Serhan v. Besteder

• Decision Date: 18 October 1985
• Citation: 500 A.2d 130,347 Pa.Super. 11
• Parties: Sandra Marie SERHAN, Appellant, v. Charles Corey BESTEDER, Appellee. 02051 Phila. 1983
• Court: Pennsylvania Superior Court

Page 130

500 A.2d 130

347 Pa.Super. 11

Sandra Marie SERHAN, Appellant, v. Charles Corey BESTEDER, Appellee.

02051 Phila. 1983

Superior Court of Pennsylvania.

Argued March 20, 1985.

Filed Oct. 18, 1985.

David L. Kurtz, Harrisburg, for appellant.

Joseph J. Musto, Wilkes-Barre, for appellee.

Before CAVANAUGH, WICKERSHAM and ANDERSON, ^* JJ.

ANDERSON, Judge.

Appellant, Sandra Marie Serhan, plaintiff below, appeals from an Order of the lower court sitting en banc denying her motion for a new trial on the issue of damages only. Appellant argues that the trial court improperly refused to allow her to introduce her federal income tax returns as evidence of loss of past earnings and impairment of earning capacity, and that the court improperly refused to instruct the jury on those two items of damages.

We conclude that, as a matter of law, the plaintiff presented sufficient evidence of the nature of her injuries and the resultant disruptions to her drapery business to establish the existence of loss of earnings as well as impairment of earning capacity. We further conclude that there was sufficient evidence of the nature of plaintiff's business as well as her prior employment, so as to permit introduction of her income tax returns as proof of the amount of those items of damages. Finally, we conclude that the requested jury instructions should have been given.

During the early morning hours of November 13, 1977, twenty-six year old Sandra Marie Serhan was involved in an automobile accident. She suffered a compression fraction of thoracic 8 and 9 vertebrae which in turn has caused her to have neurogenic bladder disease. She has lost sensation and muscle control of her bladder and cannot urinate unless she takes a toxic medication. Her orthopedic and bladder problems had persisted to the time of trial, five years after the accident.

At the time of the accident, the plaintiff was the sole proprietor of Sara Sheen Draperies. She functioned as an interior decorator, visiting prospective clients in their homes to provide design ideas and to solicit work. In addition she maintained nine sewing machines in the basement of her home and made the draperies herself. She employed independent contractors to install the draperies and do slipcover work.

Prior to starting her own business in August, 1976, the plaintiff had been employed as an interior decorating consultant in a department store from 1973 to 1976.

The plaintiff experienced disability immediately following the accident. She felt very sharp radiating pains in her back which increased during the night. In the morning she found that she had wet her bed. She stayed in bed for one week. During that period she had pain in her neck, joints and back, and a lack of sensation in her bladder which she did not associate with the accident.

She saw Dr. Sternlieb, an orthopedic specialist on November 21, 1977. He advised her to take it very easy for the next six weeks. She followed the doctor's orders, but pain in her neck, right arm and right leg continued. She also noticed that her abdomen was getting larger and larger and she was not able to urinate at will. Her bladder would not empty until it became very full.

She saw her family doctor, John Grablewski, M.D., on December 29, 1977, and again the second week of January 1978 and thereafter once a week. Her condition did not improve and on February 26, 1978, she was hospitalized. Her bladder condition worsened in the hospital and she was seen by a urologist, Dr. Rumbaugh. She was catheterized and underwent exploratory surgery. She was also given medication, Urecholine, for an unspecified period of time, to stimulate bladder activity. The plaintiff was discharged from the hospital on March 6, 1978.

She was treated by Dr. Grablewski for her neck and back problem and Dr. Rumbaugh for the bladder difficulty through February of 1980 on a regular basis. During that period Dr. Rumbaugh had to stretch her urethra surgically to facilitate urination. The plaintiff was receiving physical therapy and there was some improvement to her neck and back.

She was hospitalized in February 1980 for five days because of abdominal pain. Dr. Manju G. Mukerjee was called in for consultation because the plaintiff could not urinate and had to be catheterized. A cystoscopic examination was performed and Dr. Murkerjee put her back on Urecholine.

The plaintiff continued to see Dr. Mukerjee. She was hospitalized for the third time on March 17, 1980, after she was unable to void at all and her bladder had become very distended. She was given large doses of Urecholine and has been on that medication ever since.

She was hospitalized for the fourth time in April 1980, because she was not tolerating the Urecholine well and because she was again unable to void. Surgery was performed (a visual internal urethrotomy, during which incisions were made in the musculature of the urethra to reduce resistance). She continued to see Dr. Mukerjee regularly, first weekly and then every two weeks.

She was taught self-catheterization in the fall of 1980 because she was again having difficulty voiding. This procedure, however, resulted in frequent bladder infections. After one of these catheterizations she found blood in her urine.

In February 1981, she was hospitalized for the fifth time, for one week. Surgery was performed. She was catheterized for three days thereafter.

During this period she was still experiencing pain in her neck and back. She had regular visits with Dr. Mukerjee.

In November of 1981 she was hospitalized for the sixth time, for a period of two weeks, and more extensive surgery on her urethra was performed.

The testimony concerning the physical problems experienced by the plaintiff from November 1977 to the time of trial, which included six hospitalizations and four or five surgical procedures, was, we find, in and of itself sufficient to prove a disruption to her business and lay the foundation for proof of the amount of loss of earnings.

In addition, however, plaintiff provided specific testimony concerning disruption to her business. Miss Serhan testified that she did not work at all for two weeks after the accident, and after that was only able to handle the work by subletting it to others because she could not lift heavy bolts of fabric by herself or do the sewing.

She said that during her first hospitalization in February of 1978, she was not able to conduct her business at all and that she received many phone calls from customers concerned about her absence. Without doing an injustice to the defendant, it can be reasonably inferred that Miss Serhan was neither personally visiting clients in their homes nor cutting and sewing draperies during her five subsequent hospitalizations, nor was she doing so during numerous doctors' appointments.

Plaintiff testified that from 1978 to 1981, she could not cope with much physical activity and could not do a lot of work. Before the accident she made all the draperies herself. Since the accident, the plaintiff sometimes has had to sublet the work because she cannot fulfill her obligations.

The plaintiff's brother, David W. Serhan, testified that after the accident "[h]er business seemed not to be as well. She wasn't able to put as much time into it and enthusiasm as she had in the past.... She spent a lot of time in bed." [N.T. 101a]. He testified further that he observed his sister on several weekends from September 1979 to the time of trial and that "[h]er business took a drop in her calls. Her business suffered a loss it seemed. She wasn't as active as she had been in the past." [N.T. 106a].

All of this evidence was more than sufficient to prove that the plaintiff sustained losses as a result of her injuries. The question then remained, how the plaintiff was to prove the amount of those losses.

To that end, the plaintiff testified about the conduct of her business; her capital investment in machinery, equipment and supplies; and her gross receipts and profits during 1977 from Schedule C of her income tax return. She detailed how the latter amount was calculated. Based on the above testimony, the plaintiff attempted to introduce Schedule C of her federal tax returns for 1977 through 1981. The trial court denied the motion, and refused to instruct the jury on lost earnings to the time of trial.

The reason set forth in the opinion below for these rulings is that the net earnings of the business was not an accurate measure of the value of plaintiff's services to the business. We do not agree. In many cases, the appellate courts of this Commonwealth have held that where a business is small and the income which produces it is due principally to the personal services and attention of the owner, the net profits of the business may afford a reliable measure of the owner's earnings.

In Bell v. Yellow Cab, Co., 399 Pa. 332, 160 A.2d 437 (1960), the Pennsylvania Supreme Court held:

"Ordinarily, earnings which represent the result of combined capital and personal services is not capable of establishing the earning power of the servitor. Where, however, the business is small and the income which it produces is principally due to the personal services and attention of the owner, the earnings of the business may afford a reliable criterion of the owner's earning power. As recognized in Offensend v. Atlantic Refining Company, 322 Pa. 399, 404-405, 185 A. 745, 'The general rule is that profits derived from a business are not to be considered as earnings and cannot be admitted as a measure of loss of earning power, but where they are almost entirely the direct result of personal management and endeavor, they are an accurate measure of earning capacity and admissible as such: Dempsey v. City of Scranton, 264 Pa. 495 [107 A. 725], and authorities cited therein; Pietro v. P.R.T. Co., 298 Pa. 423 [148 A. 520].' It was on this theory that the testimony of the plaintiff's diminished earnings was...