Opinion
J. A32004/16 No. 299 EDA 2016
01-24-2017
NEVIN ABEDINAJ, Appellant v. CABRIYAH MARC, Appellee
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
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.:
Retired Senior Judge Assigned to the Superior Court.
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 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") procedure 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.
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.
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.
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.Trial Court Opinion, dated 6/14/16, at 1-2 (footnotes omitted).
[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.
Appellant filed a Notice of Appeal on January 7, 2016. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
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.").
Appellant essentially presents the following two issues for our review:
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[?]Appellant's Brief at 5-7.
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 "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.
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 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. West , 803 A.2d 753, 765 (Pa. Super. 2002) (quotation and citation omitted).
"Moreover, a new trial will not be granted on the ground that the verdict was against the weight of the evidence where the evidence is conflicting and the fact-finder could have decided in favor of either party." Id. at 766 (citation omitted).
The trial court cogently and comprehensively addressed Appellant's weight of the evidence claim in its Rule 1925(a) Opinion. Accordingly, with respect to this issue, we affirm on the basis of the trial court's well-reasoned Opinion. See Trial Court Opinion at 8-9 (concluding that: (1) the verdict was not against the weight of the evidence due to Appellant's failure to follow up with several doctors against their advice; (2) the injuries Appellant claimed were inconsistent; (3) Appellant was unlikely to seek or follow through with future medical treatment and surgery; and (4) the evidence was not "uncontroverted" where Appellee cross-examined Appellant's expert witness despite not presenting competing expert testimony).
In his second issue, Appellant avers that he is entitled to "additur" and asks this court to "mold" the verdict from $3,000 to $78,000. Appellant's Brief at 12-13. Appellant contends that the verdict was shockingly low and a miscarriage of justice, and that the uncontroverted evidence supported $78,000 in damages. Id. Alternatively, Appellant seeks a new trial. Id. at 13.
"A verdict is set aside as inadequate when it is so inadequate as to indicate 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." Dranzo v. Winterhalter , 577 A.2d 1349, 1352 (Pa. Super. 1990) (citation and quotation omitted). Further, "[i]f the verdict bears a reasonable resemblance to the damages proved, the appellate court will not disturb the verdict merely because the damages are less than the reviewing court might have awarded." Id.
"To support the grant of a new trial for inadequacy of the damage award, the injustice of the verdict should stand forth like a beacon." Id. (citation and quotation omitted). "[C]ourts generally have granted a new trial when the verdict award is inadequate[.]" Fiorenza v. Kohn , 577 A.2d 1384, 1386 (Pa. Super. 1990).
The additional $75,000 Appellant seeks is for noneconomic damages. In order to recover noneconomic damages in a limited tort case, Appellant was required to prove a serious injury. See 75 Pa.C.S. § 1705(d); Cadena v. Latch , 78 A.3d 636, 639-40 (Pa. Super. 2013). The Motor Vehicle Financial Responsibility Law ("MVFRL") defines a "serious injury" as "[a] personal injury resulting in death, serious impairment of body function or permanent serious disfigurement." 75 Pa.C.S. § 1702.
Here, the jury concluded that Appellant failed to prove a serious injury. Appellant essentially asks us to reverse the jury's conclusion and reward him for failing to meet his burden of demonstrating a serious injury. We decline to do so here. The verdict bears a reasonable resemblance to the damages proved, and, thus, we will not disturb the verdict.
The parties are instructed to attach a copy of the trial court's June 14, 2016 Opinion to all future filings.
Judgment affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/24/2017
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