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06/24/97 VENICE HAMES v. PHILADELPHIA HOUSING

June 24, 1997

VENICE HAMES, KIARA HAMES, A MINOR, AND VENICIA HAMES, A MINOR, APPELLANTS
v.
THE PHILADELPHIA HOUSING AUTHORITY



Appealed From No. 2696 July Term, 1992. Common Pleas Court of the County of Philadelphia. Judge HERRON.

Before: Honorable Doris A. Smith, Judge, Honorable Jim Flaherty, Judge, Honorable Charles P. Mirarchi, Jr., Senior Judge. Opinion BY Judge Smith.

The opinion of the court was delivered by: Smith

OPINION BY JUDGE SMITH

FILED: June 24, 1997

Appellants, Venice Hames, Venicia Hames, a minor, and Kiara Hames, a minor, appeal from the May 2, 1996 order of the Court of Common Pleas of Philadelphia County that denied their motion for reconsideration, reinstated the November 3, 1995 order granting summary judgment to the Philadelphia Housing Authority (Appellee) and dismissed the Appellants' claims based on Venicia and Kiara's psychiatric injuries. The trial court determined that Appellants failed to submit additional medical evidence to establish that Venicia and Kiara's alleged physical and resulting psychiatric injuries constituted "serious injury" as contemplated by the limited tort option set forth in Section 1705 of the Motor Vehicle Financial Responsibility Law (MVFRL), 75 Pa. C.S. § 1705.

Appellants question whether the trial court erred in determining that Venicia and Kiara failed to establish serious injury under Section 1705 of the MVFRL; whether Section 1705(a)(5), 75 Pa. C.S. § 1705(a)(5), which deems the limited tort option applicable to owners of uninsured vehicles, also applies to their minor children; and whether Appellants should be permitted to withdraw, without prejudice, the minor children's claims relating to serious impairment in light of late-developing psychiatric evidence demonstrating further psychic and physical injuries to the children.

In May 1992, Appellants were involved in an accident in which their vehicle collided with a vehicle driven by an employee of Appellee. Venice Hames was driving an uninsured Plymouth Voyager minivan registered to his wife, Angela Hames. Venicia and Kiara, ages six and three at the time of the accident, were passengers in the vehicle. Appellants averred that during the accident, Kiara's head broke the windshield of her mother's vehicle, and Venicia was pinned under the seat for a period of time. Both children witnessed the injuries suffered by their father.

As Appellee concedes, the medical evidence of record shows that Venicia was treated for several months by Dr. Robert Colletti, a physical therapist. Her condition was diagnosed by Dr. Corey Ruth as post-traumatic thoracic and lumbosacral paraspinal muscle strain, bilateral hip/pelvic contusion, bilateral knee contusion and left ankle contusion. Dr. Ruth diagnosed Kiara's condition as post-traumatic cervical and thoracic strain, right and left trapezius myofascitis and skull contusion. Appellants aver that the girls have since developed psychiatric problems that prevent them from functioning normally.

In July 1992, Appellants filed suit against Appellee seeking, inter alia, damages for the minors' injuries. The parties amicably resolved the claim brought on behalf of Venice and Angela Hames. On September 1, 1995, Appellee filed a motion for summary judgment on the ground that Venicia and Kiara were bound by the limited tort option in Section 1705(d) of the MVFRL, 75 Pa. C.S. § 1705(d), because Angela Hames' vehicle was uninsured, and the children were not entitled to recover noneconomic damages unless they suffered a serious injury. *fn1

I.

Section 1702 of the MVFRL, as amended, 75 Pa. C.S. § 1702, defines serious injury as a "personal injury resulting in death, serious impairment of a body function or permanent serious disfigurement." Relying on Dodson v. Elvey, 445 Pa. Super. 479, 665 A.2d 1223 (1995), appeal granted, 544 Pa. 608, 674 A.2d 1072 (1996), the trial court noted that the issue in the case was whether Venicia and Kiara had suffered a serious impairment of a body function. In Dodson the Superior Court stated that the trial court must make a threshold determination as to this question. On a motion for summary judgment, the court must determine (1) whether the plaintiff, as movant, has shown that he or she has suffered serious impairment of a body function; (2) whether the defendant, as movant, has shown that the plaintiff has not suffered a serious impairment of a body function; or (3) whether a genuine issue of material fact remains for the jury. Id.

With these principles in mind, the trial court employed the four-factor test set forth in Murray v. McCann, 442 Pa. Super. 30, 658 A.2d 404 (1995), for determining whether an individual has suffered serious impairment of a body function. The test involves consideration of (1) the extent of the impairment; (2) the particular body function impaired; (3) the length of time the impairment lasted; and (4) the treatment required to correct the impairment. The court found that neither Venicia nor Kiara had identified any body function that is impaired or any activity that cannot be performed and, as a result, concluded that the minor children are precluded from seeking recovery for their injuries and entered summary judgment.

On October 6, 1995, February 1, 1996 and March 28, 1996, Venicia and Kiara were examined by Dr. Clancy D. McKenzie, a psychiatrist. Appellants state that Dr. McKenzie indicated in his report that both minors have developed long-term psychiatric impairment as a result of their injuries and that they will need additional psychiatric treatment. Upon motion for reconsideration filed by Appellants, the trial court vacated its summary judgment order. On May 2, 1996, after oral argument and in view of Appellants' failure as of that date to submit any additional medical evidence, the trial court denied the motion for reconsideration and reinstated summary judgment. *fn2 Due to circumstances peculiar to this case, Appellants were unable to obtain medical evidence regarding the minor children's psychiatric injuries prior to entry of the trial court's final order. *fn3

In Allwein v. Donegal Mutual Ins. Co., 448 Pa. Super. 364, 671 A.2d 744 (1996), appeal denied, 546 Pa. 660, 685 A.2d 541 (1997), the Superior Court recognized that the provisions of the MVFRL are to be liberally construed to advance the policy of indemnifying victims of accidents for injuries sustained on state roadways. In Dodson the Superior Court stated that for an injury to constitute a serious impairment of a body function, it must interfere substantially with the plaintiff's normal activities and have a serious impact ...


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