme, 533 A.2d 436 (Pa. Super. 1987) 
46

(expert in anesthetic drugs lacked training and experience to testify about whether 

use of antibiotic caused death).

In addition, Plaintiff asserts, Dr. Rosenfeld was allowed to testify to a 

supplemental report he issued based on Berkovitz’s inadmissible testimony. 

Plaintiff maintains Berkovitz’s report was based on facts not of record, inadmissible 

evidence, and conclusions lacking a proper basis.

Plaintiff also argues, although the trial court’s opinion states there were 

no objections to Dr. Rosenfeld’s testimony, the transcript of Dr. Rosenfeld’s 

testimony reveals Plaintiff made numerous objections, which the trial court 

overruled.

2. Analysis

In light of the jury’s verdict that Gura was not negligent and our 

analyses set forth above, it is unnecessary to reach this issue as it relates solely to 

the purported injuries Plaintiff suffered, and the jury did not reach issues of causation 

or damages. Indeed, evidentiary rulings that did not affect the verdict will not 

provide a basis for disturbing the jury’s judgment. Detterline v. D’Ambrosio’s 

Dodge, Inc., 763 A.2d 935, 938 (Pa. Super. 2000).

D. Weight of the Evidence

1. Contentions

As a final issue, Plaintiff maintains the trial court erred in not granting 

a new trial when the verdict was against the weight of the evidence. Specifically, 
47

she contends a new trial should be granted as there was no testimony to refute her

testimony that she was stopped at the time of the accident and that Gura caused the 

accident. Plaintiff argues there were no facts to support the jury’s verdict that Gura 

was not at fault. Plaintiff asserts Gura admitted he never saw her at any time before 

the impact; rather, he did not see her until he felt the impact, and he admitted he 

looked in his mirror prior to making his turn. Plaintiff argues the driver of a vehicle 

cannot claim to have looked when he failed to see what the physical facts declare he 

should have seen. Ditz v. Marshall, 393 A.2d 701 (Pa. Super. 1978); Hoover v. 

Sackett, 292 A.2d 461 (Pa. Super. 1972).

2. Analysis

Again, we reject Plaintiff’s assertions. A new trial based on weight of 

the evidence issues will not be granted unless the verdict is so contrary to the 

evidence as to shock one’s sense of justice; a mere conflict in testimony will not 

suffice as grounds for a new trial. Elliott v. Ionta, 869 A.2d 502, 504 (Pa. Super. 

2005). Upon review, the test is not whether this Court would have reached the same 

result on the evidence presented, but rather after due consideration of the evidence 

found credible by the jury, and viewing the evidence in the light most favorable to 

the verdict winner, whether the court could reasonably have reached its conclusion. 

Id. “It is not the role of an appellate court to pass on the credibility of witnesses or 

to act as the trier of fact, and an appellate court will not substitute its judgement [sic] 

for that of the fact-finder.” Vattimo v. Eaborn Truck Serv., Inc., 777 A.2d 1163, 

1165 (Pa. Super. 2001).
48

Further,

[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.

Haan v. Wells, 103 A.3d 60, 70 (Pa. Super. 2014) (citations omitted).

Here, as the trial court aptly explained (with emphasis added):

[T]he jury found that no one was at fault or negligent in 

this accident. The [trial court’s] exhaustive review of the 

entirety of the evidence submitted in this case by both 

sides evinces that [Plaintiff] never met her burden of 

showing by a preponderance thereof that she was entitled 

to a decision in her favor.

[Plaintiff] was never able to definitively describe 

how the accident happened, and [Gura], vehemently 

refuted her claim that he had swung the truck far to the left 

to make his turn to the right. [Gura] testified that, while 

approaching the intersection he felt, and did not hear, a 

‘thump’ to the side of the truck. Plaintiff’s assertion of 

sitting in the center lane at the intersection of Chester Pike 

and Ashland Avenue was further contradicted by 

admissible evidence from [Officer] Thompson and 

[Berkovitz] as to the presence of ‘debris’ in the right lane 

that allowed for the circumstantially permissible inference 

that Plaintiff’s vehicle had entered the right lane and struck 

the truck. This Court may not take on the role of the jury 
49

in evaluating any of its credibility determinations that may 

have been weighted against [Plaintiff] in that regard, nor 

will it attempt to do so now with regard to the question as 

to whether anyone involved in this accident was at fault. 

Suffice it to say that the jury’s common sense led it to 

question and reject the many discrepancies between what 

a reasonable plaintiff would do under these conditions 

compared with those actions that were actually carried out. 

Moreover, the law is longstanding in this Commonwealth 

that the mere happening of an accident raises no 

presumption that negligence was involved. [Mitchell].

Tr. Ct., Slip Op., at 33.

The record supports the jury’s verdict that Plaintiff did not prove Gura 

was negligent here. To that end, while Plaintiff claimed Gura struck her vehicle as 

he swung to the left to make a wide right turn, N.T., 6/15/16, at 109, Gura denied 

doing so. N.T., 6/16/16, at 141. And, on cross-examination, Plaintiff was unable to 

clearly explain how Gura’s truck came into contact with her vehicle. Id. at 24-25, 

33-34, 37. Further, testimony regarding the existence of debris in the right lane, 

discussed more fully above, allowed for a finding that Plaintiff’s vehicle and Gura’s 

truck collided in the right lane where Gura’s truck was situated when Plaintiff’s 

vehicle entered that lane. Clearly, the jury’s verdict here is “not so contrary to the 

evidence that it shocks one’s sense of justice, nor renders the award of a new trial 

imperative so that right may be given another opportunity to prevail.” Tr. Ct., Slip 

Op., at 34-35.

IV. Conclusion
50

For all the foregoing reasons, we affirm.

 

ROBERT SIMPSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Constance Worley and :

Leonard Worley, H/W, :

Appellants : No. 2111 C.D. 2016

:

v. :

:

County of Delaware and Michael Gura :

O R D E R

AND NOW, this 28th day of November, 2017, the order of the Court of 

Common Pleas of Delaware County is AFFIRMED.

 

ROBERT SIMPSON, Judge