J-A01013-16

2016 PA Super 44

*Former Justice specially assigned to the Superior Court.

FRANCES GOLD, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

TERRI ROSEN AND S. ROSEN,

Appellee No. 3308 EDA 2014

Appeal from the Judgment Entered December 22, 2014

In the Court of Common Pleas of Montgomery County

Civil Division at No(s): 2007-18576

BEFORE: LAZARUS, J., OTT, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.: FILED FEBRUARY 19, 2016

Appellant Frances Gold (hereinafter “Gold”) appeals from the 

December 22, 2014, judgment entered in the Court of Common Pleas of 

Montgomery County by the Honorable Carolyn Tornetta Carluccio after a jury 

awarded Gold no monetary damages in a car accident case.1 For the 

reasons set forth herein, we affirm. 

____________________________________________

1 We note that Gold purports to appeal from the interlocutory order entered 

on November 7, 2014, denying her motion for a new trial. To the contrary, 

an appeal properly lies from the entry of judgment, not from the denial of 

post-trial motions. See Pa.R.A.P. 301(a)(1), (c), (d); Hall v. Jackson, 788 

A.2d 390, 404 n.1 (Pa.Super. 2001). Herein, the docket entries may have 

created some confusion, for the entry for an Order on November 13, 2014, 

indicates “this order/judgment was docketed and sent on November 14, 

2014, pursuant to Pa.R.C.P. 236” (emphasis added). However, the 

Prothonotary entered a Judgment Verdict on December 22, 2014, in an 

amount of $0.00 and with a notation that notice had been sent pursuant to 

Pa.R.C.P. 236. As such, the trial court's first order was not an appealable 

(Footnote Continued Next Page)
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On April 23, 2004, Gold was involved in a motor vehicle accident. As a 

result, Gold suffered headaches, visual difficulties, dizziness, nausea, back 

pain, and neck pain for which she received medical treatment and physical 

therapy. Gold was released from physical therapy in June of 2005. 

Approximately six weeks thereafter, on August 2, 2005, Gold was stopped at 

a red light when Appellees’ vehicle driven by Appellee Terri Rosen rearended her.2

On August 1, 2007, Gold initiated suit by way of writ of summons 

against Appellees and on August 11, 2009, filed a complaint against 

Appellees claiming Rosen caused the August 2, 2005, motor vehicle accident 

and that she sustained injuries as a result of the accident. The matter 

proceeded to arbitration on August 20, 2013, and on that date the 

arbitrators awarded Gold $25,000 in damages. Appellees filed an appeal 

from the arbitration award on September 12, 2013. 

(Footnote Continued) _______________________

order under the Pennsylvania Rules of Appellate Procedure and the 

Pennsylvania Rules of Civil Procedure. Since judgment properly has been 

entered, we will consider the merits of this appeal and have corrected the 

appeal paragraph accordingly. Bonavitacola v. Cluver, 619 A.2d 1363, 

1366-67 (Pa.Super. 1993). 

2 Appellee S. Rosen was also named as a defendant in the underlying action. 

As the negligence of defendant Terri Rosen was the focus of the trial, we will 

refer to Rosen individually and to S. Rosen and her collectively as 

“Appellees” herein. 
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On October 21, 2014, a jury trial commenced, and at trial, the parties 

submitted their expert testimony to the jury through expert reports.3 They 

also stipulated that Rosen had been negligent and that such negligence 

factually caused Gold to suffer a neck sprain/strain. Notwithstanding, 

Appellees contested the extent of the harm Gold had sustained to her neck 

and also disputed that the August 2, 2005, accident caused any of her other 

alleged injuries. That same day, the jury found that Rosen had been 

negligent and that her negligence was a factual cause of Gold’s neck 

sprain/strain; however, it awarded Gold no monetary damages for her neck 

sprain/strain. 

Gold timely filed a post-trial motion wherein she sought a new trial 

based upon a claim that the jury’s verdict shocked the conscience.4 The trial 

court denied the same on November 13, 2014, and Gold filed an appeal on 

November 17, 2014. Judgment was entered on December 22, 2014. 

Gold complied with Pa.R.A.P. 1925(b), and among the issues she 

raised in her concise statement was the following: 

____________________________________________

3

Prior to trial, Gold had filed an election under Pa.R.C.P. 1311.1 to limit her 

monetary recovery to $25,000 or less. Such election permitted her to 

submit the reports of various experts to the jury in lieu of their live 

testimony at trial on the issue of damages. 

4 While Gold did not use the phrase “weight of the evidence” in her Pa.R.A.P. 

1925(b) statement, her contention that the jury’s verdict shocks the 

conscience relates to the weight of the evidence presented at trial, as she 

indicates in her question presented in her appellate brief. 
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A second error committed by Judge Carluccio consisted of 

denying the motion for a new trial because the jury’s response to 

Question #3 constitutes a verdict that shocks the conscience. 

Question #3 states: 

QUESTION THREE: 

What amount of money damages, if any, do you award 

Plaintiff, Frances Gold, for her neck sprain and strain 

factually caused by the Defendant, Terri Rosen’s, 

negligence? 

Neck Sprain and strain: ___0___

Pa.R.A.P. 1925(b) Statement at ¶ 3. In her appellate brief, Gold presents 

the following issue for our review:

Did the trial court commit reversible error by denying the motion 

of [Appellant] for a new trial because the jury entered a verdict 

of $0, contrary to the weight of the evidence since both [Gold’s] 

expert, Steven Mandell, M.D. (“Dr. Mandell”) and [ ] [Rosen’s] 

[ ] expert, Lee Harris, M.D. (“Dr. Harris”) both found that 

damage had occurred as a result of the negligence of Rosen in 

operating her motor vehicle? The trial court held that the verdict 

was not against the weight of the evidence.5

____________________________________________

5 Appellees assert Gold’s appeal should be quashed for her failure to 

comply with Pa.R.A.P. 2154 entitled “Designation of Contents of 

Reproduced Record,” in that she did not timely file either a designation 

of the contents of her reproduced record or an election to defer 

production of the reproduced record. Instead, Gold filed her 

reproduced record on August 3, 2015, the same day she filed her 

notice of appeal. However, Appellees did not file a separate 

application for relief with this Court in accordance with Pa.R.A.P. 

123(a) and Pa.R.A.P. 1972. See Commonwealth v. Sohnleitner, 

884 A.2d 307, 312-13 (Pa.Super. 2005) (this Court will not consider 

whether an appellant violated Pa.R.A.P. 2154 where the appellee failed 

to file a separate motion seeking the quashing of the appeal for a 

Pa.R.A.P. 2154 violation.). Moreover, while Appellees state this Court 

is permitted to dismiss Gold’s appeal for her failure to follow the 

pertinent Pennsylvania Rules of Appellate Procedure, such dismissal is 

discretionary. Appellees do not claim to have suffered any prejudice 

as a result of Gold’s delay in filing her reproduced record or otherwise 

(Footnote Continued Next Page)
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Appellate review of weight of the evidence claims is limited, and 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 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.

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

(citation omitted). 

In support of her argument, Gold relies primarily upon this Court’s 

decision in Lombardo v. DeLeon, 828 A.2d 372 (Pa.Super. 2003) for the 

proposition that where a jury recognizes an injury occurred, it must award 

some monetary damages. We disagree. 

(Footnote Continued) _______________________

dispute the contents thereof. In fact, the contents of the reproduced 

record herein is comprised primarily of the notes of testimony from 

trial at which Gold was the only testifying witness and the expert 

reports read at trial, which Appellees possessed. In addition,

Appellees indicate they did not oppose Gold’s requests for an 

extension of time in which to file her brief and reproduced record in 

this matter, which suggests an awareness of the single issue she 

intended to raise on appeal. As such, we will not quash this appeal. 
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In Lombardo, the plaintiffs, a father and his nineteen-year-old son, 

were involved in a rear-end collision following which the father-driver was 

pushed forward and backward, sustained a bump on the top of his head, and 

was taken to the emergency room where he was treated and released. 

Similarly, the son was jostled about the car upon impact and was treated 

and released at the emergency room. Both sought medical treatment from 

an orthopedist for four days thereafter who referred them to a chiropractor 

for ongoing treatment. The pair received chiropractic care for a period of 

four months. Father had to modify his work duties when he was unable to 

perform some of the tasks necessary for a self-employed owner of several 

Italian/pizza restaurants due to pain in his neck and back. Id. at 373. Son, 

too, was unable to perform his pre-accident work duties as an executive chef 

and continued to work in his father’s restaurants in supervisory or 

managerial positions. Id. at 374. 

Following trial wherein the defendant admitted liability, a jury returned 

a verdict awarding the plaintiffs no damages. The plaintiffs appealed raising 

the issue of whether the trial court should have upheld the jury’s verdict 

predicated upon its finding that any pain and suffering relating to their 

injuries was not compensable. A panel of this Court ultimately determined 

that in light of the undisputed evidence the plaintiffs had sustained 

compensable soft-tissue injuries, the jury’s award of $0 entitled them to a 

new trial on damages for those undisputed injuries. 
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In the matter sub judice, the trial court, citing Lombardo,

acknowledged that where there is no dispute a defendant was negligent and 

both parties’ medical experts agree an accident caused the plaintiff some 

injury, the jury must find the defendant’s negligence was a substantial factor 

in bringing about at least some of the plaintiff’s injuries. In addition, it 

stressed the Lombardo Court, relying upon Andrews v. Jackson, 800 A.2d 

959, 962-64 (Pa.Super. 2002), explained “the jury may then find the injuries 

caused by the accident were incidental or non-compensable and deny 

damages on that basis.” Trial Court Opinion, filed June 10, 2015, at 4 

(citing Lombardo, supra at 374). It then offered the following analysis in 

support of its decision to deny Gold’s post-trial motion for a new trial:

In the case at bar, the parties stipulated that [Rosen] was 

negligent and that [Rosen’s] negligence was the factual cause of 

[Gold’s] neck sprain and strain (Please See, Verdict Sheet, 

Questions #1 and #2 pre-marked “Yes.”) However, the parties 

disagreed as to the extent of the harm to [Gold’s] neck as a 

result of the accident. At trial, [Rosen] argued, and indeed, 

[Gold] conceded that [Gold] suffered a previous neck injury. 

Moreover, [Gold] had been released from physical therapy for 

the previous accident, only six (6) weeks prior to the 2005 

accident. [Rosen] relied upon Dr. Harris’ expert report to 

support her claim that any aggravation to [Gold’s] neck from this 

accident was negligible. Defense counsel read the following 

portions of Dr. Harris’ report to the jury.

Review of the above medical records of Frances 

Gold reveals a long history of multi-focal 

complaints dating back to 1997, with a series of 

car accidents and related musculoskeletal 

complaints as well as report of chronic dizziness and 

facial numbness. Review of the pre and postaccident records following 08/02/05 does not 

reveal convincing evidence of anything more than 
J-A01013-16

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soft tissue strain and sprain, which would be 

expected to have resolved or returned to baseline 

within a few weeks to, at most, a few months of 

conservative management. A short course of 

physical therapy would be the most that would 

have been required as far as treatment. All of her 

subsequent evaluations and treatment, including 

repeat MRI scans, MRA, vestibular testing and repeated 

courses of physical therapy for dizziness bear no causal 

relationship to the 08/02/05 accident, with the bulk, if 

not all of her post-accident complaints, actually 

representing preexisting symptoms. Apart from selflimited strain and strain, review of these records on 

Frances Gold does not reveal any additional 

neurological injury refereable to the 08/02/05 accident. 

Specifically, she did not sustain any additional cervical 

or lumbar disc injury or radiculopathy. Her right facial 

pain and numbness appears to be attributable to a 

vascular loop in the brain which abuts the right 5th

cranial nerve which, as Dr. Mandel pointed out, is not 

traumatic in origin. Nor is there any traumatic 

exacerbation of that condition. She had longstanding 

preexisting dizziness, with no indication that this was 

exacerbated as a result of the 08/02/05 accident. 

There is also a strong indication of psychological 

disorder, with a propensity to psychogenic seizures 

over the years with negative EEG monitoring, with no 

evidence she sustained any posttraumatic exacerbation 

of that disorder either. 

(Dr. Harris Report of 03/20/13- Trial Exhibit D-1) 

(emphasis in original). 

Dr. Harris’ above cited conclusion that “the pre-and postaccident records following 08/02/05 [do] not reveal convincing 

evidence of anything more than soft tissue strain and sprain, 

which would be expected to have resolved or returned to 

baseline within a few weeks to, at most, a few months of 

conservative management” provided evidence for the jury’s 

award of no damages. In addition, [Gold’s] own evidence 

supported a finding of de-minimis neck injury. For example, 

[Gold’s] doctor, Dr. Mandel concluded that [Gold’s] neck pain 

could not be attributed to the 2005 accident. Dr. Mandel claimed 

that [Gold’s] neck pain was the result of degenerative changes. 
J-A01013-16

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(Please See, Trial Exhibit P-1-Dr. Mandel’s Report) Further, 

[Gold’s] description of the accident indicated that it was low 

impact. During her testimony, [Gold] answered that there was 

no damage to [Rosen’s] car; that the police were not called to 

the scene; that she got out of her car to exchange information 

with [Rosen] without difficulty; that she drove her vehicle home 

right after the incident without problems; that she did not seek 

emergency treatment on the day in question; and that she 

waited seven (7) weeks after the accident before attending 

physical therapy. Further, the Abington Hospital medical records 

showed that when [Gold] sought care the day after the accident, 

the MRI revealed no acute/recent trauma and that [Gold] was 

released with no neck brace or medicine. (Notes of Testimony 

10/21/14, pgs. 60-115 and pg. 71; Exhibit D-1-Harris report 

referencing Abington Hospital visit day after accident; P-1-

Abington Memorial Hospital Record) Thus, the fact finder had 

sufficient evidence to conclude that [Gold’s] neck harm was deminimis and to decline to award damages in accordance with 

Lombardo, supra. Therefore, the trial court properly denied 

[Gold’s] Motion for New Trial. 

Trial Court Opinion, filed June 10, 2015, at 4-6 (emphasis in original). 

This Court recognizes that not all injuries are serious enough to 

warrant compensation, even though there may be some pain. See Van 

Kirk v. O'Toole, 857 A.2d 183, 186 (Pa.Super. 2004). “The real test is 

whether the uncontroverted injuries are such that a conclusion that they are 

so minor that no compensation is warranted defies common sense and 

logic.” Id. at 185. Accordingly, such conclusions are made on a case by 

case basis. As this court noted in Lombardo:

[t]he existence of compensable pain is, an issue of credibility 

and juries must believe that plaintiffs suffered pain before they 

compensate for that pain. A jury is not required to award a 

plaintiff any amount of money if it believes that the injury 

plaintiff has suffered in an accident is insignificant. “Insignificant” 

means the jury could have concluded that any injury plaintiff 

suffered did not result in compensable pain and suffering. While 
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a jury may conclude that a plaintiff 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, 828 A.2d at 375 (citations and some quotation marks omitted) 

(emphasis in original). In this vein, in holding that a jury’s award of medical 

expenses without compensation for pain and suffering should not be 

disturbed where the trial court reasonably may have found the jury did not 

believe the plaintiff suffered any pain and suffering or that a preexisting 

condition or injury was the sole cause of any alleged pain and suffering, our 

Supreme Court has stated a reversal of a jury verdict on the grounds of its 

inadequacy is appropriate “only where the injustice of the verdict stands 

forth like a beacon.” Davis v. Mullen, 565 Pa. 386, 391, 773 A.2d 764, 766 

(2001) (citation and brackets omitted). 

Under the facts of this case, we discern no error in the trial court’s 

rationale. This case did not involve a violent collision but rather a relatively 

minor accident and Gold’s subsequent subjective claims of injuries. While 

the jury’s verdict slip indicates that it concluded Rosen’s negligence caused 

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

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

determination. In light of the foregoing, we find the jury’s finding was 

consistent with the record and the applicable law and conclude the trial court 

did not abuse its discretion or commit an error of law in denying Gold’s posttrial motion for a new trial. As such, we affirm the judgment. 
J-A01013-16

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Judgment affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/19/2016