J. A32002/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


JAVIEL HERNANDEZ,                          :     IN THE SUPERIOR COURT OF
                         Appellant         :          PENNSYLVANIA
                                           :
                    v.                     :
                                           :
MICHAEL AMORATIS                           :
                                           :
                                           :     No. 1359 EDA 2016

                  Appeal from the Order Entered April 19, 2016
              In the Court of Common Pleas of Montgomery County
                       Civil Division at No(s): 2014-27025


BEFORE: DUBOW, RANSOM AND PLATT, JJ.*

MEMORANDUM BY DUBOW, J.:                         FILED DECEMBER 27, 2016

        Appellant, Javiel Hernandez, appeals from the Order entered on April

19, 2016, granting summary judgment in favor of Appellee, Michael

Amoratis. After a thorough review of the parties’ briefs, the certified record,

and relevant law, we affirm on the basis of the trial court’s June 23, 2016

Opinion.

        The trial court’s Rule 1925(a) Opinion includes a thorough and

complete narrative of the facts and procedural history in this case, and we

adopt its recitation for purposes of this appeal.          See Trial Ct. Op.,

6/23/2016, at 1-3. We summarize as follows.




*
    Retired Senior Judge Assigned to the Superior Court.
J. A32002/16


      This case arises from a September 11, 2013 motor vehicle accident in

which Appellee rear-ended Appellant’s vehicle as Appellant waited at a red

light. Appellant reported to police responders to the scene of the accident

that he was not injured, but later experienced mild lower back pain.

Appellant underwent approximately seven months of chiropractic therapy, at

the close of which he advised his doctor that he had not had any pain for

over a month, and that he was back to full activity with limited to no

restriction. Appellant testified that the injuries he sustained were not severe

and had only ever caused minor inconveniences in daily life. At the time of

the accident, Appellant had limited tort motor vehicle insurance coverage as

defined by the Motor Vehicle Financial Responsibility Law (“MVFRL”), 75

Pa.C.S. § 1705. See Trial Ct. Op. at 1-2.

          On September 30, 2014, Appellant filed a Complaint against

Appellee raising claims of negligence. On January 19, 2016, Appellee moved

for Summary Judgment.      On March 18, 2016, Appellee filed an Argument

Praecipe, certifying that Appellant failed to file an Answer to Appellee’s

Motion.    On March 31, 2016, the trial court notified the parties that it

scheduled a hearing on Appellee’s Motion for April 19, 2016. Following the

hearing, and in accordance with Pennsylvania Rule of Civil Procedure




                                     -2-
J. A32002/16


1035.3(d)1 and Montgomery County Local Rule 1035.2(a)(4)(c), 2 the trial

court entered summary judgment in Appellee’s favor.          Appellant timely

appealed. Both Appellant and the trial court complied with Pa.R.A.P. 1925.

      On appeal, Appellant claims the trial court erred in granting Appellee’s

Motion for Summary Judgment because a genuine issue of material fact

exists as to the extent of Appellant’s injuries.   See Appellant’s Brief at 6.

Appellant argues that the question of whether he suffered a “serious injury”

as defined by the MVFRL is a question of fact for a jury.3 Id. at 19.

      We review a grant of summary judgment under the following well-

settled standards:

         Pennsylvania law provides that summary judgment may be
         granted only in those cases in which the record clearly
         shows that no genuine issues of material fact exist and
         that the moving party is entitled to judgment as a matter
         of law. The moving party has the burden of proving that no
         genuine issues of material fact exist. In determining
         whether to grant summary judgment, the trial court must
         view the record in the light most favorable to the non-

1
  Pa.R.C.P. No. 1035.3 provides, in relevant part, that the trial court may
enter summary judgment against a party who does not respond to a Motion
for Summary Judgment. See No. Pa.R.C.P. 1035.3(d).
2
  This rule provides, in relevant part, that if the non-moving party to a
Motion for Summary Judgment fails to file a responsive brief within 30 days
of the service of the motion, the assigned judge may either grant the
requested relief or “[l]ist the matter for argument, at which time only the
complying party shall be heard.”           Pa. Montgomery Cty. Local R.
1035.2(a)(4)(c).
3
  The MVFRL defines a “serious injury” as “[a] personal injury resulting in
death, serious impairment of body function or permanent serious
disfigurement.” 75 Pa.C.S. § 1702.



                                     -3-
J. A32002/16


         moving party and must resolve all doubts as to the
         existence of a genuine issue of material fact against the
         moving party. Thus, summary judgment is proper only
         when the uncontraverted allegations in the pleadings,
         depositions, answers to interrogatories, admissions of
         record, and submitted affidavits demonstrate that no
         genuine issue of material fact exists, and that the moving
         party is entitled to judgment as a matter of law. In sum,
         only when the facts are so clear that reasonable minds
         cannot differ, may a trial court properly enter summary
         judgment.

         On appeal from a grant of summary judgment, we must
         examine the record in a light most favorable to the non-
         moving party. With regard to questions of law, an
         appellate court's scope of review is plenary. The Superior
         Court will reverse a grant of summary judgment only if the
         trial court has committed an error of law or abused its
         discretion. Judicial discretion requires action in conformity
         with law based on the facts and circumstances before the
         trial court after hearing and consideration.

Weible v. Allied Signal, Inc., 963 A.2d 521, 525 (Pa. Super 2008)

(citation and quotation omitted).

      Moreover, the question of whether a limited tort policy-holder has

suffered a serious injury is a determination to be “made by the jury in all but

the clearest of cases[.]” Washington v. Baxter, 719 A.2d 733, 740 (Pa.

1998). The trial judge should make this determination only if “reasonable

minds could not differ on the issue of whether a serious injury had been

sustained.” Id.

      Based on our review of the record, the arguments presented by

Appellant, and the relevant case law and statutes, we agree with the trial

court that, given the instant facts, “reasonable minds could not differ on the



                                     -4-
J. A32002/16


issue of whether Appellant suffered a ‘serious injury’.”   Trial Ct. Op. at 5.

Accordingly, we rely upon the sound reasoning of the trial court in its June

23, 2016 Opinion, and affirm the Order granting Appellee’s Motion for

Summary Judgment. See id. at 3-6.

     Order affirmed. The parties are directed to attach a copy of the trial

court Opinion in the event of further proceedings.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/27/2016




                                    -5-
                                                                                                                    Circulated 12/06/2016 02:50 PM

                                                                                                                                            Page 1




                                                      IN THE COURT OF COMMON PLEAS OF
                                                     MONTGOMERY COUNTY, PENNSYLVANIA
                                                                CIVIL DIVISION

    JAVIEL HERNANDEZ
   Plaintiff/ Appellant                                                             NO.      2014-27025

   v.

   MICHAEL AMORATIS
   Defendant/ Appellee


   Tolliver, J.                                                                                           June   c?3 rd, 2016


                                                                           1925(a) OPINION

             Appellant Javiel Hernandez ("Appellant") appeals this Court's April 20, 2016 Order

  granting Summary Judgment in favor of Appellee Michael Amoratis ("Appellee").

  I.         FACTS

             On September 11, 2013, Appellee rear-ended Appellant's vehicle as Appellant waited for

  a red light on Blair Mill Road in Montgomery County, Pennsylvania. The impact caused

  Appellant to "jerk[] forward a little bit" and hit his chest against the steering wheel. He was

  wearing a seatbelt. Appellant did not suffer any cuts, bruises, or bleeding as a result of the

  accident, and he was able to exit the vehicle without aid. The impact from the· collision did not

  push Appellant's vehicle into the vehicle waiting in front of him. At the scene of the accident,

  Appellant informed police responders that he was not injured. Approximately six days after the

  accident, Appellant visited Temple Hospital and reported mild lower back symptoms. Michele

  Y. Holding, M.D. diagnosed "Lumbosacral radiculopathy involving the bilateral L4-L5 nerve

  roots consistent with the timing of the motor vehicle accident 09/11/13 and the MRI which


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revealed disc bulge at L4ML5 and spinal canal stenosis at L4ML5." To date, Appellant has not

received any injections, has not been advised of any fractures or disc herniations in his neck or

back, and has not been provided a back brace. The MRI taken at Temple Hospital on October 10,

2013 was "unremarkable." Appellant underwent approximately seven months of chiropractic

therapy. At the close of therapy, Appellant advised his doctor that he had not had any pain for the

last 1.5 months, and that he was back to full activity with limited to no restriction.

       Appellant testified that the injuries he sustained are not severe and have only ever caused

minor inconveniences in daily life. Appellant experiences occasional pain in his lower back if he

spends long periods oftime sitting. The pain is substantially remedied by standing up and

walking and by taking over-the-counter analgesics. Appellant has decreased the intensity of his

workout regimen of lifting heavy weights and engaging in cardiovascular exercise in order to

prevent exacerbation of the injury. Appellant's expert Geoffrey W. Temple, D.O. advised

minimizing running because running may cause aherniation. Following the accident, Appellant

engaged in Muay Thai martial arts and CrossFit training multiple times per week until he injured
                                        ,_                         ·.-


his ankle in a separate incident. No work restrictions or limitations have been imposed. He has

not undergone any medical treatment since 2014.

        At the time of the accident, Appellant had "Limited Tort" motor vehicle insurance

coverage, as defined in 75 Pa.C.S. § 1705, through State Farm Mutual Automobile Insurance

Company.

II.     PROCEDURAL HISTORY

        On September 30, 2014) Appellant initiated this action by filing a Complaint. On January

19, 2016, Appellee moved for Summary Judgment. On March 18, 2016, Appellee certified that

no answer had been filed by Appellant. Under Local Rule 1035(a)(4)(c), if the non-moving party



                                                   2
                                                                                                     Page 3




to a motion for summary judgment fails to file a responsive brief within thirty (30) days of the

service of the motion, the assigned judge may either grant the requested relief or "(l]ist the

matter for argwnent, at which time only the complying party shall be heard." Pursuant to that

rule, on April 19, 2016, this Court heard only Appellee's argument. On April 20, 2016, this

Court granted Appellee's motion. The Court received notice of appeal to the Superior Court on

April 26, 2016. On May 13, 2016, Appellant filed a Concise Statement of Matters Complained of

on Appeal pursuant to Pa.R.A.P. § 1925(b) and the Court's May 3, 2016 Order.

III.      DISCUSSION

          a. Summary JudgmentStandard

       Summary judgment may be granted only where the evidence of record creates no issue of

material fact. when viewed in the light most favorable to the non-moving party, and where the

movant is entitled to judgment as a matter oflaw. Pa.R.C.P. 1035.2; Davis v. Pennzoil, 264 A.2d

597 (Pa. 1970); Rohrer v. Pope, 918 A.2d 122 (Pa. Super. Ct. 2007). After movant has set forth

in the motion the necessary elements warranting summary judgment, the non-moving party must

demonstrate that there is a genuine issue for trial and may not rest on the averments set forth in

pleadings. Accu-Weather, Inc. v. Prospect Comms., Inc. 644 A.2d 1251, 1254 (1994); Ertel v.

Patriot-News Co, 674 A.2d 1038 (Pa. 1996). Summary judgment will be granted only in those

cases which are free and clear from doubt. Marks v, Tasman, 589 A.2d 205 (Pa. 1991).

          Non-movirig party must file an answer and a brief or memorandum of law to a motion for

summary judgment within thirty (30) days. Pa. Montgomery Cty, Local Rule 1035.2(a). A

motion for summary judgment must be granted in favor of moving party if the other party

chooses to rest on its pleadings, unless a genuine issue of fact is made out in the moving party's




                                                  3
                                                                                                     Page4




evidence taken by itself. Carollo v. Forty-Eight Insulation, Inc., 381 A.2d 990, 995 (Super. Ct.

Pa. 1977).

         b, "Serious Injury" Under the Motor Vehicle Financial Responsibility Law

         A motorist who elects limited tort coverage is barred from seeking non-economic

damages arising out of a motor vehicle accident unless that motorist sustains a "serious injury."

Under the Motor Vehicle Financial Responsibility Law ("MVFRL"), a "serious injury" is a

personal injury resulting in death, serious impairment of a body function, or permanent serious

disfigurement. 45 Pa.C.S. § 1702. In this case, the Court was not presented with claims of death

or permanent serious disfigurement.

         The test for' determining whether an individual has suffered "serious impairment" of body

function requires that the court consider the extent of the impairment, the particular body

function impaired, the length of time the impairment lasted, the treatment required to correct the

impairment, and any other relevant factor. Cadena v. Latch, 78 A.3d 636 (Pa. Super. Ct. 2013);

Long v. Mejia, 696 A.2d 596 (Pa. Super. Ct. 2006); Washington v. Baxter, 719 A.2d 733 (Pa.

1998).

         In Washington, our Supreme Court examined the issue of whether the trial court or the

jury should determine whether a limited tort motorist had sustained a "serious injury" under the

MVFRL. The statute is "utterly silent as to which entity - the judge or the jury - is entrusted

with making that threshold determination." 719 A.2d. at 443. The Court concluded that the

determination of whether a plaintiff had suffered a "serious injury" "was to be left to a jury

unless reasonable minds could not differ on the issue of whether a serious injury had been

sustained." Id at 740. This falls in line with the maxim that summary judgment will only be

granted in cases which are free and clear from doubt. Id. at 73 7.



                                                 4
                                                                                                      Page 5




            c. Reasonable Minds Could Not Differ on the Issue of Whether Appellant
               Suffered a "Serious Injury"

        In the case at bar, there is no dispute that Appellee's vehicle rear-ended Appellant's

vehicle at a red light. Appellant avers that in spite of his limited tort election, the injuries he

sustained as a result of the collision caused a serious impairment of body function, passing the

threshold of "serious injury" and allowing recovery of non-economic damages. The Court

disagrees. As in Washington, this Court believes that reasonable minds could not differ on the

conclusion that the injuries suffered by Appellant do not constitute a "serious injury."

       The trial court must consider the extent of the impairment, the particular body function

impaired, the length of time the impairment lasted, the treatment required to correct the

impairment, and any other relevant factor. The extent of the impairment is minimal, manifesting

in occasional "slight" lower back pain. The impairment began shortly after the accident.

Appellant engaged in some physical therapy for his lower back and takes over-the-counter

painkillers but otherwise does not require further medical treatment.

       In consideration of the objective evidence presented, this Court concludes that granting

summary judgment was appropriate, as reasonable minds could not differ on the issue of whether

Appellant suffered a "serious injury."

           d. Plaintiff's Claim for Economic Damages are Without Merit

       With regards to economic damages, Appellant denied paying any medical bills out of

pocket and is unaware of any liens. Appellant has indicated that all medical expenses have been

paid by the Personal Injury Protection portion of his automobile insurance. Under Accu-Weather,

the non-moving party must demonstrate that there is a genuine issue for trial and may not rest on

the averments set forth in pleadings. 644 A.2d at 1254. Because Appellant has not produced

evidence of economic damages, summary judgment as a matter of law is appropriate.


                                                   5
                                                                                           Page 6




IV. CONCLUSION

       This Court's April 20, 2016 Order granting Appellee's Motion for Summary Judgment

was proper and, accordingly, should be AFFIRMED.




                                                RESPECTFULLY SUBMITIED,




Original: Prothonotary

Copies sent 6/J.3 /16 to:
By First Class Mail:
Marc I. Simon, Esquire
Rebecca E. Jellen, Esquire
By Interoffice Mail:
Court Administration - Civil Division




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