Bennyhoff v. Pappert

• Court: Pennsylvania Superior Court
• Writing for the Court: STEVENS, J.
• Citation: Bennyhoff v. Pappert, 790 A.2d 313 (Pa. Super. Ct. 2001)
• Decision Date: 19 December 2001
• Parties: Christine BENNYHOFF and Eric Bennyhoff, Appellees v. Francis PAPPERT, Jr. and Brooks Armored Car Service, Inc., Appellants.

790 A.2d 313

Christine BENNYHOFF and Eric Bennyhoff, Appellees v. Francis PAPPERT, Jr. and Brooks Armored Car Service, Inc., Appellants.

Superior Court of Pennsylvania.

Argued September 25, 2001.

Filed December 19, 2001.

Reargument Denied February 21, 2002.

Elizabeth C. Bailey, Philadelphia, for appellants.

Rudolph V. DeGeorge, Jenkintown, for appellees.

BEFORE: HUDOCK, STEVENS, and OLSZEWSKI, JJ.

STEVENS, J.:

¶ 1 Francis Pappert, Jr., and Brooks Armored Car Service, Inc., appeal from an October 30, 2000 entry of judgment in favor of Christine and Eric Bennyhoff. We affirm.

¶ 2 This appeal stems from a June 16, 1997 collision between a Brooks armored car driven by Pappert, and a bicycle ridden by Christine Bennyhoff. She testified that the accident occurred as follows: On the morning of June 16, 1997, she was bicycling to her gym at the corner of Broad and Locust Streets in Philadelphia. N.T. 7/19/00 at 192-193, 195. Bennyhoff was travelling in the right hand northbound lane of Broad Street. Id. at 198. The light at the intersection of Broad Street and Locust Street was red as Bennyhoff approached it. Id. at 201. When the light turned green, she began to pedal her bike into the crosswalk area where pedestrians crossed Locust Street. Id. at 207. As she entered the crosswalk area, Bennyhoff felt something hit her left shoulder from behind Id. at 210, 213. She remained upright, but was pushed further into the crosswalk area, toward the pedestrians who were crossing Locust Street. Id. at 213. As she tried to avoid hitting the pedestrians, she was hit a second time and knocked to the ground, landing on her knees with her arms stretched in front of her. Id. at 215-216. The entire incident occurred in a matter of seconds. Id. at 221.

¶ 3 The Bennyhoffs filed a complaint against Appellants on January 26, 1999. A jury trial began on June 19, 2000, and on June 21, 2000 the jury found in favor of the Bennyhoffs. On June 27, 2000, the jury's verdict was molded to $2,011,340.00 in favor of Christine Bennyhoff and to $2,000.00 in favor of Eric Bennyhoff, to reflect the jury's conclusion that 67% of the causal negligence was caused by Pappert, 33% by Christine Bennyhoff.

¶ 4 On June 30, 2000, Appellants filed post-trial motions,¹ seeking a new trial on all the issues, and/or remittitur, and/or a new trial on the issue of damages. Post-trial motion filed 6/30/00. When the trial court did not dispose of Appellants' post-trial motions within one hundred twenty days, however, the Bennyhoffs praeciped for entry of judgment on the verdict pursuant to Pa.R.C.P. 227.4(1)(b),² and on October 30, 2000, judgment was entered. Appellants filed this timely appeal on November 22, 2000, and the trial court issued an opinion on March 1, 2001.

¶ 5 On appeal, Appellants indicate that they seek directed verdict and/or judgment notwithstanding the verdict on the grounds that "the evidence was not sufficient to prove a prima facie case of negligence and the resulting verdict was the product of speculation, surmise and conjecture." Appellants' brief at 2. In the alternative, Appellants seek a new trial on the grounds that the verdict was against the weight of the evidence, the trial court failed to instruct the jury on negligence per se, and because the trial court made improper evidentiary rulings. Id. at 2-3. Appellants also seek remittitur of damages or a new trial on the issue of damages. Id. at 3.

¶ 6 Appellants raise the following specific allegations:

1. Was the circumstantial evidence in this case sufficient to prove negligence without resort to prejudice or guess where the evidence showed only that an accident happened but not that the defendant was driving unsafely or that the collision could have been avoided, and where it suggested another cause for the accident other than negligence by the defendant?

2. Did the trial court's refusal to charge the jury on negligence per se irreparably undermine Pappert's comparative negligence defense and prevent the jury from making a full and fair comparison of negligence where the evidence showed the plaintiff admitted committing several violations of Motor Vehicle Code provisions and City Ordinances?

3. Whether the trial court abused its discretion, and substantially prejudiced Pappert, by its admission at trial of evidence, individually or in combination, which was speculative, lacking in foundation, confusing and irrelevant, including medical bills, a last-minute handwritten itemization of the plaintiff's lost earnings, and staged photographs of the accident scene which distorted critical conditions at the time of the accident?

4. Was the damages verdict exorbitant under Pennsylvania law where the plaintiff received an amount that was almost one hundred twenty times her out-of-pocket medical expenses and was in the range awarded for catastrophic, permanent injuries, where the injuries here were neither catastrophic not crippling?

Id. at 5.

¶ 7 Appellants first allege that they are entitled to a directed verdict or judgment notwithstanding the verdict because the evidence presented was insufficient to show negligence on Pappert's part. The Bennyhoffs argue that this claim has been waived. They assert that at trial, Appellants moved for neither a nonsuit nor a directed verdict, and that in their post-trial motions Appellants failed to request judgment notwithstanding the verdict.

¶ 8 Our review of the record shows that during trial, Appellants raised no sufficiency of the evidence argument in the form of a request for a nonsuit or directed verdict.³ Pursuant to Pa.R.C.P. 230.1(c), a trial court may enter a nonsuit in favor of any or all of defendants, if, at the close of the plaintiff's case against all defendants, the plaintiff has failed to establish a right to relief. "A motion for compulsory nonsuit allows a defendant to test the sufficiency of a plaintiff's evidence." Harnish v. School District of Philadelphia, 557 Pa. 160, 163, 732 A.2d 596, 598 (1999). A sufficiency of the evidence claim may also be raised through a motion for a directed verdict. Lear, Inc. v. Eddy, 749 A.2d 971 (Pa.Super.2000).

¶ 9 After trial, Appellants filed post-trial motions requesting, inter alia, a new trial on the ground that the "verdict of the jury was based on speculation and conjecture." Post-trial motions filed June 30, 2000 at 3. Even if this could be construed as an argument that the evidence was insufficient to prove negligence, Appellants did not raise it prior to the filing of post-trial motions, as we noted above. Rule 227.1(b)(1), supra, indicates that post-trial relief may not be granted unless the grounds therefore were raised at trial. Additionally, pursuant to Rule 227.1(b)(2), supra, post-trial relief may not be granted unless the motion states how the grounds for relief were asserted at trial. Appellants' post-trial motion does not indicate how the sufficiency of the evidence argument was raised at trial, although, as we discussed previously, it could have been raised in the form of a motion for nonsuit or directed verdict. Finally, if Appellants' allegation that the verdict was based on speculation and conjecture was meant as an allegation that the evidence was insufficient to support the Bennyhoff's claim, the remedy Appellants should have sought would have been judgment notwithstanding the verdict, not a new trial, as their post-trial motion in fact requested.

¶ 10 For the foregoing reasons, we find Appellant's claim waived.

¶ 11 Appellants next assert that it was error for the trial court to refuse to charge the jury on negligence per se where the evidence allegedly showed Christine Bennyhoff committed several violations of Motor Vehicle Code provisions and City Ordinances. Appellants cite to pages 459a and 0771a of the reproduced record to support their allegation that they submitted a proposed jury instruction on negligence per se, and that the trial court refused the instruction. Appellants' reply brief at 7. Page 0771a is part of the "Proposed Points for Charge of Defendants Francis Pappert, Jr. and Brooks Armored Car Service, Inc," discussed in footnote 3, supra, and contains a proposed charge numbered 52 on negligence per se.⁴ Reproduced record at 0771a. As we noted above, however, the proposed points for charge do not appear in the certified record, nor do they contain a docketing stamp or any other indication that they were made part of the certified record, and, therefore, we may not consider them.

¶ 12 "It is black letter law in this jurisdiction that an appellate court cannot consider anything which is not part of the record in this case." Claudio v. Dean Machine Company Inc., 786 A.2d 224, 232 n. 7, 2001 Pa.Super. Lexis 2017, at **15 (2001) (citing Smith, 637 A.2d. at 623).

"It is the obligation of the appellant to make sure that the record forwarded to an appellate court contains those documents necessary to allow a complete and judicious assessment of the issues raised on appeal." Hrinkevich v. Hrinkevich, 450 Pa.Super. 405, 676 A.2d 237, 240 (1996) (citation omitted). "Under our Rules of Appellate Procedure, those documents which are not part of the `official record' forwarded to this Court are considered to be non-existent.... And, these deficiencies may not be remedied by inclusion in a brief in the form of a reproduced record." D'Ardenne v. Strawbridge & Clothier, Inc., 712 A.2d 318, 326 (Pa.Super.1998) (citation omitted), appeal denied, 557 Pa. 647, 734 A.2d 394 (1998). "It is well settled that an appellate court may consider only those facts which have been duly certified in the record on appeal." Albert v. Albert, 707 A.2d 234, 236 (Pa.Super.1998).

Claudio, 786 A.2d at 231, 2001 Pa.Super. Lexis 2017, at **8. See also Hrinkevich, 676 A.2d at 240 ("For purposes of appellate review, what is not of record does not exist."); Shearer, 714 A.2d at 426.

¶ 13 The only document properly before us that references a request for a negligence per se charge...