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PAULINE BROYAKA v. DOMINIC A. CAPONE (05/21/82)

filed: May 21, 1982.

PAULINE BROYAKA,
v.
DOMINIC A. CAPONE, APPELLANT



No. 1124 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas, Trial Division, Law, of Philadelphia County, 1977, August Term, No. 862

COUNSEL

Kevin Canavan, Philadelphia, for appellant.

Joseph D. Shein, Philadelphia, for appellee.

Spaeth, Montgomery and Lipez, JJ.

Author: Montgomery

[ 299 Pa. Super. Page 552]

The instant appeal arises following a jury verdict for the Plaintiff-Appellee, and the denial of post-trial motions by the lower court. The case involved a motor vehicle collision and the jury which considered the evidence rendered an award in the amount of Sixty Thousand ($60,000.00) Dollars for the Appellee. The Appellant has not contested the jury's findings of liability, but only its award of damages.

With respect to the award, he has raised two principal claims in contending that he is entitled to a new trial. He first argues that the lower court erred in submitting the issues of permanent and total disability and loss of future earnings to the jury. Second, he maintains that because there was purportedly an absence of any actuarial evidence or other mathematical guidance from which the jurors could have made a calculation of present worth in their assessment of damages, the trial judge committed error in submitting the issue of the loss for future earnings to the jury. We find no merit to either contention.

[ 299 Pa. Super. Page 553]

We first address the issue of whether the lower court erred in submitting the question of permanent and total disability to the jury. It is the Appellant's position that the Appellee offered the opinions of three experts which were contradictory and irreconcilable on the issue of causation. Thus, he contends, the jury was compelled to engage in conjecture in order to find a causal connection between the Appellee's traumatic injuries and her resulting disabilities, which the jury found were total and permanent.

We find that the Appellant's initial claim is devoid of merit and is based upon a serious mischaracterization of the record of testimony presented on behalf of the Appellee at trial. The Appellant discusses the testimony of three physicians, Drs. Dykyj, Alter and Polakoff. He points out that Dr. Polakoff, a neurosurgeon who examined the Appellee upon a referral from Dr. Dykyj, the Appellee's family physician, asserted that the Appellee's neck and back problems could be traced to work and degenerative disc disease. It is clear that Dr. Polakoff's conclusions differed from those of Dr. Alter, another neurosurgeon, who opined that the Appellee's cervical and lumbrosacral strains, which he diagnosed, were directly attributable to the accident in issue. The Appellant notes that Dr. Dykyj agreed with Dr. Alter and not Dr. Polakoff, but leaves the impression that Dr. Polakoff's testimony was offered by the Appellee at trial. In fact, the Appellee offered only the testimony of Drs. Dykyj and Alter. The conclusion reached by Dr. Polakoff became a part of the record only as a result of cross-examination of Dr. Dykyj by the Appellant's counsel. The Appellee obviously cannot be found to have presented testimony or to have been bound by any opinion of Dr. Polakoff.

The Appellant further argues that Dr. Alter's testimony regarding the permanency of the disability must be disregarded since he allegedly based his opinion upon grounds of vocational or occupational training and placement, while his sole area of expertise was in medical science. It is true that Dr. Alter did express the opinion that the Appellee might be disqualified from future employment because she did not

[ 299 Pa. Super. Page 554]

    possess certain supervisory skills. However, it is apparent that the Appellant has either ignored evidence of record or mischaracterized it. Dr. Alter clearly and emphatically stated that his opinion as to the Appellee's disability was based upon a medical analysis, as is evident in the following exerpt from his testimony on cross-examination: "Counselor, I have answered that question I believe more than once. I don't think that she can work. It's my ...


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