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September 9, 1997


Appeal from the ORDER entered May 16, 1996, in the Court of Common Pleas of DELAWARE County, CIVIL Division, at No. 94-8140.

Before: Del Sole, Popovich and Olszewski, JJ. Opinion BY Olszewski, J. Dissenting Opinion BY Popovich, J.

The opinion of the court was delivered by: Olszewski


Filed September 9, 1997

On September 23, 1993, Linda Marie Leonelli, appellant herein, was injured in a two-vehicle collision which was caused when appellant, lawfully stopped at an intersection in order to permit an ambulance to cross through the intersection, was struck from behind by the vehicle driven by appellee. Upon witnessing the accident, the ambulance driver tended to appellant's injuries on the scene and then transported her to a nearby hospital. Although appellant complained of burning pain in her neck and lower back, X-rays revealed no fractures and appellant was released from the hospital.

For the next seven weeks appellant continued to experience pain throughout her neck, back and left arm. Because she was unemployed and uninsured, however, she did not consult a physician; opting instead to treat herself with bed rest and ice packs. Because the pain was unabated, however, appellant did seek treatment from her family physician, Dr. Richard Silver, in November and December of 1993. In his subsequent report, Dr. Silver concluded that appellant "had significant cervical injuries and decreased range of motion." R.R. at 63a. A program of anti-inflammatory medications, ice, exercise and physical therapy was recommended. Again, due to appellant's financial straits, additional diagnostic testing was precluded and appellant discontinued treatment with Dr. Silver.

From December of 1993, after terminating treatment with Dr. Silver, through November of 1994, appellant received acupuncture therapy. These treatments provided appellant with some degree of relief; however, the therapy was aborted because its continuance was not economically feasible.

In January of 1995, appellant gained employment with a medical corporation, Surgical Orthopedics. As a medical transcriber, appellant was required to sit at a computer terminal for much of the day. Although she was able to work a full 40-hour work week, appellant often kept her left arm in a sling and worked with ice packs on her neck and shoulders. As a result of her status, appellant received medical insurance and, additionally, was permitted to use the facility's physical therapy equipment free of charge. Dr. Richard J. Levenberg, one of appellant's employers, ordered appellant to undergo a cervical spine Magnetic Resonance Imaging (MRI), which, when compared to a pre-accident MRI, revealed two new disc bulges as well as a broad herniation of a third disc. Dr. Levenberg then recommended that appellant seek treatment with an orthopedist and/or neurologist. Accordingly, in June of 1995, appellant consulted with Drs. Anthony J. Palmaccio, Jr. and Donald M. McCarren. Dr. Palmaccio, an orthopedist, recommended that appellant undergo a series of epidural steroidal injections calculated to alleviate her pain.

On July 8, 1994, appellant initiated the instant action in which she sought to recover, inter alia, noneconomic damages for personal injuries. In April of 1996, appellee filed a motion for summary judgment in which appellee claimed that, because appellant was an uninsured motorist when she was injured, she was deemed, by statute, to have elected the limited tort option under the Motor Vehicle Financial Responsibility Law (MVFRL). *fn1 Therefore, pursuant to the Act, appellant was required prove that she sustained "serious injury" as a prerequisite to recovery. *fn2

Further, appellee argued that appellant failed to sustain this threshold burden and that, as a consequence, appellee was entitled to judgment as a matter of law. In support of her motion for summary judgment, appellee filed appellant's deposition testimony, appellant's emergency room hospital records and the medical reports and opinions of Drs. Silver, Yussen, McCarren and Goldberg.

Appellant, in turn, filed an answer in opposition to summary judgment in which she specifically denied that she failed to sustain her pretrial threshold burden. In support thereof, appellant incorporated the four medical reports affixed to appellee's motion for summary judgment. Additionally, appellant filed her deposition testimony, taken during pretrial discovery, as well as a supporting affidavit in which appellant claimed that the injuries suffered in the accident "drastically affected" her lifestyle in both the employment and recreational context. R.R. at 89a.

After reviewing the evidence, the trial court concluded that, as a matter of law, appellant failed to establish that she suffered "serious injury" as a result of the accident. Accordingly, by order entered May 7, 1996, summary judgment was entered in favor of appellee. This appeal follows.

When reviewing the propriety of a trial court's order granting summary judgment, this Court must view the record in the light most favorable to the adverse party and determine whether the moving party has established that there exists no genuine issue of material fact and that it is therefore entitled to judgment as a matter of law. Because an order favorable to the moving party will prematurely end an action, summary judgment is only appropriate in the clearest of cases. See, e.g., Skipworth v. Lead Industries Assoc., 547 Pa. 224, 228-230, 690 A.2d 169, 171 (1997); Kingston Coal Co. v. Felton Mining Co., Inc., 456 Pa. Super. 270, , 690 A.2d 284, 287 (1997).

In the context of a claim for nonmonetary damages for serious injuries pursuant to the MVFRL, this Court has previously held that it is for the trial court, rather than the jury, to initially determine whether plaintiff has established facts sufficient to support a finding of serious injury. As defined by the Act, a serious injury is that which involves "personal injury resulting in death, serious impairment of bodily function or permanent serious disfigurement." 75 Pa.C.S.A. ยง 1702. See also Dodson v. Elvey, 445 Pa. Super. 479, 493-495, 665 A.2d 1223, 1231 (1995) (en ...

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