Abedinaj, N. v. Marc, C.

Superior Court of Pennsylvania

Abedinaj, N. v. Marc, C.

DecidedJanuary 24, 2017

Docket299 EDA 2016

StatusUnpublished

This text of Abedinaj, N. v. Marc, C. (Abedinaj, N. v. Marc, C.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Abedinaj, N. v. Marc, C., (Pa. Ct. App. 2017).

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Opinion

J. A32004/16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

NEVIN ABEDINAJ, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : v. : : CABRIYAH MARC, : : Appellee : No. 299 EDA 2016

Appeal from the Judgment Entered March 1, 2016 In the Court of Common Pleas of Philadelphia County Civil Division at No.: 140200758

BEFORE: DUBOW, RANSOM, AND PLATT, JJ.*

MEMORANDUM BY DUBOW, J.: FILED JANUARY 24, 2017

Nevin Abedinaj (“Appellant”) appeals from the March 1, 2016

Judgment entered by the Philadelphia County Court of Common Pleas

following a jury trial. We affirm.

The relevant facts, as gleaned from the trial court’s June 14, 2016

Opinion and the certified record, are as follows. On June 29, 2013, Cabriyah

Marc (“Appellee”) rear-ended Appellant while Appellant was stopped in a

vehicle at a stop sign. The airbags did not deploy and the damage to

Appellant’s car totaled $690. Appellant did not go to the emergency room

after the accident, but he took an Advil. Appellant testified that he had no

* Retired Senior Judge Assigned to the Superior Court. J. A32004/16

medical issue before the accident, but he started experiencing pain in his

neck and lower back immediately after the accident.

The pain worsened over time, and Appellant received physical therapy

treatment for approximately 6 months. Appellant failed to follow up with an

orthopedist regarding his neck pain, and an Electromyography (“EMG”)

procedure1 in September 2013 showed no nerve damage to Appellant’s

neck. After complaining for the first time of arm pain, Appellant scheduled a

second EMG procedure in March 2014, which showed radiculopathy at three

different levels of his spine. Appellant failed to follow up after the second

EMG.

Appellant received no treatment from January to October 2014. In

October 2014, Appellant received a neck injection, but he again failed to

follow up with the doctor.

The trial court summarized the procedural history as follows:

[Appellant] filed a complaint in this motor vehicle, limited tort matter on February 7, 2014 against [Appellee] in the Court of Common Pleas of Philadelphia, First Judicial District of Pennsylvania. On February 6, 2015[,] the parties went to compulsory arbitration, where the arbitrators found in favor of [Appellant] in the amount of $1,000. [Appellant] then filed an appeal for a trial de novo.

1 Doctor Stepanuk testified at trial and described an EMG procedure in his deposition: “An EMG is a test where needles are placed, in this case, in the arm. The needles are moved back and forth. The patient is asked to contract their muscles, and this sends impulses that are picked up and converted into waves. The waves are then interpreted, and you can tell whether there is nerve damage or not.” N.T. Stepanuk Deposition, 8/20/15, at 25-26.

-2- J. A32004/16

A [j]ury [t]rial was held on November 19, 2015[,] and November 20, 2015. [Appellee] did not contest her negligence in causing the accident, therefore, the sole issues before the jury was whether the [Appellant] suffered serious impairment of a bodily function, and whether [Appellee’s] negligence was the factual cause in bringing [Appellant’s] harm.

[Appellant presented expert testimony that his future treatment would include cervical spine surgery for approximately $60,000 and other medication and treatment in the amount of $3,000 per year for five years.]

On November 11, 2015[,] the [j]ury returned a verdict. The [j]ury found that [Appellee’s] negligence was a factual cause of [Appellant’s] harm, and awarded [Appellant] $3,000 in past economic damages. The [j]ury also found that [Appellant] did not suffer a serious impairment of a bodily function [and did not award any noneconomic damages as a result.]

On November 30, 2015[,] [Appellant] filed a Motion for Post- Trial relief, requesting additur of $75,000 in future economic damages, or alternatively a new trial. This [c]ourt denied the Motion for Post-Trial relief on December 29, 2015[,] and [Appellant] appealed.

Trial Court Opinion, dated 6/14/16, at 1-2 (footnotes omitted).

Appellant filed a Notice of Appeal on January 7, 2016.2 Both Appellant

and the trial court complied with Pa.R.A.P. 1925.

Appellant essentially presents the following two issues for our review:

2 We note that Appellant filed his Notice of Appeal prematurely from the December 29, 2015 Order. See PA Energy Vision, LLC v. South Avis Realty, Inc., 120 A.3d 1008, 1012 n.3 (Pa. Super. 2015) (an appeal of a final order in a civil case lies from the entry of judgment). However, the trial court entered Judgment on February 29, 2016, thus perfecting Appellant’s appeal. See Pa.R.C.P. No. 227.4; Prime Medica Associates. v. Valley Forge Ins. Co., 970 A.2d 1149, 1154 n.6 (Pa. Super. 2009) (“A final judgment entered during the pendency of an appeal is sufficient to perfect appellate jurisdiction.”).

-3- J. A32004/16

1. Whether [Appellant] is entitled to a new trial when the jury verdict was patently against the weight of the uncontested evidence presented at trial[?]

2. Whether [Appellant] was entitled to a molding of the jury verdict upwards (i.e., Additur) when the jury verdict was patently against the weight of the uncontested evidence presented at trial[?]

Appellant’s Brief at 5-7.3

In his first issue, Appellant claims that the jury’s “verdict awarding

past medical bills to Appellant but no future medical bills goes against the

weight of the evidence and is a miscarriage of justice[.]” Appellant’s Brief at

12. Appellant avers that his expert medical testimony was “uncontroverted”

because Appellee did not present expert medical testimony. Id. at 24.

When considering challenges to the weight of the evidence, we note

that, “[i]t is well-settled in Pennsylvania that the weight of the evidence and

the credibility of witnesses are issues for the jury who is free to believe

some, all, or none of the evidence presented.” Odato v. Fullen, 848 A.2d

964, 966 (Pa. Super. 2004).

“A jury is entitled to believe all, part or none of the evidence

presented. . . . A jury can believe any part of a witness’ testimony that they

3 Appellant’s “Statement of Questions Involved” includes 9 issues, including seven variations of the same issue. Appellant essentially changes the sub- argument or premise underlying why he believes the verdict was shockingly low. These variations do not comport with Appellant’s argument sections, or Appellant’s Rule 1925(b) Statement. These claims are essentially re- phrased challenges to the weight of the evidence, and we will address them accordingly.

-4- J. A32004/16

choose, and may disregard any portion of the testimony that they

disbelieve.” Martin v. Evans, 711 A.2d 458, 463 (Pa. 1998) (citation and

quotation omitted).

Where a jury has made credibility determinations regarding the

testimony and evidence presented, those determinations are rarely

overturned. Armbruster v. Horowitz, 744 A.2d 285, 287 (Pa. Super.

1999). Further, in order to prevail on a challenge to the weight of the

evidence, the verdict must be so “contrary to the evidence as to shock one’s

sense of justice[.]” Lanning v.

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