Ramirez, V. v. Burger, H. ( 2021 )

J-A05018-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
VANESSA RAMIREZ : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
HARVEY BURGER, HARVEY BURGER : No. 1120 EDA 2020
CONSTRUCTION, AND LAURIE :
SCHMIDT-RAMIREZ :
Appeal from the Order Entered February 27, 2020
In the Court of Common Pleas of Monroe County Civil Division at No(s):
No. 2015-09595
BEFORE: OLSON, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY NICHOLS, J.: FILED SEPTEMBER 21, 2021
Appellant Vanessa Ramirez appeals from the order entered after the trial
court granted summary judgment in favor of Appellees, defendants Harvey
Burger and Harvey Burger Construction (collectively Burger) and additional
defendant Laurie Schmidt-Ramirez1 (Schmidt-Ramirez). Appellant argues:
(1) the limited tort provision of the Motor Vehicle Financial Responsibility Law
(MVFRL) is unconstitutional; (2) Appellant’s mother’s limited tort election does
not apply to Appellant; (3) the trial court erred in not holding a hearing on
Appellant’s constitutional claims; and (4) Appellant presented sufficient
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 Throughout the record Schmidt-Ramirez’s first name is spelled both Laurie
and Lauri. For consistency, we use the same spelling as the trial court.
Additionally, we have corrected the spelling of Schmidt-Ramirez’s surname in
the caption.
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evidence to show that she suffered a “serious injury” and met the limited tort
threshold. We affirm.
The trial court summarized the facts of this matter as follows:
The underlying facts of this case involve a car accident which
occurred in the early morning hours of January 3, 2014. At that
time, Laurie Schmidt-Ramirez . . . was operating her vehicle on
Gilbert Road in Chestnuthill Township, Monroe County,
Pennsylvania. Plaintiff Laurie Schmidt-Ramirez’s then minor
daughter, [Appellant], was riding in the front passenger seat of
the vehicle. The conditions of Gilbert Road that night were snowy
and icy. Plaintiff Schmidt-Ramirez lost control of her automobile
and it slid partially off the road. At some point, [Defendant]
Harvey Burger . . . was operating a vehicle owned by his company,
Defendant Harvey Burger Construction, along the same stretch of
Gilbert Road while returning from a late night maintenance call.
Upon approaching the crest of a hill, Defendant Burger’s vehicle
slid on the same patch of ice as Plaintiff Schmidt-Ramirez’s had,
resulting in Defendant Burger’s vehicle striking the rear of the first
car and sending it further into a ditch. Neither Plaintiff sought
medical attention that night and Plaintiff Schmidt-Ramirez drove
her damaged vehicle home. At the time of the accident,
[Appellant] did not have a driver’s license, an automobile, or her
own automobile insurance policy. Plaintiff Schmidt-Ramirez was
the named insured on an automobile insurance policy in which she
had chosen limited tort coverage.
* * *
On January 22, 2014, [more than two weeks after the accident,
Appellant] presented at Pocono Medical Center where she was
held overnight for examination. X-rays and MRI tests performed
at the hospital came back normal. A CT scan showed a small, one
centimeter hemorrhage in [Appellant’s] left occipital region. She
was then diagnosed with [post-concussion syndrome] and
released home. On February 10, 2014, [Appellant] had a follow
up visit where [she was again diagnosed with post-concussion
syndrome, and] she was advised to return if her symptoms
persisted. [Appellant] has not sought out further medical
treatment in the six years since. With the exception of a one-time
prescription from the hospital following her stay, [Appellant] has
not taken any medication relating to her alleged injuries. She was
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not working at the time of the accident, but attended Pleasant
Valley High School where she was in her junior year. [Appellant]
missed several days of school prior to her hospital admission and
two weeks of school following it. [Appellant failed several exams
after she returned to school.]
Additionally, [Appellant] attributes missed days throughout her
senior year of high school and college career to headaches she
continues to have since the accident. However, [Appellant] noted
that she had multiple other stressors in her life and missed school
in order to take care of Plaintiff Schmidt-Ramirez’s ongoing health
problems. Nevertheless, [Appellant] was able to graduate on time
from Pleasant Valley High School and, later, from Pace University
with degrees in psychology and political science. [Appellant]
describes the lasting medical effects of her accident as causing her
to have “scatter brains.” At the time of her deposition, [Appellant]
was employed at Wawa and looking for other work. As to her
present condition, [Appellant] testified that she has headaches
“every once in a while,” perhaps as often as one a week. She also
has occasional discomfort in her back and neck. These issues are
managed with over the counter pain relievers. [Appellant]
believes that the lasting effects of her concussion have limited her
employment opportunities, but also stated she has not disclosed
any issues to potential employers. Additionally, she claims that
because of her injuries she has had to give up karate, playing
guitar and strenuous walking or running. [Appellant] also
attributes an incident at college where she passed out to the car
accident.
Trial Ct. Op. & Order, 2/27/20, at 1-2, 7-9 (record citations omitted).
The trial court summarized the procedural history of this matter as
follows:
A praecipe for writ of summons in this case was filed on December
23, 2015. A complaint was later entered on August 26, 2016. The
complaint asserts various claims of negligence against both
Burger defendants and claims of vicarious liability against
Defendant Burger Construction. On May 30, 2017, [Burger] filed
an answer, new matter, and cross-claim to Plaintiffs’ complaint.
Significantly, [Burger’s] cross-claim asserts that Plaintiff Schmidt-
Ramirez is solely liable for her daughter’s injuries, making her
both a plaintiff and additional defendant in this action. On
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December 31, 2019, a motion for summary judgment was filed on
behalf of Plaintiff Schmidt-Ramirez in her capacity as an additional
defendant. The motion alleges that summary judgment is
appropriate at this time because [Appellant’s] alleged injuries are
not severe enough to allow her to recover under her mother’s
limited tort policy. On the same date, [Burger] also filed a motion
for summary judgment against [Appellant] based upon the same
arguments. Oral argument was not held by this court on either
motion. A decision was instead rendered based upon the
submissions of the parties.
Id. at 2-3 (formatting altered). We add that Appellant filed responses to the
motions for summary judgment and briefs arguing that the limited tort law
was unconstitutional,2 and alternatively that her post-concussion syndrome
was a serious impairment for the purposes of limited tort. On February 27,
2020, the trial court granted the Appellees’ motions for summary judgment
and dismissed Appellant’s claims for non-economic loss. Id. at 12.
Appellant then filed a motion for reconsideration, and in the alternative
to certify the trial court’s February 27, 2020 order for an interlocutory appeal
pursuant to 42 Pa.C.S. § 702(b). On April 2, 2020, the trial court granted the
motion in part, severing Appellant’s matter from co-plaintiff Schmidt-
Ramirez’s case, certifying this matter for an interlocutory appeal pursuant to
____________________________________________
2 Consistent with Pa.R.C.P. 235, Appellant served the Attorney General of
Pennsylvania with her supplemental brief in opposition to the motion for
summary judgment, wherein she argued that 75 Pa.C.S. § 1705(d) was
unconstitutional. The Attorney General did not file a response.
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Section 702(b), and declaring that its February 27, 2020 order was a final
order.3
Appellant filed a notice of appeal on April 30, 2020, docketed at 1120
EDA 2020.4 Appellant subsequently filed a petition for review with this Court
on May 1, 2020, docketed at 55 EDM 2020. This Court denied Appellant’s
petition for review as moot stating, “the appeal at No. 1120 EDA 2020 [is]
properly before this Court.” Order, 55 EDM 2020, 7/16/20 (per curiam).
Appellant filed a court-ordered Pa.R.A.P. 1925(b) statement. The trial
court issued a Rule 1925(a) opinion adopting the analysis set forth in its
February 27, 2020 opinion and order.
Appellant raises four issues for our review:
1. Whether the Pennsylvania “pay to play” limited tort provision
codified in 75 Pa.C.S.[] § 1705(d) invidiously denies one class
of children injury victims, indigent or poor victims, a substantial
____________________________________________
3 The trial court entered its order more than thirty days after Appellant filed
her motion for certification. However, at that time, a general, statewide
judicial emergency due to the COVID-19 pandemic was in effect, and nearly
all deadlines had been suspended. See In re: General Statewide Judicial
Emergency, 228 A.3d 1281 (Pa. 2020) (per curiam). Therefore, Appellant’s
motion for certification was not deemed denied because the trial court did not
act on it within thirty days. Cf. Pa.R.A.P. 1311(b).
4 Appellant’s notice of appeal states that Appellant is appealing from the trial
court’s April 2, 2020 order certifying its February 27, 2020 order for an
interlocutory appeal pursuant to 42 Pa.C.S. § 702(b). The appeal properly
lies from the trial court’s February 27, 2020 order granting Appellees’ motions
for summary judgment. See, e.g., Oberdick v. TrizecHahn Gateway, LLC,
160 A.3d 215, 216, 217 n.6 (Pa. Super. 2017) (interlocutory appeal was taken
from the order that denied the defendants’ motion for summary judgment,
not the order that granted certification pursuant to Section 702(b)). We have
amended the caption accordingly.
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benefit available to another class, minors of wealthy or
financially stable families, in violation of constitutional
provisions of equal protection, due process of law, equal access
to justice, due course of law and deprivation of fundamental
rights to compensation for violation of Appellant’s right to
safety?
2. Whether the trial [c]ourt erred in enforcing a financially
challenged parent’s tort option, 75 P[a].C.S. §1705(d) to limit
her minor, non-voting, daughter’s access to the Court to seek
a remedy for full compensation for her “actual damages”,
where the daughter has sustained an injury, a brain bleed and
concussion, and an invasion of her right to personal security,
safety and, the loss of enjoyment of life as a passenger in a
motor vehicle collision?
3. Whether the [trial c]ourt erred in failing to hold a hearing and
to place the burden of proof on [Appellees] to establish the
appropriate basis for enactment and contemporary
appropriateness in 2014 of the so called “limited tort” option in
75 Pa.C.S. §1705(d) on [Appellees] affording a right of
response to the Plaintiff?
4. Whether the trial [c]ourt erred as a matter of law in failing to
adhere to its proper scope of review in assessing the limited
tort classification on a motion for summary judgment by failing
to review the case in a light most favorable to the non-moving
party, and improperly weighing evidence rather than
considering plaintiff’s evidence as true, in violation of Pa.R.C.P.
1035.2?
Appellant’s Brief at 5-6 (citations omitted).
Jurisdiction
Before we address the merits of Appellant’s appeal, we examine if it is
properly before this Court. We have explained that “the appealability of an
order directly implicates the jurisdiction of the court asked to review the
order.” Knopick v. Boyle, 189 A.3d 432, 436 (Pa. Super. 2018) (citation
omitted). We may raise our jurisdiction to hear an appeal and determine the
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appealability of an order sua sponte. Kulp v. Hrivnak, 765 A.2d 796, 798
(Pa. Super. 2000); see also Sawyers v. Davis, 222 A.3d 1, 2 n.1 (Pa. Super.
2019) (sua sponte examining whether the trial court’s Pa.R.A.P. 341(c)
certification was proper), appeal denied, 233 A.3d 675 (Pa. 2020). Further,
when this Court issues a per curiam order relating to the appealability of a
trial court’s order, in which it does not detail its reasoning, we may revisit the
appealability of the trial court’s order without offending the law of the case
doctrine. See T.M. v. Elwyn, Inc., 950 A.2d 1050, 1055-56 (Pa. Super.
2008) (holding that this Court’s per curiam order denying the appellant’s
petition for permission to appeal without explanation did not prohibit this
Court from determining that orders at issue were appealable as collateral
orders under Pa.R.A.P. 313).
Here, Appellant asserts that this Court has jurisdiction over a final order
pursuant to Pa.R.A.P. 341(c). Appellant’s Brief at 1-2. Appellant also notes
that the trial court granted her motion to amend its February 27, 2020 order
to add certification for an interlocutory appeal pursuant to 42 Pa.C.S. §
702(b). Id. at 1. However, Appellant does not claim that this Court granted
her permission to appeal from an interlocutory order pursuant to Pa.R.A.P.
312. Id. at 1-2.
Generally, “[f]or an order to be appealable, it must be (1) a final order,
Pa.R.A.P. 341-342; (2) an interlocutory order appealable by right or
permission, 42 Pa.C.S. § 702(a)-(b); Pa.R.A.P. 311-312; or (3) a collateral
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order, Pa.R.A.P. 313.” Ashdale v. Guidi Homes, Inc., 248 A.3d 521, 525
(Pa. Super. 2021).
Rule 341 of our Rules of Appellate Procedure provides, in relevant part:
(a) General rule. . . . an appeal may be taken as of right from
any final order of a government unit or trial court.
(b) Definition of final order. A final order:
(1) disposes of all claims and of all parties; [or]
* * *
(3) is entered as a final order pursuant to paragraph (c) of this
rule . . .
* * *
(c) Determination of finality.—When more than one claim for
relief is presented in an action, whether as a claim, counterclaim,
cross-claim, or third-party claim, or when multiple parties are
involved, the trial court . . . may enter a final order as to one
or more but fewer than all of the claims and parties only
upon an express determination that an immediate appeal
would facilitate resolution of the entire case. Such an order
becomes appealable when entered. In the absence of such a
determination and entry of a final order, any order or other
form of decision that adjudicates fewer than all the claims
and parties shall not constitute a final order. . . .
Pa.R.A.P. 341(a)-(c) (emphases added). This Court has held that we do not
have jurisdiction under Rule 341(c) when the trial court’s order lacks language
indicating that an immediate appeal would facilitate resolution of the entire
case. See, e.g., Bailey v. RAS Auto Body, Inc., 85 A.3d 1064, 1070 (Pa.
Super. 2014).
Instantly, on March 23, 2020, Appellant filed her motion for
reconsideration, and in the alternative to certify the trial court’s February 27,
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2020 order for an interlocutory appeal pursuant to 42 Pa.C.S. § 702(b).
Appellant’s motion did not request the trial court certify its order as a final
order pursuant to Pa.R.A.P. 341(c). On April 2, 2020, the trial court granted
Appellant’s motion in part, severed Appellant’s matter from co-plaintiff
Schmidt-Ramirez’s case, certified this matter for an interlocutory appeal
pursuant to Section 702(b), and declared its February 27, 2020 order to be a
final order. Order, 4/2/20, at 1-2. Specifically, the April 2, 2020 order states,
in relevant part:
The Order of February 27, 2020 is AMENDED to reflect that the
matter as to Vanessa Ramirez is severed from that of Laurie
Schmidt-Ramirez, for purposes of an appeal of our order granting
summary judgment in favor of [Appellees] and dismissing the
claims of Vanessa Ramirez. That makes her matter final for
purposes of an appeal.
Id. at 1.
The trial court’s order amending its February 27, 2020 order does not
include language indicating that “an immediate appeal would facilitate
resolution of the entire case.” See Pa.R.A.P. 341(c) (emphasis added).
Therefore, this order is not appealable under Rule 341(c). See Bailey, 85
A.3d at 1070.
We next examine the trial court’s declaration that its February 27, 2020
order is a final order. See Order, 4/2/20, at 1. Under Pa.R.A.P. 341(a), a
final order is appealable as of right. An order is final if it “disposes of all claims
and of all parties[.]” Pa.R.A.P. 341(b)(1); see also Spuglio v. Cugini, 818
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A.2d 1286, 1287 (Pa. Super. 2003) (per curiam) (stating “final orders are
defined as orders disposing of all claims and all parties” (citation omitted)).
We conclude that the trial court’s February 27, 2020 order is not a final
order because it only dismissed Appellant’s claim for noneconomic damages,
therefore, her claim for economic loss remains pending. See Trial Ct. Op. &
Order at 12. Because the trial court’s February 27, 2020 order did not dispose
of all claims and all parties, even after severing the co-plaintiff Schmidt-
Ramirez’s action, it is not a final, appealable order. See Pa.R.A.P. 341(a),
(b)(1); Spuglio, 818 A.2d at 1287; see also Washington v. Baxter, 719
A.2d 733, 737 (Pa. 1998) (noting that a prior appeal from an order entering
summary judgment only with respect to the issue of serious impairment was
quashed as interlocutory).
That is not the end of our inquiry. As previously discussed, the trial
court’s April 2, 2020 order also certified its February 27, 2020 order for an
interlocutory appeal, stating:
We also find that an interlocutory appeal under 42 Pa.C.S.[]
Section 702(b) is warranted as the issue involves a controlling
question of law as to which there is a substantial ground for
difference of opinion and an immediate appeal from the February
27, 2020 order may materially advance the ultimate termination
of the matter, rather than waiting for the conclusion of Co-
Plaintiff’s case.
Order, 4/2/20, at 2.
42 Pa.C.S. § 702(b) states:
When a court . . . in making an interlocutory order in a matter in
which its final order would be within the jurisdiction of an appellate
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court, shall be of the opinion that such order involves a controlling
question of law as to which there is substantial ground for
difference of opinion and that an immediate appeal from the order
may materially advance the ultimate termination of the matter, it
shall so state in such order. The appellate court may thereupon,
in its discretion, permit an appeal to be taken from such
interlocutory order.
42 Pa.C.S. § 702(b); see also Kensey v. Kensey, 877 A.2d 1284, 1289 (Pa.
Super. 2005) (explaining this Court has discretion to permit an interlocutory
appeal where the trial court has certified its order under Section 702(b)).
“An appeal from an interlocutory order may be taken by permission
pursuant to Chapter 13 (interlocutory appeals by permission).” Pa.R.A.P. 312.
Rule 1311 provides, in relevant part:
(a) General rule.—An appeal may be taken by permission from
an interlocutory order:
(1) certified under 42 Pa.C.S. § 702(b) . . . .
* * *
(b) Petition for permission to appeal.—Permission to appeal
from an interlocutory order listed in paragraph (a) may be sought
by filing a petition for permission to appeal with the prothonotary
of the appellate court within 30 days after entry of such order . .
..
Pa.R.A.P. 1311(a)-(b) (eff. Aug. 1, 2020).
As stated above, Appellant filed a notice of appeal on April 30, 2020,
and the following day Appellant filed a timely petition for review in this Court,
requesting permission to file an interlocutory appeal from the February 27,
2020 order. See Pa.R.A.P. 1311(b). In her petition for review, Appellant
argued that this Court should grant her petition because, inter alia, that
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limited tort provision of the MVFRL is unconstitutional because it violates equal
protection and several of Appellant’s constitutional rights and the trial court
failed to evaluate the evidence light most favorable to Appellant as the non-
moving party. Appellant’s Pet. for Permission to Review, 55 EDM 2020,
5/1/20, at 10-30. Appellant contended that her constitutional issue presented
a controlling question of law for which there is substantial ground for a
difference of opinion, and that an immediate appeal would materially advance
the ultimate termination of the matter. Id. at 29.
This Court denied Appellant’s petition for review as moot stating, “the
appeal at No. 1120 EDA 2020 [is] properly before this Court.” Order, 55 EDM
2020, 7/16/20 (per curiam). That order does not provide any further
reasoning as to why Appellant’s appeal is properly before this Court. Having
concluded that this Court does not have jurisdiction pursuant to Pa.R.A.P. 341,
and because this Court’s July 16, 2020 per curiam order denying Appellant’s
petition for review as moot did not provide any explanation for its conclusion
that this appeal was properly before this court, we revisit the trial court’s
certification of its order for a permissive interlocutory appeal and Appellant’s
petition for review. See T.M., 950 A.2d at 1055-56.
Upon our review of the trial court’s certification and the issues raised in
Appellant’s petition for review, we conclude that Appellant has raised
controlling questions of law where there is substantial ground for difference of
opinion and permitting an immediate appeal may materially advance the
ultimate termination of this matter. See Kensey, 877 A.2d at 1289; 42
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Pa.C.S. § 702(b). We, therefore, exercise our discretion to assume jurisdiction
over the instant appeal pursuant to Pa.R.A.P. 312.
75 Pa.C.S. § 1705
By way of background, in Pennsylvania, when purchasing automobile
insurance, drivers have the option of selecting full tort or limited tort coverage.
75 Pa.C.S. § 1705. An individual who has purchased full tort coverage and 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)); see also 75 Pa.C.S. §
1705(c). “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.’” Varner-Mort, 109 A.3d at 248 (citing
75 Pa.C.S. § 1705(a)(1)(A)); see also 75 Pa.C.S. § 1705(d). The term
“serious injury” is defined as “[a] personal injury resulting in death, serious
impairment of body function or permanent serious disfigurement.” 75 Pa.C.S.
§ 1702. “Persons who elect limited tort coverage pay lower premiums.”
Bennett v. Mucci, 901 A.2d 1038, 1041 (Pa. Super. 2006).
According to Section 1705, “[t]he tort option elected by a named insured
shall apply to all insureds under the private passenger motor vehicle
policy who are not named insureds under another private passenger motor
vehicle policy.” 75 Pa.C.S. § 1705(b)(2) (emphasis added). “[A] minor in the
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custody of either the named insured or relative of the named insured[]” is an
insured for the purposes of Section 1705. 75 Pa.C.S. § 1705(f)(2); see also
Hobbs v. Ryce, 769 A.2d 469, 471-72 (Pa. Super. 2001).
Our Supreme Court has explained:
When the legislature reexamined the MVFRL in the late 1980s, it
was apparent that the cost of automobile insurance had been
steadily increasing over the preceding years. One of the
legislative purposes in enacting the limited tort option as part of
Act 6 was to lower insurance premiums by reducing the number
of small claims for pain and suffering; the intent was that by
lowering insurance premiums, automobile owners who had been
pushed out of the insurance market because of skyrocketing costs
could once again obtain affordable motor vehicle insurance.
While fashioning the limited tort option, the legislature spent a
great deal of time balancing the rights of the limited tort elector
to recover for noneconomic losses against the goal of lowering
insurance costs.
Washington, 719 A.2d at 739 (citations omitted); see also Paylor v.
Hartford Ins. Co., 640 A.2d 1234, 1235 (Pa. 1994) (stating “[t]he repeal of
the No-Fault Act and the enactment of the MVFRL reflected a legislative
concern for the spiralling [sic] consumer cost of automobile insurance and the
resultant increase in the number of uninsured motorists driving on public
highways. The legislative concern for the increasing cost of insurance is the
public policy that is to be advanced by statutory interpretation of the MVFRL”).
Constitutionality of Section 1705
We discuss Appellant’s first and third issues together because they are
related.
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In her first issue, Appellant argues that Section 1705’s limited tort
provision is unconstitutional because it violates her constitutional rights to
safety, personal security, and access to the courts to seek a remedy for harm
she has suffered; she also contends that limited tort violates equal protection
because it discriminates based on wealth and age.5 Appellant’s Brief at 28-
61; Appellant’s Reply Brief at 6-12, 16-17, 21-24.
Specifically, Appellant claims that Section 1705’s limited tort provision
violates Article I, Sections 1 and 2 of the Pennsylvania Constitution, which
guarantee the rights to safety and personal security, and Article I, Section 11
of the Pennsylvania Constitution which guarantees the right of access to the
courts to seek a remedy for harm. Appellant’s Brief at 28 n.4, 31-43.
Appellant asserts that the application of limited tort to her impairs her right to
be “made whole for actual damages sustained as a result of a tortfeasor’s
negligent conduct.” Id. at 33 (citation omitted); see also id. at 51-56.
Appellant contends because Section 1705 infringes on these fundamental
rights, this Court should apply strict scrutiny in our review of Section 1705.
Id. at 31, 39-40.
Appellant also argues that that her right to a remedy for her auto
accident injuries is personal to her and her mother’s selection of the limited
tort option should not waive that right. Id. at 38. Appellant reasons that her
____________________________________________
5 Appellant served her appellate brief and appellate reply brief on the Attorney
General of Pennsylvania as required by Pa.R.A.P. 521. The Attorney General
did not file a response.
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mother’s limited tort election should be voidable with respect to Appellant
because a parent may not waive claims on behalf of his or her minor children.
Id. at 47-51 (citing, inter alia, Commonwealth ex rel. Rothman v.
Rothman, 223 A.2d 919, 922 (Pa. Super. 1966); Haines v. Fitzgerald, 165
A. 52, 53-54 (Pa. Super. 1933)).
Appellant additionally contends that Section 1705 violates equal
protection because it discriminates against people with less income who
cannot afford the higher premiums of full tort automobile insurance. Id. at
30-31, 36-39, 42-47. Appellant contends that Section 1705 creates a two
tier-recovery system: one for those who are financially stable and one for
those who are financially disadvantaged, such as Appellant. Id. at 57-58.
Appellant asserts that because income level is a suspect class, this Court
should apply strict scrutiny in our review of her claims. Id. at 35-36, see
also id. at 42-45. Likewise Appellant argues that she is a member of a
suspect class of “poor children” which would trigger strict scrutiny review. Id.
at 31; Appellant’s Reply Brief at 20.
Appellant alternatively suggests that we apply intermediate scrutiny to
her various constitutional claims. Appellant’s Brief at 39, 40 n.7, 59-61
(citing, inter alia, Yanakos v. UPMC, 218 A.3d 1214 (Pa. 2019) (plurality)).
Appellant contends that Section 1705 cannot withstand either strict or
intermediate scrutiny because it does not advance a government interest and
Appellees did not present any evidence to support its constitutionality. Id. at
36, 44-45, 57.
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Appellant additionally argues that our Supreme Court has rejected cost
containment as an objective of the MVFRL. Id. at 38-39, 56-57 (citing
Williams v. GEICO, 32 A.3d 1195 (Pa. 2011); Heller v. Pa. League of
Cities & Muns., 32 A.3d 1213 (Pa. 2013); Gallagher v. GEICO Indem. Co.,
201 A.3d 131 (Pa. 2019)). Appellant asserts that the MVFRL’s intended goal
of reducing the costs of automobile insurance at the time of its enactment in
the 1980s can no longer justify the restriction on her right to access the courts
to seek a remedy for her injuries today. Appellant’s Reply Brief at 6-12 (citing,
inter alia, Moyer v. Phillips, 341 A.2d 441 (1975)).
In her third issue, Appellant argues that the trial court erred in not
holding a hearing on her constitutional claims because Appellees, as
proponents of the challenged statute, bear the burden of defending it.
Appellant’s Brief at 65-67; Appellant’s Reply Brief at 26-27. Appellant argues
that her constitutional claims should not be waived because she failed to
request an evidentiary hearing before the trial court. Appellant’s Reply Brief
at 26-27. Appellant contends that she did not request the hearing because
the trial court previously denied Appellee Burger’s request for a hearing on his
summary judgment motion, and that any further request for a hearing would
have been futile. Id. at 26.
Schmidt-Ramirez responds that this Court affirmed the constitutionality
of the limited tort system in Dodson v. Elvey, 665 A.2d 1223 (Pa. Super.
1995) (en banc), rev’d on other grounds, 720 A.2d 1050 (Pa. 1998), where
this Court concluded that a litigant’s constitutional right to a jury trial may be
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expressly or impliedly waived, and “individuals do not have a vested right in
the continued existence of an immutable body of negligence or tort law; a
cause of action may indeed be extinguished by the legislature.” Schmidt-
Ramirez’s Brief at 8-9 (quoting Dodson, 665 A.2d at 1230). Schmidt-Ramirez
also claims that Appellant’s constitutional right to a jury trial was not violated
simply because her case was dismissed at the summary judgment stage. Id.at 9 (citing Washington, 719 A.2d at 741). Schmidt-Ramirez contends that
Appellant bears the burden of proving that Section 1705 is unconstitutional.
Id. at 11-13 (citing James v. SEPTA, 477 A.2d 1302 (Pa. 1984)).
Burger similarly argues that the trial court did not err in denying
Appellant’s constitutional challenge. Burger contends that the “legislature
enacted Section 1705(d) to enforce its policy objective to contain the cost of
automobile insurance,” and while that “may have a harsh result, it is a
constitutional means . . . to accomplish its policy objective to control the costs
. . . and ensure more residents of Pennsylvania have access to automobile
insurance.” Burger’s Brief at 7. Burger also argues that Appellant waived her
claim that the trial court erred in not holding a hearing on her constitutional
challenge because Appellant did not request a hearing nor did Appellant object
to the court’s ruling on the motions for summary judgment that it made
without a hearing to develop an evidentiary record. Id. at 9-10.
The determination of whether the trial court correctly interpreted the
state and federal constitutions presents a pure question of law, for which our
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standard of review is de novo, and our scope of review is plenary. Robinson
Twp. v. Commonwealth, 147 A.3d 536, 572 (Pa. 2016).
Our Supreme Court has explained that
acts passed by the General Assembly are strongly presumed to be
constitutional and that we will not declare a statute
unconstitutional unless it clearly, palpably, and plainly violates the
Constitution. If there is any doubt that a challenger has failed to
reach this high burden, then that doubt must be resolved in favor
of finding the statute constitutional. Courts endeavor to give
statutes a constitutional interpretation if that is reasonably
possible.
Zauflik v. Pennsbury School Dist., 104 A.3d 1096, 1103 (Pa. 2014)
(citations omitted and formatting altered); see also 1 Pa.C.S. § 1922(3)
(stating “[i]n ascertaining the intention of the General Assembly in the
enactment of a statute[,] the following presumptions, among others, may be
used: . . . (3) [t]hat the General Assembly does not intend to violate the
Constitution of the United States or of this Commonwealth.”).
In considering an equal protection challenge, our Supreme Court has
stated that:
the Fourteenth Amendment does not absolutely prohibit the states
from classifying persons differently and treating the classes in
different ways. . . . The concept of equal protection . . . demands
that uniform treatment be given to similarly situated parties . . . .
If classifications are drawn, then the challenged policy must be
reasonably justified. What counts as justification will depend upon
which of three types a classification belongs to, what the
governmental interest is in promulgating the classification, and
the relationship of that interest to the classification itself.
Zauflik, 104 A.3d at 1117-18 (citations omitted and formatting altered).
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In analyzing equal protection claims, the classification at issue is
examined according to one of three tests: strict scrutiny,
intermediate scrutiny, or any-rational-basis scrutiny. Strict
scrutiny is applied to classifications affecting a suspect class or
fundamental right. Intermediate scrutiny is applied to important
rights and “sensitive” classifications. In all other cases, the
challenged legislation will be upheld unless there is no rational
basis for its enactment.
Smith v. Coyne, 722 A.2d 1022, 1025 (Pa. 1999) (citation omitted); see
also Zauflik, 104 A.3d at 1118. Under strict scrutiny, “a law may only be
deemed constitutional if it is narrowly tailored to a compelling state interest.”
Shoul v. Commonwealth, Dep’t of Trans., Bureau of Driver Licensing,
173 A.3d 669, 676 (Pa. 2017) (citation omitted).
Under intermediate scrutiny, the party defending the statute’s
constitutionality has the burden to demonstrate the legislation is
substantially related to its purpose. To meet this burden, the
statute’s proponent can rely on a wide range of sources, including
legislative history, empirical evidence, case law, and even
common sense, but it may not rely upon mere anecdote and
supposition.
Yanakos, 218 A.3d at 1225-26 (citations omitted).
This Court has explained rational basis review as follows:
a classification neither involving fundamental rights nor
proceeding along suspect lines is accorded a strong presumption
of validity. Such a classification cannot run afoul of the Equal
Protection Clause if there is a rational relationship between the
disparity of treatment and some legitimate governmental
purpose. Further, a legislature that creates these categories need
not actually articulate at any time the purpose or rationale
supporting its classification. Instead, a classification must be
upheld against equal protection challenge if there is any
reasonably conceivable state of facts that could provide a rational
basis for the classification.
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In re Keyes, 83 A.3d 1016, 1027 (Pa. Super. 2013) (citation and quotation
marks omitted); see also Clifton v. Allegheny Cty., 969 A.2d 1197, 1211
n.19 (Pa. 2009) (explaining that under the rational basis review, “as long as
a classification bears a reasonable relationship to a legitimate state interest,
even though discriminatory, it will be deemed reasonable if any state of facts
reasonably can be conceived to sustain it, and will only be struck down if it is
based upon artificial or irrelevant distinctions used for the purpose of evading
the constitutional prohibition” (citations and quotation marks omitted)).
Our Supreme Court “has rejected the proposition that financial need
alone identifies a suspect class or that statutes that have a different effect on
the rich and poor should on that basis alone come under strict scrutiny.”
Probst v. Commonwealth, Dep’t of Trans., Bureau of Driver Licensing,
849 A.2d 1135, 1144 (Pa. 2004); see also Norris v. Wood, 485 A.2d 817,
820 (Pa. Super. 1984) (concluding that “poverty is not a suspect classification”
when analyzing the constitutionality of the No-Fault Act, the predecessor to
the MVFRL). Additionally, the United States Supreme Court has recognized
that “age is not a suspect classification under the Equal Protection Clause.”
Kimel v. Florida Bd. of Regents, 528 U.S. 62, 83 (2000) (citations omitted);
see also Driscoll v. Corbett, 69 A.3d 197, 209-13 (Pa. 2013) (applying
rational basis review to an age-based classification).
This Court has explained that “[t]he entitlement to monetary damages
because of another’s negligence has never been held to be a fundamental
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right.” Dansby v. Thomas Jefferson University Hosp., 623 A.2d 816, 821
(Pa. Super. 1993) (citation omitted).
Our Supreme Court has explained that “the guarantee of a ‘remedy by
due course of law’ in Article I, Section 11, means that a case cannot be altered,
in its ‘substance’, by a subsequent law . . . .” Ieropoli v. AC & S Corp., 842
A.2d 919, 926 (Pa. 2004). The Court explained that when a cause of action
that has accrued to a person, “[i]t is a vested right, which under Article 1,
Section 11, may not be eliminated by subsequent legislation.” Id. at 930
(citations omitted). However, the General Assembly may limit or even
abrogate causes of action which have not yet accrued. See Freezer Storage,
Inc. v. Armstrong Cork Co., 382 A.2d 715, 721 (Pa. 1978). Furthermore,
the legislature may abolish even causes of action which existed at common
law. See id. Our Supreme Court explained that when interpreting Article I,
Section 11, “we should remember that no one has a vested right in the
continued existence of an immutable body of negligence law. . . . [T]he
practical result of a [contrary] conclusion would be the stagnation of the law
in the face of changing societal conditions.” Id. at 720 (citation and quotation
marks omitted).
Here, the trial court held:
Article I, Section 11 of the Pennsylvania Constitution provides that
“[a]ll courts shall be open; and every man for an injury done him
in his lands, goods, person or reputation shall have a remedy by
due course of law, and right and justice administered without sale,
denial, or delay.” PA. CONST, art. 1, § 11. A law which curtails a
constitutional right to remedy must be examined under
intermediate scrutiny to determine if it is substantially related to
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achieving an important government interest. Yanakos v. UPMC,
218 A.3d 1214, 1222 (Pa. 2019), reargument denied, [224 A.3d
1255] (Pa. Jan. 31, 2020). Specifically, the intermediate scrutiny
standard of review “requires that the government interest be an
‘important’ one; that the classification be drawn so as to be closely
related to the objectives of the legislation; and that the person
excluded from an important right or benefit be permitted to
challenge his exclusion on the grounds that in his particular case,
denial of the right of benefit would not promote the purpose of the
classification.” Id[.] quoting Smith v. City of Phila., 512 Pa.
129, 516 A.2d 306, 311 (1986).
The two tier recovery system Pennsylvania put into place with 75
Pa.C.S.[] § 1705 was created in response to soaring insurance
costs which were pricing people out of the insurance market all
together. Dodson v. Elvey, 445 Pa. Super. 479, 665 A.2d 1223,
1231 (1995), rev’d, 554 Pa. 245, 720 A.2d 1050 (1998). The cost
of insurance was lowered by, in part, reducing the number of
litigations for small claims of pain and suffering. Washington at
444. The result was intended to offer a less expensive alternative
to those who would otherwise forgo insurance altogether. Id. We
find that the government’s interest in encouraging all motor
vehicle operators to carry insurance is an important one. The
limited tort statute does this by creating a classification of
insurance which is more affordable, but in return, creates a
greater risk that certain legal claims may not be pursuable. In the
instant matter, it is likely that, accepting Plaintiffs’ contentions,
without a limited tort option Plaintiff Schmidt-Ramirez would have
been without car insurance at all. This would have resulted in
both Plaintiffs lacking first party insurance benefits. Further, the
limited tort law does not leave [Appellant] without any possibility
of recovery. As already explained, the law still protects those who
have suffered economic losses and the very worst of injuries which
manifest with life altering effects. Based upon all of this, we find
that 75 Pa.C.S.[] § 1705 is not an unconstitutional violation of the
remedies clause.
Trial Ct. Op. & Order at 10-11.
We begin with the level of scrutiny applicable to Appellant’s claims:
strict, intermediate, or any-rational-basis. See Zauflik, 104 A.3d at 1118;
Smith, 722 A.2d at 1025. We disagree with Appellant’s assertion that we
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should apply strict scrutiny because Section 1705 impacts her fundamental
rights to safety, personal security, and access to the courts to seek a remedy
for harm. Appellant has not cited, nor has our research discovered, any cases
recognizing a lawsuit to recover damages for personal injury as part of the
fundamental right to safety protected by Article I, Sections 1 and 2 of the
Pennsylvania Constitution. To the contrary, this Court has held the right to
obtain monetary damages as a result of another’s negligence is not a
fundamental right. See Dansby, 623 A.2d at 821. However, a plurality of
our Supreme Court recognized in Yanakos, that the right to a remedy, while
not a fundamental right, is an important right. Yanakos, 218 A.3d at 1221-
22.
Appellant also asserts that Section 1705 discriminates against two
suspect classes: (1) those with less income and (2) minors. Our research
indicates that the United States Supreme Court and the Courts of this
Commonwealth have not recognized income level or age as suspect classes
for the purposes of strict scrutiny, and these decisions are binding on this
Court. See Kimel, 528 U.S. at 83 (explaining that age is not a suspect class
triggering strict scrutiny review); Driscoll, 69 A.3d at 209-13 (applying
rational basis review to age-based equal protection challenges); Probst, 849
A.2d at 1144 (rejecting “the proposition that financial need alone identifies a
suspect class” for strict scrutiny review); Norris, 485 A.2d at 820 (concluding
that “poverty is not a suspect classification” for the purposes of equal
protection analysis). For the same reasons, we conclude that income level or
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age are not “sensitive classifications” that would trigger intermediate scrutiny.
See Smith, 722 A.2d at 1025; see also Small v. Horn, 722 A.2d 664, 672
n.15 (Pa. 1998) (explaining the classifications triggering intermediate scrutiny
include gender and legitimacy).
A plurality of our Supreme Court has held that the right to a remedy is
an important right, and statutes which infringe on that right are subjected to
intermediate scrutiny. See Yanakos, 218 A.3d at 1220-27. However, the
courts of this Commonwealth have rejected Appellant’s argument that the
right to a remedy prohibits the General Assembly from enacting laws that
abolish or modify causes of action that have not yet accrued. See Freezer
Storage, 382 A.2d at 720-21. Section 1705 was enacted in 1990 and
Appellant’s accident occurred in 2014. Section 1705’s changes to the cause
of action for automobile-related negligence for those who have purchased
limited tort insurance were effective before Appellant’s accident occurred.
Therefore, the enactment of Section 1705 did not infringe on Appellant’s right
to a remedy under Article I, Section 11 because Section 1705 did not eliminate
a cause of action that had already accrued to Appellant.6 Cf. Ieropoli, 842
____________________________________________
6 Furthermore, Yanakos, which Appellant has cited in support of her claim
that Section 1705 violated her right to a remedy, is distinguishable. In
Yanakos, the statute of repose’s seven-year limitation period completely
barred the plaintiff’s medical malpractice action even though plaintiff did not
discover the defendants’ negligence until more than seven years after the
surgery. Yanakos, 218 A.3d at 1216-18. Here, Section 1705 does not bar
individuals who have selected limited tort coverage from recovering damages
for pain and suffering in all instances, rather it requires the plaintiff to prove
she has suffered a serious injury. 75 Pa.C.S. § 1705(a)(1)(A), (d).
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A.2d at 926, 930. Further, because “no one has a vested right in the continued
existence of an immutable body of negligence law”, the enactment of Section
1705 does not infringe on the right to a remedy for events that occurred after
the law was enacted. See Freezer Storage, 382 A.2d at 720 (citation and
quotation marks omitted). Therefore, because Section 1705 does not infringe
on Appellant’s right to a remedy, intermediate scrutiny is not applicable to our
review of Section 1705 in the instant case. See Zauflik, 104 A.3d at 1118;
Smith, 722 A.2d at 1025.
Accordingly, neither strict scrutiny nor intermediate scrutiny applies to
our review of Appellant’s claims, therefore the rational basis standard is
appropriate to analyze the constitutionality of Section 1705 of the MVFRL. See
Zauflik, 104 A.3d at 1118; Smith, 722 A.2d at 1025. It is axiomatic that a
statute has a constitutional rational basis if it treats different groups differently
“if there is a rational relationship between the disparity of treatment and some
legitimate governmental purpose.” See Keyes, 83 A.3d at 1027; see also
Clifton, 969 A.2d at 1211 n.19 (stating that under rational basis review, “as
long as a classification bears a reasonable relationship to a legitimate state
interest, even though discriminatory, it will be deemed reasonable if any state
of facts reasonably can be conceived to sustain it”).
As stated above, our Supreme Court in Washington explained that the
General Assembly intended for the limited tort option of Section 1705 to lower
the price of insurance premiums and encourage more drivers to purchase
insurance by reducing the number of small claims for pain and suffering. See
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Washington, 719 A.2d at 739; see also Paylor, 640 A.2d at 1235. The
limited tort system achieves this purpose by imposing the requirement that
the insured must prove that she has suffered a serious injury, i.e., death,
serious impairment of body function, or permanent serious disfigurement,
before she can recover damages for pain and suffering. See 75 Pa.C.S. §§
1702, 1705(a)(1)(A), (d). In exchange for this additional evidentiary burden
in order to recover damages for pain and suffering, insureds who select the
limited tort option pay lower insurance premiums. See Bennett, 901 A.2d at
1041.
Appellant has argued that our Supreme Court has rejected cost
containment as an objective of the MVFRL, but this is incorrect.7 In Heller,
our Supreme Court explained that cost containment is the policy underlying
the MVFRL, but that the Court would not blindly affirm every insurance policy
provision restricting coverage on the basis of cost containment. Heller, 32
A.3d at 1222. The Heller Court concluded that while the policy exclusion at
issue did not “facially violate the cost containment policy of the MVFRL,” as
applied, it violated public policy with respect to underinsured motorist
coverage. Id. at 1228. In Williams, our Supreme Court refused to invalidate
____________________________________________
7 We note that none of the cases Appellant has cited in support of her position
that cost containment is no longer a recognized objective of the MVFRL
analyze Section 1705; rather they address other sections of the MVFRL
relating to exclusions of uninsured or underinsured motorist benefits. See
Gallagher, 201 A.3d at 136; Heller, 32 A.3d at 1215; Williams, 32 A.3d at
1199. Our Supreme Court in Gallagher did not address whether cost
containment was still a valid objective of the MVFRL.
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an insurance policy exclusion on the grounds that it conflicted with the goals
and policies of the MVFRL, namely cost containment and the correlation
between the scope of coverage and the reasonable premiums paid. Williams,
32 A.3d at 1206. Therefore, we conclude that the courts of this
Commonwealth continue to recognize cost containment as an objective of the
MVFRL. See id.; Heller, 32 A.3d at 1222.
Based on the foregoing, we conclude that there is a rational relationship
between the legitimate governmental purpose of cost containment for
automobile insurance and the differing levels of insurance protection for
individuals based on the cost of purchasing full tort insurance and limited tort
insurance coverage. See Keyes, 83 A.3d at 1027; see also Clifton, 969
A.2d at 1211 n.19. Appellant has not shown that the two categories of
insureds that are based on the amount of premiums the insured pays, clearly,
palpably, and plainly violates constitutional provisions regarding equal
protection. See Robinson Twp., 147 A.3d at 572; Zauflik, 104 A.3d at
1103.
We also disagree with Appellant’s contention that the MVFRL improperly
permits a parent to waive a claim on behalf of his or her child by selecting
limited tort coverage. Pennsylvania law recognizes that a parent or guardian
may not waive claims on behalf of a minor. See Rothman, 223 A.2d at 922(holding “parents cannot bargain away the rights of minor children; children
may bring their own actions, regardless of the validity of any agreement
between the parents”); Haines, 165 A. at 53-55 (explaining that a minor may
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disaffirm a release of liability that he and his parents signed and bring suit
within a reasonable time of reaching the age of majority). However, the
limited tort option does not waive claims, it instead imposes an additional
evidentiary requirement that an insured must satisfy in order to recover
noneconomic damages in exchange for lower insurance premiums.8 See
Washington, 719 A.2d at 736; Bennett, 901 A.2d at 1041; 75 Pa.C.S. §
1705(a)(1)(A)), (d). Appellant was able to file her own cause of action against
Burger, notwithstanding the additional evidentiary burden imposed under
limited tort. Appellant has not shown how the application of the limited tort
option to minor children residing with the named insured clearly, palpably,
and plainly violates her constitutional rights. See Robinson Twp., 147 A.3d
at 572; Zauflik, 104 A.3d at 1103.
As for Appellant’s claim that the trial court erred by not holding a hearing
on her constitutional issues, that claim is waived because Appellant raised it
for the first time in her motion for reconsideration, and in the alternative to
certify the order for interlocutory appeal. Issues raised for the first time in a
motion for reconsideration to an order granting summary judgment are
waived on appeal. See Rabatin v. Allied Glove Corp., 24 A.3d 388, 391
____________________________________________
8 We note that our courts have recognized some exceptions for minors with
respect to the additional requirements for recovery under limited tort, but not
with respect to a minor who is an insured under a policy that was injured while
in the named insured’s vehicle. See, e.g., Holland v. Marcy, 883 A.2d 449(Pa. 2005) (plurality) (holding that the children of the owner of registered, but
uninsured, vehicle were not bound by limited tort option that owner was
statutorily deemed to have chosen by driving an uninsured vehicle).
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(Pa. Super. 2011) (holding issues raised in a motion for reconsideration filed
after entry of summary judgment are “beyond the jurisdiction of this Court
and thus may not be considered by this Court on appeal”). Appellant argues
that a request for a hearing would have been futile because the trial court
already denied Burger’s request for oral argument on the summary judgment
motion. This does not excuse the requirement to raise the issue before the
trial court in the first instance. See Pa.R.A.P. 302(a).
Accordingly, we conclude that Appellant’s constitutional challenge
merits no relief. See Robinson Twp., 147 A.3d at 572; Smith, 722 A.2d at
1025; Keyes, 83 A.3d at 1027.
Enforceability Limited Tort Election Against Appellant
In her second issue, Appellant argues that her mother’s limited tort
election should not apply to her because enforcing that election against
“unlicensed minors occupying motor vehicles is unnecessary to advance any
compelling state interest or important state interest of ensuring financial
responsibility of drivers.” Appellant’s Brief at 62 (citing L.S. v. David
Eschbach, Jr., Inc., 874 A.2d 1150 (Pa. 2004)). Appellant contends that in
L.S., our Supreme Court held that a parent’s limited tort election did not apply
to a minor pedestrian. Id. at 63. Appellant contends that the trial court erred
in not considering L.S. and by concluding that Appellant was bound by her
mother’s limited tort election. Id. at 64.
Schmidt-Ramirez responds that because she elected the limited tort
option on her insurance and Appellant was a minor child in her custody at the
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time, that election applies to Appellant. Schmidt-Ramirez’s Brief at 9-10.
Schmidt-Ramirez argues that L.S. is distinguishable from the instant case
because L.S. involved a pedestrian. Id. at 10-11.
Burger responds that Schmidt-Ramirez elected limited tort coverage on
her automobile insurance policy and, as a minor child residing with Schmidt-
Ramirez at the time of the accident, that election applied to Appellant.
Burger’s Brief at 7-9. Burger argues that because Appellant did not produce
any evidence that she had coverage under another policy, her mother’s limited
tort election was binding on Appellant. Id. at 9.
In L.S., our Supreme Court considered whether a parent’s limited tort
election applied to her minor child, who was hit by a car after getting off a
school bus. L.S., 874 A.2d at 1152. At that time, the minor plaintiff resided
with her mother, who had elected limited tort coverage under her car
insurance policy. Id. The Court observed that “[a]s a minor residing in the
household of [mother], L.S. was an ‘insured’ under her mother’s policy.” Id.
(footnote omitted). The L.S. Court noted that “unlike statutes specifically
required to be construed strictly, the MVFRL is to be accorded a liberal
construction, in favor of the insured.” Id. at 1155 (citation and quotation
marks omitted). The Court held that
the object of all statutory interpretation is to ascertain and
effectuate the intent of the legislature. It is well established that
the prevailing intent of the General Assembly in enacting the
MVFRL was to reduce the escalating cost of automobile insurance
premiums, while requiring financial responsibility. Nevertheless,
applying Section 1705 to innocent pedestrians would defeat the
mischief that Section 1705 was designed to remedy, namely to
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deter individuals from failing to insure their vehicles. Clearly, the
act of punishing innocent pedestrians, who are completely
unassociated with a motor vehicle, would do little to deter an
individual from failing to procure motor vehicle insurance.
Because Section 1705 is silent with regard to pedestrians, it would
be inappropriate for this Court to link the recovery rights of an
innocent pedestrian with a system designed to reduce the
increasing cost of motor vehicle insurance.
Id. at 1156 (citations omitted). Further, the Court noted “the injuries that
[the minor plaintiff] suffered did not result from her own personal use of a
motor vehicle, as either an operator or an occupant.” Id.
Instantly, the trial court did not address L.S. in its opinion, nor in its
order granting Appellees’ motions for summary judgment.
As discussed herein, our Supreme Court held in L.S., that a limited tort
election did not apply to a pedestrian. The L.S. Court observed that under
Section 1705, a child who resides in the household of a parent is an “insured”
under that parent’s policy. See L.S., 874 A.2d at 1152, 1156; see also 75
Pa.C.S. § 1705(f). Accordingly, L.S. does not indicate a parent’s limited tort
election is inapplicable to a minor child’s personal injury claims that occurred
when the child was a passenger in the parent’s car.
Here, Appellant was a passenger in her mother’s car at the time of the
collision with Burger’s vehicle. Because Appellant was not a pedestrian at the
time of the accident, the Court’s holding in L.S. does not apply. Appellant was
an insured within the meaning of Section 1705 and her mother’s limited tort
election at the time of the accident is binding on Appellant, therefore her
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second claim merits no relief. See L.S., 874 A.2d at 1152; see also 75
Pa.C.S. § 1705(b)(2), (f); Hobbs, 769 A.2d at 471-72.
Whether Appellant Suffered a Serious Impairment
In her final issue, Appellant argues that the trial court erred when it
granted the Appellees’ motions for summary judgment because the trial court
failed to view the evidence in the light most favorable to her as the non-
moving party. Appellant’s Brief at 68-75; Appellant’s Reply Brief at 5, 12-15,
28-35. Specifically, she claims that the evidence demonstrates that she
“sustained a brain bleed, a concussion and post concussive syndrome
symptoms that interfered with her school work and career plans . . . [and]
continues to suffer periodic headaches to this day.” Appellant’s Brief at 69.
She contends that her brain bleed, concussion, and post-concussion syndrome
establish a jury question as to whether she sustained a serious injury. Id. at
69-71. Appellant asserts “[i]t is common knowledge that concussions can
tend to have permanent consequences.” Id. at 71. Appellant notes that “[a]n
impairment need not be permanent to be serious.” Id. at 74-75 (quoting
Washington, 719 A.2d at 740). Further, Appellant contends that the
determination of whether plaintiff has sustained a serious injury “should be
made by the jury in all but the clearest of cases.” Appellant’s Reply Brief at 5
(quoting Washington, 719 A.2d at 740).
Burger responds that Appellant did not sustain a serious injury. Burger’s
Brief at 12-19. Burger argues that Appellant sought medical treatment only
two times after the accident, did not produce a copy of her MRI report, and
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the medical evidence in the record does not shown she suffered a permanent
serious disfigurement. Id. at 13-18 (citing McGee v. Muldowny, 750 A.2d
912, 913-14 (Pa. Super. 2000)). Burger also notes that Appellant did not
produce any medical expert testimony to establish a causal connection
between her alleged injuries and the accident. Id. at 18-19 (citing, inter alia,
Albert v. Alter, 381 A.2d 459, 470 (Pa. Super. 1977)).
Schmidt-Ramirez likewise argues that Appellant has not presented any
medical evidence or expert reports to establish she suffered a serious
impairment of a body function. Schmidt-Ramirez’s Brief at 20-21.
The standards governing our review of a trial court’s grant of summary
judgment are well settled.
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 reasonable minds could not differ
can a trial court properly enter summary judgment.
Michael v. Stock, 162 A.3d 465, 472-73 (Pa. Super. 2017) (citation omitted).
The Washington Court explained that “threshold determination of
whether a serious injury has been sustained is” to be made by the jury instead
of the trial judge “unless reasonable minds could not differ on the issue of
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whether a serious injury had been sustained.” Washington, 719 A.2d at 740
(footnote omitted). Our Supreme Court observed that the MVFRL did not
define “serious impairment of a body function” and adopted the following
definition:
The “serious impairment of body function” threshold contains two
inquiries:
a) What body function, if any, was impaired because of injuries
sustained in a motor vehicle accident?
b) Was the impairment of the body function serious? The focus
of these inquiries is not on the injuries themselves, but on
how the injuries affected a particular body function.
Generally, medical testimony will be needed to establish
the existence, extent, and permanency of the impairment.
. . . In determining whether the impairment was serious, several
factors should be considered: the extent of the impairment, the
length of time the impairment lasted, the treatment required to
correct the impairment, and any other relevant factors. An
impairment need not be permanent to be serious.
Id. (quoting DiFranco v. Pickard, 398 N.W.2d 896, 901 (Mich. 1986))
(emphasis added); see also Vetter v. Miller, 157 A.3d 943, 948 (Pa. Super.
2017) (stating that “evidence of how a particular injury affects a specific
plaintiff, including how that injury negatively impacted the person’s ability to
perform his or her chosen profession, is relevant in determining whether a
plaintiff has suffered a serious impairment of a body function” (citation
omitted)).
The Washington Court then examined the evidence to determine if
“reasonable minds could not differ on the conclusion that [the plaintiff] cannot
recover on the evidence adduced.” Id. Our Supreme Court concluded:
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Even when this evidence is taken in the light most favorable to
[the plaintiff] as the non-moving party, we find that reasonable
minds could not differ on the conclusion that [the plaintiff’s] injury
was not serious. [The plaintiff’s] injuries as diagnosed by the
emergency room physician were mild and he was discharged after
a few hours. Furthermore, he missed only four or five shifts at
both his full-time and part-time jobs, where he was required to
perform most of his work while on his feet. Also, the treatment
for his injuries was not extensive. Finally, although some type of
arthritis or coalition is affecting one of the joints in [the plaintiff’s]
right foot, the injury seems to have had little or no impact on [the
plaintiff’s] performance of his job functions and engagement in
personal activities. Therefore, although the evidence, when taken
in the light most favorable to [the plaintiff], does show that he
was injured in the accident, the impairment resulting from that
injury is clearly de minimis.
[The plaintiff], however, is of the opinion that he has adduced
sufficient evidence of a serious impairment of body function so
that the issue should go to a jury. In arguing this, [the plaintiff]
focuses primarily on [his doctor’s] pronouncement that there was
some type of arthritis or coalition in [his] right foot; apparently,
[he] assumes that this evidence alone is sufficient to bring the
matter to a jury. [The plaintiff] seems to have misapprehended
the nature of the inquiry here. The question to be answered
is not whether [the plaintiff] has adduced sufficient
evidence to show that [the plaintiff] suffered any injury;
rather, the question is whether [he] has shown that he has
suffered a serious injury such that a body function has been
seriously impaired. Clearly, it is insufficient for [the plaintiff] to
show that there has been some injury—no matter how minor—in
order to avoid the entry of summary judgment against him. Were
we to fail to require [a plaintiff] to adduce evidence that not only
was there an injury, but that it was also serious, before allowing
him to present his case to the jury, we would make a mockery out
of the summary judgment standard. Although [the plaintiff]
has introduced evidence that there is some type of arthritis
or coalition in his foot, he has failed to show that this injury
has had such an impact on him so that it constitutes a
serious injury. Therefore, we reject [the plaintiff’s] argument.
Washington, 719 A.2d at 741 (emphases added).
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This Court has held that when a limited tort plaintiff presents subjective
allegations of a serious impairment without objective medical evidence, the
plaintiff has not established a substantial dispute of material fact to withstand
summary judgment. McGee, 750 A.2d at 915. In McGee, the plaintiff went
to the emergency room after a vehicle accident and was prescribed Tylenol
for a cervical strain. Id. at 914. The plaintiff underwent several months of
physical therapy. Id. Additionally, he consulted with several doctors, and an
MRI and an X-ray of his right shoulder were both unremarkable. Id. Although
the plaintiff complained that the physical limitations from his accident
prevented him from working as a plumber, he worked as an electrician without
limitations on his ability to lift objects. Id. at 914-15. The McGee Court
affirmed the trial court’s order granting the defendant summary judgment.
Id. at 915.
Instantly, the trial court explained:
Reviewing all of the evidence in the light most favorable to the
non-moving party we find that [Appellant] has not presented
sufficient evidence to show that she suffered a serious impairment
of body function. Although she describes herself as “scatter
brained” and alleges she sometimes has difficulty thinking,
[Appellant] has not sought medical attention or treatment for
more than six years. Meanwhile, she was able to graduate from
high school and earn a degree from Pace University. She is, as of
the time of her deposition, employed. Her complaints of continued
medical issues are largely subjective. [Appellant] has failed to
provide any expert medical testimony regarding the long term
effects of a concussion and how such is affecting her life. The only
medical documents available to the Court are from her hospital
and doctor’s visit which, again, occurred six years ago. There is
no medical diagnosis or findings that tie any of her current alleged
physical ailments to the accident. Although we are sympathetic
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to [Appellant’s] family situation, it is also clear from the evidence
that she was, and continues to be, under a number of stressors
unrelated to her alleged injuries. Therefore we find that
[Appellant] did not suffer a serious impairment of a body function
as defined by the Pennsylvania Supreme Court in Washington
and is barred from recovering for noneconomic damages under 75
Pa.C.S.[] §1705.
Trial Ct. Op. & Order at 9 (record citations omitted).
Instantly, the medical evidence, specifically the Pocono Medical Center
records from January 2014, including the progress notes and patient discharge
summary, indicate that Appellant suffered from post-concussion syndrome
and that the doctor recommended that she return to school after about two
weeks after her discharge from the hospital. R.R. at 305a, 309a.9 By the
time of her follow up visit on February 10, 2014, Appellant had returned to
school and was not going to take additional time off. Id. at 311a-313a. The
doctor noted on the chart for the February 10, 2014 follow up visit that
Appellant “continues to suffer from post-concussive symptoms, though they
are improving[]” and recommended that Appellant avoid activities that trigger
her headaches and get adequate sleep. Id. at 312a. Contrary to Appellant’s
assertion, the CT scan report states “[t]here is 1 cm gyral hyperdensity in the
left occipital region. This may represent a hemorrhagic contusion or gyral
hemorrhage alternatively this may be artifactual. This can be definitely
characterized with MRI or follow-up CT.” Id. at 288a. Appellant asserts that
she also underwent an MRI but did not present an MRI report in response to
____________________________________________
9 We may cite to the reproduced record for the parties’ convenience.
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Appellees’ motions for summary judgment. Appellant also did not submit an
expert report opining that Appellant suffered a hemorrhage in her brain, which
she refers to as a “brain bleed”, as a result of the car accident. Further,
Appellant did not present an expert report explaining how a hemorrhage in
her brain and/or a concussion would affect her body function.
Appellant testified in her deposition that five years have passed since
the accident, and that she continues to experience headaches, neck pain, and
absentmindedness. See N.T. Appellant’s Dep., 8/19/19, at 12, 50-52, 70.
Appellant also stated she is no longer able to participate in certain activities
such as karate and playing guitar. Id. at 54-56. However, Appellant has not
presented expert reports or medical records, or any form of objective medical
evidence establishing that the injuries she sustained in the January 3, 2014
car accident caused her ongoing complaints. Further, Appellant has not
presented medical evidence concluding that her post-concussion syndrome
was a serious impairment.
We agree with the trial court that Appellant’s medical evidence, i.e., the
records from her admission to the emergency room, the CT scan report, and
the record of her follow up doctor visit, even when viewed in the light most
favorable to Appellant, does not establish Appellant suffered a serious
impairment of a body function. See Washington, 719 A.2d at 740-41;
McGee, 750 A.2d at 914-15.
Accordingly, the trial court correctly concluded that reasonable minds
could not differ as to whether Appellant sustained a serious injury, and we
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discern no error or abuse of discretion in the trial court’s decision that
Appellant did not suffer a serious injury. For these reasons, we affirm the trial
court’s order granting summary judgment. See Washington, 719 A.2d at
740; Michael, 162 A.3d at 472-73.
Order affirmed.
President Judge Emeritus Stevens joins the memorandum.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/21/2021
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