NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 
 

  IN THE SUPERIOR COURT OF 
           PENNSYLVANIA 

           

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PAMELA D. SHIFFLETT       

Appellant 

 

 

 

v. 

 

 

OAN K. MENGEL 

   

   

  J

   

 

Appellee 

No. 1517 MDA 2021 

Appeal from the Judgment Entered November 23, 2021 
In the Court of Common Pleas of Lebanon County 
Civil Division at No(s):  2018-01553 
 

MEMORANDUM BY KING, J.: 

FILED MARCH 20, 2023 

Appellant,  Pamela  D.  Shifflett,  appeals  from  the  judgment  entered  in 

the  Lebanon  County  Court  of  Common  Pleas,  in  favor  of  Appellee,  Joan  K. 

EFORE:   BOWES, J., KING, J., and STEVENS, P.J.E.* 

  B

Mengel, following a jury trial.  We affirm. 

The  trial  court  opinion  set  forth  the  relevant  facts  of  this  appeal  as 

follows: 

On  September  26,  2016,  a  collision  occurred  between 
vehicles operated by [Appellant] and [Appellee].  As a result 
of  that  collision,  [Appellant’s]  vehicle  was  “spun  around” 
with its front tires in the road and its rear tires in the grass 
adjacent to the road.  (N.T. Trial, 8/9/21, at 7).  [Appellant] 
was not injured while she remained inside the vehicle.  (Id. 
at 36).  [Appellant] was able to leave the vehicle and walk 
on  her  own.    After  walking  on  or  toward  the  roadway, 
[Appellant] returned to her vehicle to get her phone in order 
to dial 911.  (Id. at 9, 36).  At some point after she called 
911, [Appellant] walked into a culvert and twisted her ankle.  

____________________________________________ 

* Former Justice specially assigned to the Superior Court. 

 

 

  

J-A19023-22  

n October 19, 2018, [Appellant] initiated a Civil Complaint 
against [Appellee].  At a pre-trial conference that occurred 
on July 13, 2021, [Appellee] acknowledged negligence, but 
not  causation.    In  other  words,  [Appellee]  acknowledged 
that  the  collision  between  her  car  and  the  one  driven  by 
[Appellant]  was  her  fault.    However,  [Appellee]  did  not 
acknowledge  that  the  accident  caused  any  harm  to 
[Appellant]. 

oth  [Appellant]  and  [Appellee]  produced  medical  experts 
to provide testimony to the jury via videotaped deposition.  
[Appellee’s]  expert,  Dr.  Daniel  C.  Farber,  provided 
testimony  about  the  seriousness  of  the  injury  claimed  by 
[Appellant].    On  cross-examination,  [Appellant’s]  counsel 
endeavored  to  get  Dr.  Farber  to  testify  that  [Appellant] 
suffered some injury as a result of [Appellee’s] negligence.  
Dr. Farber would not specifically provide such [testimony].  
Rather, Dr. Farber acknowledged that  [Appellant] suffered 
what he described as a “minor ankle sprain” “at the accident 
scene.”  Dr. Farber did not—nor could he—render an opinion 
about whether the negligence of [Appellee] was a cause of 
harm suffered by [Appellant]. 

t trial, there was significant discussion about the issue of 
causation.    [Appellant]  submitted  a  request  for  a  directed 
verdict on the issue of causation.  According to [Appellant’s] 
counsel, Dr. Farber’s testimony constituted a binding legal 
admission  that  [Appellant]  should  be  entitled  to  at  least 
some damages.  (See Motion for Directed Verdict, 8/10/21; 
N.T. Trial, 8/9/21, at 43-46; N.T. Trial, 8/10/21, at 4).  [The 
trial  c]ourt  consistently  denied  [Appellant’s]  request  for  a 
directed  verdict  on  the  issue  of  causation.    However,  [it] 
agreed with [Appellant] that if the jury found even a minor 
injury  resulted  from  the  accident,  then  the  jury’s  verdict 
could not be zero dollars.  (N.T. Trial, 8/10/21, at 6).   

t trial, [the c]ourt provided both counsel with a complete 
copy  of  everything  it  planned  to  communicate  to  the  jury 
during  its  Closing  Instructions.    (Id.  at  4).    [Appellant’s] 
counsel  objected  to  the  [c]ourt’s  use  of  the  phrase  “a 
substantial  factor[”  in  defining  causation.]    (Id.  at  5).  
[Specifically,  in  response  to  the  court’s  question  as  to 

  B

  A

  A

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(Id.)   

  O

J-A19023-22 

J-A19023-22 

there  were  any  comments  or  objections, 
whether 
Appellant’s  counsel  stated  “I  just  want  to  renew  my 
objection  with  regards  to  the  use  of  the  old  language,  a 
substantial  factor,  for  purposes  of  preserving  that.    Other 
than  that,  I  have  no  problem.”    (Id.)]    …  [N]o  other 
objection was proffered when the instructions were provided 
in  advance  to  both  counsel.    [The  trial  c]ourt  rejected 
[Appellant’s] counsel’s challenge to the words “a substantial 
factor.”  … 
 

(Trial Court Opinion, 11/3/21, at 1-3).1   

On  August  10,  2021,  the  jury  returned  a  verdict  in  favor  of  Appellee.  

Although the jury found Appellee was negligent by agreement of the parties, 

it  decided  “[Appellee’s]  negligence  was  not  a  factual  cause  of  any  harm  to 

[Appellant.]”  (Id. at 31).   

Appellant  filed  a  motion  for  post-trial  relief  on  August  17,  2021, 

requesting  a  new  trial  or  entry  of  judgment  notwithstanding  the  verdict 

(“JNOV”).  In her post-trial motion, Appellant first claimed the court erred in 

not entering a directed verdict as to causation.  Second,  Appellant asserted 

that the court’s jury instruction erroneously included the language “substantial 

factor” and “caused by the accident.”  (Post-Trial Motion, filed 8/17/21, at 4). 

After  receiving  briefs  from  the  parties,  the  court  entered  an  order  on 

____________________________________________ 

1 After the court issued its closing instructions to the jury, Appellant’s counsel 
requested  “some  form  of  clarification  that  when  [the  court]  referenced 
accident, [it was] referring to negligence as well….  I am simply saying that 
the repetitive use of the word ‘accident’ could distract them from that reality.”  
(N.T. Trial, 8/10/21, at 28-29).  The court responded: “I think we are talking 
semantics,”  to  which  Appellant’s  counsel  then  stated:  “We  can  deal  with  it 
later if you don’t want to deal with it now.”  (Id. at 29).  Thereafter, the court 
did not provide any correction or clarification to its instructions.   

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November 3, 2021, denying post-trial relief.  Appellant filed a praecipe to enter 

judgment, and judgment was entered on November 23, 2021.  Appellant filed 

a notice of appeal,2 and on November 26, 2021, the court ordered her to file 

a  Pa.R.A.P.  1925(b)  concise  statement  of  errors  complained  of  on  appeal.  

Appellant timely complied.   

Appellant raises the following four issues for our review: 

A.  Whether  the  trial  court  erred  by  denying  [Appellant’s] 
motion for a directed verdict on question 2 (causation) when 
the trial court told the jury at the start of trial that [Appellee] 
conceded  [Appellant]  suffered  injuries  as  a  result  of 
[Appellee’s] negligence? 
 

B.  Where  [Appellee]  conceded  [Appellant]  suffered  some 
injuries as a result of [Appellee’s] negligence, whether the 
trial court erred by not granting [JNOV]? 
 

C.  Where both [Appellant] and [Appellee] requested the simple 
and accurate “factual cause” instruction set forth in Pa. SSJI 
§ 13.20, whether the trial court erred by adding more than 
either party requested and including the words “substantial 
factor”  to  the  jury  instructions  such  that  the  jury  heard 
confusing instructions as to causation[?] 
 

D. Whether  the  trial  court  erred  by  instructing  the  jury  that 
[Appellant]  must  prove  harm  caused  “by  the  accident” 
[Appellee’s] 
instead 

caused 

harm 

“by 

of 

____________________________________________ 

2 Appellant purported to appeal from the trial court’s order denying her post-
trial motion.  An order denying post-trial motions is interlocutory and generally 
not  appealable.    See  Levitt  v.  Patrick,  976  A.2d  581,  584  n.2  (Pa.Super. 
2009)  (stating  that  appeal  properly  lies  from  entry  of  judgment,  not  from 
order denying post-trial motions).  However, because judgment was entered 
on  November  23,  2021,  we  consider  the  appeal  as  taken  from  the  entry  of 
judgment.    See  Johnston  the  Florist,  Inc.  v.  TEDCO  Const.  Corp.,  657 
A.2d 511, 514-15 (Pa.Super. 1995) (en banc) (stating that appellate courts 
may  “regard  as  done  that  which  ought  to  have  been  done”)  (citations 
omitted).  We have amended the caption accordingly. 

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injury 
negligence/conduct”  when 
occurred  moments  after  the  accident  because  [Appellant] 
was forced to walk in a dangerous place due to where her 
vehicle was pushed by the accident? 

[Appellant’s]  ankle 

Appellant’s Brief at 4) (questions reordered for purposes of disposition). 

In her first issue, Appellant argues the trial court erred when it denied 

her  motion  for  a  directed  verdict.    Appellant  claims  she  was  entitled  to  a 

directed  verdict  as  to  causation  because  Appellee’s  expert  conceded  that 

Appellant suffered an ankle injury as a result of Appellee’s negligence.  (Id. 

at 13-19).  Based on this concession, Appellant insists the court was required 

to  enter  a  directed  verdict  on  the  issue  of  causation,  relying  on  Mano  v. 

Madden,  738  A.2d  493  (Pa.Super.  1999)  (en  banc),  and  Andrews  v. 

Jackson, 800 A.2d 959 (Pa.Super. 2002), appeal denied, 572 Pa. 694, 813 

  (

   

A.2d 835 (2002).  We disagree. 

Our standard and scope of review are as follows: 

J-A19023-22 

Our  standard[s] of  review when considering motions for a 
directed verdict and [JNOV] are identical.  We will reverse a 
trial court’s grant or denial of a [JNOV] only when we find 
an abuse of discretion or an error of law that controlled the 
outcome of the case.  Further, the standard of review for an 
appellate court is the same as that for a trial court. 

here are two bases upon which a [JNOV] can be entered; 
one, the movant is entitled to judgment as a matter of law 
and/or  two,  the  evidence  is  such  that  no  two  reasonable 
minds  could  disagree  that  the  outcome  should  have  been 
rendered in favor of the movant.   With the first, the court 
reviews the record and concludes that, even with all factual 
inferences  decided  adverse  to  the  movant,  the  law 
nonetheless requires a verdict in [her] favor.  Whereas with 
the  second,  the  court  reviews  the  evidentiary  record  and 
concludes that the evidence was such that a verdict for the 

  T

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movant was beyond peradventure. 
 

Reott v. Asia Trend, Inc., 7 A.3d 830, 835 (Pa.Super. 2010), aff’d, 618 Pa. 

228,  55  A.3d  1088  (2012)  (quoting  Campisi  v.  Acme  Markets,  Inc.,  915 

A.2d 117, 119 (Pa.Super. 2006)).   

“To  prevail  in  a  negligence  action,  the  plaintiff  must  show  that  the 

defendant had a duty to conform  to a certain standard of conduct, that the 

defendant breached that duty, that such breach caused the injury in question, 

and actual loss or damage.”   Barton v. Lowe’s Home Centers, Inc., 124 

A.3d 349, 359 (Pa.Super. 2015) (citation omitted).   

[T]he  determination  of  whether  the  defendant’s  conduct 
was a substantial cause of the injuries complained of should 
not be taken from the jury if the jury may reasonably differ 
as  to  whether  the  conduct  of  the  defendant  has  been  a 
substantial  factor  in  causing  the  harm.    See  also 
Restatement (Second) of Torts § 434.  If issues are raised 
on which a jury may not reasonably differ, it is proper for 
the trial court to decide them.   If, on the other hand, a 
jury  may 
the 
defendant’s  conduct  was  a  substantial  factor  in 
causing the injury, generally, the case must go to the 
jury on those issues. 
 

reasonably  differ  on  whether 

Straw v. Fair, 187 A.3d 966, 993 (Pa.Super. 2018) (emphasis added), appeal 

denied, 651 Pa. 27, 202 A.3d 49 (2019) (quoting Vattimo v. Lower Bucks 

Hosp., Inc., 502 Pa. 241, 247, 465 A.2d 1231, 1233-34 (1983) (plurality)). 

In Mano, surpa, this Court held that it was “impermissible for a jury…to 

disregard the uncontroverted testimony from experts from both parties that 

the  plaintiff  suffered  some  injury  as  a  result  of  the  accident  in  question.”  

Mano,  supra  at  497.    Similarly,  in  Andrews,  supra,  this  Court  held  that 

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J-A19023-22 

“[w]here there is no dispute that the defendant is negligent and both parties’ 

medical  experts  agree  the  accident  caused  some  injury  to  the  plaintiff,  the 

jury may not find the defendant’s negligence was not a substantial factor in 

bringing about at least some of plaintiff’s injuries.”  Andrews, supra at 962 

(emphasis omitted).   

Instantly, the trial court explained: 

testimony 

[The  court]  listened  to  the  entirety  of  Dr.  Farber’s[,  the 
defense  expert’s,]  videotaped 
in  [c]ourt.  
Nowhere did Dr. Farber link the motor vehicle accident that 
[Appellee] admitted causing to the ankle injury suffered by 
[Appellant.]  Dr. Farber acknowledged that the ankle injury 
occurred  “at  the  accident  scene,”  but  he  carefully  avoided 
the  semantic  trap  that  [Appellant’s]  counsel  attempted  to 
set.  Based upon the totality of Dr. Farber’s testimony, we 
cannot agree with [Appellant’s] assertion that Dr. Farber’s 
testimony required us to remove the issue of causation from 
the jury’s hands. 
 

(Trial Court Opinion at 5).  The trial court further stated: 

To  be  sure,  [Appellee]  acknowledged  that  her  negligence 
caused  her  vehicle  to  collide  with  the  one  operated  by 
[Appellant].    However,  at  no  time  did  [Appellee]  concede 
the issue of causation.  To argue that [the trial court] should 
have taken the issue of causation from the jury based upon 
obtuse  language  from  a  medical  expert  who  was  dealing 
primarily with the seriousness of [Appellant’s] injury would 
have  been  profoundly  unfair.    Causation  in  this  case  was 
very much a jury issue.  
 

(Id. at 7).  

 

Upon review, we conclude that Appellant’s reliance on Andrews, supra 

and  Mano,  supra  is  misplaced.    Whereas  in  those  cases,  experts  for  both 

parties agreed that there was injury caused by the accident, there was no 

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J-A19023-22 

such agreement between the parties’ experts in the case before us.  Thus, the 

cases  on  which  Appellant  relies  are  distinguishable,  and  the  court  properly 

submitted the issue of causation to the jury.  See Straw, supra.  Appellant’s 

first issue affords her no relief. 

 

In  her  second  issue,  Appellant  again  insists  that  Appellee’s  expert 

conceded  that  Appellant’s  sprained  ankle  was  caused  by  Appellee’s 

negligence.    Based  on  this  assertion,  Appellant  contends  the  jury  was  not 

permitted to render a verdict in favor of Appellee on the issue of causation.  

Alternatively,  Appellant  claims  that  the  evidence  established  she  suffered 

some  “neck,  shoulder,  and  abdomen  injuries”  in  the  car  crash.    Appellant 

concludes the jury’s verdict was flawed and against the weight of the evidence, 

and the trial court should have granted her motion for JNOV or granted a new 

trial.  (Appellant’s Brief at 30-31).  We disagree. 

 

Regarding a motion for JNOV: 

The trial court may award a [JNOV] or a new trial only when 
the jury’s verdict is so contrary to the evidence as to shock 
one’s sense of justice.  In determining whether this standard 
has been met, appellate review is limited to whether the trial 
judge’s discretion was properly exercised, and relief will only 
be granted where the facts and inferences of record disclose 
a palpable abuse of discretion.  When a fact finder’s verdict 
is so opposed to the demonstrative facts that looking at the 
verdict,  the  mind  stands  baffled,  the  intellect  searches  in 
vain  for  cause  and  effect,  and  reason  rebels  against  the 
bizarre and erratic conclusion, it can be said that the verdict 
is shocking. 
 

Haan  v.  Wells,  103  A.3d  60,  70  (Pa.Super.  2014)  (citations  and  internal 

quotation marks omitted). 

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Here, Appellant testified that she suffered pain in her right ankle about 

a  week  after  the  accident.    (N.T.  Trial,  8/9/21,  at  12-13).    Appellant  also 

introduced into evidence videotaped deposition testimony from her expert, Dr. 

Paul J. Juliano, who treated her for an ankle injury.3  Dr. Juliano opined that 

Appellant’s ankle injuries were caused by the accident.  (Juliano Dep. at 9).  

Appellee introduced into evidence videotaped deposition testimony from 

her expert, Dr. Farber.  Dr. Farber testified that after “reviewing [Appellant’s] 

records  and  her  exam  and  her  story,  it  appeared  that  she  had  some  minor 

ankle  strain  at  the  accident  scene.”    (Farber  Dep.  at  21).    On  cross-

examination the following exchange occurred: 

Q. Now, you indicated that you believed [Appellant] suffered 
a  minor  ankle  sprain  in  her  right  ankle  as  a  result  of  the 
defendant’s negligence; is that correct? 

.  Well,  at  the  accident  scene  she  had  that  injury.  I  can’t 

tell you where it comes from, but... 

. Well, [Appellant]– 

____________________________________________ 

  A

  Q

 

3 We note that it is Appellant’s responsibility to supply a complete record for 
our  review.    See  Pa.R.A.P.  1911(a).    The  certified  record  in  this  matter 
contains  only  a  limited  excerpt  of  the  trial  transcript  related  to  causation.  
Appellant  did  not  ensure  that  the  certified  record  contained  the  full  trial 
transcript.    Nor  did  she  supply  this  Court  with  the  official  transcripts  of 
deposition testimony.  Cade v. McDanel, 679 A.2d 1266, 1268-69 (Pa.Super. 
1996) (stating appellant has duty to supply this Court with official transcripts 
of  deposition  testimony;  failure  to  confirm  that  original  certified  record  for 
appeal  contains  sufficient  information  to  conduct  proper  review  constitutes 
waiver of issues sought to be examined).  Although we could deem Appellant’s 
issues  waived  on  this  ground,  Appellant  included  complete  copies  of  the 
experts’ depositions in her reproduced record (the veracity of which Appellee 
does not dispute) upon which we can conduct our review.  See id. 

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J-A19023-22 

. Understand. 

for it. 
 

. I’m not a lawyer to tell you that—the—who’s responsible 

*     *     * 

.  I certainly won’t dispute those details.  But if you ask me 
to  describe  who’s  responsible  for  the  injury,  that’s  not—I 
don’t look at that as my job.  My job is to look at her injury 
and—and  tell  you  what  I  think,  you  know,  happened  and 
what  the  treatment  was,  whether  the  treatment  was 
appropriate, that sort of thing.  That’s all I can— 

Q. Well, you did — you did opine that she suffered a minor 
ankle sprain? 

 

. Correct. 

. Right.  And we can agree that she suffered an ankle injury 
when she stepped out of the vehicle on the grass after being 
pushed  into the  grass by the  defendant’s vehicle? Can we 
agree on that? 

.  Again,  I  don’t  know—I  can’t  speak  to  the—I  have  not 
studied  nor  remember  the  details  of  her  accident.    But  as 
she described to me getting out of the car and turning her 
ankle when she stepped into the ditch, that would appear to 
be  the  time  which  she  suffered  her  injury  from  her 
description. 

.  Okay.    And  do  you  have  any  information  that  would 
suggest that she suffered this ankle sprain that you say she 
suffered at any time other than when she’s been pushed into 
the grass alongside the road at nighttime? 

. No. 

. So we can agree that the reason she has a sprained ankle 
is because she’s in the dark, on the grass, getting out of a 
vehicle that’s been pushed off the roadway?  
 

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  Q

  A

  A

  A

  Q

  A

  Q

  A

  Q

A. –the car and turning her ankle so that’s– 

J-A19023-22 

J-A19023-22 

A.  We  can—we  can  agree  that  she  stepped  out  of  the  car 
and turned her ankle and suffered an injury. 

.  Okay.    And  that  she  didn’t  voluntarily  walk  into  that 

grassy area at nighttime? 

.  No.    But,  again,  that’s  not—that’s  not  my  area  of 
expertise to look at the forensics of the accident—it’s the— 
 

*     *     * 
 
Q. …My question.    Doctor, was really  this: That when  you 
did the—when you did the defense medical exam, you knew 
that the parties would be looking at your report to see what 
you  said  about  what  injuries  were  suffered  as  a  result  of 
[Appellee’s] negligence; is that fair? 

. And that what you found was that—was that she did, in 
fact,  suffer  an  injury.    You  just  characterize  it  as  a  minor 
sprain; is that fair? 

. Sure, yes. 

.  True. 

*     *     * 

. You wrote a report that indicated that [Appellant] did, in 
fact,  suffer  an  injury  as  a  result  of  being  pushed  into  the 
grass.  And you are here to tell the jury that she did, in fact, 
suffer an injury as a result of that incident; is that fair? 

 

. I mean, I’m here to present the report of my questioning 

and exam and review of the records. 

Q. Correct.  And your—your report indicated that she did, in 
fact, suffer a sprain to her right ankle as a result of being 
pushed off the road into the grass— 

. Correct. 

. Okay. 

. Correct?  So we can agree on that? 

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  Q

  A

  A

  Q

  A

 

  Q

  A

  A

  Q

  A

J-A19023-22 

 

(Id. at 31-34, 51-53). 

The  trial  court  found  that  Appellee’s  expert  did  not  concede  that  the 

accident was  the cause of Appellant’s ankle injury.  Our review of the  prior 

exchange  leads  us  to  agree.    While  Dr.  Farber  conceded  that  Appellant 

suffered an ankle injury at the accident scene and following the accident, 

he did not concede that the accident  caused Appellant’s injury.  Therefore, 

the question of causation was properly left to the jury, and Appellant was not 

entitled to JNOV.  Further, viewing the evidence in the light most favorable to 

Appellee, as verdict winner, Appellant has not established that the “evidence 

was  such  that  a  verdict  [in  her  favor]  was  beyond  peradventure.”    Reott, 

supra at 835.  Therefore, Appellant’s second issue merits no relief.4  Reott, 

supra; Haan, supra. 

Appellant’s  third  and  fourth  issues  are  related,  and  we  address  them 

together.  Appellant argues that the court erroneously instructed the jury that 

it  must  find  Appellee’s  conduct  was  a  “substantial  factor”  in  bringing  about 

Appellant’s  injury  to  render  a  verdict  in  favor  of  Appellant.    Appellant 

emphasizes  that  both  parties  proposed  the  court  use  the  same  instruction 

____________________________________________ 

4 Regarding Appellant’s alternative argument that she suffered some “neck, 
shoulder, and abdomen injuries” in the car crash, our review of the certified 
record does not reveal any testimony or evidence to support this claim, other 
than  Appellant  briefly  describing  some  “upper  torso”  pain  that  she  suffered 
the day after the accident.  (N.T. Trial, 8/9/21, at 10-11).  Accordingly, this 
alternative argument does not afford Appellant any relief. 

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J-A19023-22 

regarding  causation,  the  Pennsylvania  Suggested  Standard  Jury  Instruction 

(SSJI)  §  13.20  (Factual  Cause).    Appellant  contends  that  this  instruction 

replaced  the  previously  used  terms  “substantial  factor”  and  “legal  cause.”  

(Appellant’s Brief at 22).  Appellant concludes the trial court erred and abused 

its discretion when it gave its own instruction, rather than the SSJI instruction, 

ultimately confusing the jury and warranting a new trial.5  We disagree.  

Our  standard  of  review  when  considering  the  adequacy  of  jury 

instructions in a civil case is to determine whether the trial court committed a 

clear abuse of discretion or error of law controlling the outcome of the case.  

Pringle v. Rapaport, 980 A.2d 159, 165 (Pa.Super. 2009) (citation omitted).   

“It is only when the charge as a whole is inadequate or not 
clear or has a tendency to mislead or confuse[,] rather than 
clarify a material issue[,] that error in a charge will be found 
to  be  a  sufficient  basis  for  the  award  of  a  new  trial.”    Id.  
(quotation  and  citation  omitted);  Commonwealth  v. 
Chambers, 602 Pa. 224, 980 A.2d 35, 49-50 (2009) (“[a] 
charge  will  be  found  adequate  unless  the  issues  are  not 
made clear, the jury was misled by the instructions, or there 
was  an  omission  from  the  charge  amounting  to  a 
fundamental error”).  Further: 

____________________________________________ 

5  Appellant  claims  the  trial  court  further  confused  the  jury  during  its 
instructions  by  stating  that  Appellant’s  injuries  must  have  been  caused  “by 
the accident” rather than using the phrase “by the defendant’s negligence.”  
(Appellant’s Brief at 27).  Nevertheless, Appellant has failed to develop this 
argument adequately on appeal.  (Id. at 27-28).  Consequently, we deem this 
particular claim waived.  See Coulter v. Ramsden, 94 A.3d 1080 (Pa.Super. 
2014),  appeal  denied,  631  Pa.  719,  110  A.3d  998  (2014)  (explaining 
arguments  that  are  not  appropriately  developed  on  appeal  are  waived; 
arguments not appropriately developed include those where party has failed 
to cite any authority in support of contention).  Because Appellant waived this 
argument by failing to develop it in her brief, we need not consider whether 
she properly preserved this challenge before the trial court.   

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J-A19023-22 

 

[i]n reviewing a trial judge’s charge, the proper test is 
not  whether  certain  portions  taken  out  of  context 
appear  erroneous.    We  look  to  the  charge  in  its 
entirety,  against  the  background  of  the  evidence  in 
the particular case, to determine whether or not error 
was committed and whether that error was prejudicial 
to the complaining party. 
 

Reilly by Reilly v. S.E. Pa. Transp. Auth., 507 Pa. 204, 
[231,] 489 A.2d 1291, 1305 (1985). 
 

Salsgiver Commc’ns, Inc. v. Consol. Commc’ns Holdings, Inc., 150 A.3d 

957, 962-63 (Pa.Super. 2016). 

Jury  instructions  must  contain  correct  definitions  of  legal  terms.  

Gorman  v.  Costello,  929  A.2d  1208,  1213  (Pa.Super.  2007)  (citation 

omitted).    Although  “the  SSJI  are  not  binding  on  trial  courts,  the  SSJI  are 

nonetheless instructive.”  Id.  Nevertheless, our Supreme Court “has never 

adopted the Pennsylvania Suggested Standard Jury Instructions, which exist 

only as a reference material available to assist the trial judge and trial counsel 

in preparing a proper charge.”  Jeter v. Owens-Corning Fiberglas Corp., 

716 A.2d 633, 636 (Pa.Super. 1998) (internal citation omitted).  Thus, a trial 

judge  has  wide  latitude  in  his  choice  of  language  when  charging  a  jury, 

provided  that  the  court  fully  and  adequately  conveys  the  applicable  law.  

Hatwood v. Hospital of the University of Pennsylvania, 55 A.3d 1229, 

1235 (Pa.Super. 2012), appeal denied, 619 Pa. 723, 65 A.3d 414 (2013). 

In  Gorman,  supra,  this  Court  considered  a  court’s  instruction  to  the 

jury concerning causation in a negligence case.  Similar to the case here, the 

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appellant was injured after her vehicle was struck by the appellee’s vehicle.  

At trial, the court instructed the jury by reading a portion of the Pennsylvania 

Suggested Standard Civil Jury Instructions.  The jury later returned a verdict 

finding that the appellee was negligent, but the negligence was not a factual 

cause of the appellant’s injuries. 

On  appeal,  the  appellant  argued  the  court  erred  by  reading  only  a 

portion of the suggested instruction on factual causation.  This Court agreed, 

stating  the  trial  court  had  failed  to  provide  a  complete  definition  of  factual 

cause, such that the jury lacked “an essential tool needed to make an informed 

decision based on correct and complete legal principles relevant to its verdict 

on the issue of damages.”  Id. at 1213 (internal citations omitted). 

Instantly, the SSJI 13.20 regarding Factual Cause that the parties asked 

the court to read states: 

In order for [name of plaintiff] to recover in this case, [name 
of  defendant]’s  [negligent]  [grossly  negligent]  [reckless] 
conduct must have been a factual cause in bringing about 
harm.  Conduct is a factual cause of harm when the harm 
would not have occurred absent the conduct.  To be a factual 
cause, the conduct must have been an actual, real factor in 
causing  the  harm,  even  if  the  result  is  unusual  or 
unexpected.    A  factual  cause  cannot  be  an  imaginary  or 
fanciful factor having no connection or only an insignificant 
connection with the harm. 

o be a factual cause, [name of defendant]’s conduct need 
not  be  the  only  factual  cause.    The  fact  that  some  other 
causes  concur  with  [name  of  defendant]’s  negligence  in 
producing  an  injury  does  not  relieve  [name  of  defendant] 
from liability as long as [his] [her] [their] own negligence is 
a factual cause of the injury. 
 

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There are two general issues that you will have to address: 
Causation and damages.  Let me describe those to you in 
more  detail.    As  I  indicated  to  you  at  the  outset,  the  first 
issue you will have to decide is whether [Appellee’s] conduct 
was a factual cause of harm to [Appellant]. 

his is, again, a different concept than the question of who 
caused the accident.  [Appellee] admits that she caused the 
accident.    However,  the  question  is  whether  the  accident 
caused some, all or part or none of [Appellant’s] harm.  That 
is the question that you must answer. 

Appellant] must prove by a preponderance of the evidence 
that [Appellee’s] conduct was a factual cause of her harm.  
To be a factual cause an event must have been a substantial 
factor in bringing about the harm.  Notice, that I have been 
very careful to use the word “a” instead of the word “[the]”.  
There can be more than one cause of a plaintiff’s harm. 

he concept of factual cause does not mean that an accident 
has to be the only cause, a primary cause, or even the most 
important factor in causing an injury.  However, in order for 
a  plaintiff  to  recover,  the  accident  must  be  a  substantial 
factor in bringing about harm to the plaintiff. 

  substantial  factor  is  defined  as  an  actual  factor,  a  real 
factor.    It  is  not  imaginary.    It  is  not  one  having  only  an 
insignificant  connection  to  the  accident.    An  accident  may 
be found to be a factual cause so long as it contributes to a 
plaintiff’s harm in any way that you find to be substantial. 

ow, as you assess damages you will be required to decide 
what  damages  actually  resulted  from  the  accident  as 
opposed to some other factor.  It is at that point that you 
will  assess  the  degree  to  which  [Appellant]  suffered  harm 
only as a result of the accident.  To reiterate, at this point 
as you are answering the question regarding causation you 
must only decide whether this accident was a factual cause, 
a  substantial  factor  in  bringing  about  some  harm  to 
[Appellant.] 

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During its instructions, the court charged the jury as follows:  

J-A19023-22 

Pa.SSJI (Civ) § 13.20.   

t  is  not  necessary  at  this  point  for  you  to  conduct  a 
qualitative  analysis  of  all  of  the  different  things  that  may 
have  come  into  play  to  create  harm  to  [Appellant.]    That 
analysis will occur when you assess damages. 

et me summarize with respect to causation: Number one, 
in  order  to  recover  a  plaintiff  must  prove  by  a 
preponderance of evidence that the accident was a factual 
cause of the harm of which [Appellant] now complains. 

wo,  an  accident  will  be  deemed  a  factual  cause  if  it  is  a 

substantial factor in bringing about [Appellant’s] harm. 

hree, the accident can be a substantial factor even if other 
factors also contributed to [Appellant’s] harm.  With respect 
to  causation  you  do  not  need  to  engage  in  a  qualitative 
analysis  of  how  all  of  the  many  factors  related  to  the 
accident and not related to the accident may have combined 
to create a plaintiff’s condition. 

ou  only  need  to  decide  if  the  accident  was  a  substantial 

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J-A19023-22 

factor in bringing about any harm.  … 
 

(N.T. Trial, 8/10/21, at 11-14). 

 

Here, Appellant takes issue with the court’s use of the words “substantial 

factor”  in  defining  causation,  as  SSJI  13.20  does  not  use  that  verbiage.  

Nevertheless, the court fully defined the principle of causation using language 

that has been widely used in Pennsylvania.  See, e.g., Straw, supra at 993 

(defining causation as established when “conduct was a substantial factor in 

bringing about the harm inflicted upon a plaintiff”).  See also Rost v. Ford 

Motor  Co.,  637  Pa.  625,  654,  151  A.3d  1032,  1049  (2016)  (“To  establish 

proximate  causation,  a  plaintiff  must  adduce  evidence  to  show  that  the 

defendant’s  act  was  a  substantial  factor  in  bringing  about  the  plaintiff’s 

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J-A19023-22 

harm”).  Although the court’s language did not mirror that set forth in SSJI § 

13.20,  the  suggested  standard  jury  instructions  are  not  mandatory.6    See 

Jeter, supra.  Further, this case is distinguishable from the fundamental error 

at issue in Gorman because it does not involve a situation where the court 

provided an incomplete definition for a relevant legal principle.  Thus, the trial 

court did not err in denying Appellant’s request for a new trial, and Appellant’s 

final two issues merit no relief.  Accordingly, we affirm. 

Judgment affirmed.  

6 The Subcommittee Note for SSJI 13.20 explains that “[c]onfusion has been 
generated, compounded, and perpetuated by various attempts to make clear 
to the jury the ramifications of the distinction between a factual cause of an 
accident  and  a  legal  cause  of  an  accident.”    Pa.SSJI  (Civ)  §  13.20, 
Subcommittee Note.  The Note goes on to state that the term “substantial” 
means  only  “significant”  and  does  not  require  any  particular  quantification.  
Id.  Because “proximate cause” is “a term that attempts to give substance to 
the distinction between factual cause and legal cause but means nothing to 
an  ordinary  juror,”  that  term  has  been  omitted  from  the  SSJI,  as  well  as 
language  such  as  “substantial  factor.”    Id.    Thus,  “the  subcommittee 
recommends that the emphasis be on cause and that the definition of factual 
cause  be  so  stated  as  to  emphasize  that  it  need  not  be  so  considerable  or 
large  as  to  be  confused  with  the  plaintiff’s  burden  of  proof,  which  is 
considerably higher.”  Id.  Accordingly, “[i]t is the committee’s belief that the 
substitution of ‘factual cause’ for ‘substantial factor’ and ‘legal cause’ would 
not  change  an  essential  element  in  the  burden  of  proof  charge  or  create  a 
prejudice to any party.”  Id.   

e reiterate that the SSJI are not mandatory, but as the name makes clear, 
suggested jury instructions.  See Jeter, supra.  Thus, the fact that the SSJI 
omits  the  words  “substantial  factor”  does  not  mean  that  inclusion  of  those 
words  is  necessarily  erroneous.    Our  review  of  the  jury  instruction  in  its 
entirety  makes  clear  that  the  court  accurately  recited  the  law  pertaining  to 
causation such that a new trial is not warranted under these circumstances.  
See Pringle, supra. 

  W

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President Judge Emeritus Stevens joins this memorandum. 

Judge Bowes files a dissenting memorandum. 

udgment Entered. 

oseph D. Seletyn, Esq. 
Prothonotary 

ate: 03/20/2023 

 

 

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