The opinion of the court was delivered by: Judge Butler
Argued: November 11, 2008
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE JOHNNY J. BUTLER, Judge, HONORABLE JAMES R. KELLEY, Senior Judge.
Wayne Johnson (Johnson) appeals from the December 7, 2007 order of the Court of Common Pleas of Philadelphia County (trial court) denying Johnson's motion for a new trial on the issue of damages based on alleged insufficient evidence and ex parte communication between the judge and jury. The issues presented are: 1) whether the trial court erred by refusing to grant Johnson a new trial on the issue of damages; 2) whether the trial court abused its discretion by responding to questions from the jury ex parte and off the record; 3) whether the trial court erred in failing to strike Defendants' answer and new matter as untimely; and 4) whether the trial court erred in failing to sanction Defendants for discovery misconduct. For the reasons that follow, we affirm the trial court.
Johnson was involved in a multi-vehicle accident in June 2003 along with co-plaintiff, William English,*fn1 and defendants, Southeastern Pennsylvania Transportation Authority (SEPTA), Triage Connect and Lakesha White (collectively, Defendants). On April 22, 2005, Johnson and English (collectively, Plaintiffs) filed suit against Defendants. SEPTA and Triage Connect filed an answer on July 29, 2005 and White filed an answer on September 7, 2005. During the discovery period, there were several disputes regarding production of documents, responses to interrogatories, and scheduling depositions. Orders were issued against both Plaintiffs and Defendants compelling production, responses and depositions. Among the discovery disputes was the Plaintiffs' failure to produce auto-insurance information, production of incomplete information, and misrepresentation as to the substance of the missing information. Plaintiffs' attorney was publicly admonished for not being candid with the trial court concerning the auto-insurance policy.*fn2
During the trial, Defendants stipulated generally as to liability, but not to the causal relationship between Plaintiffs' injuries and the accident. This issue was put to the jury, in addition to the task of quantifying Plaintiffs' damages. During the jury deliberations, the court answered two questions posed by the jury members: (1) whether they could see evidence presented at trial, and (2) whether they could award English damages for lost wages in addition to other compensatory damages. The parties had already agreed that no exhibits would be allowed in the jury room during deliberations. Thus, the trial judge responded, albeit off the record and ex parte, that:
(1) the jury could not see evidence, and (2) the decision to award additional damages was completely up to them. The jury returned a compensatory damage award in favor of Johnson in the amount of $65,000. Unsatisfied by this award, Johnson filed a motion for post-trial relief. The trial court denied the motion. Johnson appealed.
Johnson first argues that the trial court erred in refusing to grant a new trial on the issue of damages. Johnson claims that evidence which was not contradicted by Defendants clearly established that he had sustained injuries warranting damages far greater than those awarded. However, "[I]t is a fundamental and longstanding precept that the decision to order a new trial is one that lies within the discretion of the trial court." Coker v. S.M. Flickinger Co., Inc., 533 Pa. 441, 447, 625 A.2d 1181, 1184 (1993).
A jury verdict is set aside as inadequate when it appears to have been the product of passion, prejudice, partiality, or corruption, or where it clearly appears from uncontradicted evidence that the amount of the verdict bears no reasonable relation to the loss suffered by the plaintiff. Where the jury's verdict is so contrary to the evidence as to 'shock one's sense of justice' a new trial should be awarded. . . . If the verdict bears a reasonable resemblance to the proven damages, it is not the function of the court to substitute its judgment for the jury's.
Kiser v. Schulte, 538 Pa. 219, 225, 648 A.2d 1, 4 (1994) (citations omitted).
Johnson argues that, similar to the plaintiffs in Andrews v. Jackson, 800 A.2d 959 (Pa. Super. 2002) and Kraner v. Kraner, 841 A.2d 141 (Pa. Super. 2004), he presented unequivocal medical evidence that he sustained injuries as a consequence of the automobile accident, and that a new trial on damages is warranted. However, in Andrews and Kraner, the juries did not award any damages to the plaintiffs, even though the defendants were found to be liable for the plaintiffs' injuries. Defendants do not argue that Johnson suffered no damages from the automobile accident. The jury determined, based on the evidence presented, that Johnson's damages amounted to $65,000.*fn3 The parties presented the jury with differing pictures of Johnson's ongoing injury. While Johnson attempted to convince the jury that he suffered permanent injury requiring surgery, Defendants called the extent of his ongoing injury into question primarily through cross-examination, highlighting the fact that Johnson went back to work on a heavy duty job and discontinued medical treatment. Thus, while the jury's award of $65,000 may seem "woefully inadequate" to Johnson, it is not so contrary to the evidence as to shock one's sense of justice. Therefore, the trial court did not err, and a new trial on damages is not warranted.
Second, Johnson argues that the trial court abused its discretion by responding to questions from the jury ex parte and off the record. "In reviewing an order granting a new trial, we must assess whether the trial court 'clearly and palpably abused its discretion or committed an error of law which controlled the outcome of the case.'" Briskin v. Lerro Elec. Corp., 590 A.2d 362, 365 (Pa. Super. 1991). When considering ex parte communications between a trial judge and the jury, the Court must consider that :
[t]he reason for prohibiting a trial judge from communicating with a jury ex parte is to prevent the court from unduly influencing the jury and to afford counsel an opportunity to become aware and to seek to correct any error which might occur. Where there is no showing either that the court's actions may have influenced the jury or that its directions were erroneous, then the reason for the rule dissolves.
Commonwealth v. Bradley, 501 Pa. 25, 31, 459 A.2d 733, 736 (1983) (emphasis added). "[O]nly those ex parte communications between a court and jury which are likely to prejudice a party ...