Dragun v. Volk

447 A.2d 1381, 301 Pa. Super. 443, 1982 Pa. Super. LEXIS 3964
CourtSuperior Court of Pennsylvania
DecidedApril 23, 1982
DocketNo. 968
StatusPublished
Cited by3 cases

This text of 447 A.2d 1381 (Dragun v. Volk) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dragun v. Volk, 447 A.2d 1381, 301 Pa. Super. 443, 1982 Pa. Super. LEXIS 3964 (Pa. Ct. App. 1982).

Opinion

MONTEMURO, Judge:

The instant matter presents an interesting problem of interpretation of the No-Fault Motor Vehicle Insurance Act of July 19, 1974, P.L. 489.

Although the case has several minor questions to be resolved, the central issue demands judicial interpretation of the language of § 1009.301(a)(5)(B), which provides that, although tort liability is partially abolished, a tort-feasor remains liable for non-economic detriment where:

the reasonable value of reasonable and necessary medical and dental services, including prosthetic devices and neces[445]*445sary ambulance, hospital and professional nursing expenses incurred in the diagnosis, care, and recovery of the victim, exclusive of diagnostic X-ray costs and rehabilitation costs in excess of one hundred dollars ($100), is in excess of seven hundred fifty dollars ($750) . . . (Emphasis supplied)

The lower court, in a well-reasoned, thoughtful opinion determined on the facts and law that the plaintiffs’ pleadings do not present any genuine issue of a material fact, nor did they seek to oppose the properly supported Motion for Summary Judgment of the defendants. The Motion for Summary Judgment was granted, and this court affirms.

The plaintiffs, husband and wife, were injured in an automobile accident by a vehicle driven by the female defendant and owned by the male defendant. Both plaintiffs alleged “serious and permanent” injuries; wife further alleged medical, dental, hospital and nursing expenses in excess of $750.00, excluding diagnostic X-ray and rehabilitation costs in excess of $100.00. Both plaintiffs claimed damages on each of the four counts “in excess of $10,000.”

Defendants filed Answer and New Matter, averring that the complaint failed to state a cause of action under the No-Fault Act, and they thereafter served interrogatories upon the plaintiffs and took depositions.

The lower court found that the husband in deposition readily admitted to his total reliance upon a medical report as the only document on which he based his allegation of “serious and permanent injury.” It further found that the medical doctor stated at defendant’s final examination on December 20, 1976, “I find no debility in this regard [lower back pain] by current examination.” A similar report, by wife’s dentist, was accorded equivalent treatment by the trial court. Noting that the doctor’s prognosis was “at best unpredictable” and that in the 29 months since the report was written no follow-up dental work had been needed, the court held that the record certainly did not “connote a serious and permanent injury.”

[446]*446Further, the trial court noted that the plaintiffs were entitled under Pa.R.C.P. 1035(d) to contradict the properly pleaded allegations in the Answer, but that they had not chosen to amplify the record with further specific facts to show that the injuries sustained presented genuine issues of fact as to their seriousness and permanency. Where the plaintiff does not respond, Rule 1035(d) provides that summary judgment, “if appropriate, shall be entered against him.” The lower court found the pleadings did not present a genuine issue for litigation as to seriousness and permanency for presentation and that summary judgment on that issue was appropriate. We agree.

The more intriguing issue is presented by the wife’s second claim on her injuries. She avers, in an effort to cross the $750.00 threshold provided in Section 301(a)(5)(B), that she has paid out $595.47 in expenses which, if proven, are undisputed as valid under the Act. In addition, she lists another $558.20 in expenses that defendant alleges came under the wording “exclusive of diagnostic x-ray costs and rehabilitation costs in excess of one hundred dollars ($100).” Defendant, therefore, would allow but $100 from the second group of bills and avers that wife’s allowable medical expenses therefore are at the most $695.47, and are manifestly short of the $750.00 threshold.

Wife concedes that the list contains a diagnostic x-ray and a brain scan which are in the excluded category. However, she asserts that the expenses of the physical therapist and of the dynamic cerebral, both prescribed by her medical doctor, should be included.

The dynamic cerebral may be dealt with briefly: the court below found that “this is a diagnostic tool utilizing x-rays” and should be excluded under the wording that specifically excludes “diagnostic x-ray costs.” The court’s opinion weighs the plaintiffs’ viewpoint as well, and its discretion in reaching the result it reached was not misapplied. There is no mystery to be unveiled to a jury for this threshold decision. Either the process is or is not a diagnostic procedure involving x-ray. The court below claims to [447]*447have reviewed all matters “exhaustively,” and in the light “most favorable to plaintiff.” This court has no difficulty in accepting its finding that the $75.00 paid for a “dynamic cerebral” was in the category eliminated in law for inclusion in the $750.00 necessary under 301(a)(5)(B).

The expenses of the physical therapist are also at issue. Plaintiffs’ Brief in Opposition to Motion for Summary Judgment (R.Doc. # 19, p. 4) correctly quotes the volume edited by D. Shrager, The Pennsylvania No-Fault Act, pp. 218-19 (1979), in which the text speculates:

It would seem that there would be no reason why out-patient physical therapy prescribed by a physician, although administered by a registered physical therapist, should not be considered a medical service for the purpose of computing expenses includable in the $750.00 threshold, again without reference to the $100.00 sub-limit.

The related problem of whether the expenses of chiropractic services could be counted toward the $750.00 threshold was treated by the Supreme Court in the recently filed case of Miller v. Johnson and Strunack v. Ecker, consolidated for appeal and argued at No. 80-3-503, filed Nov. 18, 1981, 496 Pa. 290, 436 A.2d 1187. The court determined that chiropractic expenses were in fact includable in the threshold amount.

That decision, however, is not determinative of the matter at bar, for chiropractors (like doctors and dentists whose services are unquestionably included in the threshold amount) are approached directly by the patient and maintain an office wherein they are ordered by statute to display the certificate of the state permitting their practice. See 63 P.S. § 620. In contrast, physiotherapists are forbidden by statute to practice independently, but are limited to treating patients referred to them by a licensed physician, dentist, or podiatrist, 63 P.S. § 1309.

Upon careful review of the problem, we have concluded, as did the court below, that contrary to the speculation of the Shraeger text, and in contrast to the holding of the [448]*448Supreme Court on chiropractic services, physiotherapy expenses cannot be included in the $750.00 threshold amount.

The first line of inquiry into the meaning of any statute must be the plain words of the statute. 1 Pa.C.S.A. 1921(a) and (b).

Turning to the Act itself, therefore, examination of the “Findings and Purposes” as set forth therein brings this wording to our attention:

¶ 102(a)(6).

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Related

Williams v. Dulaney
480 A.2d 1080 (Supreme Court of Pennsylvania, 1984)
Dragun v. Volk
459 A.2d 333 (Supreme Court of Pennsylvania, 1983)
Zvolensky v. King
452 A.2d 1052 (Superior Court of Pennsylvania, 1982)

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Bluebook (online)
447 A.2d 1381, 301 Pa. Super. 443, 1982 Pa. Super. LEXIS 3964, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dragun-v-volk-pasuperct-1982.