J-A04039-15

* Retired Senior Judge assigned to the Superior Cou rt. NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37 BETHANY L. NOTARO, Appellant

v. WILLIAM C. PFAFFLE, Appellee : : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1060 WDA 2014 Appeal from the Judgment Entered June 27, 2014, in the Court of Common Pleas of Allegheny County, Civil Division at No(s): AR 12-002473 BEFORE: BOWES, OLSON, and STRASSBURGER,* JJ. MEMORANDUM BY STRASSBURGER, J.: FILED APRIL 02, 2015 Bethany L. Notaro (Notaro) appeals from a judgment entered after a jury awarded her no damages in a car accident case. We affirm. Notaro was stopped in her vehicle, waiting to merg e into traffic, when a vehicle driven by William C. Pfaffle (Pfaffle) re ar-ended her. Notaro filed a complaint against Pfaffle wherein she claimed that Pfaffle caused the accident and that she suffered injuries as a result of the accident. At the jury trial, Pfaffle conceded that his negligence ca used the accident. The jury found that Pfaffle’s negligence was a factual cause in bringing about harm to Notaro; however, the jury did not award Notaro any damages. Notaro timely filed a post-trial motion wherein sh e sought a new trial based upon a claim that the verdict was contrary to the weight of theJ-A04039-15

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evidence presented at trial. The trial court denie d the motion, and a judgment was entered. Notaro timely filed a notice of appeal. The trial court did not order her to comply with Pa.R.A.P. 1925(b), but the court did issue an opinion in support of its decision to deny the post-trial moti on. In her brief to this Court, Notaro asks us to consider this question:

Whether the trial court committed a clear abuse of discretion in denying [Notaro’s] post-trial motion in a case wher e the jury verdict was against the weight of the evidence, bor e no reasonable relationship to the evidence and created an inconsistent verdict where negligence [was] admitte d and causation [was] found by the jury[?]

Notaro’s Brief at 4. Appellate review of weight of the evidence claims i s limited. It is well-settled that: [a]ppellate review of a weight claim is a review of the [trial court’s] exercise of discretion, not of the underly ing question of whether the verdict is against the weig ht of the evidence. Because the trial judge has had the oppo rtunity to hear and see the evidence presented, an appellat e 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 t he weight of the evidence. One of the least assailable reaso ns 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. In re Estate of Smaling , 80 A.3d 485, 490 (Pa. Super. 2013) (citation omitted).J-A04039-15

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Notaro claims that the trial court erred by denyin g her post-trial motion for a new trial. According to Notaro, the j ury’s verdict was contrary to the weight of the evidence because the jury did not award her damages despite the facts that: Pfaffle conceded that he ca used the accident; the jury found that Pfaffle’s negligence was a factual cause of harm to Notaro; and Notaro presented the jury with “uncontested evidenc e of injuries[.]”

Notaro’s Brief at 12. In support of her argument, Notaro relies heavily on a case she captions as “Anastasi v. Old Forge Borough.” Notar o’s Brief at 12-16. Notaro does not provide a citation to this case. N otaro attached the case to her post-trial motion. Based upon our review of th at attachment, it appears

that Anastasi

is an unreported, non-precedential memorandum opin ion of the Commonwealth Court. We further observe that, e ven if the Commonwealth Court would have published Anastasi , “decisions rendered by the Commonwealth Court are not binding on this C ourt.” Beaston v.

Ebersole , 986 A.2d 876, 881 (Pa. Super. 2009). Because Anastasi is of no precedential value, it provides no basis upon which to grant relief to Notaro. Notaro also contends that our Supreme Court’s decis ion in Neison v.

Hines , 653 A.2d 634 (Pa. 1995), supports her claim that the trial court erred by denying her post-trial motion for a new tr ial. We disagree. While driving a pickup truck, Hines rear-ended an automobile driven by Neison. Hines admitted liability at trial; the jury was asked to determineJ-A04039-15

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how much in damages Hines should pay Neison. The j ury awarded no damages to Neison. Neison filed a post-trial motio n seeking a new trial based upon a claim that the verdict was contrary to the weight of the evidence presented at trial. The trial court grant ed the motion; however, this Court reversed that decision on appeal. The Supreme Court granted Neison’s petition for all owance of appeal and ultimately reversed this Court’s decision. The Supreme Court explained, in part, as follows.

In the instant case, uncontroverted evidence establ ishes that Neison was involved in a violent automobile ac cident caused by Hines, and due to her negligence, which was conc eded at trial. The accident caused Ms. Neison’s head to s hatter the rear window of the car. The impact produced trauma in t he form of a large lump on the back of Neison’s head. As a resu lt of the collision, the rear end of Ms. Neison’s car had bee n “wiped out” and the car looked like “an accordion.” Her car wa s struck with such force that the glasses which Neison was wearin g prior to the accident were found by a volunteer firemen on t he trunk of the vehicle. In fact, the force of the collision c aused the trunk to crack and split. The record also shows that Ms. Ne ison went immediately to the hospital for treatment of the he ad injury. She returned two days later complaining of neck and shoulder pain, and was told that the pain was a natural resu lt of the type of injury that she had sustained. Because of her c ontinuing pain, she consulted a specialist, Dr. Lee, who, aft er examination diagnosed her as having post-traumatic myofascitis pain syndrome in the neck and scapula, cervical sprain s yndrome, and a herniated disk. Dr. Lucas also testified tha t he examined Neison, and that she suffered from fibromyalgia, or inflammation of the muscle tissue, and cervical strain. He then opined that her condition was directly caused by her automobile accident. [Hines’] expert, Dr. Mitchell, testified that Ms. N eison “exhibited a diagnosis of a healed neck sprain and a healed sc apular or shoulder blade sprain.” He further testified that recovery from soft tissue damage such as Ms. Neison’s usually occ urs in three to five months. Thus, the uncontested evidence amp lyJ-A04039-15

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demonstrates that Ms. Neison was involved in a viol ent automobile accident and suffered from soft tissue i njuries, a cervical sprain, and a herniated disk. In light of this uncontroverted evidence, we cannot find that the trial court abused its discretion in order ing a new trial. Common sense dictates that a collision of this seve rity caused by the negligence of another would lead to severe and painful injuries, although the evidence offered at trial le ft room for disagreement as to whether the pain resulting from Ms. Neison’s injuries was as severe as she claimed or whether th e accident was in fact causative. However, the jury’s decisio n to find for Hines and award no damages for pain and suffering b ears no rational relationship to the evidence produced at t rial. The jury’s decision to disbelieve all the evidence presented d uring the trial defies common sense and is indeed shocking.

Neison , 553 A.2d at 637-38 (citations and footnote omitte d). As to this case, the trial court summarized the evi dence presented at

trial as follows. 1

The jury in the instant case could have found the f ollowing facts by a preponderance of the evidence. On July 11, 2010, [Notaro] was stopped at an entrance ramp to a highw ay. There was a passenger in [her] vehicle, a large SUV hatch back. [Notaro] was wearing her seat belt and her hands we re on the steering wheel. [Pfaffle’s] vehicle was stopped ab out a half of a car length behind [Notaro]. After observing a break in the traffic, [Pfaffle] a ssumed [Notaro] was merging onto the highway. But when [P faffle] looked back he discovered [Notaro] had stopped. Alt hough he applied his brakes, [Pfaffle] could not avoid the c rash. [Pfaffle] was travelling three to five miles per hour at impa ct. His airbag did not deploy and he was not injured. [Notaro] never lost consciousness. Her head struck nothing in the vehicle and she was not cut or bleed ing. Her air bag did not deploy and she exited her vehicle witho ut assistance.

1 We have reorganized the trial court’s opinion by b reaking it up into smaller paragraphs.J-A04039-15

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[Notaro] did not complain to [Pfaffle] of any injur ies. [Notaro]’s vehicle sustained a broken taillight and scratched bumper. There was no testimony of record that [Pfaffle]’s v ehicle was damaged. At the scene [Notaro] declined to be taken for medi cal treatment. She and her passenger continued on to t heir original destination, a garden store. [Notaro] did not see her primary care physician (PCP), Dr. Santiago, until four days after the accident. She complained of pain “in the right sid e of [her] shoulder, going up to [her] head and in [her] neck, going down [her] arm, but not very far, and then in [her] left shoulder blade and upper back and a little bit into [her] right sh oulder blade.” [Notaro] testified of swelling in her face and lock ing of her jaw, symptoms she associated with TMJ (temporomandibular joint disorder), for which she had previously treated wit h an orthodontist. At her deposition she stated the loc kjaw, swelling and head pain, symptoms of TMJ, were the same befor e and after the accident. X-rays failed to reveal any br oken bones. Dr. Santiago prescribed a muscle relaxer and streng thening exercises. [Notaro] did not miss any work as a result of this accident. Although she testified she had trouble doing things with/for her young daughter, she also testified she “didn't like feeling dopey on medication,” and did not use it because she “was n't able to function in all of the things that [she] had to do. ” Other than activities related to her daughter, [Notaro] did no t testify as to specific activities in which she was unable to enga ge. No further medical treatment was sought until Novem ber 18, 2010, when [Notaro] was seen by Dr. Puri, a PCP who prescribed a different muscle relaxer. [Notaro] re turned on December 6, 2010, for a prescription refill. Altho ugh Dr. Puri suggested physical therapy, [Notaro] attended only one session. [Notaro] had begun treating for TMJ with her orthod ontist, Dr. Purvis, in October or November of 2009. At tha t time her symptoms included locking of her jaw and soreness o f her face that extended to her ear. [Notaro] returned to Dr. Purvis two to four times after the accident. On November 30, 201 1, Dr. Purvis authored a letter wherein he reported seeing [Notar o] after the accident, but noted that the “treatment was not dir ected toward the resolution of any problems associated with rece nt trauma”J-A04039-15

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and opined that he “doubted that any information [h e] could provide ... would have any correlation to [Notaro’s ] accident.” Trial Court Opinion, 8/6/2014, at 5-7 (citations an d footnotes omitted). The court offered the following analysis in suppor t of its decision to deny Notaro’s post-trial motion for a new trial.

At trial, [Notaro]’s counsel conceded that if the j ury found [Notaro]’s injuries to be de minimus , it would not have to award any damages. All of [Notaro]’s complaints were sub jective. She presented no witnesses, such as her passenger, to c orroborate her claims. [Notaro]’s two office visits to Dr. Pu ri were essentially related to medication. Neither party p resented a doctor or a video deposition at trial. Each side r eferred to excerpts from [Notaro]’s medical records. [Notaro] chose to forego physical therapy. The jury could have found [Notaro]’s alleged symptoms were controlled by medication and, therefore, insignificant. Even though I would have awarded damages had this c ase proceeded non-jury, the jury’s verdict did not shoc k my conscience. Moreover, the jury’s finding that any injuries were so minor as to not warrant compensation did not def y common sense or logic. The verdict was not against the we ight of the evidence. l also disagree with [Notaro]’s argument that the v erdict was inconsistent. “[A] claim of verdict inconsiste ncy is not the same complaint as a claim sounding in evidentiary w eight. A verdict may be perfectly consistent and yet be a sh ock to the losing party, as well as a shock to the conscience of the jurist who oversaw the presentation of evidence.” Criswell v. King , 834 A.2d 505 (Pa. 2003). A true case of verdict in consistency can be found in City of Philadelphia v. Grey , 633 A.2d 1090 (1993). There the jury answered “no” to a question asking whether a defendant driver was casually negligent, but assigned 25% causal negligence to the same driver in a subse quent answer. In the case at bar, the jury found some in jury caused by [Pfaffle]’s negligence, but believed it was not compensable. Trial Court Opinion, 8/6/2014, at 7-8.J-A04039-15

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We can discern no error in the trial court’s ration ale. Unlike the

circumstances in Nieson , this case did not involve a violent collision whi ch would necessarily and obviously cause a compensable injury. Rather, this case involved a relatively minor accident and Notar o’s subjective claims of injuries and related pain. As this Court has explained, [t]he existence of compensable pain is[] an issue o f credibility and juries must believe that plaintiffs suffered pa in before they compensate for that pain. A jury is not required t o award a plaintiff any amount of money if it believes that t he injury plaintiff has suffered in an accident is insignific ant. “Insignificant” means the jury could have concluded that any injury plaintiff suffered did not result in compens able pain and suffering. While a jury may conclude that a plaint iff has suffered some painful inconvenience for a few days or weeks after the accident, it may also conclude that the discomfort was the sort of transient rub of life for which compensation is not warranted.

Lombardo v. DeLeon , 828 A.2d 372, 375 (Pa. Super. 2003) (citations an d some quotation marks omitted). Here, the jury’s verdict slip indicates that they c oncluded that Pfaffle’s negligence caused harm to Notaro and that harm was insignificant and unworthy of compensation. The jury’s determination was consistent with the record and the law. For these reasons, we conclude that the trial court did

not abuse its discretion or commit an error of law by denying Notaro’s posttrial motion for a new trial. Consequently, we aff irm the judgment. Judgment affirmed.J-A04039-15

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/2/2015