Tankel, J. v. Scheidt, L. and M. ( 2015 )

J-A05032-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOSHUA TANKEL, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
LISA SCHEIDT AND MARTIN SCHEIDT,
Appellees No. 2278 EDA 2014
Appeal from the Order Entered July 9, 2014
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 13061380
BEFORE: GANTMAN, P.J., SHOGAN, and ALLEN, JJ.
MEMORANDUM BY SHOGAN, J.: FILED APRIL 20, 2015
Appellant, Joshua Tankel, appeals from the order entered on July 9,
2014, that dismissed his complaint against Lisa Scheidt and Martin Scheidt
(collectively “Appellees”) with prejudice. We affirm.
The trial court set forth the background of this case as follows:
On June 10, 2013, [Appellant] commenced this civil action
against [Appellees] for injuries sustained by [Appellant] after a
motor vehicle accident. [Appellant] filed an amended complaint
on July 9, 2013. In their answer, [Appellees] denied negligence.
[Appellees] also filed New Matter. The New Matter states that
because [Appellant] elected the limited tort option and
[Appellant’s] injuries are not serious as defined by the
Pennsylvania Motor Vehicle Financial Responsibility Law
(PMVFRL) [(75 Pa.C.S. §§ 1701–1799.7),] [Appellant] is
precluded from recovering [damages for] pain and suffering. On
May 5, 2014, [Appellees] filed a motion for partial summary
judgment. [Appellees] asserted that because [Appellant] was
bound by the limited tort election, he cannot maintain an action
for non-economic loss because the injury was not serious as
defined by PMVFRL. The motion was granted by the Order dated
June 10, 2014 and the case was sent to arbitration.
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On July 2, 2014, [Appellant] filed a motion for
reconsideration. [Appellant] stated that he was not claiming
economic damages, and since the June 10, 2014 Order bars
non-economic damages, the Order should be amended to
dismiss the case. The motion was granted and the case
dismissed. [Appellant has] appealed this court’s finding that no
reasonable jury could find the injuries alleged by [Appellant] to
rise to the level of “a personal injury resulting in serious
impairment of a body function” as required under 75 Pa. C.S.A.
§ 1705(d).
Trial Court Opinion, 8/1/14, 1-2 (unnumbered pages) (footnotes omitted).
Following the July 9, 2014 order dismissing his complaint with prejudice,
Appellant filed this timely appeal on July 16, 2014.
On appeal, Appellant raises the following issue for this Court’s
consideration:
Whether the trial court abused its discretion and otherwise
committed an error of law when it improperly granted
[Appellees’] Motion for Summary Judgment when a genuine
issue of material fact exists as to [Appellant’s] injuries and
extent of injuries?
Appellant’s Brief at 6.
The standard of review we apply is as follows:
Our scope of review of a trial court’s order granting or
denying summary judgment is plenary, and our standard of
review is clear: the trial court’s order will be reversed only where
it is established that the court committed an error of law or
abused its discretion. Summary judgment is appropriate only
when the record clearly shows that there is no genuine issue of
material fact and that the moving party is entitled to judgment
as a matter of law. The reviewing court must view the record in
the light most favorable to the nonmoving party and resolve all
doubts as to the existence of a genuine issue of material fact
against the moving party. Only when the facts are so clear that
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reasonable minds could not differ can a trial court properly enter
summary judgment.
Hovis v. Sunoco, Inc., 64 A.3d 1078, 1081 (Pa. Super. 2013).
In Pennsylvania, when selecting automobile insurance, drivers have
the option of choosing limited-tort coverage or full-tort coverage. 75 Pa.C.S.
§ 1705. An individual who has purchased full-tort coverage and who is
injured by a negligent driver can recover all medical and out-of-pocket
expenses, as well as financial compensation for pain and suffering and other
non-economic damages. Varner-Mort v. Kapfhammer, 109 A.3d 244, 248
(Pa. Super. 2015) (citing 75 Pa.C.S. § 1705(a)(1)(B)). “A limited-tort
plaintiff also can recover all medical and out-of-pocket expenses; however,
such a plaintiff cannot recover for pain and suffering or other non-economic
damages unless the plaintiff’s injuries fall within the definition of ‘serious
injury.’” Id. (citing 75 Pa.C.S. § 1705(a)(1)(A)). The term “serious injury”
is defined as follows: “A personal injury resulting in death, serious
impairment of body function or permanent serious disfigurement.” 75
Pa.C.S. § 1702.
Our Supreme Court has held that in determining whether a
motorist has suffered a serious injury, “the threshold
determination was not to be made routinely by a trial court
judge ... but rather was to be left to a jury unless reasonable
minds could not differ on the issue of whether a serious injury
had been sustained.” Washington v. Baxter, 553 Pa. 434, 719
A.2d 733, 740 (1998). In conducting this inquiry, “several
factors must be considered to determine if the claimed injury is
‘serious’: ‘[1.] the extent of the impairment, [2.] the length of
time the impairment lasted, [3.] the treatment required to
correct the impairment, and [4.] any other relevant factors.’”
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Graham v. Campo, 990 A.2d 9, 16 (Pa. Super. 2010), appeal
denied, 609 Pa. 703, 16 A.3d 504 (2011). Our Supreme Court
has cautioned that “the focus of these inquiries is not on the
injuries themselves, but on how the injuries affected a particular
body function.” Washington, supra. We remain cognizant of
the principle that “[a]n impairment need not be permanent to be
serious” under section 1705(d). Robinson v. Upole, 750 A.2d
339, 342 (Pa. Super. 2000) (citation omitted).
Cadena v. Latch, 78 A.3d 636, 640 (Pa. Super. 2013) (emphasis added).
Appellant argues that this Court’s decision in Cadena supports his
claim for relief. Appellant’s Brief at 19. We disagree.
In Cadena, the plaintiff selected the limited-tort option and, following
a motor vehicle accident, she claimed that she sustained a serious injury
that would allow her to recover non-economic damages pursuant to 75
Pa.C.S. § 1702. Cadena, 78 A.3d at 638-639. The defendant filed a
motion for summary judgment claiming that the plaintiff failed to establish
that she had suffered a serious injury, and the trial court granted the
defendant’s motion. Id. at 638. On appeal, this Court reversed stating
that:
Looking at the record in the light most favorable to Appellant,
she has shown that she was diagnosed with no less than eight
ailments, which her treating physician stated to a reasonable
degree of medical certainty were a direct result of the accident in
this case. See Letter of Dr. Steven Allon, 12/11/08, at 2–3.
Furthermore, Appellant has described at length how her daily life
has changed because of the pain she has and continues to
endure. See Appellant’s Deposition, 6/23/10, at 72–74, 78–79,
87–89, 95–97. In our view, “reasonable minds could ... differ [as
to] whether a serious injury had been sustained[ ]” by Appellant.
Washington, supra; see also Kelly v. Ziolko, 734 A.2d 893,
899–900 (Pa. Super. 1999) (concluding issue of fact existed as
to whether plaintiff suffered a serious injury where plaintiff
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“suffers pain in his neck, back, and knees, and intermittent
numbness in two toes on his left foot[,] ... asserted that his back
pain occurs as a result of physical activity or sitting for long
periods of time; he has trouble sleeping, cannot run, is unable to
walk or sit for longer than 15 minutes, and finds it difficult to
play with his child[.]”).
Cadena, 78 A.3d at 643. The plaintiff in Cadena also treated at a hospital,
missed one week from work, and was prescribed pain medication. Id. at
637. Additionally, the plaintiff in Cadena established that she was unable to
engage in activities with her daughter, gained fifty pounds, and was not as
active sexually as she was before the accident. Id. at 638.
Conversely, in the case at bar, when we review the record in the light
most favorable to Appellant, we conclude that he did not have the extensive
impairments as those suffered by the plaintiff in Cadena. Indeed, we agree
with the trial court that in the instant case, Appellant did not establish that
he sustained any impairment of body function. The trial court explained the
rationale for its decision as follows:
[Appellant] was never treated in any hospital or
emergency room for injuries as a result of this accident. He first
sought medical treatment “a couple of weeks after.” [Appellant]
had physical therapy for two and a half months after the
accident. [Appellant] claims no activities were impeded as a
result of the accident. He missed no time from work [at]
Walgreens standing at a computer all day and lifting up to 40
pounds of copying paper. He is in need of no additional medical
care. He attended school while working and missed no time from
school except for the 30 minutes he was late because of the
accident. He has made no request of his school or any professor
for any accommodation. No treating physician ever felt the need
for diagnostic studies. All his diagnostic studies such as his MRI
and EMG were ordered by the counsel[-]retained expert for
testimony. He takes no medications for pain. He has been able
to perform all routine tasks and chores as usual. In 2013 he
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purchased a weight bench for home use and exercises but
without the usual intensity. He has participated in a basketball
league. He has traveled to three different states subsequent [to]
the accident. No evidence is presented that any doctor limited
any recreational or work activity. Neither has evidence of any
serious limitation in his ability to sit, stand, walk, bend, drive, lift
or work been presented. There is no evidence of any severe,
continuing, or disabling pain. No body function has been
impaired. Thus the evidence, taken in the light most favorable to
[Appellant] does not demonstrate any “body function”
impairment.
Trial Court Opinion, 8/1/14, at 3-4 (unnumbered pages) (footnotes omitted).
We agree with the trial court’s conclusion that Appellant, having
selected the limited-tort option, failed to establish that he suffered a “serious
injury” as that term is defined, and therefore, he was entitled to no relief.
We discern no error or abuse of discretion in the trial court’s conclusion.
Accordingly, we affirm the trial court’s July 9, 2014 order granting Appellees’
motion for summary judgment.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/20/2015
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