J-A05042-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MELANY RAMOS,                                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                           Appellant

                    v.

MICHAEL AND DONNA JONES,

                           Appellees                No. 2124 EDA 2014


                Appeal from the Order Entered June 18, 2014
           In the Court of Common Pleas of Northampton County
                Civil Division at No(s): C-0048-CV-2012-2141


BEFORE: GANTMAN, P.J., SHOGAN, and ALLEN, JJ.

MEMORANDUM BY SHOGAN, J.:                            FILED APRIL 10, 2015

      Appellant, Melany Ramos, appeals from the June 18, 2014 order that

granted partial summary judgment in favor of Michael Jones and Donna

Jones (collectively “Appellees”), which was made final and appealable by an

order entered on July 11, 2014. We affirm.

      The trial court set forth the relevant facts and procedural background

of this case as follows:

            On March 2, 2012, [Appellant] filed a Praecipe for Writ of
      Summons. On March 27, 2012, [Appellees] filed a Praecipe for
      Rule to File Complaint.

             On April 9, 2012, [Appellant] filed her Complaint, in which
      she avers that on March 21, 2010, a motor vehicle accident
      occurred between [Appellee] Michael Jones and [Appellant] at
      the intersection of Union Boulevard and Airport Road. [Appellee]
      Michael Jones was allegedly negligently driving a vehicle with the
      permission of [Appellee] [Donna] Jones. [Appellant] avers in her
      Complaint that she suffered “severe, serious and disabling”
      injuries, directly and proximately caused by the [Appellees’]
J-A05042-15


     negligence. Specifically, she complains of sprains and strains of
     her neck and back, as well as injuries to her discs, shoulders,
     head and right knee. She also asserts that she suffers mental
     damages that were directly and proximately caused by this
     motor vehicle accident: PTSD, depression, fear, anxiety, and/or
     other mental and psychic injuries. [Appellant] also complains of
     economic injuries, including lost wages, the incurrence of large
     bills due to treatment, and out-of-pocket expenses. Finally,
     [Appellant] complains that, as a result of the accident, she is
     unable to pursue her usual occupation.

           On April 25, 2012, [Appellees] filed an Answer and New
     Matter. In their Answer, [Appellees] aver that [Appellee] Michael
     Jones had [Appellee] Donna Jones’s permission to use the
     vehicle, but he did not use the vehicle to run an errand for her or
     under her direction. In their New Matter, [Appellees] chiefly
     contend that [Appellant’s] claim for any non-economic losses is
     barred pursuant to the Motor Vehicle Financial Responsibility Act
     (the “MVRL”), 75 Pa.C.S.A. § 1701, et seq., because [Appellant]
     selected the limited tort option when applying for the insurance
     policy in effect at the time of the accident. See Answer with New
     Matter at ¶¶ 25-27. Additionally, [Appellees] contest causation.
     Id. at ¶28. Other affirmative and equitable defenses are also
     raised in the New Matter.

           On May 9, 2012, [Appellant] filed her Response, asserting
     that the averments in [Appellees’] New Matter amounted to
     conclusions of law. Id. at ¶¶ 29-33. The parties engaged in
     discovery, which included obtaining medical records and
     conducting depositions.

           [Appellees] filed a Motion for Partial Summary Judgment
     on February 21, 2014, arguing that they are entitled to
     judgment as a matter of law because [Appellant] selected the
     limited tort option in her insurance policy and did not sustain an
     injury which constitutes a serious impairment of a body function.
     As such, they argue, she is not entitled to damages for non-
     economic damages. [Appellees] filed a Memorandum of Law
     supporting their Motion on the same date.

           On March 24, 2014, [Appellant] filed an Answer and Brief
     in Opposition, in which she argued that this determination is one
     for the jury because reasonable minds could differ. On April 29,
     2014, [Appellees] filed a Reply to [Appellant’s] Brief in
     Opposition to Motion for Partial Summary Judgment. On May 1,


                                    -2-
J-A05042-15


      2014, [Appellant] filed [a] Reply to [Appellees’] Submission at
      Oral Argument.

            This matter was placed on the April 25, 2014, Argument
      List and argument was heard.

Order and Statement of Reasons, 6/18/14, at 1-3.

      The trial court concluded that Appellant’s injuries were de minimus,

and it granted Appellees’ motion for partial summary judgment. Order and

Statement of Reasons, 6/18/14, at 1. The June 18, 2014 order precluded

Appellant from seeking or recovering non-economic damages due to her

selection of the limited tort option. Id. The order dismissed all claims for

non-economic damages with prejudice. Id.

      Ordinarily,   an   order   granting   partial   summary   judgment      is

interlocutory. However, on July 3, 2014, Appellant filed a motion to make

the June 18, 2014 order final and appealable pursuant to Pa.R.A.P. 341(c).

In an order filed on July 11, 2014, the trial court granted Appellant’s motion.

Accordingly, the July 11, 2014 order, which granted partial summary

judgment, made the June 18, 2014 order final and appealable. This timely

appeal followed.

      On appeal, Appellant raises one issue for this Court’s consideration:

      1. Did the trial court usurp the jury’s function and commit an
         error of law / abuse of discretion in granting partial summary
         judgment and dismissing [Appellant’s] claim for noneconomic
         damages, given the existence of genuine issues of material
         fact as to whether [Appellant] suffered a “serious injury” or
         serious impairment of some bodily function, especially
         considering that [Appellant] submitted expert and lay
         testimony that [Appellant’s] ongoing injuries permanently
         disabled her from performing her pre-injury job as a CNA?

                                     -3-
J-A05042-15



Appellant’s Brief at 3.

      The standard of review we apply is as follows:

             Our scope of review of a trial court’s order granting or
      denying summary judgment is plenary, and our standard of
      review is clear: the trial court’s order will be reversed only where
      it is established that the court committed an error of law or
      abused its discretion. Summary judgment is appropriate only
      when the record clearly shows that there is no genuine issue of
      material fact and that the moving party is entitled to judgment
      as a matter of law. The reviewing court must view the record in
      the light most favorable to the nonmoving party and resolve all
      doubts as to the existence of a genuine issue of material fact
      against the moving party. Only when the facts are so clear that
      reasonable minds could not differ can a trial court properly enter
      summary judgment.

Hovis v. Sunoco, Inc., 64 A.3d 1078, 1081 (Pa. Super. 2013).

      In Pennsylvania, when selecting automobile insurance, drivers have

the option of choosing limited-tort coverage or full-tort coverage. 75 Pa.C.S.

§ 1705.    An individual who has purchased full-tort coverage and who is

injured by a negligent driver can recover all medical and out-of-pocket

expenses, as well as financial compensation for pain and suffering and other

noneconomic damages. Varner-Mort v. Kapfhammer, ___ A.3d ___, ___,

2015 PA Super 14, at *4, 2015 WL 252444 (Pa. Super. 2015) (filed January

21, 2015) (citing 75 Pa.C.S. § 1705(a)(1)(B)). “A limited-tort plaintiff also

can recover all medical and out-of-pocket expenses; however, such a

plaintiff cannot recover for pain and suffering or other noneconomic

damages unless the plaintiff’s injuries fall within the definition of ‘serious

injury.’” Id. (citing 75 Pa.C.S. § 1705(a)(1)(A)). The term “serious injury”



                                     -4-
J-A05042-15



is defined as follows: “A personal injury resulting in death, serious

impairment of body function or permanent serious disfigurement.”            75

Pa.C.S. § 1702.

      Our Supreme Court has held that in determining whether a
      motorist has suffered a serious injury, “the threshold
      determination was not to be made routinely by a trial court
      judge ... but rather was to be left to a jury unless reasonable
      minds could not differ on the issue of whether a serious injury
      had been sustained.” Washington v. Baxter, 553 Pa. 434, 719
      A.2d 733, 740 (1998). In conducting this inquiry, “several
      factors must be considered to determine if the claimed injury is
      ‘serious’: ‘[1.] the extent of the impairment, [2.] the length of
      time the impairment lasted, [3.] the treatment required to
      correct the impairment, and [4.] any other relevant factors.’”
      Graham v. Campo, 990 A.2d 9, 16 (Pa. Super. 2010), appeal
      denied, 609 Pa. 703, 16 A.3d 504 (2011). Our Supreme Court
      has cautioned that “the focus of these inquiries is not on the
      injuries themselves, but on how the injuries affected a particular
      body function.” Washington, supra. We remain cognizant of
      the principle that “[a]n impairment need not be permanent to be
      serious” under section 1705(d). Robinson v. Upole, 750 A.2d
      339, 342 (Pa. Super. 2000) (citation omitted).

Cadena v. Latch, 78 A.3d 636, 640 (Pa. Super. 2013) (emphasis added).

      Following our review of the certified record, the parties’ briefs, and

relevant legal authority, we conclude that the Order and Statement of

Reasons, which is incorporated by reference in the trial court’s August 21,

2014 Pa.R.A.P. 1925(a) statement, comprehensively and correctly disposes

of Appellant’s claim of error.     See Order and Statement of Reasons,

6/18/14, at 5-13 (reciting the facts of record, applying the four factors noted

above, and concluding that reasonable minds could not differ on the

conclusion that Appellant did not suffer a serious injury). Appellant elected


                                     -5-
J-A05042-15



limited-tort coverage, and we agree with the trial court’s conclusion that

Appellant failed to establish that she suffered a “serious injury” as that term

is defined.    We discern no error or abuse of discretion in the trial court’s

conclusion.

      Accordingly, we affirm the trial court order granting Appellees’ motion

for partial summary judgment, and we do so on the basis of the trial court’s

Order and Statement of Reasons dated June 18, 2014.           The parties are

directed to attach a copy of the trial court’s June 18, 2014 Order and

Statement of Reasons to this memorandum in the event of further

proceedings.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/10/2015




                                      -6-
·~
      J                                                                                                       Circulated 03/30/2015 01:36 PM

      j   .   ..
  ;J'
  ,,;

      .
      i

                                                                                                                                          ()
  ;
 ·.,


  J                     IN .THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY, PEl'fNSYLVA.NU
  1
 .}                                                            CIVIL DIVISION
 1

 ·1
 '                   i\IELANIE R.Al\IOS,                               )            NO: C--18-CV-2012·2141
                                                                       )
                                            Plaintiff,                 )
                                                                       )
                                    Y.


                     i\HCHAEL JONES, DONNA JONES,
                                                                       )
                                                                       )
                                                                       )
                                                                                                                            -
                                                                                                                            r
                                                                      )                                                     rn
                                           Defendants.                )
                                                                                                                    0
                                                                                                                     -..    CJ
                                                             ORDER OF COURT                                         en

                            AND NOW, this I ~r.dny of June, 2014, upon consideration of the Defendants, Michael

                    Jones and Barbara Jones's. Motion for Partial Summary Judgment. and the Plaintiff. Melanie

                    Rarnos's, response thereto, it is hereby ORDERED that said Motion is GR.\NTED. and the

                    Plaintiff is precluded from asserting and recovering any and all non-economic damages due to
                                                                                                                                          (~)
                    her selection of the Limited Tort Option.

                           It is further ORDERED that any and all claims for non-economic damages are

                    DISMISSED with prejudice.

                                                         STATEME!\T OF REASO~'S

                                                         Facts and Procedural History

                           On March 2. 2012, the Plaintiff, Melanie Ramos. filed     2   Praecipe for Writ of Summons.

                   On March 27, 20 J 2, the Defendants,     Michael Jones and Barbara Jones, filed a Praccipe for Rule

                   to File Complaint.

                          On April 9, 2012, the Pfointiff filed her Complaint, in which she avers that on March 21,

                   20 I 0, a motor vehicle accident occurred between Defendant Michael Jones and the Plaintiff at

                   the intersection of Union Boulevard and Airport Road. Defendant Michael Jones was allegedly

                   negligently driving a vehicle with the permission of Defendant Barbara Jones. The Plaintiff
                                                                                                                                          u
                                                                                   Circulated 03/30/2015 01:36 PM




                                                                                                               0
   avers in her Complaint that she suffered "severe, serious and disabling" injuries, directly and

  . proximately caused by the Defendants' negligence. Specifically, she complains of sprains and

  strains of her neck and back, as well as injuries to her discs, shoulders, head and right knee. She

  also asserts that she suffers mental damages that were directly and proximately caused by this

  motor vehicle accident: PTSD, depression, fear, anxiety, and/or other mental and psychic                           II
  injuries. The Plaintiff also complains of economic injuries, including lost wages, the incurrence
                                                                                                                     \
  of large bills due to treatment, and out-of-pocketexpenses. Finally, the Plaintiffcomplains that,

  as a result of the accident, she is unable to pursue her usual occupation.

         On April 25, 2012, the Defendants filed an Answer and New Matter. In their Answer, the

 Defendants aver that Defendant Michael Jones had Defendant Donna Jones's permission to use

 the vehicle, but he did not use the vehicle to run an errand for her or under her direction. In their          ()
 New Matter, the Defendants chiefly contend that the Plaintiff's claim for any non-economic

 losses is barred pursuant to the Motor Vehicle Financial Responsibility Act (the "MYRL"), 75

 Pa.C.S.A. § 1701, et seq., because the Plaintiff selected the limited tort option when applying for

 the insurance policy in effect at the time of the accident. See Answer with New Matter at 1125-

 27. Additionally, the Defendants contest causation. Id. at l 28. Other affirmative and equitable

defenses are also raised in the New Matter.

        On May 9, 2012, the Plaintiff filed her Response, asserting that the averments in the

Defendants' New Matter amounted to conclusions of law. Id. at f-129-33. The parties engaged

in discovery, which induded obtaining medical records and conducting depositions.

        The Defendants filed a Motion for Partial Summary Judgment on February 21, 2014,

arguing that they are entitled to judgment as a-matter of Jaw because the Plaintiff selected the·

limited tort option in her insurance policy and did not sustain an injury which constitutes a
                                                                                                    Circulated 03/30/2015 01:36 PM




                                                                                                                                ()
              serious impairment of a body function. As such, they argue, she is not entitled to damages for

              non-economic damages. The Defendants filed a Memorandum of Law supporting their Motion

              on the same date.



                      On March 24, 2014, the Plaintiff filed an Answer and Brief in Opposition, in which she

              argued that this determination is one for the jury because reasonable minds could differ. On

        J
              April 29, 2014, the Defendants filed a Reply to Plaintiffs Brief in Opposition to Motion for
       ·~
       'j
        j
       ·1
             Partial Summary Judgment. On May 1, 2014, the Plaintiff filed Reply       lo   Defendants'

             Submission at Oral Argument.
·.·1



:!                   This matter was placed on the April 25, 2014, Argument List and argument was heard.

                                                       Legal Standard                                                           ()
                     Pennsylvania Rule of Civil Procedure 1035.2 states:

                            After the relevant pleadings are closed, but within such time as not to
                            unreasonably delay trial, any party may move for summary judgment in
                            whole or in part as a matter of law

                            (I) whenever there is no genuine issue of any material fact as to a
                            necessary element of the cause of action or defense which could be
                            established by additional discovery or expert report, or

                            (2) if, after the completion of discovery relevant to the motion, including
                            the production of expert reports, an adverse party who will bear the burden
                            of proof at trial has failed to produce evidence of facts essential to the
                            cause of action or defense which in a jury trial would require the issues to
                            be submitted to the jury.

            Pa.R.C.P. l 035.2 .
                                  ..... ~
                   Further/under Pa.R.C.P. J 035.3(a), the nonmoving party may not rest upon mere

            allegations or denials of the pleadings but rnusrfile a response within thirty (30) days after

            service of the motion. In other words, the nonmoving party has a clear and affirmative duty to                      u
                                                             3
                                                                                     Circulated 03/30/2015 01:36 PM




                                                                                                                  ()
  respond to a motion for summary judgment. Harber Phi la. Ctr. Citv Office Ltd. v. LPCI Ltd.

  P'ship, 764 A.2d 1100, 1104 (Pa. Super. 2000). Also, Pa.R.C.P. 1035.3(d) specifically provides

  that "[s]ummary judgment may be entered against a party who does not respond." lg_,

         Summary judgment may be granted only in the clearest of cases where the record shows

 that there are no genuine issues of material fact and that the moving party is entitled to judgment

 as a matter of law. P.J.S. v. Pa. State Ethics Comm'n, 723 A.2d 174, 176 (Pa. 1999) (citing

 Marks v. Tasman, 589 A.2d 205 (Pa. 1991)).      Summary judgment is only appropriate in the

 clearest of cases, because an order favorable to the moving party will prematurely end an action.

 Scopel v. Done!2al Mut. Ins. Co., 698 A.2d 602, 605 (Pa. Super. 1997) (citations omitted).

 The moving party has the burden of proving the non-existence of any genuine issue of material

 fact. O'Rourkc v. Pa. Dep't of Corr., 730 A.2d 103.9, 1041 (Pa. Cornmw. Ct. 1999) (citing Kee                    ()
 v. Tumoike Comrn'n, 722 A.2d 1123 (Pa. Commw. Ct. 1998)). "Failure ofa non-moving party

 to adduce sufficient evidence on an issue essential to his case and on which it bears the burden of

proof ... establishes the entitlement of the moving party to judgment as a matter of law."

Mu;:phv v. Duguesne Univ. of the Holv Ghost, 777 A.2d 418, 429 (Pa. 2001) (quoting Youn2 v.

PennDOT, 744 A.2d 1276, 1277 (Pa. 2000)) (omission in original) (internal quotation marks

omitted). The record must be viewed in the light most favorable to the non-moving party, and all

doubts as to the existence of a genuine issue of material fact must be resolved against the moving

party. Ertel v. Patriot-News Co., 674 A.2d I 038, I 04 t (Pa. 1996) ( citation omitted).

        Under the Nanlv·Gto Rule, summary judgment may not be granted where the moving

party relies exclusively on oral testimony, either through testimonial affidavits or deposition

testimony to establish the absence of a genuint! issue of material fact. Nantv-Glo Borou!Zh v.

American Suretv Co., J 63 A. 523, 524 (Pa. 1932); see also Penn Center House. Inc. v. Hoffman,
                                                                                                                  (_)
                                                                                              Circulated 03/30/2015 01:36 PM




                                                                                                                          ()
        553 A.2d 900, 903 (Pa. 1989); White v, Owens Comin!! Fibere:las. Coro., 668 A.2d 136, 142 (Pa.

        Super. 1995); Garcia v. Savaize, 586 A.2d 1375, 1377-78 (Pa. Super. 1991); O'Rourke, 730 A.2d

        at 1041 (citing Kaplan v. Se. Pa. Transp. Auth., 688 A.2d 736 (Pa. Commw. Ct. 1997)).

·,i
                                                        Discussion
f,
                Under Section 1705 of the Motor Vehicle Financial Responsibility Law ("MVFRL''), an

        insured motorist may elect a "limited tort" option in exchange for lower insurance rates. 75

        Pa.C.S.A. § 1705; ~ also Washington v. Baxter, 719 A.2d 733, 737-38 (Pa. 1998). Under this

        limited tort option, an insured driver who is injured by another driver may "seek recovery for all

       medical and other out-of-pocket expenses, but not for pain and suffering or for other non-

       monetary damages unless the injuries suffered fall within the definition of 'serious injury' as set

       forth in the policy." 75 Pa.C.S.A. § I 705(a). While the insured who elects the limited tort                       OI
       alternative remains eligible to pursue a cause of action for economic loss, "[uJnless the injury

       sustained is a serious injury, each person who is bound by the limited tort option shall be

       precluded from an action for any non-economic loss ....       " 75 Pa.C.S.A. § 1705(d). Further, the

       MVFRL defines "serious injury" as "[a] personal injury resulting in death, serious impairment of

      a body function or permanent serious disfigurement." 75 Pa.C.S .A. § 1702.

               Initially, we note that in Washirnzton v. Bnxter, supra, our Supreme Court established the

      standard by which trial courts are lo determine whether a plaintiff has suffered a "serious injury"

      by which the plaintiff is permitted   Lo   recover non-economic damages despite her selection of the

      "limited tort option" under the MVFRL. Our Supreme Court determined, after a review of case

      law and the legislative history of the lvfVFRL, that: "the traditional summary judgment standard

      [is] to be followed and ... the threshold determination [is] not to be made routinely by a trial"

      court judge in (these] matters ...   but rather [is] to be left to a jury unless reasonable minds could


                                                          5
                                                                                                                  Circulated 03/30/2015 01:36 PM

                     .I


                                                                                                                                              (')
                             not differ on the issue of whether a serious injury has been sustained." Washington, 719 A.2d at

                             740. Moreover, all inferences must be resolved in favor of the non-moving party. Id. Thus, "the

                             ultimate determination should be made by the jury in all but the clearest of cases." McGee v.

                             Muldownev, 750 A.2d Q 12, 914 (Pa Super. 2000).

                                    The Washineton Court adopted the following definition of't'serious impairment of a

                            bodily function" as stated by the Michigan Supreme Court:

                                The 'serious impairment    of a bodily 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                            CJ
                                         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.

                            Washim!ton, 719 A.2d at 740 (quoting Difranco v. Pickard, 398 N.W.2d 896, 901 (Mich. 1986))

                           (omission in original). Further, our Supreme Court emphasized that "[t]he question to be

                           answered is not whether appellant has adduced sufficient evidence to show that appellant

                           suffered any injury; rather, the question is whether appellant has shown that he suffered a

                           serious injury such that a body function has been seriously impaired." Id. at 741 (emphasis in

                           original); see also McGee, 750 A.2d at 914.

                                   We look to first at what body function, if any, was injured as a result of the motor vehicle

                           accident of .tvfarcb 21, 20 I 0. Here, the Plaintiff complains of neck and shoulder pain, which she

                           contends resulted solely from the motor vehicle accident. See Complaint f I 0.

                ;~
                                                                                                                                               CJ
         ::•
               -~

                                                                             6
·::,   ·\, .
           (~




.:~/: .<l
                                                                                   Circulated 03/30/2015 01:36 PM




                                                                                                               0
       Second, we consider whether the impairment of the body function is serious. The record

reveals the following with regard to the impairment:

   (I) The Plaintiff was examined in the emergency room of Sacred Heart Hospital following

       the motor vehicle accident of March 21, 20 I 0, and discharged with soft tissue injuries

       and painful tenderness in the right knee. No abnormalities or tenderness in the back or

       neck was noted. With regard to the severity of the symptoms, the physician

       documentation states: "[a]t their worst the symptoms were mild, in the emergency

      department the symptoms are unchanged."

   (2) The Plaintiff was examined at Airport Road EmergiCenter on March 30, 2010, nine days

      later, and was diagnosed with right knee pain and a musculoskeletal strain. An x-ray of

      her cervical spine was performed and the cervical spine was found to be wi thin the
                                                                                                                CJ
      normal limits. A CT scan of the brain revealed no abnormalities.

  (3) On April 13, 2010, and May 4, 2010, the Plaintiff was seen by Dr. Joseph Grassi, M.D.,

      of Orthopedic Associates of the Greater Lehigh Valley, P.A. His clinical impressions

      included ongoing cervicalgia (neck pain) whiplash-type syndrome in the upper back and

      neck, right knee contusion,   and myofasciitis (inflammation of a muscle and its fascia),

     lower back sprain/strain.

 (4) On June 29, 2010, the Plaintiff was seen by Dr. Grassi for a follow-up appointment, three

     months after the accident. Dr. Grassi noted some continuing upper, mid and lower back

     pain, but found no rpdiation of symptoms.      Further, he found: "Regarding the cervical

     adenopathy, she's been instructed many times to get this checked by her family physician

     and or a general surgeon as this is not'part of the cervical injury related to her .MVA."
                                                                                                                (,_)\

     (emphasis added) Dr. Grassi advised the Plaintiff to use a rolling backpack to take



                                                7
                                                                                  Circulated 03/30/2015 01:36 PM




                                                                                                             ()
     weight off of her shoulders and back. He stated that she could continue with her
                                                                                                                   l
     academics, and noted that she was not currently working.

 (5) On June I 7, 2010, the Plaintiff went to Dr. Grassi for another follow-up appointment.

     Dr. Grassi noted a reduction in pain levels and that the Plaintiff was "active, moving                        I
     about today." He also found some tightness in her muscles. His clinical impressions

     included a continuation,   but improvement, of whiplash-type syndrome, and myofasciitis

     (inflammation) of the cervical, thoracic and lumbar spine. Dr. Grassi stated: "I will see

    her back in three weeks' time, hopefully moving her along so that we can release her for

    her work. She continues with her college activities."

 (6) On September 28, 2010, Dr. Grassi saw the Plaintiff again due to some recurring back

    and neck pain. He again noted some soft tissue tightness and discomfort.        Dr. Grassi
                                                                                                               0
    stated: "She is working on trying to get her insurance re-established so she can get back

    to physical therapy. If this is necessary, we can reorder it but at this time I do not see her

    as needing a long-term formal physical therapy program."

(7) The Plaintiff went to Lehigh Valley Hospital -Muhlenberg on January 10, 2011,

    complaining of severe neck pain. A neck exam revealed mild soft tissue tenderness in the

    right and left neck. No restrictions were imposed as to the Plaintiff's activities.

(SJ The Plaintiff went to Pennsylvania Pain Specialists, P.C., on March 4, 2011. The report

   describes tenderness and cervicalgia (neck pain). Pain medicine was prescribed.

(9) The Plaintiff sought emergency medical attention at Pinnacle Health Community Campus

   on June 1'3, 2011, complaining of neck and shoulder pain. An examination of the neck

   revealed: "Trachea rnidline, no meningeal signs, no jugular venous 'distention, no cervical

   adenopathy, no contusions, no ecchymosis, Tenderness entire spine from Cl to Tl. No



                                              8
                                                                                               Circulated 03/30/2015 01:36 PM




                                                                                                                          (J
           step offl.] no discrete rnidline tenderness[,]   pain is greater in the left trapezius and right

           trapezius."   The diagnosis was ''IvfVC chronic neck pain."

      (] 0) The Plaintiff sought medical attention at Pinnacle Health on August 29, 2011, for other

          health issues. There is no mention of neck or back pain in the medical report.

      ( l l) The Plaintiff sprained her ankle while at work, for which she received treatment on

         December 31, 2012. There was no mention of neck or back pain in the medical reports.

     ( 12) On September 17, 2013, the Plaintiff went to Dr. David Weiss, D. 0., for an orthopedic

         Independent Medical Evaluation. Dr. Weiss diagnosed the patient with chronic post-

         traumatic cervical and lurnbosacral strain and sprain; post-traumatic       cervical facet joint

         syndrome; cervical radiculitis; lumbar radiculitis; and chronic post-traumatic cervical and

         lumbar rnyofascial pain syndrome.
                                                                                                                          ()
         We next look at the length of the injury. Following the accident, the Plaintiff requested

 and received a note from her employer which granted her a leave of absence in which to recover

 from her accident until April 23, 20 I 0. See Motion for Partial Summary Judgment, Exhibit "Q"

 - letter from Dottie Kurpat, Director of Brookmont/Blough         Healthcare Centers, to the Plaintiff

 (Apri I 6, 20 I 0). The Plaintiff did not return to her job, citing her degree of physical pain, that

 her position could only be held open for a certain amount of time, and that her employer did not

offer light duty for a Certified Nursing Assistant (CNA) position.       See Deposition Testimony of

Melany Ramos ("N.T."), 23-25. The Plaintiff asserts that her tasks and duties for her

new/current employment do ~ot match those required of a CNA, the job she had prior to the

motor vehicle collision, due to her neck and back pain. See id.

       While there has been a gap in the Plaintiff's employment history, however, she testified

during her deposition that she did not seek to secure employment        until she moved to Harrisburg                     -.
                                                                                                                          ( ).




                                                    9
                                                                                         Circulated 03/30/2015 01:36 PM




                                                                                                                    ()
   after she was evicted from her residence. Id. The Plaintiff also notes that she had difficulty

   obtaining a job because it took her awhile to obtain another vehicle. See id. at 26:9-10. She did

  not obtain documentation from a medical provider to excuse her from work until a later date. ~

  at 24. Likewise, she did not contact her former employer to request light duty, nor did she file

  for disability. See id. at 29. During the time period in which the Plaintiff was out of work, she

  was able to continue with her education by taking a class on campus and a class online. See id.

            With   regard to treatment, the Plaintiff sought emergency medical attention immediately

  after the accident, in which her injuries were described as minor. See Motion for Partial

  Summary Judgment, Exhibit "E." The Plaintiff went to an orthopedic specialist, Dr. Grassi, and

 to a few physical therapy treatments. See id. at Exhibit "M." Apparently, the Plaintiff could not

 continue with certain treatments due to her financial circumstances, but sought emergency
                                                                                                                     C)
 medical attention as necessary. See Deposition N.T. at 25. As noted above, however, Dr. Grassi

 found on July 29, 2010, that her cervical adenopathy, which contributed to her pain levels, was

 not caused by the motor vehicle accident, but rather from her failure to seek treatment from a

 family doctor or a general surgeon. See Motion for Partial Summary Judgment, Exhibit "K."

           Finally, we examine any other relevant considerations regarding the impact of the injury

on the Plainti ff s performance of her job functions and engagement in personal activities. The

Plaitniff is able to continue with her education and with work, but she has difficulty sitting at

times and uses a rolling backpack, according to Dr. Grassi 's instructions, See id. Dr. Grassi

gave these instructions. however, after noting that the cervical adenopathy experienced by the
                                '
Plaintiff did not-result from the motor vehicle accident. See id.

       The Plaintiff alleges that she has difficulty sleeping and requires her children's help to   do
laundry.    See Deposition N.T. at 67:20-25,   10:6-10. She indicates that this injury has had a                     u
                                                   iO
                                                                                           Circulated 03/30/2015 01:36 PM




   negative impact on her relationships    with her children, as they cannot participate in physical

   activities that they once enjoyed together, but admits that she can still watch them play sports

   and spend meaningful time with them. See id. at 68:22-25, 69: 1-21. The Plaintiff also alleges

   that this accident has impacted her mental state by worsening her depression. which she already

  suffered from prior to the accident after she had her daughter, See id. at 67; 1-16. All of these

  restrictions are self-imposed, as her physicians did not impose any limitations on her activities.

          In terms of her employment, the Plaintiff is currently hired as a personal care assistant and

  a connections club associate at Country Meadows, where she works approximately thirty hours

  per week. See Deposition N.T. at 14:20-24; 16:22. Her job responsibilities include helping to

  take care of the residents, participating i~ activities with them, and assisting residents in getting

  dressed." Id. at I 5:3-6. She also had helped to "develop and implement cognitive support

 programs or activities for residents with varied stages of dementia and Alzheimer's," a group of
                                                                                                                      ()
 patients with whom the Plaintiff enjoys working. Id. at 15:12-14. Further, the Plaintiff has fully

 participated in furthering her education, obtaining a degree in business administration for

 Northampton Community College, a bachelor's               degree from Central Penn for Health Care

 Administration in 2013, and attending classes at Eastern University in Harrisburg for Health

 Care Administration, expecting her degree in 20 l 4. See id. at I 0: 15-24, 11 :3-13, 11: 15-22.

         In \.Vashington, the Supreme Court of Pennsylvania found that the plaintiff had not

sustained a serious injury. Washin(!ton, 719 A.2d at 74l In that case, the plaintiff had been

diagnosed by the emergency room physician with mild injuries and was discharged after a few

hours. Id. He missed a fe~v shifts al his jobs, where he was required to do most of his work on
              ~"


his feet. Id. The court found that the treatment for his injuries was not extensive. I.Q... Further,
                                                f,/




the arthritis in his right foot "seem[edJ to have had little or no impact on [the plaintiff's]
                                                                                                                      CJ
                                                      11
                                                                                      Circulated 03/30/2015 01:36 PM




                                                                                                                 0
  performance of his job functions and engagement in personal activities." Id. As a result, the

  Washin!!ton court found the impairment resulting from the injury to be de minimis. ~

         Similarly, the Plaintiff in the instant case has shown that she has suffered injury, which

  based upon the medical records generated between the date of the accident and Dr. Grassi's note

  of June 29, 2010, we would describe to be in the nature of soft tissue injuries to her back and

 neck. Plaintiff has failed to show that "these injuries resulted in such substantial interference

 with any bodily function as to permit a conclusion that the injuries have resulted in a serious

 impact on [her) life for an extended period of time." McGee, 750 A.2d at 915. We note that

 after the accident, she was discharged from the hospital on the same day with mild injuries.

 Further, she has failed lo present objective medical evidence that any pain that she has

 experienced during this time period resulted from the motor vehicle accident. In fact, her

 treating physician, Dr. Grassi, determined that the cervical adenopathy did not result from the
                                                                                                                  C)
 motor vehicle accident. Dr. Grassi noted that: "Regarding the cervical adenopathy, she's been

 instructed many times to get this checked by her family physician and/or a general surgeon as

this is not part of the cervical injury related to her 1\ifVA." See id.; see also Motion for Partial

Summary Judgment, Exhibit "K.'' It is apparent that complaints about neck pain existed long

before the accident. In addition. the treatment for the Plaintiff's pain and symptoms has not been

extensive or consistent, but sporadic.

        While the Plaintiff chooses to attribute her neck and back pain to the motor vehicle

accident, there is no support in the medical records for her claim. Further, the record establishes

that the pain doesnot inte;fere with her life, other than the claim that the pain makes it difficult
              •:'



to participate in sports with her children. Again, we note that Plaintiff's complaints of
                                               p



occasional stiffness and pain does not prevent her from working, attending school, viewing her                     (_)

                                                   12
                                                                                       Circulated 03/30/2015 01:36 PM




                                                                                                                  C)
children's athletic events, or engaging in her everyday routine. The evidence, when viewed in

the light most favorable to the Plaintiff, shows soft tissue injuries from the accident, but the

impairment from that injury is clearly de minimis in this case. Reasonable minds could not differ

here as to the absence of a serious impairment of a body function.

       Therefore, we grant the Defendants' Motion for Partial Summary Judgment.


                                                              BY THE COURT:


                                                                ff?::~
                                                              STEPHEN G. BAR<\ TTA, P.J.




                                                                                                                  C)




                                                                                                                 (_)

                                               13
