Avery, A. v. Cercone, B.
225 A.3d 873
Pa. Super. Ct.2019Background
- On Feb. 1, 2012, Cercone lent his pickup to Spadafora; Spadafora merged into a funeral procession, rear‑ended Avery, and admitted fault at the scene.
- Avery sued Spadafora (negligence) and Cercone (negligent entrustment — alleged faulty brakes).
- The jury found Spadafora negligent, initially awarding Avery $8,500 (lost wages) and $0 (pain and suffering).
- Defense counsel asked the court to send the jury back to reconsider pain and suffering; the court directed further deliberations; the jury then added $10,000 for pain and suffering (total $18,500).
- The trial court denied Avery’s post‑trial motions; Avery appealed, raising four issues: the jury‑revisit instruction, failure to strike an allegedly unverified answer, denial of a Frye hearing on DTI evidence, and exclusion of evidence of a defense‑expert referral relationship.
- The Superior Court vacated the $18,500 judgment (remanding for the trial court to rule on a weight‑of‑the‑evidence motion), reinstated the original $8,500 verdict, affirmed judgment for Cercone, and left the other evidentiary issues for possible later litigation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Trial judge sent jury back to add pain‑and‑suffering award | Avery: returning jury to correct a verdict is improper when the real issue is weight of the evidence; remedy is new trial on post‑trial motion | Spadafora: $0 for pain/suffering was legally inconsistent with undisputed medical evidence of concussion and lost wages | Court: Sending jury back was legal error. The judge treated a weight‑of‑the‑evidence issue as an inconsistent‑verdict issue. Vacated $18,500; reinstated original $8,500; remand for trial court to rule on weight claim. |
| Failure to strike unverified Answer / directed verdict request | Avery: defendant’s verification was not his signature; unverified defensive pleadings are a nullity entitling her to judgment | Defendants: procedural history and amended pleadings cured or superseded the earlier verification issue | Court: Moot/waived — Avery filed an amended complaint which superseded the original pleadings; she did not timely attack the operative, unverified Answer to the amended complaint. Judgment for Cercone affirmed. |
| Frye hearing on DTI evidence (neurologist) | Avery: trial court erred by excluding DTI without a Frye hearing to assess general acceptance | Defendants: (implicit) evidence inadmissible or insufficient without Frye support | Court: Declined to decide on appeal; evidentiary issues reserved as potentially moot on remand. |
| Exclusion of evidence re defense expert’s referral relationship | Avery: court erred in excluding relationship evidence that could show bias | Defendants: evidence properly excluded or irrelevant | Court: Declined to address on appeal; may be moot on remand and did not affect Cercone’s favorable verdict. |
Key Cases Cited
- Picca v. Kriner, 645 A.2d 868 (Pa. Super. 1994) (clarifies when a facially inconsistent/verdict‑form problem permits returning the jury for clarification)
- Burnhauser v. Bumberger, 745 A.2d 1256 (Pa. Super. 2000) (trial judge may not send jury back to correct a verdict that is against the weight of the evidence; new trial is the remedy)
- Criswell v. King, 834 A.2d 505 (Pa. 2003) (distinguishes proper use of corrective instructions for inconsistent verdicts from impermissible weight‑of‑the‑evidence instructions)
- Davis v. Mullen, 773 A.2d 764 (Pa. 2001) (distinguishes cases where a $0 pain award may be reasonable from cases where such an award is so irrational it shocks the conscience)
- Majczyk v. Oesch, 789 A.2d 717 (Pa. Super. 2001) (explains jury discretion to accept or reject evidence on pain and suffering; $0 award can be within jury’s province)
- Mader v. Duquesne Light Co., 199 A.3d 1258 (Pa. Super. 2018) (unchallenged portions of a damages award may stand pending review of other components)