Appeal from the Order entered October 12, 2012, in the Court of Common Pleas of Berks County, Civil Division, at No(s): 09-11582
Joseph D. Seletyn, Esq.
BEFORE: GANTMAN, ALLEN, and MUNDY, JJ.
David Moyer and Terminix International, Inc. ("Moyer" or collectively "Appellants"), appeal from the trial court's grant of a new trial in favor of Richard Gokey ("Gokey"), following the jury's verdict in favor of Appellants. Gokey cross-appeals and takes issue with the trial court's denial of Gokey's post-trial motion regarding a contested jury instruction. After careful review, we reverse the trial court's order granting a new trial, and affirm the trial court's denial of Gokey's post-trial motion.
The trial court summarized the facts and procedural history as follows:
This case originated from a motor vehicle accident which occurred when the Defendant, David Moyer, stopped his truck 10-20 feet short of the intersection at Old Airport Road and Weavertown Road in Berks County, Pennsylvania. Moyer then pulled into the intersection where his truck collided with a motorcycle operated by [Gokey]. Moyer's entrance onto Weavertown Road was controlled by a stop sign on Old Airport Road. [Gokey] did not have a stop sign while traveling on Weavertown Road.
Following a jury trial concluding on May 4, 2012, the jury returned from deliberation and informed the Court they concluded Moyer did not violate 75 Pa. C.S. 3323(b) relating to duties at stop signs (discussed below), and was therefore not negligent. N.T. 624. On May 14, 2012, [Gokey] filed a Motion for Post-Trial relief. This Court granted [Gokey's] Motion for Post-Trial relief in the form of a new trial on October 12, 2012, and denied all other relief requested by [Gokey].
On October 31, 2012, [Appellants] filed the instant appeal and on November 7, 2012, this Court, in accordance with Pa.R.A.P. 1925, issued an Order directing [Appellants] to file a Concise Statement of Matters Complained of on Appeal. On November 28, 2012, [Appellants] filed [their] statement, raising two issues on appeal[.]
Trial Court Opinion, 12/27/12, at 1-2 (unnumbered).
Within their brief, Appellants present their two issues as follows:
1. Did [Gokey] waive his right to a new trial by failing either to make a motion for directed finding or to submit a binding instruction that [Appellants] violated section 3323 of the Motor Vehicle Code?
2. Did the trial court abuse its discretion by ordering a new trial where there was substantial evidence that [Appellants] had a clear view of traffic at the intersection, therefore not violating section 3323 of the Motor Vehicle Code, and where it improperly substituted its judgment of the contested facts since the jury's factual finding did not "shock a reasonable person's sense of justice"?
Appellants' Brief at 5.
We find Appellants' second issue to have merit. Thus our disposition of Appellants' second issue renders Appellants' first issue moot, and we will not address whether Gokey waived his right to a new trial.
The decision of whether to grant a new trial is within the sound discretion of the trial court. We will not disturb the trial court's decision unless the court palpably abused its discretion or committed an error of law. In evaluating an order awarding a new trial, we keep in mind that a new trial is warranted where the jury's verdict is so contrary to the evidence as to shock one's sense of justice. However, a new trial should not be granted because of a mere conflict in testimony or because the trial judge, on the same facts, would have arrived at a different conclusion.
Andrews v. Jackson, 800 A.2d 959, 962 (Pa.Super. 2002) (quoting Mano v. Madden, 738 A.2d 493, 495 (Pa.Super. 1999) (en banc)) (emphasis supplied).
Here, in ordering a new trial, the trial court ably explained:
Every driver of a vehicle approaching a stop sign shall stop at a clearly marked stop line or, if no stop line is present, before entering a crosswalk on the near side of the intersection or, if no crosswalk is present, then at a point nearest the intersecting roadway where the driver has a clear view of approaching traffic on the intersecting roadway before entering. 75 Pa.C.S. § 3323(b).
The Court instructed the jury to find Moyer negligent if he violated 75 Pa.C.S. §3323(b). In this instance there was no stop line or crosswalk at the stop sign. Moyer admitted that he violated this statute when he failed to stop at a point nearest the intersection at Weavertown Road, the intersecting roadway. N.T. 137-138. [Appellants'] expert, Steven Rickard, also indicated that Moyer had violated 75 Pa.C.S. §3323(b) when Moyer stopped at the stop sign which was 10-20 feet short of the point nearest the intersection. N.T. 434.
Trial Court Opinion, 12/27/12, at 4 (unnumbered).
Gokey contends, and the trial court agrees, that the evidence that Moyer violated 75 Pa.C.S. §3323(b) by not stopping at the point nearest to the intersection warrants a new trial. See Gokey's Brief at 16, 21-24; Trial Court Opinion, 12/27/12, at 5-6. We disagree. See Alexander v. City of Meadville, 61 A.3d 218, 224-25 (Pa.Super. 2012) citing Sellers v. Cline, 49 A.2d 873, 874 (Pa.Super. 1946) ("The violation of a[n] ordinance is not per se negligence. Such ordinances are evidentiary matters to be considered with all other testimony in the case as bearing upon the question of negligence… The introduction of the ordinance as evidence [is allowable], but standing alone without proof of negligence as being the proximate cause of the accident, the trial judge would not [be] justified in submitting the case to the jury…") (internal citations omitted); see also Weimer, et al. v. Westmoreland Water Co., 193 A. 665, 668 (Pa.Super. 1937) ("Although a statute or ordinance may be offered as evidence of negligence, it cannot be considered a sole basis of recovery.").
Here, Moyer testified that he stopped at the stop sign controlling his lane of travel as he approached the intersection. N.T., 5/1/12, at 110. Moyer's testimony is corroborated by the testimony of Kenneth Biles, an eyewitness motorist who was traveling on Weavertown Road and saw the collision. Mr. Biles testified that Moyer's truck was "stopped at the intersection[.]" Id. at 55. Moyer testified that he stopped "completely and looked left, right, and left again." Id. at 128. Moyer repeatedly maintained that he did not see Gokey prior to entering the roadway. Id. at 110; 123; 131; 138. Moyer stated that he had "a clear view" of Weavertown Road when he stopped at the stop sign. Id. at 140. Mr. Biles, who was familiar with the intersection, agreed that "one can have an unobstructed view of Weavertown Road to your left [which is the area from where Gokey's motorcycle traveled] by stopping at the stop sign." Id. at 96. Mr. Rickard, Moyer's expert, additionally testified that "it doesn't make any difference if [Moyer] [was] stopped at the stop sign and looks to the left or pulled out in the middle of the highway and looks to the left." N.T., 5/3/12, at 420.
The jury was free to believe Moyer's testimony and to credit Mr. Rickard's expert opinion in finding that Moyer was not negligent. We cannot disregard the jury's rejection of Gokey's argument that Moyer was negligent because he did not stop at the nearest point to the intersection as prescribed in 75 Pa.C.S. § 3323(b). Indeed, we are mindful:
[I]t is within the province of the jury to assess the worth of the testimony, which it may then accept or reject. We agree that the jury is free to believe all, some or none of the testimony presented by a witness. However, this rule is tempered by the requirement that the verdict must not be a product of passion, prejudice, partiality, or corruption, or must bear some reasonable relation to the loss suffered by the plaintiff as demonstrated by uncontroverted evidence presented at trial. The synthesis of these conflicting rules is that a jury is entitled to reject ...