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LAWRENCE J. DRAGUN AND LINDA S. DRAGUN v. VINCENT VOLK AND DIANA VOLK (04/23/82)

filed: April 23, 1982.

LAWRENCE J. DRAGUN AND LINDA S. DRAGUN, HIS WIFE APPELLANTS,
v.
VINCENT VOLK AND DIANA VOLK, HIS WIFE



No. 968 Pittsburgh, 1980, Appeal from the Order of the Court of Common Pleas, Civil Division, Allegheny County, at No. GD 78-3933

COUNSEL

Behrend, Aronson and Morrow, David M. Moran, Pittsburgh, for appellants.

Charles Kirshner, Pittsburgh, for appellees.

Price, Brosky and Montemuro, JJ.

Author: Montemuro

[ 301 Pa. Super. Page 444]

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 necessary

[ 301 Pa. Super. Page 445]

    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."

[ 301 Pa. Super. Page 446]

Further, 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

[ 301 Pa. Super. Page 447]

    have 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 ...


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