Appeal from the Order Entered October 1, 2012 In the Court of Common Pleas of Berks County Civil Division at No(s): 09-11475
BEFORE: GANTMAN, J., ALLEN, J., and MUNDY, J.
Appellant, Romeris Cadena, appeals from the October 1, 2012 order granting the motion for summary judgment filed by Appellee, James P. Latch, and dismissing all of Appellant's claims with prejudice. After careful review, we reverse and remand for further proceedings.
The trial court summarized the relevant facts and procedural history of this case as follows.
[Appellant] filed a complaint for non-economic damages for injuries sustained in a motor vehicle accident on October 18, 2007. [Appellee] rear-ended [Appellant]'s vehicle while she was in motion. [Appellant] alleged in the complaint that she suffered injuries, including but not limited to, disc injuries, and/or exacerbation thereof, nerve damages, cervical sprain and strain, cervical radiculitis, and lumbar radiculitis. Although she complained about pain in her shoulder and chest, [Appellant] initially refused emergency treatment at the accident site.
She believed that she did not feel hurt enough to call an ambulance; instead, she went home to bed. She went to the hospital the next day because she was not feeling any better. She was told to do the same things that she was told to do the day before and was sent home again. [Appellant] is an accountant and missed approximately one week of work. She is not seeking either a work loss claim or a claim for unpaid medical expenses.
In her deposition, [Appellant] testified that she never had any back pain, neck pain, left eye pain or shoulder problems before her accident; however, she suffered from these problems at various times after the accident. [Appellant] was in two prior accidents before the instant one. She skidded off the road and hit a tree in one accident and went off the road and got stuck in mud in another accident.
Prior to the accident, [Appellant] did not have a primary care physician. On October 20, 2007, she went to a doctor in Lebanon, Pennsylvania, who sent her to a Lebanon hospital for tests because her pain had increased. That hospital diagnosed her with cervical strain and a headache, told her to continue her pain medication, and prescribed bed rest for three days.
On November 29, 2007, [Appellant] went to an orthopedic doctor for left-sided head pain, eye pain, visual dysfunction, left shoulder pain, neck pain, headaches, sensitivity to bright lights during headaches, lower back pain, numbness, and tingling in the left arm. This doctor diagnosed her with cervical and lumbrosacral sprain and strain; cervical radiculitis, lumbar radiculitis, left shoulder contusion and impingement syndrome, and post-traumatic headaches. [Appellant] treated with him on five occasions, including her July 10, 2008 discharge. During that period [Appellant] went to ten physical therapy visits from November 27, 2007, through March 18, 2008. On discharge, the diagnosis was cervical radiculitis, lumbar radiculitis, bilateral C5 radiculopathy, left-sided C6 radiculopathy, L4-L5 radiculopathy, cervical sprain and strain, lumbrosacral sprain and strain, lumbar disc bulging, DJD, and multilevel lumbar HNP. Since her discharge from this doctor, [Appellant] has not sought additional treatment from him or any other doctor. A cervical spine MRI study was performed on December 12, 2007, [and] revealed mild degenerative changes at C4-C5, C5-C6, and C6-C7. No traumatic injury was noted. A lumbar spine MRI study revealed a disc bulge and degenerative changes at L3-L4, degenerative change with disc bulge and superimposed left paracentral herniation at L4-L5, and likely impingement of the left L5 nerve roots in the lateral recess. No traumatic injury was noted.
A lower extremity EMG on December 18, 2007 was consistent with a left L5 radiculopathy. An upper extremity EMG study on May 16, 2008 was consistent with a bilateral C5 and left C6 radiculopathy, three months or older.
[Appellant] never refilled her pain medication. [Appellant] has no doctor appointments scheduled in the future. At her deposition on June 23, 2010, [Appellant] testified that her pain and headaches had decreased and her eyesight had improved. She took Motrin as needed for her shoulder pain. She gained approximately fifty pounds after the accident due to lack of activity and was depressed about the weight gain. She was uncomfortable standing so she missed some of her children's music presentations. A daughter went to live with her father because she was bored living with [Appellant] due to her lack of activity; however, [Appellant] went on vacations. [Appellant] was not as sexually active after the accident as she was before. She also did not drive as much in order to avoid possible pain.
[Appellant] had an independent medical examination in June 2011. This examination concludes that [Appellant] sustained a sprain of the facet joints of the cervical spine and lumbrosacral spine, as well as a strain of the para vertebral musculature involving the lumbar spine and cervical spine as a result of the accident. This report also states that [Appellant] had pre-existing degenerative changes in the cervical spine and lumbar spine, both involving the discs and facet joint. No permanent injuries were noted. The report concludes that [Appellant] has recovered from these injuries.
Trial Court Opinion, 2/8/13, at 1-4.
On September 11, 2009, Appellant began this action by filing a civil complaint alleging negligence. On October 22, 2009, Appellee filed preliminary objections to Appellant's complaint in the form of a motion to strike. The trial court entered an order sustaining Appellee's preliminary objections on January 8, 2010, which struck paragraphs 6(h) and 6(j) from Appellant's complaint. The parties entered into a stipulation to dismiss Appellee's wife, Delores Latch, from the action on January 26, 2010. After discovery, on January 30, 2012, Appellee filed a motion for summary judgment. After both parties briefed their respective positions, the trial court held oral argument on the motion on September 4, 2012. On October 1, 2012, the trial court entered an order granting Appellee's motion for summary judgment and dismissing all claims against Appellee with prejudice. On October 23, 2012, Appellant filed a timely notice of appeal.
On appeal, Appellant raises three issues for our review.
I. Did [Appellee] meet his burden to prove that [Appellant] knowingly and intelligently waived full tort coverage by submitting only a certificate of coverage and relying upon an interrogatory that asked [Appellant] to make a legal conclusion?
II. Did the trial court err in awarding summary judgment to [Appellee] on the issue of whether [Appellant] sustained a serious injury where Pennsylvania law states that this is a jury question and [Appellant] submitted ample evidence that her injuries significantly limited almost every aspect of her daily life?
III. Did the trial court err in dismissing all of [Appellant]'s claims on the ground that she did not sustain a serious injury when only [Appellant]'s non-economic claims are barred?
Appellant's Brief at 2.
We begin by noting our well-settled standard of review. "[O]ur standard of review of an order granting summary judgment requires us to determine whether the trial court abused its discretion or committed an error of law[, ] and our scope of review is plenary." Petrina v. Allied Glove Corp., 46 A.3d 795, 797-798 (Pa.Super. 2012) (citations omitted). "We view the record in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party." Barnes v. Keller, 62 A.3d 382, 385 (Pa.Super. 2012), citing Erie Ins. Exch. v. Larrimore, 987 A.2d 732, 736 (Pa.Super. 2009) (citation omitted). "Only where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to a judgment as a matter of law will summary judgment be entered." Id. The rule governing summary judgment has been codified at Pennsylvania Rule of Civil Procedure 1035.2, which states as follows.
Rule 1035.2. Motion
After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law
(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or
(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.
"Where the non-moving party bears the burden of proof on an issue, he may not merely rely on his pleadings or answers in order to survive summary judgment." Babb v. Ctr. Cmty. Hosp., 47 A.3d 1214, 1223 (Pa.Super. 2012) (citations omitted), appeal denied, 65 A.3d 412 (Pa. 2013). Further, "failure of a non-moving party to adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof establishes the entitlement of the moving party to judgment as a matter of law." Id.
Thus, our responsibility as an appellate court is to determine whether the record either establishes that the material facts are undisputed or contains insufficient evidence of facts to make out a prima facie cause of action, such that there is no issue to be decided by the fact-finder. If there is evidence that would allow a fact-finder to render a verdict in favor of the non-moving party, then summary judgment should be denied.
Id., citing Reeser v. NGK N. Am., Inc., 14 A.3d 896, 898 (Pa.Super. 2011), quoting Jones v. Levin, 940 A.2d 451, 452–454 (Pa.Super. 2007) (internal citations omitted).
We elect to first address Appellant's second issue, because we find it dispositive. Appellant argues that assuming, arguendo, that she did knowingly and intelligently waive full tort coverage, the trial court nevertheless erred in granting Appellee's motion for summary judgment because she suffered a serious injury. Appellant's Brief at 11. A plaintiff's suffering a "serious injury" is an exception to a waiver of full tort coverage.
§ 1705. Election of tort options
(d) Limited tort alternative.--Each person who elects the limited tort alternative remains eligible to seek compensation for economic loss sustained in a motor vehicle accident as the consequence of the fault of another person pursuant to applicable tort law. Unless the injury sustained is a serious injury, each person who is bound by the limited tort election shall be precluded from maintaining an action for any noneconomic loss, except that:
(1) An individual otherwise bound by the limited tort election who sustains damages in a motor vehicle accident as the consequence of the fault of another person may recover damages as if the individual damaged had elected the full tort alternative whenever the person at fault:
(i) is convicted or accepts Accelerated Rehabilitative Disposition (ARD) for driving under the influence of alcohol or a ...