Corvin v. Tihansky

184 A.3d 986

James K. CORVIN III, an Individual, Appellant

v.Dennis P. TIHANSKY, an Individual

No. 1263 WDA 2017

Superior Court of Pennsylvania.

Argued February 28, 2018

Filed April 20, 2018

Robert F. Daley, Pittsburgh, for appellant.

Edward R. Ale, Washington, for appellee.

BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER^* , J.

OPINION BY SHOGAN, J.:

Appellant, James K. Corvin III, appeals from the judgment entered on July 21, 2017, in the Court of Common Pleas of Washington County, following the trial court's denial of Appellant's post-trial motion for judgment notwithstanding the verdict ("JNOV") or for a new trial. We affirm.

The trial court summarized the facts and history as follows:

On November 9, 2010, [Appellant] was stopped at a stop sign in Washington County, when he was rear-ended by an automobile driven by Dennis P. Tihansky, [Appellee ("Tihansky") ]. An ambulance took [Appellant] to the Washington Hospital where he was examined, treated and released. On November 10, 201[0], he visited his primary care physician, Dr. Means, complaining of neck pain, headache and dizziness, lightheadedness and arm pain. Dr. Means prescribed pain medication and ordered physical therapy. Two weeks later [Appellant] returned with the same complaints. He related that he had not been to work because he could not focus while driving or on paperwork. Approximately two weeks later, [Appellant] returned and reported he was no better. Dr. Means prescribed an MRI test. After viewing the MRI results, Dr. Means referred [Appellant] to Dr. Maroon, a neurosurgeon, who examined [Appellant] on January 11, 2011. Dr. Maroon diagnosed a herniated disc at C6–7 and recommended an anterior cervical discectomy and interbody fusion.^[1]

A complaint was filed and eventually the matter came to be heard by a jury in October of 2016. [Tihansky] admitted negligence. On the fourth day of trial, the case was handed to the jury along with a verdict slip. Question 1 asked:

Do you find from a preponderance of the evidence that the negligence of [Appellee], Dennis P. Tihansky, was a factual cause of any harm to [Appellant], James K. Corvin, III?

The jury answered "No" and returned to the courtroom.

[Appellant] filed a timely motion for post-trial relief, requesting in the alternative, [JNOV], or a new trial. (Given [Tihansky's] admission of negligence, granting either form of relief would result in another trial limited to the issue of damages).

Trial Court Opinion, 7/7/17, at 1–2. Appellant filed a court-ordered Pa.R.A.P. 1925(b) statement on September 20, 2017. In lieu of a Pa.R.A.P. 1925(a) opinion, the trial court relied upon its opinion denying post-trial relief filed on July 7, 2017.

Appellant raises the following issues for our review:

I. Did the Trial Court commit error in denying [Appellant's] Motion for Judgment Notwithstanding the Verdict (JNOV) on the issue of causation, when the verdict was such that no two reasonable minds could disagree that there should have been a causation finding in favor of [Appellant]? More specifically, did the Trial Court commit error by denying [Appellant's] Motion for Judgment Notwithstanding the Verdict (JNOV) on the issue of causation despite the fact that [Tihansky's] own expert admitted that [Appellant] sustained an injury as a result of the subject automobile accident?

II. Did the Trial Court commit error in denying [Appellant's] Motion for a New Trial on the issue of causation when the verdict was against the clear and substantial weight of the evidence? Specifically, in light of the fact that [Tihansky's] own expert admitted that [Appellant] sustained an injury as a result of the subject automobile accident, did the jury's finding of "no causation" shock one's "sense of justice?"

Appellant's Brief at 6.

Appellant's first issue involves the following standards. The propriety of a JNOV is a question of law, and therefore, our scope of review is plenary. Foster v. Maritrans, Inc ., 790 A.2d 328, 330 (Pa. Super. 2002). When the denial of JNOV is challenged on the basis that the evidence was such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant, as here, this Court reviews the evidentiary record and must conclude "that the evidence was such that a verdict for the movant was beyond peradventure." Reott v. Asia Trend, Inc. , 7 A.3d 830, 835 (Pa. Super. 2010). Moreover,

In reviewing a trial court's decision whether or not to grant judgment in favor of one of the parties, we must consider the evidence, together with all favorable inferences drawn therefrom, in a light most favorable to the verdict winner. Our standards of review when considering motions for a directed verdict and judgment notwithstanding the verdict are identical. We will reverse a trial court's grant or denial of a [JNOV] only when we find an abuse of discretion or an error of law that controlled the outcome of the case. Further, the standard of review for an appellate court is the same as that for a trial court.

Reott , 7 A.3d at 835.

Appellant argues that because Tihansky's medical expert admitted that Appellant sustained an injury when Tihansky rear-ended Appellant, who was stopped at a stop sign, the jury's finding that Tihansky's negligence was not a factual cause of any harm "is incomprehensible." Appellant's Brief at 16. Moreover, because Tihansky admitted negligence, Appellant contends that "no two reasonable minds could disagree that a causation finding should have been rendered in favor of [Appellant,] and [Appellant's motion for JNOV] should have been granted." Id.

Before we address the merits of this issue, we must ascertain whether it was preserved for our review. Following our careful review of the record, we agree with Tihansky that the issue is waived because Appellant failed to move for a directed verdict at the close of Tihansky's evidence and withdrew his request for a binding jury instruction. Tihansky's Brief at 10. Appellant acknowledges that he failed to move for a directed verdict but posits we should overlook the waiver, relying upon Ty–Button Tie, Inc. v. Kincel and Co., Ltd. , 814 A.2d 685 (Pa. Super. 2002), and Soderb e rg v. Weisel , 455 Pa.Super. 158, 687 A.2d 839, 845 (1997), in support. Appellant's Brief at 16 n.1; N.T., 10/26/16, at 175. Appellant suggests, like the appellant in Ty–Button , that while he "technically waived [his] right to JNOV by not moving for a directed verdict," this Court should overlook the error and address the issue on the merits "because the trial court took the opportunity to address any error it may have made by its review of Appellant's Post–Trial Motions." Appellant's Brief at 16–17 n.1. Tihansky counters that the exception addressed by this Court in Ty–Button does not apply herein. Tihansky's Brief at 11.

This Court requires a motion for directed verdict during trial as a prerequisite to a post-trial motion for JNOV based on the state of the evidence. Thomas Jefferson Univ. v. Wapner , 903 A.2d 565, 570 (Pa. Super. 2006). This approach has the salutary effect of submitting the issue to the trial judge for initial evaluation during trial, when the proofs are still fresh. Commonwealth v. U.S. Mineral Products , 927 A.2d 717, 725 (Pa. Cmwlth. 2007). The right to seek JNOV likewise is preserved if the moving party requests, and is denied, a binding jury instruction. See Pa.R.C.P. 227.1(b)(1) ; Hayes v. Donohue Designer Kitchen, Inc. , 818 A.2d 1287, 1291 n.4 (Pa. Super. 2003) ("[C]ases indicate that in order to preserve the right to request a JNOV post-trial[,] a litigant must first request a binding charge to the jury or move for directed verdict at trial."). Thomas Jefferson , 903 A.2d at 570.

Herein, Appellant initially requested a jury instruction in accordance with 7.50 of the Pennsylvania Suggested Standard Civil Jury Instructions regarding undisputed negligence and injury. N.T., 10/26/16, at 178–179. Tihansky objected to this instruction on the basis that he did not concede that Appellant was injured in this accident. In response, Appellant's counsel acquiesced and stated, "I would like to omit [proposed point 7.50 of the standard jury instructions, undisputed negligence and injury] and [I] agree with [defense counsel's] objections to this in terms of the negligence caused some injury to [Appellant]." N.T., 10/26/16, at 179–180.

The above scenario is nearly identical to the situation in Thomas Jefferson . There, in reviewing the parties' points for charge, the trial court indicated an inclination to utilize the defendants' points for charge, but it entertained the parties' objections and argument on the issue. Regarding the binding instruction that the appellant had sought, the appellant "agreed not to pursue the instruction it initially proffered ...." Thomas Jefferson , 903 A.2d at 571. We concluded in Thomas Jefferson that the appellant did not preserve its right to request JNOV by moving for a binding jury instruction. Although it initially requested a binding instruction, as Appellant herein, it decided during the jury-instruction sidebar not to pursue it. Id. at 571–572.

As to Appellant's suggestion that we should overlook waiver based upon this Court's action in so doing in Ty–Button , we conclude that case is distinguishable. Ty–Button concerned a party's failure to file a motion for a directed verdict on the issue of insurance coverage. While noting the appealing party's failure to preserve its claim, we nonetheless addressed the merits "because the trial court took the opportunity to address any error it may have made by its review of [the appellant's] Post–Trial Motions." Ty–Button , 814 A.2d at 689–690 (citing Soderberg , 687 A.2d at 845 ) (holding that "Superior Court will not preclude presentation of issue for failure to comply strictly with Pa.R.Civ.P. 227.1(b) when trial court had an opportunity to correct error by addressing Post–Trial Motions and chose to address them").

Here, as in Thomas Jefferson , however, Ty–Butt...