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12/15/97 MARK KELLY VS JEFFREY ZIOLKO CYNTHIA

December 15, 1997

MARK KELLY, APPELLANT VS JEFFREY ZIOLKO, CYNTHIA ZIOLKO AND FRANK ZIOLKO, JR. MARK KELLY, APPELLANT VS JEFFREY ZIOLKO, CYNTHIA ZIOLKO AND FRANK ZIOLKO, JR.


Appeal from the Order entered April 11, 1997, In the Court of Common Pleas of Schuylkill County, Civil No. S-1450-95.

Appeal from the Order entered July 16, 1997, In the Court of Common Pleas of Schuylkill County, Civil No. S-1450-95. Before DOLBIN, J.

Before: Cirillo, P.j.e., and Johnson and Hoffman, JJ. Opinion BY Cirillo, P.j.e.

The opinion of the court was delivered by: Cirillo

OPINION BY CIRILLO, P.J.E.:

FILED DECEMBER 15, 1997

Mark Kelly appeals from an order entered in the Court of Common Pleas of Schuylkill County granting final judgment in favor of Appellees, Jeffrey Ziolko, Cynthia Ziolko and Frank Ziolko, Jr. *fn1 We affirm.

On October 5, 1994, while traveling north on Schuylkill Mall Road in Schuylkill County, Kelly's vehicle collided at an unnamed cross-road with a vehicle driven by Appellee Jeffrey Ziolko. The collision occurred when Ziolko failed to obey a stop sign which was placed at the intersection. At the moment of impact, Kelly was thrown forward and up, then backwards against the seat; Kelly also struck his knees on the dashboard and his forehead on the metal strip between the roof and the windshield of his automobile. Kelly sustained injuries to his neck, lower back, and suffered numbness in his face and toes.

As a result of the accident, Kelly filed a complaint against the Ziolkos seeking damages, including non-economic damages, under the Motor Vehicle Financial Responsibility Law (MVFRL). The Ziolkos, in their Answer and New Matter, alleged that because Kelly had chosen the limited tort option under his automobile insurance policy, he was not entitled to recover non-economic damages. The trial court granted a partial motion for summary judgment in favor of the Ziolkos which effectively dismissed Kelly's claims for non-economic damages. Kelly filed a notice of appeal from this order granting partial summary judgment. The court subsequently ordered that judgment be entered in favor of all defendants with regard to all claims; this court order also incorporated a stipulation between the parties that Kelly's claims for economic damages as well as all other claims against the defendants be voluntarily dismissed.

On appeal, Kelly presents us with the following issues for our review:

(1) Whether the trial court erred in failing to accord any effect to an insurer's violation of section 1791(b) and section 1705 (a) of the Motor Vehicle Financial Responsibility Law?

(2) Whether the trial court erred in granting summary judgment to Defendants on the issue of "serious impairment of body function" where the Plaintiff sustained a herniated lubosacral disc, where the herniation is permanent and will not improve, where the herniation permanently restricts the Plaintiff's employment capabilities, and where the Plaintiff's orthopedist continues to prescribe invasive medical treatment more than two years after the accident?

(3) Whether the trial court erred in interpreting the phrase "impairment of body function" to mean "impairment of motor function?" *fn2

Our standard of review in cases of summary judgment is well settled. This court will only reverse the trial court's entry of summary judgment where there was an abuse of discretion or an error of law. Merriweather v Philadelphia Newspapers, Inc., 453 Pa. Super. 464, 684 A.2d 137, 140 (1996). Summary judgment is proper when the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits demonstrate that there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035.2, 42 Pa.C.S.A. In determining whether to grant summary judgment a trial court must resolve all doubts against the moving party and examine the record in a light most favorable to the non-moving party. Id. Summary judgment may only be granted in cases where it is clear and free from doubt the moving party is entitled to judgment as a matter of law. Id.

Kelly first claims that the trial court erred by failing to acknowledge that his insurer, Nationwide Insurance Company, violated sections 1791.1(b) and 1705 (a) of the MVFRL with ...


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