Armbruster v. Horowitz

744 A.2d 285, 1999 Pa. Super. 333, 1999 Pa. Super. LEXIS 4711

• Court: Superior Court of Pennsylvania
• Decided: December 29, 1999
• Status: Published

Opinions

DEL SOLE, J.:

¶ 1 Appellant Armbruster and his wife filed a negligence suit against Appellee Horowitz and his dental practice in connection with the placement, failure, removal, and replacement of dental implants. After a jury trial, the Honorable James M. Mun-ley presiding, a verdict was returned in favor of Appellee. The jury specifically found that while Appellee was negligent, his negligence was not a substantial factor in bringing about the claimed harm to Appellant. Appellant filed a post-trial motion, claiming that the verdict was against the weight of the evidence. Appellee subsequently filed a praecipe to enter judgment on the jury verdict because more than 120 days had passed from the filing of the post-trial motion, without disposition by the trial court. See Pa.R.C.P. 227.4(l)(b) (“the prothonotary shall, upon praecipe of a party: enter judgment upon the verdict of a jury ..., if one or more timely post trial motions are filed and the court does not enter an order disposing of all motions within one hundred twenty days after the filing of the first motion.”) Judgment on the verdict was entered by the prothonotary this same day.

¶ 2 At the time Appellee praeciped to have judgment entered, Judge Munley had been appointed to the United States District Court for the Middle District of Pennsylvania.¹ Due to this fact, the trial court failed to file, in accordance with Pa.R.A.P. 1925(a), an opinion in support of the jury verdict.

¶ 3 On appeal, the Appellant raises the following issue for our review: “Is the jury verdict that the defendant was negligent!,] but that his negligence was not a substantial factor in causing plaintiffs injuries!,] against the great weight of the evidence?” Appellant’s Brief at ii.

¶ 4 We note that a true weight of the evidence challenge “concedes that sufficient evidence exists to sustain the verdict.” Commonwealth v. Murray, 408 Pa.Super. 435, 597 A.2d 111, 115 (1991) (en banc) (Olszewski, J., concurring and dissenting), citing Commonwealth v. Taylor, 324 Pa.Super. 420, 471 A.2d 1228, 1230 (1984). However, in admitting that there was sufficient evidence, an appellant questions which evidence is to be believed - thus, in effect, the weight to be accorded the testimonial evidence.

¶ 5 In the instant case, it is clear that Appellant’s issue on appeal is solely related to the weight of the evidence. It is not a sufficiency of the evidence claim; rather, it requires an assessment of the credibility of witnesses. Specifically, Appellant’s appellate argument hinges on the credibility of the four expert witnesses who rendered opinions as to the proper standard of care for a dentist treating implants, the treatment in Appellant’s case, and the results in Appellant’s case. Additionally, the experts addressed the defense’s position that Appellant’s poor dental hygiene was the ultimate cause of his implant failure and the resultant pain, suffering and damages.

¶ 6 We are aware of the many cases in our jurisprudence that hold a review of a weight of the evidence claim is reserved exclusively for the trial court judge who presided over the trial. However, our research has found no case supporting that position where the presiding trial court judge had left the bench without ruling on such a post-trial claim. We believe this circumstance is an exception to the general rule that a court, relying solely on a “cold” record, may not exercise a review of a weight of the evidence claim. In these exceptional circumstances, we believe the interests of justice require that the weight of the evidence claim be reviewed by the appellate tribunal rather than vacating the judgment and remanding for a new trial.

¶ 7 Thus, while we agree that the first review of a weight of the evidence claim should be by the trial court, and preferably by the judge who tried the case, this requirement does not necessitate the grant of a new trial in exceptional circumstances such as those in the instant case.² There are a host of reasons why a judge may not be available to review a weight of the evidence claim. To require a new trial in each of those cases would be a disservice to the litigants and an unnecessary burden on the judicial process. Accordingly, we will address this issue on its merits.

¶ 8 Issues of credibility were decided by the jury in this case. Courts are reluctant to overturn factual findings where a jury has made credibility determinations and do so only in the rarest of circumstances. The standard by which we will review the weight of the evidence claim is summarized as follows:

This Court has repeatedly emphasized that it is not only a[] court’s inherent fundamental and salutary power, but its duty to grant a new trial when it believes the verdict was against the weight of the evidence and resulted in a miscarriage of justice. Although a new trial should not be granted because of a mere conflict in testimony or because the [court] on the same facts would have arrived at a different conclusion, a new trial should be awarded when the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail.

Mammoccio v. 1818 Market Partnership, 734 A.2d 23, 28 (Pa.Super.1999) (citations omitted).

¶ 9 In this case, the verdict does not shock one’s sense of justice. Appellant argues that the evidence proved that Ap-pellee “violated the appropriate standard of care on numerous occasions in his placement, care and treatment of [Appellant’s] dental implants.” Appellant’s Brief at 7. Appellant’s argument consists of an extensive review of the evidence presented and numerous examples of Appellee’s negligence. Appellee’s negligence, however, is not at issue. The jury found Appellee negligent. The finding to which Appellant objects is that Appellee’s negligence was not a substantial cause of his injuries. Thus, Appellant’s discussion of the magnitude of evidence establishing Appellee’s negligence is not directly relevant to our review. Rather, the question we must examine is whether the evidence supported the jury’s finding on the cause of Appellant’s injuries.

¶ 10 At trial, Appellee’s defense was that Appellant’s injuries were caused by his own poor oral hygiene. We find there is adequate support for this theory. Appellee’s experts, Dr. Paladino and Dr. Heller, testified that Appellant’s poor oral hygiene, as well as his smoking and drinking habits were a cause of his injuries. Although Appellant attempted to dispute its interpretation at trial, an exhibit was entered in which Appellant had indicated that he “never” brushed his teeth. Appellant also admitted that he was a smoker and a daily beer drinker at the time of the treatment. Thus, because there was support for Appellee’s defense that his actions were not the substantial cause of Appellant’s injuries, we will not find that the jury’s verdict was so contrary to the evidence that it shocks the conscience.

¶ 11 Judgment affirmed.

¶ 12 CIRILLO, President Judge Emeritus files a dissenting opinion.

1 . Judge Munley was appointed to the federal bench on October 26, 1998.

2 . One could argue that the trial court’s failure to grant relief on a weight of the evidence claim is a tacit rejection of the claim. We are also mindful of the fact that a trial court can order an immediate new trial sua sponte if the interests of justice so require. Commonwealth v. Powell, 527 Pa. 288, 590 A.2d 1240, 1242-43 (1991).