Komperda v. Mahn

17 Pa. D. & C.3d 91, 1980 Pa. Dist. & Cnty. Dec. LEXIS 143
CourtPennsylvania Court of Common Pleas, Washington County
DecidedApril 21, 1980
Docketno. 28
StatusPublished

This text of 17 Pa. D. & C.3d 91 (Komperda v. Mahn) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Washington County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Komperda v. Mahn, 17 Pa. D. & C.3d 91, 1980 Pa. Dist. & Cnty. Dec. LEXIS 143 (Pa. Super. Ct. 1980).

Opinion

GLADDEN, J.,

This case comes to us on defendant’s motion for summary judgment. We have reviewed the pleadings, the interrogatories and answers to interrogátories, including documents attached thereto, and briefs and arguments of counsel. There have been no depositions or affidavits.

The question before us involves the application of the No-fault Insurance Act as a bar to plaintiffs’ complaint in trespass. Plaintiffs assert that they qualify for the right to file in court for noneconomic damages by alleging medical expenses in excess of $750 exclusive of diagnostic x-ray and rehabilitation costs beyond $100. Further, they claim injury which is “permanent, irreparable and severe.”

The issue before us arises out of a rear end collision which occurred on June 27, 1977. It is averred that while plaintiffs’ vehicle was stopped in aline of traffic, defendant’s vehicle, traveling in the same direction, collided with the rear of plaintiffs’ car. Plaintiff husband claims personal injury as a result of this accident. He makes no claim for lost wages but does say that his earning capacity may be impaired.

The Pennsylvania No-fault Motor Vehicle Insurance Act of July 19, 1974, P.L. 489, 40 P.S. §1009.101, was enacted with the express intent to [93]*93abolish tort liability for injury arising out of the maintenance or use of motor vehicles. (Its passage was heralded by those who were of the behef, however mistaken, that automobile insurance premiums would be reduced.)

Section 301 of the act, 40 P.S. §1009.301, provides certain exceptions to the abolition of tort liability and permits an injured party to sue in trespass for pain and suffering. Subparagraph (a)(5) of section 301 sets forth four instances where a person (defendant) remains hable in tort for damages for noneconomic detriment if the accident results in: (A) death or serious and permanent injury; (B) value of necessary medical expenses, exclusive of diagnostic x-ray costs and rehabihtation costs in excess of $100, in excess of $750; (C) medically determinable physical or mental impairment which prevents victim from performing ah or substantially all of his daily activities for 60 consecutive days; (D) cosmetic disfigurement which is permanent, irreparable and severe.

We are not concerned in this case with (C)'and (D) as outlined above. Plaintiffs’ answers to interrogatories specifically reject these exceptions as reasons for getting over the no-fault hurdle.

There is, however, a necessity for us to consider both (A) and (B). These exceptions have been advanced by plaintiffs as reasons to permit recovery in tort. Defendant has challenged plaintiffs’ right to do so by filing a motion for summary judgment.

We recognize that summary judgment Will not be granted if there remains for resolution a genuine issue of material fact. We believe that no such issue of fact exists here and that this matter may be decided on defendant’s motion. Further, we recognize that summary judgment may be granted in part and rejected in part.

[94]*94Initially this matter was briefed on the exception set forth in section 301(a)(5)(A) concerning severe and permanent injury. In paragraph 8 of the complaint, plaintiff introduced his litany of specific injuries with the bald assertion that he “sustained the following severe and serious injuries, some or all of which may be permanent.” The act, section 301(a)(5)(A), requires “death or serious and permanent injury.” (Emphasis supplied.) Other than his averment in paragraph 8 of the complaint, the only other reference we find to this condition is in plaintiffs’ response to Interrogatory #4, wherein plaintiff husband cites and attaches the medical report of C. Mahalingappa, M.D., in which plaintiff husband’s problem is diagnosed as: cervical whiplash injury with severe paraspinal muscle spasms. Following a detailed report of office visits and treatment, the doctor concludes by saying, “However, I feel with this type of persistent problem, even if he undergoes all the above tests, the prognosis is poor, and these problems will be persistent and permanent.” The persistent problems referred to are pain and a numbness in his fingers.

In addition to plaintiff’s statement and that of his doctor, we are obliged to consider plaintiff’s answer to Interrogatory #6 in which plaintiff husband says he has no claim for lost earnings and that he has missed no work on account of his injuries. Plaintiff’s answers further record that he was never hospitalized as a result of these injuries. (Emphasis supplied.)

When considering this exception we are faced with a dual test: Was the injury severe, and was the injury permanent? Plaintiff and his doctor in essence say that the injury is permanent, because the [95]*95pain will be permanent. Defendant has offered no evidence by way of her own medical examiner’s report to refute plaintiff husband’s claim that pain and numbness may persist and be permanent. Defendant, however, argues that these injuries were not the “severe” injuries contemplated in the act. She cites as evidence the admitted facts herein: Plaintiff husband suffered a whiplash type injury with muscle spasm; he has experienced pain and discomfort which may be a permanent condition; he missed no work, he lost no wages on account of his injuries, and he was not hospitalized by his attending physician.

We agree that these injuries are not “severe” and hold that in the context of this act, the word “severe” contemplates intensive medical treatment, which most probably would include hospitalization and at least some loss of work or demonstrable inability to perform one’s daily activities for a time, however long. In the spirit of the act, we interpret this section to be directed toward those injuries of a more than ordinary nature. Allowance must be made for a distinction between injuries that are not severe but permanent and those which are both severe and permanent. For example, chronic and permanent pain that flows from an aggravation of a pre-existing arthritis may not be severe as is contemplated by the act. On the other hand, pain which leads its victim to specialized treatment in a trauma unit would be unquestionably severe, although not necessarily permanent. The distinction must be made and honored if we are to give meaning to the purpose of the act, i.e., to abolish tort liability except in limited cases.

There is nothing here to permit us to find that [96]*96plaintiff has sufficient evidence to prove that he has suffered a severe and permanent injury. Exception 301(a)(5)(A) does not extend to plaintiff.

We are faced with a more difficult decision when we consider the application of section 301(a)(5)(B).

At the time defendant filed her motion, there existed one medical bill for plaintiff husband. This was a bill of Dr. Mahalingappa which totaled $387. Included in this itemized bill is a statement for diagnostic x-rays in the amount of $171. This section of the act permits us to count no more than $100 of these charges in arriving at the threshold.. Accordingly, there is an uncontested medical bill of $216 plus a $100 bill for diagnostic x-ray, or a total bill of $316. This falls short of the $750 threshold provided for in section 301(a)(5)(B). Since defendant filed her motion for summary judgment, plaintiff has offered a bill from Monongahela Valley Hospital, Inc., for 25 physical therapy treatments at $20.50 each, totaling $512.50.

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Bluebook (online)
17 Pa. D. & C.3d 91, 1980 Pa. Dist. & Cnty. Dec. LEXIS 143, Counsel Stack Legal Research, https://law.counselstack.com/opinion/komperda-v-mahn-pactcomplwashin-1980.