J-A23041-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    SANDRA KITCHEN AND SAMUEL                  :    IN THE SUPERIOR COURT OF
    KITCHEN, W/H AND CHRISTIAN                 :         PENNSYLVANIA
    KITCHEN, A MINOR BY HIS PARENTS            :
    AND GUARDIANS SAMUEL KITCHEN               :
    AND SANDRA KITCHEN                         :
                                               :
               v.                              :
                                               :
    JEROME KRUMAN                              :
                                               :
                                               :   No. 1078 EDA 2017
    APPEAL OF: CHRISTIAN KITCHEN               :


                     Appeal from the Order Entered March 6, 2017
                    In the Court of Common Pleas of Bucks County
                          Civil Division at No(s): 2010-05166

BEFORE:      PANELLA, DUBOW, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                        FILED NOVEMBER 03, 2017

        Appellant, Christian Kitchen, appeals from an order granting summary

judgment to Appellee, Jerome Kruman, in this personal injury action arising

out of a motor vehicle accident. Appellant argues that the trial court erred

in granting summary judgment because a genuine issue of material fact

exists as to whether his injuries satisfy the limited tort threshold of “serious

impairment of bodily function.” 75 Pa.C.S. § 1702. We affirm.

        The trial court accurately set forth the factual and procedural history of

this case as follows:


____________________________________________


*   Former Justice specially assigned to the Superior Court.
J-A23041-17


          On June 23, 2008, Appellant was the front seat
       passenger in a vehicle driven by his mother. Appellee was
       operating his vehicle in the opposite direction.       The
       vehicles collided when Appellee turned left in front of
       Appellant’s mother’s vehicle.     Following the accident,
       Appellant was taken to Frankford hospital where x-rays
       were taken. Appellant was subsequently discharged and
       directed to undergo physical therapy for approximately two
       months for a right knee injury.

          Appellant’s injury was described as a bone bruise
       caused by his knee hitting the vehicle’s dashboard upon
       impact.     Dr. Grady, an orthopedist that examined
       Appellant soon after the accident, believed that there was
       also an injury to the posterior cruciate ligament, but that
       the ligament was still intact. Dr. Grady was aware that
       Appellant “was an active boy who was enrolled in sports
       camp,” so he instructed Appellant to wear a right knee
       brace.

          Appellant alleged that the knee pain returned once he
       began “vigorous activities” approximately six months after
       he completed physical therapy. Appellant returned to see
       Dr. Grady in July of 2009. Appellant was diagnosed with
       mild “patellofemoral pain syndrome.” Approximately one
       year later, Appellant returned again to Dr. Grady,
       complaining of right knee pain and “popping” caused by
       running.    Appellant underwent an MRI.        Dr. Grady
       recommended that Appellant continue stretching exercises.

          Appellant was initially deposed on April 15, 2011.
       Appellant testified that he was quite active and
       participated in a variety of sports. Appellant testified that
       he almost always has to stop to take a break while playing
       sports due to right knee pain. Appellant used to wear a
       knee brace while playing sports, however, he outgrew it
       and no longer uses it.

           Appellant appeared for another deposition on March 30,
       2016. Appellant testified that he was twenty years of age
       and is in the Navy Reserve. Prior to Navy “boot camp,”
       Appellant underwent medical examinations and physical
       fitness tests required by the Navy. Appellant successfully
       met the physical fitness requirements, including running

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       one and one-half miles in under twelve and one-half
       minutes. Appellant was also able to complete all of the
       physical activity requirements during the two months of
       Navy boot camp. Appellant maintains a job at a local
       Wawa and works approximately thirty to forty hours per
       week. As part of his job duties, Appellant is required to lift
       boxes and remain on his feet throughout his shift.

          Appellant has not received any medical treatment for
       his knee since 2011.       Specifically, Appellant did not
       undergo a MRI, x-ray, surgery, or injections in his knee.
       Additionally, Appellant has not been examined by his
       primary physician or orthopedist since 2011. Appellant
       was seen in 2015 by an urgent care physician who directed
       Appellant undergo a MRI for the knee pain. Appellant
       never went to get the MRI.

          At Appellant’s second deposition, Appellant testified that
       although his knee was not bothering him at the moment,
       he was nonetheless “limited” because of it. Appellant
       testified that his knee causes him pain when he is “running
       and stopping and making hard cuts and turns.” When
       asked if there are any daily activities besides running that
       he is unable to complete, Appellant testified that he is
       unable to lift “certain heavy things” or drive for very long
       periods, such as the seventeen hour road trip he took with
       a friend the week prior.

          An independent medical examination of Appellant was
       conducted on September 7, 2016. The report stated that
       Appellant had no pain, no tenderness, and full range of
       motion in his right knee. Further, the report notes that
       any complaints of right knee pain are unrelated to the
       injury suffered by Appellant in the accident eight years
       earlier.    Dr. Elia determined that Appellant remained
       extremely active following the accident and that residual
       pain can be attributed to Appellant’s “excessive activity
       level.” Finally, Dr. Elia opined that the injury has been
       resolved and that Appellant can continue performing all
       activities as tolerated with no restrictions.

          At the time of the accident, Appellant was twelve years
       old. Thus, this action was filed by Appellant’s parents on
       his behalf. However, Appellant’s parents also asserted

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         individual claims against Appellee. On August 25, 2011,
         the matter was marked settled, discontinued, and ended
         as to Appellant’s mother and father. Thus, Appellant’s
         negligence claim is the sole remaining Count in this
         matter.

            On October 25, 2016, Appellee filed a Motion for
         Summary Judgment.          Appellee asserted that as a
         passenger in his mother’s vehicle, Appellant is bound by
         his mother’s limited tort option pursuant to his parent’s
         motor vehicle insurance policy. As such, the only issue for
         this Court to consider was whether Appellant sustained a
         sufficiently “serious injury” to maintain an action for
         noneconomic loss. See 75 Pa. C.S.[] § 1705. The Court
         granted Appellee’s Motion for Summary Judgment on
         March 6, 2017. On March 30, 2017, Appellant filed a
         Notice of Appeal.

Trial Ct. Op., 5/19/17, at 1-4 (record citations omitted). Both Appellant and

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

      Appellant raises two issues in this appeal:

         1. Whether the lower court abused its discretion in
         granting summary judgment and dismissing [Appellant’s]
         action[] by arbitrarily concluding that his chronic injuries
         did not create serious impairments of body function
         sufficient to overcome the limited tort restrictions of the
         Motor Vehicle Financial Responsibility Law, despite
         substantial impairment of his athletic, military, and other
         daily activities from adolescence to adulthood.

         2. Whether [Appellant] is entitled to have a jury decide if
         his chronic injuries created serious impairments of body
         function sufficient to overcome the limited tort restrictions
         of the Motor Vehicle Financial Responsibility Law, in
         accordance with the meaning of that statute as interpreted
         by related case law.

Appellant’s Brief at 7.




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      Our standard of review in an appeal from an order granting summary

judgment is well settled:

         Our review of the trial court’s grant of summary judgment
         is plenary.    Summary judgment is proper where the
         pleadings, depositions, answers to interrogatories,
         admissions and affidavits and other materials show there is
         no genuine issue of material fact and the moving party is
         entitled to judgment as a matter of law. We must view the
         record in the light most favorable to the opposing party
         and resolve all doubts as to the existence of a genuine
         issue of material fact in favor of the nonmoving party. We
         will reverse the trial court’s grant of summary judgment
         only upon an abuse of discretion or error of law.

412 North Front Street Assocs., LP v. Spector Gadon & Rosen, P.C.,

151 A.3d 646, 660 (Pa. Super. 2016) (citation omitted).

      We will address both of Appellant’s questions together, because they

both concern the same issue: whether a genuine issue of material fact exists

in this limited tort case as to whether Appellant’s injuries constitute a

“serious impairment of bodily function” under the Motor Vehicle Financial

Responsibility Law (“MVFRL”), 75 Pa.C.S. §§ 1701-1799.7.

      The MVFRL provides in relevant part:

         § 1705. Election of tort options
                                     ...
         (d) Limited tort alternative.—Each person who elects
         the limited tort alternative remains eligible to seek
         compensation for economic loss sustained in a motor
         vehicle accident as the consequence of the fault of another
         person pursuant to applicable tort law. Unless the injury
         sustained is a serious injury, each person who is bound




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          by the limited tort election shall be precluded from
          maintaining an action for any noneconomic loss . . . .1

75 Pa.C.S.A. § 1705(d) (emphasis added). The Motor Vehicle Code defines

“serious injury” as “[a] personal injury resulting in death,           serious

impairment of body function or permanent serious disfigurement.”           75

Pa.C.S. § 1702 (emphasis added). In determining whether a motorist has

suffered a serious injury, “the threshold determination [is] not to be made

routinely by a trial court judge . . . but rather [is] left to a jury unless

reasonable minds [cannot] differ on the issue of whether a serious injury

had been sustained.”         Washington v. Baxter, 719 A.2d 733, 740 (Pa.

1998).    “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.’”          Graham v. Campo, 990 A.2d 9, 16

(Pa. Super. 2010) (citation omitted). “The focus of these inquiries is not on

the injuries themselves, but on how the injuries affected a particular body

function.”     Washington, 719 A.2d at 740 (citation omitted).             “An

impairment need not be permanent to be serious.” Id.

       Appellant relies primarily on Cadena v. Latch, 78 A.3d 636 (Pa.

Super. 2013), and Kelly v. Ziolko, 734 A.2d 893 (Pa. Super. 1999), for the

____________________________________________


1This provision has several exceptions, but none are relevant here. See 75
Pa.C.S. § 1705(d)(1)-(3).



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proposition that the trial court erred in granting summary judgment to

Appellee on the issue of “serious impairment of bodily function.”                In

Cadena, following a motor vehicle accident, the plaintiff refused emergency

care, thinking the injuries were not bad enough for an ambulance or

hospitalization; missed only one week from work as an accountant; never

refilled initial pain medication; went on vacations; testified that her pain had

decreased; took only Motrin as needed for shoulder pain; gained some

weight; was uncomfortable standing; missed some of her children’s school

functions; was not as sexually active after the collision; and did not drive as

much in order to avoid pain.      Id., 78 A.3d at 637.     She also stopped all

medical   treatment    nine   months   after   the   accident.   Id.      at   643.

Subsequently, her physician determined that she suffered multiple ailments

as a result of the accident, including cervical radiculitis, lumbar radiculitis,

bilateral C5 radiculopathy, left-sided C6 radiculopathy, L4–L5 radiculopathy,

cervical sprain and strain, lumbrosacral sprain and strain, lumbar disc

bulging, DJD, and multilevel lumbar HNP. Id. at 640. This Court held that

the trial court erred by granting summary judgment to the defendant:

          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 . . . Furthermore,
          Appellant has described at length how her daily life has
          changed because of the pain she has and continues to
          endure . . . Although the trial court noted that she ceased
          medical treatment in 2008, the record reveals that the
          reason for this was that she did not have health insurance

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J-A23041-17


         to continue to pay for the treatment . . . Furthermore,
         Appellant also stated that the medical coverage on her
         automobile insurance was exhausted . . . We also
         respectfully disagree with the trial court that summary
         judgment was warranted because Appellant was declared
         to have recovered from all injuries from the accident in
         June 2011, three and one-half years afterwards. As noted
         above, [a]n impairment need not be permanent to be
         serious.

Id. at 643-44 (citations omitted).

      In Kelly, because of a motor vehicle accident,

         [the plaintiff] sustained injuries to his neck, lower back,
         and suffered numbness in his face and toes . . . [H]e
         suffers pain in his neck, back, and knees, and intermittent
         numbness in two toes on his left foot.           Immediately
         following the accident he was taken to Good Samaritan
         Hospital's Emergency Room where he was given a soft
         collar for his neck and discharged less than two hours later
         in stable condition . . . As a result of his injuries, he has
         undergone a course of physical therapy and taken an MRI
         which indicated that he suffers from a herniated disk . . .
         He was subsequently put on pain medication and
         voluntarily sought and received treatments for his injured
         back from a local chiropractor. He described his daily
         discomfort in his lower back as a “dull, achy pain.” He has
         knee pains approximately once a week.

         [H]is 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 . . . He
         also contends that he is no longer able to engage in the
         following recreational activities: riding his mountain bike,
         riding his motorcycle, and hunting.

         [He] returned to work only three days after the accident;
         he was able to return to his full work duties within a short
         period of time. Part of his work duties included lifting
         drywall and performing carpentry-related tasks . . .
         Clinically, [he] sought follow-up medical treatment from
         the effects of the accident three weeks following said

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          accident. Furthermore . . . the doctor who diagnosed his
          herniated disk did not recommend surgery. [He]
          voluntarily sought chiropractic treatment for his back
          injuries. [His] treatment during recovery involved physical
          therapy, the use of a TENS unit, and exercise.

          [He] remains gainfully employed in his former occupation
          with minor limitations on lifting heavy objects. Although
          he claims he is restricted in his recreational activities, he
          receives no treatment or prescriptive medication for his
          pain . . . .

          With regard to the extent of his impairment, one of [his]
          physicians testified that because he continues to
          experience pinching sensations in his leg from the
          herniated disk, this condition is most likely permanent.
          Depending upon the level of heavy activity he performs in
          the future, his condition may stabilize or worsen over time.

Id., 734 A.2d at 899-900 (citations omitted; italics in original). This Court

held that while this case was “less clear-cut” than other cases, the trial court

erred by granting summary judgment and should have sent the issue of

serious bodily injury to the jury.2 Id. at 900.

____________________________________________


2 For other limited tort cases in which this Court has held that a jury must
decide the question of serious impairment of bodily function, see Robinson
v. Upole, 750 A.2d 339, 341, 343 (Pa. Super. 2000) (although plaintiff
returned to work at unspecified point, she suffered chronic pain syndrome,
fibromyalgia and sleep impairment, has severely reduced ability to perform
recreational activities and had to hire housekeeper); Hellings v. Bowman,
744 A.2d 274, 276 (Pa. Super. 1999) (plaintiff was admitted to emergency
room with severe low back pain and bilateral leg pain, underwent MRI which
revealed herniated disk, degenerative disc disease and facet arthrosis,
subsequently was diagnosed with lumbar radiculopathy secondary to
herniated disc, missed six weeks of work, treated with chiropractor for three
months, continued to treat regularly with family physician, could no longer
ride in car without pain, stopped or greatly limited various recreational
activities, and continued to suffer knee numbness, sharp hip pain, back
(Footnote Continued Next Page)


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      In the present case, Appellant was in a motor vehicle accident when he

was twelve years old. He argues that he suffered

          serious injuries manifested by chronic symptoms that have
          persisted for nearly 9 years, which are not alleviated or
          corrected with medical care; and which have substantially
          impacted and impaired his life and activities since
          adolescence and into adulthood with almost daily knee
          pain that:

             a. Required him to completely stop playing sports 2 out
             of every 5 times that he tried to play[;]

             b. Required him to temporarily stop playing sports 4 out
             of every 5 times that he tried to play[;]

             c. Caused him to quit playing basketball, football,
             baseball, soccer, and rugby[;]

             d. Caused him to quit running track[;]

             e. Prevented him from helping his parents with lawn
             care[;]

             f. Required him to use topical medications in order to
             function[;]

             g. Required him to modify his training activities in Navy
             boot camp[;]

             h. Still affects his ability to walk[;]

             i. Still requires him to wear a knee brace[;]

(Footnote Continued) _______________________

spasms, hand cramping, and frequent headaches); and Furman v. Shapiro,
721 A.2d 1125, 1127 (Pa. Super. 1998) (bulging disc suffered in motor
vehicle accident prevented plaintiff from remaining in one position for long
periods, prevented her from walking distances, forced her to curtail work
schedule, affected her ability to bathe her daughter, and continued to persist
on date of her deposition more than three years after accident).



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J-A23041-17


            j. Still impairs his ability to run[;]

            k. Still impairs his ability to stand for long periods[;]

            l. Still impairs his ability to ascend stairs[;]

            m. Still prevents him from pushing a snow blower[;]

            n. Still impairs his ability to drive distances[;]

            o. Still impairs his ability to lift heavy objects[;]

            p. Still prevents him from doing leg and lower body
            exercises at the gym[; and]

            q. Still prevents him from kneeling or crawling on his
            knees[.]

Trial Ct. Op. at 5.

      The trial court justified its decision to grant summary judgment to

Appellee as follows:

            The Court granted Appellee’s Motion for Summary
         Judgment because the Court found that reasonable minds
         could not differ on the conclusion that Appellant’s knee
         injury was not serious such that a body function has been
         seriously impaired.    The Court determined that any
         impairment resulting from Appellant’s right knee injury is
         de minimis.

            Following the accident, Appellant was seen by an
         emergency room doctor and underwent x-rays before
         being discharged shortly thereafter. Appellant’s ultimate
         diagnosis was a bone bruise and mild patellofemoral pain
         syndrome. Appellant’s treatment for his injury was not
         extensive. Appellant was directed to undergo two months
         of physical therapy and wear a knee brace while playing
         sports. Appellant was seen by an orthopedist several
         times during the two years after the accident, but has not
         sought any medical treatment for his knee over the past
         six years.


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J-A23041-17


             Appellant’s knee injury appears to have had little to no
         impact on his normal daily activities. Appellant continued
         to maintain a very active lifestyle and participated in
         numerous sports following the accident. Appellant initially
         wore a knee brace while playing, but testified that he
         outgrew the brace and therefore chose to no longer wear
         one. Appellant asserted that his injury required him to
         frequently take breaks while playing sports and that he still
         has difficulty completing weight-training exercises that
         engage the lower body. Nonetheless, several years after
         the accident, Appellant joined the Navy and successfully
         passed medical and physical fitness testing in order to do
         so. Appellant also underwent Navy “boot camp”, where he
         was required to engage in particular vigorous physical
         activities several times per week over the course of two
         months. Finally, Appellant maintains a job where he is
         required to stand for eight hour spans without more than
         alleged soreness by the end of his shift.

             While Appellant has self-reported that his knee injury
         still limits him, the September 2016 independent medical
         examination of Appellant strongly contradicts this
         argument . . . [T]he examination report states that
         Appellant had full range of motion in his right knee and
         that any complaints of right knee pain are unrelated to the
         injury suffered in the 2008 accident.          The doctor
         characterized any residual pain as a by-product of
         Appellant’s “excessive activity level.”

            Appellant has failed to show that his injury has had
         such an impact on him such that it constitutes a serious
         injury. Thus, the Court found that Appellant was unable to
         overcome the limited tort threshold of his parent[s’]
         insurance policy. In accordance with the Washington
         holding, the Court determined that summary judgment
         was proper here because reasonable minds could not differ
         that Appellant’s injury was not serious, evidenced by
         Appellant’s vigorously active lifestyle, his failure to offer
         sufficient evidence of serious impairment, and the 2016
         examination report detailing the condition of Appellant’s
         knee and the complete lack of any pain or tenderness.

Trial Ct. Op. at 8-10.


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      We agree with the trial court’s analysis, and we offer several additional

observations.   First, the Rules of Civil Procedure require the non-moving

party—herein, Appellant—to “identify[] one or more issues of fact arising

from evidence in the record controverting the evidence cited in support of

the [summary judgment] motion.”               Pa.R.Civ.P. 1035.3(a)(1).   Here,

Appellant totally failed to controvert Dr. Elia’s assessment in his 2016

independent medical examination that Appellant remained extremely active

following the accident, and that residual pain is attributable to Appellant’s

“excessive activity level.” Appellee’s Motion For Summary Judgment, exhibit

B, at 5. Thus, unlike Cadena, Kelly, and the other decisions cited above,

any pain that Appellant continues to experience is the product of his own

lifestyle, not the result of the motor vehicle accident. Furthermore, the day-

to-day lives of the plaintiffs in the above cases were seriously impaired;

Appellant suffered minimal impact in comparison, and far from enough to

classify it as serious impairment of bodily function.

      For these reasons, we affirm the trial court’s order granting summary

judgment to Appellee.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/3/2017




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