Walk v. Russell

10 Pa. D. & C.3d 330, 1979 Pa. Dist. & Cnty. Dec. LEXIS 339
CourtPennsylvania Court of Common Pleas, Cumberland County
DecidedApril 30, 1979
Docketno. 4549 of 1977
StatusPublished

This text of 10 Pa. D. & C.3d 330 (Walk v. Russell) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Cumberland County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Walk v. Russell, 10 Pa. D. & C.3d 330, 1979 Pa. Dist. & Cnty. Dec. LEXIS 339 (Pa. Super. Ct. 1979).

Opinion

SHEELY, J.,

— Defendant has filed prehminary objections to the complaint of plaintiffs in the form of a motion to strike. The complaint avers that on Monday, January 19,1976, at approximately 2:45 p.m., defendant negligently failed to yield the right-of-way, drove her Volkswagen through a stop sign, and collided with plaintiffs’ vehicle.

In count I, concerning plaintiff Jack Walk, the complaint alleges serious and permanent injuries resulting in pain and suffering, medical bills in the amount of $502.90 with an expectation that such expenses will exceed $750, that plaintiff Jack Walk, due to the injuries from the accident, was prevented from performing all or substantially all of his daily activities which continued for more than 60 consecutive days, and an expectation that earning potential may be diminished in excess of $15,000. Count II, concerning plaintiff Lynette Walk, alleges loss of services, companionship and consortium of her husband, plaintiff Jack Walk.

Defendant’s prehminary objections in the form of a motion to strike, deal with five portions of plaintiffs’ complaint. Specifically, defendant contends (1) that the $750 threshold for the retention of tort liability under the Pennsylvania No-fault Motor Vehicle Insurance Act of July 19, 1974, P.L. 489, art. I, sec 301(a)(5)(B), 40 Pa.C.S.A. §1009.301(a)(5)(B), has not been met; (2) that plaintiff has failed to allege that the physical impairment which prevented plaintiff Jack Walk from [332]*332performing all or substantially all of the material acts and duties which constituted his usual and customary daily activities and which continued for more than 60 consecutive days is “medically determinable” in accordance with section 301(a)(5)(C) of the No-fault Act, 40 Pa.C.S.A. §1009.301(5)(C); (3) that plaintiffs’ concise allegation that the injuries are “serious and permanent” is insufficient because plaintiffs have not alleged that they have medical testimony to substantiate the claim; (4) that the concise allegation that work loss may exceed the $15,000 threshold under the No-fault Act, secs. 202(b) and 301(a)(4), is insufficient absent allegation that plaintiffs have medical testimony to substantiate the claim; and (5) that the loss of consortium claim, if Jack Walk’s claim is barred under the No-fault Act, being derivative, should also be stricken. We will deal with the objections in the order they have been raised.

Section 301(a) of the No-fault Act provides:

“Tort liability is abolished with respect to any injury that takes place in this State in accordance with the provisions of this act if such injury arises out of the maintenance or use of a motor vehicle, except that:

“(5) A person remains liable for damages for non-economic detriment if the accident results in: (B) the reasonable value of reasonable and necessary medical and dental services, including prosthetic devices and necessary 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).”

[333]*333The complaint, in paragraph 10, alleges that Jack A. Walk sustained the following injuries: cerebral concussion, strain of the cervical thoracic lumbar spine with resultant neck, left arm and back pain, shock to the nerves and nervous system, “and other serious, permanent and painful injuries.”

Plaintiffs’ complaint alleges medical expenses of $502.90 at present. Paragraph 12 further states: “In addition, Plaintiff (Jack A. Walk) alleges that there is a reasonable basis to believe that there will be additional medical expenses in the future which, exclusive of diagnostic, x-ray and rehabilitation costs in excess of One Hundred ($100.00) Dollars, will be in excess of Seven Hundred and Fifty ($750.00) Dollars.” Defendant contends that this allegation is insufficient to meet the above-quoted threshold because more than three years have passed between the accident and the filing of the complaint.

While one might initially register doubts concerning the ability of plaintiff to exceed the $750 threshold based on that which is before us, nevertheless, we do not consider such observation to be decisive of the issue at hand. The act makes no specific requirement that the $750 threshold be reached prior to fifing suit and we do not so hold. “It is sufficient to allege with reasonable certainty that medical expenses will be in the threshold amount.” O’Sullivan v. Ruszecki, 2 D. & C. 3d 276, 280 (1977).

The question is not whether the dollar limitation of the medical expense threshold has been exceeded at the time a suit is initiated. Instead, the proper inquiry is whether such expenses have been incurred or will be incurred in the future with reasonable certainty: Id. See also Markley v. Brown, [334]*33466 Lanc. 301 (1978). Plaintiffs’ complaint, however, must “allege that [the threshold] has been met or facts to support a conclusion that additional medical expenses will be incurred which will carry the total over the required threshold.” Diehl v. Smith, 92 York 193, 194 (1979). Therefore, we deem it necessary to require plaintiffs to amend their complaint to set forth facts which will establish to a reasonable certainty that the $750 threshold will be met. Cf. Theal v. Confer, 7 D. & C. 3d 614 (1978). Only in this way can it be determined whether or not plaintiffs rely on more than mere speculation.

Defendant’s motion to strike paragraph 13 of the complaint because it does not allege that the physical impairment suffered by plaintiff Jack A. Walk is “medically determinable” under section 301(5)(C) of the act is well taken.

That section provides: “(5) A person remains hable for damages for non-economic detriment if the accident results in: . . . (C) medically determinable physical or mental impairment which prevents the victim from performing all or substantially all of the material acts and duties which constitute his usual and customary daily activities and which continues for more than sixty consecutive days.” (Emphasis supplied.)

Accordingly, defendant’s motion to strike will be granted as the paragraph fails to conform to the requirements of the act. See Theal v. Confer, supra. Leave to plead over will be granted.

We next turn to defendant’s motion to strike directed at paragraphs 10 and 14 of the complaint. Paragraphs 10 and 14 respectively state:

“10. That as a result of the negligence of the Defendant, the Plaintiff (Jack A. Walk) has been caused to sustain serious, permanent and painful [335]*335injuries, to wit: Cerebral concussion, strain of the cervical thoracic lumbar spine with resultant neck, left arm and back pain, shock to his nerves and nervous system, and other serious, permanent and painful injuries.

“14. That as a result of the negligence of the Defendant, the Plaintiff (Jack A. Walk) incurred a serious and permanent injury.”

It is defendant’s contention that these allegations, presumably especially paragraph 14, should be stricken because there is no allegation plaintiffs have medical testimony to present to establish that one or more of the alleged injuries are serious and permanent. For this proposition she cites Theal v. Confer, supra; McCullough v. Strong, 92 York 142 (1978); and Bromiley v. Collins, 1 D. & C. 3d 94 (1977).

In Theal v.

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Bluebook (online)
10 Pa. D. & C.3d 330, 1979 Pa. Dist. & Cnty. Dec. LEXIS 339, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walk-v-russell-pactcomplcumber-1979.