No. 1423 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas of Delaware County, Trial Division - Law, No. 78-04917.
Joseph Mellace, Philadelphia, for appellants.
Charles W. Craven, Philadelphia, for Carden.
E. J. McKechnie, Jr., Philadelphia, for Giannini, Sr.
Price, Wieand and Hoffman, JJ.
[ 286 Pa. Super. Page 452]
In this appeal, it is contended that the trial court erred when it entered a pre-trial summary judgment on the grounds that appellants' personal injury claims did not fall within any exception to the No-Fault Motor Vehicle Insurance Act's abolishment of tort liability. We disagree and affirm the judgment entered by the trial court.
Michael Giannini, Sr. and Linda Giannini commenced an action in trespass on behalf of themselves and their minor children to recover damages from James Carden for personal injuries sustained in a motor vehicle accident occurring in February, 1977. Pre-trial depositions, taken on October 26, 1978, disclosed that appellants' son, Michael Giannini, Jr., had sustained a bump on the head which allegedly caused headaches for an indeterminate period of time. His medical care included emergency hospital care, which cost $53.50, and approximately twelve office visits to a physician at a cost of $12.00 per visit. The depositions also disclosed that the other child, David Giannini, had recovered from minor injuries after incurring expenses of $25.00 for emergency hospital care and $72.00 for approximately six office visits to a physician.
On April 17, 1979, Carden filed a set of requests for admissions which asked the Gianninis to admit that the children had not been examined by a physician after October 1, 1978, that they had not been prevented by their injuries from engaging in their usual and daily activities for a period of sixty days, and that the totals of the medical expenses incurred on their behalf did not in the case of either child exceed $750.00. Giannini filed no answers to Carden's request for admissions.
On the basis of this record, Carden filed a motion for summary judgment with respect to those counts of the complaint which alleged causes of action in trespass for injuries sustained by the children. The Gianninis filed an answer denying that Carden was entitled to a summary
[ 286 Pa. Super. Page 453]
judgment. Their answer was not accompanied by affidavits or factual averments demonstrating that the No-Fault threshold had been met or that a trespass action could otherwise be maintained for such injuries. The trial court, therefore, granted Carden's motion and dismissed the claims filed on behalf of the minor children.*fn1
The Pennsylvania No-Fault Motor Vehicle Insurance Act of July 19, 1974, P.L. 489, in section 301*fn2 abolishes tort liability with respect to injury arising out of the maintenance or use of a ...