HomeMy WebLinkAbout97-04980
.
,.
'.
.
I'
,I
,
~
"
i
I
'I
,
~~
,
I~ "
1.~.iYIl
, I ~'I'
,"'::_~ I I
f'I" '
'.1" , ,d . j If'! ~/II' "
., '~ .1' I ,~.:t- . \ "
. -I"" ";~"""'ll!,I't.I\,.
,\1. rl' r~,,-I "
,.,.';.r. "I':"'"'~''' '-
\ I ,f1 ,,' '/,1)..
:; '''~~'i' " 'l+J!~'I~""
I.t ,If,''I'' \A \ P ,t:o Ir.iolL~' \., 'I '
,",\"{t,, '1~,....fI,""r, ,,/,
,."', .j";"fli 1"mtJ ~'Illf'''l,"'~) .: C,,",t.,"II','"
I' 1', Ir I 'ii},l .,1,1,' .\
1'1 I!w'Ir'i"';'II;"\O'I." "',"
I . .(J .' ...,). - ~ ; Ii
"1 ':,I<\.il~- "':~.~\_II\"'.I,,.';.";.4-;'t .1.-",
,t,' '~I'r'I' ,I-('\;f}',' '
iI- '-;'4>i"
.1.,' ',,"If ,.",:/'''/r'' , '.'
ii".,..II I, " ,'::~,"JI:-r,l/f',"'h, ,I
,\ '" ' ..-.-,' .''''1' .tf -, ~
',,', ,::~'t~':' '~~<M~; '.:<;'<,1~;/~\:: ' '~
,1_"" I~ _j''''~,'dl_Al_- ,',"<ri\ I
._;'.:' :11!lf,:~~fI"~4R:~'~C-~':,:,,1::"'" It,."i'''~I'lii;I;'''''': ii'
, 'Il"I'j I I.,"
, ''1'tl ,. J, ~', -hI': .'1 .. \ ~'I-' ",.
.' 't'tjib, {'I~~~l'~ ", " .1, ,t..,jjh' ,'\'
'I" . 'lit! .f! T" ,I, J., . t ' ~r \ '
.,I;.} I'''~ 'l'l'I'" I,.', I' '~, .. \
, .\~('~1'1'~~1 ,i~/~I!~--:i*:';;' .'\;,},'.! i'.i':.~.,'j:~': ,v, ,
,,":~ li:,;"tI:f',~~'.'.""..<I_'rJi\:, !;";fl ""II , I:t""
'r ,I '~\" , J' ,};\ '" "I . ,,~ ,," \ .,J;,! , I, ~.,' . '
~:~ !7~lt\!I'.'" . ;",:" r';~': ' I,' ..:,"",}"
,'", ~:<lf, 1";""" .'" ":~('t" I' '.' ~,,~ Ii"
,_ ',,' ,,' ...."..1....,;., 1..,'!4-.'I' t "\,
,
,
:./'.,
"
'1 'J"
"~~ . ,
"1,1,
,
.;-
"
'....
",J'~.,:'\ it
,
,'t
d
/\~~j~.I, /'.'
'l-' ' :1'
~I "
, ~, l
,~ "
"
, ,
:. \l-
I').
,
'-"'f'\)\'\
.. o!~
{ '~j
, ' ~ ~'.,
."
l . '( \ r~ ~
llJt'iT
,J 1 ~'IJ'
I, Il, ~ .'
,i',I".
,,1,\,1,.,
J I]'
,j,
'~'. .
',I' ,.1'
;,-~ .
k
I,
'"J :,;;f~'"A
,:,../,1
, ..~,
; '-1,
,,-1,"
,J',.i.
"
I
"
,
I'"
"
"
"
,/'j
,
_~'
, ,
"
.j'
,
I . I " \ \ \",~\ .
:iI'. ", ~
, ~j'l
I',~\~,.
, ,
1';t.).
~ ' t~
'., !~I
~I,I I,' F
"
,~j; ~~
f. l!,
.'\"
,,'" lit.
";r(}'
/' ~"';~~:I'/::
'.
,
<(,
"
,.....,
!t"
'.-,'
Ii
"
.\
. ~'''''
..
'"Ii
1,\ l,;\~"
,-
"
..
,
',I" t .'
, .~~' '; ;'
dl j;t~"'~"" ,~,i'
,'O't",f,.I"I'
".f'\ "
"!"j,'
'1'\
"'I,,
, ~
.",
d
',I
;',i,'
,
~ ~'! I
',""
" '
~~,!-'~
"
" '
'".
I" "
,
','
,
<,.,1
\'
.\(.
\,
, ,t\~k'
,I,.
"
"r,
"
."
-j.\",
"
" ;\~
Ii ~,
,
.j'').!
"
,I
"
"
r.__ '1' I'
':;1
,
, "
'f-"
'--'
....
-
lTY
I/n} wer fa
...
'-,'
. ,
--....~-
l1J
Mo t;ry, ~,):7
,~nJ:,:: '," II "
-''I
;!:;;~::,:',;i~,;:i,l'
'T\J;;.\,:'"
;:1,J"1-', I" i{ 'j,
::; _: '~j~:-: ~! ;', \ I " ,"
'f ,\!,1~"~,' I f; ,,'I \
\;(,/;;', ),
l'I-':;<_:" ,',
""1' I,'}
1'\:(_'j" ';.,1,
';]~:::'i,,;'
;', Q,I~i" L ' , , I
I.:~':(:,::' ~:; j '\'
fl.-,l.Pi;'", -."
~ '~t'\{- -_ "', " 1,
,{~" -.- ."'" "t ,j 1.'_1'
'; -'~\:;;':;~,;t~;~ ::\: :~;
):'nl\,',,;Lj :". 'II
1i:fdT !.,)' , \ ,f
JJll~:;~:i~\:_:;t.- ~ \ ll"~ I'; f:,:
~,tl~.}:_ .,J, ,h. "F
'ft.'",-" ,)(I! ,) , ..
'.";1/)" -"'l " }'
vI" _,:j' -
1 \ ~ 1 t- \. \ J,., <I ,
fui-:'1" "
"\11'1:'" ,I'
'- i '~r '1- I'
t\J;\'-(flf!":i
N~}~\,~~,;:;i'<', ,',' r J '; I.
-1..t<F"""-' i:
~ii;:'~:; .',:_\ i " ":1
1,;/.\1\':':', " "
~-.I, ,~ " '\,' '
1,;-'--1' II'
f-:VC:::\I~'i , ,
.'-1,
l;\;:!t,
,
,.,'j..oL....;"....,.,...~..~4)ll.
,
dO. '..
f.l/\t-'.~f _
, . "',1'
"
,.
"
\
"
"
1'.~ ; ,
,
'I' d. ;j: "
"
'I'
,
"
11,-,1
'" ,
,
"
.}
.jl;-,\;f
"',t' ,/
'1"'"
".. i:!',r\'-.\~;\<,:
','I" , , I
" ,,' ,\\,1'1"";/:
1.',lj_'.:" H" \.-I'(',t),~'l
",1/ ~I';)' . --'~'" <_C~: \?'iI~":
, "':,," "'-,01...1/','",1"1
- :' ~ '. -'-, '-,' ,-I ,- "I < - IJ l' ,'I
..i:!!?;',:{.:,J,~:;ti
" j"" J,'_ :- ,Ji,-,J\jlt_Y,f'~'I\;'"
,,' . . -~J'"'' I" ~ -.- ~ 'I -,"
',r,; :tl_i'j, -'~'fr,"'\l'J'\" ';\'J~
' , i'!' ,-. ',,;:,-" ,'L'-'~Jj(,'<,l-\'f\ 1-' i'
"'! --P':'~-:'->;t,-:\-;';:/:i';~~j~}.;
''')'1' '.J!; "/\.1 ,'-"A,.t.-}
"i'. '!';,'\:'::'~f,i;"(')
,1/ . \, . ,,.'1 ~
",f
i
1-'"
I,',
"
~ I, r "
",
"
"
.,',
"j"
, ,
"
,
1
I
"1
,
':1
,',
,il!'1
,
" II I
, '-'1.;'111-
',1,1, ',I,;"~
.-t ",
P'
"
'II,
','
'r ",
\,
I'
"
II,',
;1 II
'I"
\"
,,.
,
,
II,
,
.",'1
"
"
II",
I
" 't
I'"
",
'-I
"
'I,'
,
,.
,
',' II
,'"
,ril!
- (',
,
"
"
"
,
"
,I,
'I.,
,
"
I,
I
"
'11/
,
11' ~ ,
I.',),
1'1 ::1'
l .-,'
'"
,,',
'\1
,Or
;,,11
",
I'
" 1"
,
,
, '
" ,
'I, /,
';.II\,j
,
,
',' "
"
1',
'.'
,
"
'"
, ,
'11'
,
i'
'1,
,
I"
"
,',
.
,
,,,'I,
'(Jj"
)',.
,(,','",: ,
,,"
,
'II ,: J
" \',1
:._0',
'I
,,:,:.
'-( ,
,
,
"
I:',
'j;'/
1.1\
"
,', !I"
:,\
.,1"
ii
"
,,'
,
, ",
,.,'l(, 1_
~ _ , ' ( f : _ L ' '_ I
",'It- t',_F.
;.1 f' ,I) <'
"
',i'
.,,\I--tf!,
"':_/'.'1,',
"
",
'J':"
"
'.1.,
,
, 'I,
,'i
,I',
,
'J'
'lI,
,I
.'1
II'.,L'
"
,
,
"
"
,., I'
"
'1 '~',
"
,
',-'1..1
; .-",',,
'-'-,;:'1' ',I
,'I ,/_.-'
,'/,:
,
,n
'iq, . I
"
",
,
,'I
,
"
, "
, ,
'I'
, ",,'
, ,
" .,'
,:.>'I"':'Y';:::I\'I"
1_"_.(',,
:,:[ .
,_1,_"
I,
,,,
L, '
"",
....1
:1',
'\
1',.1'1)
,
','II
"
"
'.t.
, ,
'.-'
:'.11
",
,
:,,';,'IJ'
'f \/ ,-.
",
"
"
I
1;,\ _I'
'.I,
I
I'
,
'\:
""
'"
,
, "I"
/1,1
'!'<
,
,
,f'l-
,
"
,
'I,
" ,,'
tl,':
'11'
\, I,,,
"
"
"
';,
1
,
,I
,
I.
",-',',1:" ",\.
"'.1
,..
,,'
, ,
"
tl\],'"
"
!]
, ,
,
"
",
""1,'
,"
,'11',_ ,
'11,i,,'-.
",
"!
'"
"
',f;
'1"
'1',
,';'
":,,
"
,"
;,
..:
",'
',:
Iii I I
1",/,
, ,I"
,
,
,'I I,
!
"i ,".'
,.1:,-1:
\'
,
I
,
'"
.1',
11"1
,',
,I,','
,,'
:(,
;'i"
,,)
"
','
,
'"
,
,
,
, ,
"I'
,
"1-
"','1.,\
; '.-'<(.:I-(,~,-i
:~; ~,'; :':
.:1-1'1\
';1
'.//;;I',i:
,L,I
:.'
,",\
,i;
',\\'1
"
"
,
'"
,;;-
i'
','i
i!1
"
,1,'1'
"
I
I
"
'I,
,
"
,,>I :'i
:'1\'
'.'"
,-"
"
,
'1"1.1,1-
!:',,\II
, ,
"
"
'"
I",
"
,
",I
"
'.
"
;
:"
"~,',;
,
"
"
'I
I'
,
~ :
"
,
"
,
"
,",
'c'
;',
,
",
"I.
"
,
"
,
",
,1,1)' 1:.
, ,
'I....
,
"
.."..,.
~-_.i"'"
'I
fll.l'i.1rOrFICE ,r>V
OF THr. p;'I')1"HON01/'i11
9(1 SFP \ 0 PH 31 ~4
,," 'U "", . '()\J~~TV
C\JI\,,iJ,;d' '.,M '" ,II
PENN'3'{~IN'l'^
'"
"
"
'i
,
I
'I
t,l, :,'
, '
,i'!
','
I,
L,AW O,.'ICIS
HANO\.ER AND WIENER
I'
.1' 8 M"'''I'IIT STlnlr
plQ BOlll 1177
H...,UtlS.VAO. ~" I? I 08
11 t 71 238-2000
"
4, I)cllied. The averment contained in Parngruph 4 of Detcndllnt's Motion
represents 1I conclusion of 11Iw III which a response is aot required. However, if it werejlldichllly
determined that (I response is required. the avcrmelll is specitkally denied, with slrict proof thereof
demanded lItlhe time of tria!. if deemed material
5, Admitted illllllrllllld dl'nied in JllIrl. Although 1'llIintitl'is able to do the things atler
the accident that she did betilre the collision, she Cllnnot do them for an extended period of time or
she experiences a numbing sensation in her lingers and a conslllntmllscle-type of tllliglle in her right
arm and hand, (See Plaintitrs Deposition, pg 45, lines 9-18. :lllached hereto, made a part hereof lInd
marked, "Exhibit B,")
6, Admitted ill P"I't nlld denied ill part. It is admitted that Plaintitl'is still employed
by the same employer as before tile accident, It is denied thai she is still performing the snme type
of work as before the collision, As a result of the collision. Plaintitl' is prevellted frnm fully
nttendillg to her usual duties as a research coordinator for 1\1cMillan & Magargle, (See Plaintitfs
Complaint Paragraph 14, attached hereto. made a pari hereof and marked, "Exhibit A")
7, Admitted ill parllllld denied ill Jlllrl. Plaintitt" was involved in a motor vehicle
collision in September of \992 As a result of this collision, l'laintitl's right ti)rearm, spcciticnlly, her
rndius. wns fractured and required her III undergo surgery. A plate and screws were used to repair
Plaintitl's radius and remained in her arm until the 1996 collision involving Defendant (See Plllintifl's
Deposition, pg. 5-7, lines 24-2.1, Ilttuched hereto. made a pari hereofllnd marked. "Exhibit U,")
8, Admitted.
9, Admitted.
2
10, Admllled 1IIIIIII"t IIl1d dellied illl'"l"t, Plaintill's sClIr from the I ')'!h surgery is olle
inch longer thlln the original seal' lhlln the 1992 surgery, The seal' lhllll Plaintill's 1'1% surgery has
IIdditiolllllly resulted in II bump right over Plaintill's incision, PllIintill'has tried mllssllging the scar
to eliminate the bump, but it has not worked, AdditiOl1l\lIy, Dr Graham has said thllt it is very likely
thllt it would not diminish at all. (See I'laintill's Deposition pg 43-44, lines 15-23, attllched hereto,
made a part hereof and marked "Exhibit B,")
II . Admllled,
12, Admilled 1IIII1II"t and dellied 1lIllllrt. It is not stated by Dr, Mira in his report that
it is "fine healing" ofPlaintilrs injury that has permitted her to consider removing the internallixation
device from her arm, Defendant is stating an assumption. not a conclusion specilically stated by Dr,
Mira in his report dated January 14, 1997, (See Dr Mira's report dated January 14. 1997. attached
hereto, made a part hereof and marked. "Exhibit C")
13, Admilled illllal"t and denied illllll..t. Although Dr Mira's ollice record indicates
that Plaintitl's scar is small and very slightly nonli:eling, but not in any sort of noxious way, and that
Plaintitl' felt her scar was slightly more prominent than it had been as far as the plate is concerned,
Plaintitl' also experiences some pulling volarly or dorsally at times with extremes of dorsitlexion,
palmar tlexion or with grip 01' weight bearing, Additionally. Plaintitl'thinks her grip is a bit weaker
than normal. (See ollice record of Dr Mira dated January 14, 1997, attached hereto, made a part
hereof and marked "Exhibit C")
14. Admilled.
15. Admitted.
16. Admitted.
3
17, Admitted.
18, Admitted 1IIIIurt 1I11d denied IlIllllI.t. Following the surgery to remove the internal
tixntion device, Plnintitl' still has scnr tissue thllt hns developed into n bump right over her incision,
Plaintitl' wns massages the sCllr to help the sClIr issue diminish, but Dr, Cimhlllll thinks that it is very
unlikely thtH it would not diminish lit 1111 (See I'lllintitl. Deposition, og, 43-44, lines 15-23, lI11ached
hereto, made 1I part hereof and marked "Exhibit B"
19. Dellied. The averment contained in Paragraph 19 of Defendant's Motion represents
a conclusion orlaw to which II response is not required. However, if it were judicially determined that
a response is required, the averment is specitically denied, with strict proof thereof demanded at the
time of trial, if deemed material
20, Denied. The averment contained in Parug1'llph 20 of Defendant's Motion represents
a conclusion of law to which a response is not required, However, ifit were judicially determined that
a response is required, the averment is specitically denied, with strict proof thereof demanded at the
time of trial, if deemed material
21, Denied. The averment contained in Paragraph 21 of Defendant's Motion represents
a conclusion of law to whic;h a response is not required, Hr)wever. if it were judicially determined that
a response is required, the averment is specitically denied, with strict proof thereof demanded at the
time of trial. if deemed material
22, Dellied. The averment contained in Paragraph 22 of Defendant's Motion represents
a conclusion orlaw to which a response is not required, However, ifit were judicially determined that
a response is required, the averm.ent is specitically denied, with strict proof thereof demanded at the
time of trial, if deemed material
4
"
I,I
"
, ,
,
,
,
I
"
,
,
,
,
Ii
,
, ,
"
"
@ , "
~ ,
! ,
1 "
,
r
,j ,
"
,
11 ,
j
{ ,;
. ,,,
"
" .,.'
, '
"
,
"
" '}
, ,
12. As a direct and proximatq rqsult of the collision and
Dt1ferdant Nancy K. Mumper'tJ n'!'JU<Jent ilnd reckless opc1ration of hor
:1\ltomobile, Plaintiff Sllf"lIl Lebo nllfJtained SI-~Vl1l'l1 bodIly injuries
which include, but are not lin\ited to, a Galeazzi'tJ ,type fra<.:ture
of the right forearm, which tJubsequently necessitated two
surgeries: 1) an open reduction and internal fixation OC the right
forearm by means of a metallic plate and six metallic screws; and
2) an open reduction to remove such metallic plate and six screws.
As a result of said surgeries, a permanent scar on the back of
Claimant's forearm now exists-.it measures 11 cm. in length, 3 mm.
in width, and 1-2 mm. in height and is red in contrast to the
surrounding skin--and her forearm is highly susceptible to
refracturing due to the holes left by the removal of the six
metall ic screws.
13. As a direct and proximate result of the collision and
Defendant's negligent ,lncl reckless operation of hel. automobile,
Plaintiff Susan Lebo has suffer.ed, and will suffer in the futuI.e,
pain, irritation, inconvenience, substantial impairment of bodily
function, and permanent disfigUrement,
""
,
A
Yes.
Q
How many children do you have?
Two.
A
Q I'm going to jump to your medical history for
a moment. I understand you were involved in an injury
craating situation to your right arm or right wrist that
predated this accident; is that correct?
A
Yes.
Q
Tell us a little bit about that, please. When
was it, what happened?
A
It was September of 1992. I was going through
a divorce and it was Saturday morning. I was going to the
cleaners to pick up laundry. And I believe it was at the
intersection of Willow and I'm not sure what the cross
street was.
I was making a left-hand turn. There's a red
light there, and it was on yellow. And the traffic that's
coming towards me, there's a curve on that road. And I was
turning on the yellow light and a car coming around the
curve had the green light and I did not see that.
Q
And there was a collision of the vehicles
then?
A
Yes.
Q
And what injuries did you sustain in that
accident?
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
EXHIBIT 8
-.' .... l':-'~_. _.. :'.~. .
5
7
into surgery, put a plate in my arm with I believe six
screwS. That's the only way you can fix a radiu6 that's
broken in half.
0 And that's the condition at that time, it
actually broke - - 11\
A Yes. It was a complete fracture.
0 How had that happened in the auto accident,
had you struck it on something or what had caused the break?
No.
Did the plate and screws remain in your arm
after that surgery?
Yes.
A
0
A
0
A
right there.
0
arm then?
A
0
surgery?
A
0
. 23 A
, 24 0
i 25 accident
:
The air bag.
Air bag?
I
i
I!
Yes.
i
Ii
Where was your arm when the air bag deployed?
At 2 o'clock. I was turning left. So it was
: "
I'
And the deployment of the air bag struck your
That is correct.
Did you have physical therapy after the 1992
'I
In 1996, when you were involved in the
we're going to talk about in a little bit, did you
; i
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
---......
43
1 Q Who is your family physician?
2 A I have a gynecologist, but...
3 Q Who do you go to if there's colds, flus,
4 things of that sort?
5 A The doctors I work for.
6 Q Good point. Have the doctors you work for
7 done anything at all in terms of treatment of your right arm
8 since the accident of March 1996?
9 A No.
10 Q Could we see your arm?
11 A (Indicat ing. )
12 Q And we're looking at, for the record, a scar
13 that's on the upper portion of your arm, upper, as you would
14 look at your arm, your palm would be on the table. It's on
15 the upper portion of the arm as we look at it. Do you know
16 the length of the scar, have you ever measured it?
17 A No. All's I know is it's an inch longer than
18 what it was previously.
19 Q Okay. And that was going to be my next
20 question. The scar that you had from the '92 procedure was
21 nearly as long as the scar you have now; is that correct?
22 A It was an inch shorter.
23 Q An inch shorter. In terms of the appearance
24 of your arm now, is it different now than it appeared
25 following the '92 surgery?
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
45
1 work at the present time, writing, carrying, doing whatever
2
3
4
5
6
7
8
it might be at work, can you do the same sort of things now
as you did before March of 1996?
A Yes.
0 In terms of home activities, are you able to
do the same things in terms of activities around the house
as you did prior to March of 1996?
A
Yes.
o Is there any limitation at all in any activity
that you partake in that has changed from prior to March of
1996 to the present time?
A I have a numbnesG sensation in my fingers and
also a constant muscle type of fatigue in this arm. So
anything that I do I can't do for long periods of time.
o You can do things, but if you do them for an
extended period of time you notice this numbness or
tightness?
A
Correct.
o Following the '92 accident and the recovery
from that, did you have the numbness or tightness in the arm
between '92 and '96?
A
o
A
o
No.
Are you continuing to use the Vitamin g?
Yes.
How often do you use that?
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
e
~
.
(
I
I
"
, ,
"
'I'
"
"
I
r'"
\
Norne
LEBO. SUSAN
\J01l: 2/19/6L
OFFICE VISIT: This putient is seen in folll'w up now LO montha since ORU' of the
dght radiua. She hus excellent runge of motIon, excellent nppenrance, She hnA
some pulling volarly or dorsally nt tlllles wIth extremes of <.Iorslflexion, palmur
flexion or with grip or wuight benrIng. She thinks her I\l.ip is a bit wunker than
normal such ae wringing out a wushc 1'oth but generally ve ry go"d. Shu is
comfortable an<.l very functional.
X-rays were reviewed from Ritzman's <.Iated 1/9/97. These were AI' & lateral x-rays
of the forearm and compared with the 01<.1 fl1ma show remodeling of the callus and
virtually complete obliteration of the fracture line on AI' & lateral views, There
is no evidence of loosening of the plate or screws or nngulntion of any "ort.
The patient's scar is small and very slightly nonfeeling but not in any sort of
noxious way, She feels that it is slightly more prominent than it had been os for
as the plate is conce,:ned and I told h,'r that is <.Iue to thu fact that the soft
tissues have matured and swelling has gone <.Iown.
1 told her that 1 feel that the plate can come out in March or later and that is
something we want to definitely do. Or. Graham would be involved in the plate
removal from the standpoint of the soft tissues and 1 told her that he could just
as well remove the plate as well, which is perfectly fine with me. 1 would like
to see her about 2 weeks after thnt procedure for en x-ray and evaluation of
healing and function with recommendations. She was -V-;;'ry"pi'i,ns'ed with that. She
will be proceeding to see Or. Graham in the near future and making plans with
taking her x-rays along with her for hls information. AJM/clc
OFFICE VISIT: This patient is seen noW 3 weeks post plate removal by Or. Graham
with plesslcs closure of her wound which looks excellent at this time. An x-ray
was taken today with AI' and lateral of the forearm and It shows excellent healing,
r_muddlng "nd alignment. flexion of hee arm Is good. She feeh that her grIp
Is stronger. lJorsLflexion is excellent at 80'. Palmar flexion Is 70' vs. 90'
on the other side. She has full pronation/supination, no paresthesias, numbness
or limited function in any way of her right hand. I tol<.l her that she can
increase her activities .as tolerated in another 5 weeks including tennis, push-
ups, etc... She should <.10 light activities of push-up in the meantime. She has
a good prognoais. Discharge. Return prn. AJM/kas
.
non-ecunornic loss if the injury sustailled is a serious illlury See 7S I'll (' S:\ ~ 1711" 1.1) The
Pennsylvania l.e!-\islature has delilled sl.'riuus IIIlury as a "pl.'ls'lllal illJury reSUIIlIll! IlIlk.alh, Sl'riIlU,\,
imlll,inuclIl III' II hlldy I'uuclilln, 01 IlcruHllIl'ut disl'ilo!UI'l'IIICllt" Se~ 7" Pol t' S..\ ~ 1702
(emphasis' added) Plallltll1' sullcrs li'llIn hlllh IIIlpallll\enl uf a budily lilllClllII! alld perlllanent
disligurelllent
The "serious impairmelltufbudv tilllctioll" Ihre'lhold has beell interprl.'ted 10 Illeus nlll ontl1l',
injuries thernselws, but rather, on huw the injuries allceled a particular body tillletlOI! <:)J.J.o!ll]l'L!.!!.lll
v, Tran, 682 A2d 334, HI (I'a.Super 1996). kl/II1K Dodson \' Elvcy, 445 I'a Supd ,~7'), hl''i A2d
1223,1234 (I'a Super. 1<)95), ,,/localo!' KIWI/,'d. 544 Pa (,OS, (,74 A2d 1072 I I'}')(", 1111.' cuurt
has set forth mu inquiries I) What bud I' tilllction. ifany, was impaired because Ufllllul'les sustallled
in a motor vehide accident. and 2) was the impairment of the body tilnction seriOWI" tll
In order 10 determine whether the impairment was serious, several lhclors should be
considered: the extent ofthe impairment. the particular body tilllction impaired, the lell!-\th ot,'lime the
impairment lasted, the treatment required to correct the impairment, and any other relevant t[lctors
Id, It has been recognized that while the injury must be seriolls, it docs nut have tu 11" permanent in
order to fall within the language set llll,th in the Pennsylvania Motor Vehic1,~ Respollsihility l.aws.
Id, Furthermore, a soil tissue injury can constitute a serious injury where it is llhlectlvcly mllllllcsted
and seriously impairs body function W
Additio:H1l1y. in Dudson, the court extensively relied ~Ipon the laws governillg IllIIited tort sct
furth ill New York and Nc\\ ,lerse\ I'liese statcs have dassili,'d serilllls perslIllalllllllr\ 11110 lIillc
categllries whe,e the Plallltitt'may re,'lI\'Cr nlln-eeollllmic: Ill,,,,,, These lIine ,at"flllll'''; arc lIculh,
significulIl lIisli1,Curemcllt: fl'aclllre, loss of a tctus, permallent IllSS of the lIse of a body organ,
J
lII~mhcr, litm:tilln, ur systcm. pcrmancnt conscqucntiallimitall'"1S ufusc ofa hudy lll!,mn m 1Il,'mbcr,
~ilo!nlllcllntlimlllllion of thc nse of II hody fum.liou 0.. sysll'm. a nwdically delel nUlwd IIIIUI'V or
IlIIllillllncnt "I' a 1ll1ll-pCrmancnt naturc wlll<:h prclcllls the injured pcrsun rrllln l1clllH'llling
suhstantially .llIllrthc nmtcrial acts which constitutc that pcrslln's usual and custolllary duily aCllvities
ti\l' notlcss than '1I) days during the I SO days illlmcdiatelv Itlll-llVlng thc occurrcn(',e "I' the inlury or
IlIIflillrllWnt I )'"ls!l!l, (,(,) at 12,l1n 12, t citlllc (lswin I Shall 12'J N .I 290,31), (,iI') A 2d ill ,127,
N J S" .l'J llA,Xa) (Emphasis addcd)
II) Scrious IlIInllirmcnt of II 1I0dilv Fnnction
I'laintitl'slltrers trom serious impairmcnt of a bodily t\mction First, Plaintitr is prevented
Irom fully allending to her usual dutics as a rese.lrch coordinator tor McMillan & ~lagar~!Ic (See
Plaintitrs Complaint. paragraph 14) Second, althuugh I'laintitl'is able to do some things alter the
llccident as she did before the Defendant collided with her. she cannot do these things fur an
extended period of time, or she experiences a numbing sensation in her fingers and a constant
mllscle-type of tiltigue in her right arm and hand (Sec Plaintitfs Deposition, pg, .1\ lines 'J-18)
Third. Plaintitl'has encountered difficnlty encaCllll! in leisllre aClivities with hcr hushand that sh,' had
enjoyed prior to the 1996 surgery, Plaintitr deScribed thc lirst time she attempted to play tennis after
the 1996 incident as, "a jarring or vibration" type feeling in her wrist and arm in which she had no
control over hitting the ball. Ever sinc.:~' the I '!% surgery, she gets these feelings wlwllcver she uses
her arm to thnlll, lill or grasp sOlllcthing hard I'laintitl'dcscrihes her cllndition tll bc Ilk~ a c.:artoun
char.lc.:tcr, Ilhell Ilne sees the c.:an'''''l c.:har"c'ter hil ""1K'lillll)!, ilnd thell Ihelr ""dl \ Ibrates,
Additionally, I'hlintitr has also expcrienced SOllle decreased grip strength with her hand (ill
.1
Plaintitr s answcr tll Dcfcndant's Intcrrogatorics, /I 14) Plaintilr has cxplaincd thcsc prohlcms 10
Dr. t\'lira, but hc stalcd thatthc I'ihrating teclin!! lIIay nol ~o nway atlcr shc has thc platc I cmllvcd
Sincc Dr 1\ lira rcmllvcd thc metallic plate and Ilr (iraham pcrlilllncd plast', SUI !!cry, Plaintitr
IS still cxpcrienclng problcms wah Ihe usc of her li,rearm Plamllll' still has a numlllng scnsatlonln
hcr tingcrs and also a conslant muscle,type 1'"lgue m her ri!!11I arm and hand t\nythin!! the Plaintifr
attempts to do, shc cannot pcrtilllll ti'r a ">Il!! peliod of lime (Sec Plamtilrs Ilepositlon PI! 4~)
Following Plaintill's accidcnt in 1992 alld the rccovcry from that surgcry, Plaintitr had not
cxperienced any numbness Ill' tightncss in hcr arm betwecn 1992 and 199("
TherettlrC, Plaintitl" sutlers Irom serious injury duc to thc serious impairment Ill' the tllllction
and usage of her right arm and hand
b) ,ferlllllnent Dislillurement
In addition 10 suffering serious impairment in the use of her right arm and hand, Plaintiff
sutTers trom permanent disfigurement of her right forearm Plaintitl" was required to undergo two
surgeries: I) an open reduction and internal fixation ofthc right forcarm by means ofa mctallic plate
and six metallic screws: and 2) an open reduction to remove said mctallic platc and six screws As
a result of these surgeries, Plaintitl' now has a permanent scar on her right forearm, mcasuring II cm
in length, 3mm, in width, and 1-2 mm in hcight Thc scar is red in contrast to the surrounding skin,
making the scar noticeable and stand out. Furthermore, Plaintitl's ttHe,trm is highly susceptiblc to
rd'racturing duc to the holes 1cli bl' Ihe rellloval "I' thl' 11Ictall" plate and SIX nlerall1, snell,
In the installt case. it is without dispute th.lIl'laintitrs scar on her right ti,rearm has resultcd
in permancnt distigurement, Plaint.ill'had to undergo surgery as a result of Delendant.s nellhgence
5
Plaintitl"has had surgl!ry on this sallle t<lreal'ln in I 'J<)2. hut th,' scar had healed nicel)', with thc color
of the scar hlending into the surrounding skin Alter the I ')'1(} surgery, Plaintilrs Seal 'las "ugly"
(Sl!l! Plaintilrs Dl!position Pg IX) Plaintilhwlll to see 1)1' (iraham about having plasllc~sulgery to
COVl!r up thl! scar, but was forced to wait II Illonths ulllil till! metallic plate could he removed and
plastic surgery performed to tix the seal' Thus, as a result oi'the 19% surgl!I'Y.Plaintitrlived with
an ulllv, permanent scar on hcr l<Hcann Illr II months
Even altcr Dr Graham perl<lI'Illed plastic surgery onl'laintilrs scar in April ot' I ()l)7, tht,) scar
was one inch longt,)r than the previous scar. Additionally, the appt,)arance ofPlaintitl's scar IS dillerelll
than it appeared rn 1992, Plaintitl" has developed scar tissue at the top of her scar. resulting in a
bump, Plaintitl'has tried to massage silicon gel into the scar. in an attempt to decrease the bump, but
this has not workl!d, Dr Graham has told Plaintitl" that it is very unlikely that the bump would
diminish at all. (See Plaintitr s Deposition. pg .j.j)
As a direct result of the 1996 surgery, I'laintill"will be forced to wear long-sleeved shirts to
hide her scar. The scar Plaintiff now has is larger than her previous scar and has a reddish/purple
color, completely in contrast to the color of her skin. Additionally, the scar has a large bump on the
top, caused by scar tissue Dr Graham does not think this bump will ever go away, Thus, Plaintitl"
will sutler from a permanent seal', that is visiblt,) to the public, does not blend into her natural skin
color, and will continue to have a bump on top of it.
Therefore, Plaintitl"sutlers from a serious injury due to the permanent distigurement caused
by the scar on her right t'lrcarm
6
r;'
, '
,!;',';,J
I
,
1,'_lll
""
I""
I'
"
"
"
I;;i_,< l'
'c_ ~"L '_ _ '
C:li, ,~I " ' , , ',01 ;", .
.I'!:,i!.i:,.I.'. ,I' ,'.
~ ','JI:,~_i II' ,r ')_ I
~-I'\ _I,''/'/II'JI:'I i "
lith; If,!,.,;,j ,I
:i'+tIJ;,'l' ,F "'!'
t'I~"iJ~ ")-!I~ - -' f LI ' ,- . -, f' .
;')Ii,t'j:i-_ -'-1, I,
,l"JI'li,,,\i t,.,1 ' I
.l,'I:,,:',-\.-,'--,"":'.'J
,_'J,_"_"""!,,,, , :i, ,I,t'
"-,t'J!",;'L -'/,
"i'II'f'if'",Ii 1"1,
1;:\;:~'r;:):( \'" ' I '
-..\!!I,'ti"-,,.,\
~_"~~_r};!Li'~~I.j' ,J, I
:-h~"l:-;/}::J;' ,_, "
lfh,;!-,j,,,,;,,r,,, I 'fr"
;f;://::iil.// I "'/,:,~
['J.<lJI\"J'-f .,,1,111 ',"
IfJI.C,l.;,l11lr-I',""'I'_ 1 "I
):f}t\;?/!;y q,:,:,,~:, ;"', .'
\,'0/.,:1. ,
':i ,'~~;' 1',-;,1 ,'.' ,..
IJ;-\;L"I,I-' ,',
::-':;fl'~14i"
li!r- !/~i'!': ',\1'
,!,,~',!rr,! ' ,
~1(:I~\'1~",'1\ I I <to
'"- Ol~I,II_' LI,I_ .',t"",
''='!b-.)/}l'j::,-;" ,-,', ' I
.!-""'--'\'\"" '. _' I'
"~/1':\~,;/!,;;I,':j.-,.' - ,!i::jd I :;, ':/~
l'i1f'H'VU"'r'"'' 'I'"
:11("~L ,'.', ., l I'"
~II r 1\. I. \ f " t
1l~'J!y'~i\~II' ~\ I ,II'
"~~kji~'f;I"'I"-X"'" ,'_. '_I
({iXf.~~~;~~~Vt;,~_\~~_~!:\;1 '. /1,
~JJ,fifi~_I\'_ Ii, -,\:,:'11 ',"', \'j
iV\\~::~l~!,;,;;~'hI_,j
~'lJII- '-',1\1'.1'_"--:-,, ',I !"'; i'
;~\t~;J,_)t:i{):;,~/(/;, \ " 'I'
!j';~:(,: )/;~:!f;l~'ri: 'I~:'I,:': ~ ~':
'I <!1I1,1,,'1', "!j
il::'~_:_/!J} {,l,;'_~i! 'r~: _\. '.'
j~';' ,\I~~"II_ , , ' , ' '! 1,
~1~~U:'~i;~~f:;~:;' ':_< \_::_~:~~ l: I I,'.,
.1,1-11\""''/'-',1 ~ " '1, i Ilf ,I'
~~~!~-,,~;,~?{Y'Li-,(:_ i-'\"_ ,:';} , '.'
-i}\lt -\'-~'~J"',f-'_'}I"-, 'I' ,
,~~~-i;I\~!; }\.j- ;_,:\,~.;- ::, ,1:-.,1 "i:\,:;
'f'JJL;;_ , ," "
" "
I'
I
,
/ ;1
'I,
'LW"
",
IIH,;/j,i,,,,i,,,,
-
-1 .._...._....'~~TO.' ,,"'_h_'
,',
,II
'.,
" ,
,,'
I,
',L'
.<
i, "
,"
"'1-' ,
.-1 -'.I
':,
'J.,
'\'1
.-,,1
'I'
li'I'1
I, I:'
,
',1,'
','
,';,'
"
I ~ '
"
"
I"
I
':',',
,,-,.'
;f":"i'"
.1,
"'- "
' ,j',',~-
no::"~;' ,"
"
IJ
M 0 ~1'0Y1
S,;:r,
,I'
"
i',
"
"
',-,
"
,
'ql
,
I
I,
,t.'I.!,
'I
,i'
"
,
'pl'
'q
I
,I,
ll;, ,
, ,
'.' ~ "
"
"
"
,11"",'1 :1, 'i
",
II
),
",'
"
'1 L
'I II' f
,,'Iii
,IIi,
,I
,
..
"
..I
"
Iii
",
:,'-J'
,',
"
'il
,"
"
"
,
" ',;
L'.
"
,
fl',
'",
,
"
"j:-,
l't,'
,
\-1,11
,I,
,
,
,',I,'
'1"',"'1, ,'il
"
,',I
" :\'
,
)1"'1
,',
"
, ,
",1
,'"
"',I
I'
'-""_J
'\11
'J,'
Ii'
I,
i ',I
,
"
;'1'"
"
i-,
"',,
,
,,! d
"
"I'
,
"',
"
',i'l
I'!I'
,
:1"1,
"'i_ d.'
"
,1,'-'
"',I,
/
;,'
n,
'III
1,1
r\
:,1
,
'I
),
"
,'i
,.
, ,,j
,,;
,,'
I
"
J1,
"I,'
'/
!
",'I
"
"
, j '.
"I j'i,1
, ~ I"
\.1/,
"
" ~, ,', :, I'
"'" "
, , I , '
"
\'
I
"It'
,1-'
,\" "
"
,
"
"
",l_.
, I
I'"
"
IF, ,
, '
,
,
,
','
, ,
"
"
I,
"
~ i
tj:" I"
~! I:
','-
,I'.
"'I
1,' !I':I'I
'I
I'll'"
/.'
'i,
,I"
'"
"
" ,,,'
,
,
1,1,
"
.
I, 'J ,i-, '/)'_':__'"
\"\., ',t~ . - :l
'".'-, '
"
','i-!
',,!
"
,I,'
, ,
"
'" ,I I_I ','
" ,.-~;;;':' '1/
,i. 'j
,
,.'
',r'
f,
"__',_,
,tl",'i,;
<1\,',
-
II
-
, I
,~ ,-".-
,
,
..I.......~~
,/ ,I"~
'.'I-'J
", '
.-.',
"
';"
','1,1
\1
1"
"
, ..
"
/ I " I ~ i:
"
,j, il,i'
I,
; I: I\~'
" I
:1
'-i.
'l;,
:'1
,
,
,
.
,'I,
:1 -1'\,
'"
"
:",1 i",(
,'-,-.,\
J',
"
li:1
'ii_d, ,
I' 'I;i_{
,'I
':/'
"
':'"
,j-;
I
.
"
,
; ''- .'; " ~,
"/1\,
"
.!
" f,
','!"J
'I;",ii'
',,-1'-1
~ I,' " ,I -- J I ,
,I " " ~ '
"
'..
"
,
-1'-'
"',,
,
',I'
"IJ
i.)),
I,:;, I\,'
, ,
-,II'"
I, I
,'. I"
1\
[.,
,
;1'l.o'1'
,j,
:-i
.'1
'I ;1', 1.1.
'I;'
,j' '1
/11
,I:
,,','
I.
./.
'!,:::
"
"
.
"
1,/
',i,,';'
";"'1-
:'j\I_I,1
'(';;";.";,_:-,/,
,,'! I' I,
':!i:' \11 "i'h'
'I;' 1,.1,
'(
I
':,,' _II
'I"':'::'
,
,"II':,
',I'
, 'I'
1'1'
11,
I""
" ,
":j,"II'-,li",'ll':;'-;!ildL'ljil/.",>i/\I;<--',\j,'
~
,""'~
.
','"5-,
.
,
~'~'''''-'t'..........~"
" I" .
,...,,"
. .
She further testified that she is employed by the same
employer, and is still performing the same type of work as prior to
the accident, (Lebo dep., pg. 16 through 18).
Mrs. Lebo diDclosed that in September 1992, she was involved
in another motor vehicle accident in which she sustained a
fracture to her right arm requiring surgery and placement of a
plate and six screws in her right forearm, As a result of that
surgery, she developed a scar, which, over time, developed a keloid
which had widened and thickened. (Lebo dep" p, 5, line 5 through
pg. 6, line 1; pg. 6, line 20 through pg. 7, line 3); pg, 44,
lines 1-2),
Defendant Mumper has attached as Exhibits to the Motion for
Summary Judgment the medical records for care following the 1996
accident. Mrs. Lebo has acknowledged that the scar following the
1996 surgery is only 1" longer than the scar that existed from the
1992 accident. (Lebo dep., pg. 43, lines 15-18). The medical
records reflect healing as a result of the 1996 accident and Mrs.
Lebo herself has conceded that her scar is now less apparent than
it was following the 1992 incident in that the scar tissue is no
longer raised as it was with the original scar. (Lebo dep., pg. 44,
lines 5-9)
3
950 (1997), citing Tremaine v. H.K. Mulford Co., 317 Pa. 97, 176 A.
212 (1935).
B. a.rioue ImDairment or Bodv Function
As Plaintiffs have selected limited tort coverage on their
auto insurance policy consistent with provisions of the
Pennsylvania Motor Vehicle Financial Responsibility Law, 75
Pa.C.S.A., ~1705(d) (1), they are precluded from recovering any
damages for pain and suffering unless Mrs. Lebo can demonstrate
that she has sustained a personal injury resultL"lg in serious
impairment of body function or permanent serious disfigurement.
As a result of the accident in 1996, Mrs. Lebo sustained a
fracture of the right forearm resulting in surgery. A review of the
medical records attached to the Motion for Summary Judgment
reflects excellent healing and recovery from that surgery. The x-
ray study on March 20, 1996 and report of Dr, Charles Loh show
satisfactory progress following the surgery. (Exhibit B to the
Motion for Summary Judgment), The x-ray study of May 9, 1996
indicates uncomplicated progressive healing of the forearm fracture
by Dr, Cuthbertson. (See Exhibit C to the Motion for Sununary
JUdgment). A January 9, 1997 x-ray shows continued anatomic
position and alignment at the right radial fracture site with the
position of the side plate and screw assembly is unchanged. (See
Exhibit 0 to the Motion) .
s
The report from Dr. Allan J. Mira to William Graham in January
1997 indicates that Mrs, Lebo is well-healed and has excellent
function of her right upper extremity. (See Exhibit E to the Motion
for Summary Judgment). Dr, Mira's office note of January 14, 1997
indicates that Mrs. Lebo has a small scar, (See Exhibit F to the
Motion for Summary Judgment) .
Thereafter, Mrs. Lebo had the internal fixation device removed
and cosmetic surgery performed on her previous scar, An x-ray
report of May 13, 1997 indicated essentially complete and
uncomplicated healing of the distal radial fract.ure and subsequent
uncomplicated removal of the fixation plate are both documented.
(See Dr, Cuthbertson's report, Exhibit G to the Motion for Summary
Judgment) .
Dr. Mira's office note of May 13, 1997 indicates excellent
healing, remodeling and alignment. Mrs. Lebo's arm flexion is good.
She has full movement, no parasthesias, numbness or limited
function in any way of her hand. She was advised she could increase
her activities. She has a good prognosis. (See report attached as
Exhibit F to the Motion for Summary Judgment) .
The Pennsylvania Superior Court in Dodson v. Elvev. 445
Pa.Super. 479, 665 A.2d 1223 (1995), alloc, granted, Fa. _,
674 A,2d 1072 (1996) set forth a test for the courts to use in
determining if there has been a "serious impairment of body
6
function". The triBl court is to consider several factors
including: (1) the extent of the impairment; (2) the particular
bodily function impaired; (3) the length of time that the
impairment lasted; (4) the type of treatment required to correct
the impairment; and (5) any other relevant factors. Dodson. supra.
at 665 A.2d 1233-1234,
The Superior Court indicated there is no requirement that an
injury be permanent in order to be serious; rather, the plaintiff
must establish that, for an extended period of time, the injuries
substantially interfered with his or her normal activities.
Dodson, supra. at 665 A.2d 1233-1234.
Mrs. Lebo has not suffered a serious impairment of bodily
function as a result of the 1996 accident. She sustained a
fractured wrist which healed without complication within months of
the accident, All of the medical reports indicate a positive
progression of healing and positive prognosis for the future.
Mrs. Lebo, in her deposition, confirmed that she is able to
perform activities, both domestic and employment related, that she
performed prior to the accident. (See Lebo dap, pg. 44, line 24
through pg. 45 line 81 pp. 16 through 18).
A review of the criteria set forth by Dodson and Mrs. Lebo's
testimony clearly demonstrates that there has been no body function
impaired for a duration of time 50 as to meet the standard for
7
"serious impairment of body function", It is thus proper' for this
Court to rule that a serious injury has not been proven, Murrav v.
McCann, 442 Pa. super. 30, 656 A,2d 404 (1995). The review of Mrs.
Lebo's deposition shows that she has continued in her job
functions. (Lebo dep., pp. 16-18), She has also confirmed that she
can perform the same household activities as prior to the accident.
(Lebo dep" pg. 44, line 24 through pg. 45; line 6). As the
injuries by her admission do not prevent her from doing her pre-
accident activities, she fails to establish serious impairment of
body function. See Lalena v. Murrav., (Slip opinion), No. 93-05763-
20-2, C.P. BuckS, Dec. 1, 1995 (copy attached as Exhibit 1),
Factually, Mrs. Lalena sustained a broken foot and a laceration to
her forehead requiring stitches. The court on a Motion for summary
Judgment found that she had made a complete recovery and did not
meet the "serious impairment of body function" standard.
Wherefore, Defendant, Nancy Mumper, would request the Court
grant summary Judgment on her behalf.
C. ~anen~ .a,rious Disfiaurernent
Plaintiff Lebo had sustained a similar arm injury in 1992
resulting in a broken arm and surgery to repair the arm resulting
in a forearm scar. Indeed, by her own description, the scar was
wide and thick following that surgery.
The accident of 1996 resul ted in a break of the same arm
8
.
necessi tating surgical intervention. Following the surgery and the
removal of the internal fixation device and the completion of
cosmetic surgery, the scar on Mrs. Lebo's wrist is only 1" longer
than the original scar and pursuant to her testimony, the scar is
less apparent than the scar that she had from the 1992 accident.
(Lebo dep. pg. 44, lines 5 through 9),
There have been few cases decided interpreting the scarring
provision of the Motor Vehicle Financial ResponSibility Law.
Walsh v, Philios, (Slip Opinion) No. 95-01453-16-2, C,P,
Bucks, July 24, 1997, is a limited tort case where Plaintiff,
Michael Walsh, sustained injuries resulting in lacerations to his
right eyelid, temple and forehead requiring sutures and surgery
(copy attached as Exhibit 2). The Court examined the scars of Mr.
Walsh in open court and concluded that the scars were hardly
discernable. The Cou~t concluded that Plaintiff had not sustained
a permanent serious diSfigurement to meet the verbal standards set
by the legislature in the Motor Vehicle Financial Responsibility
Law.
The Plainti ff asserted that they produced any evidence of
scarring and has thus created a factual basis for the case to go to
the jury. The Court in Walsh disagreed stating:
Were that the situation, the Trial JUdge's role in making a
threshold determination would be eviscerated because every
9
.
plaintiff can introduce some evidence to bolster his or her
case, Instead, Dodson mandates that the Trial Judge examine
the evidence presented and make a determination whether that
evidence is sufficient, as a matter of law, to raise a
material issue of fact for a jury to decide. In fact, in
Dodson, the plaintiff presented evidence including an
affidavit with two supporting medical reports and his own
deposition testimony, which the Court found insufficient to
raise a triable issue of fact with respect to whether the
plaintiff sustained serious injury, Dodson, 445 Pa, Super. at
467, 665 A.2d at 1227, Walsh, supra. pg. 4.
The Court noted they could find no other Pennsylvania
precedent addressing scarring cases and cited Michigan's decisions
including Petaia v, Guck, 176 Mich. App. 577, 444 N.W. 2d 209
(1969) and Nelson v. Mvers, 146 Mich. App. 444, 381 N.W. 2d 407
(1963), Both cases upheld the Trial Court's determination that the
scar failed to constitute a permanent serious disfigurement.
We must recognize that the Pennsylvania Motor Vehicle
Financial Responsibility Law states that recovery is available to
a limited tort plaintiff if there is a permanent and serious
disfigurement. Serious is defined in Black's Law Dictionary as
important, weighty, monuments, grave or grave. By Mrs, Lebo's own
words, her pre-existing scar has actually improved after the second
10
.
accident surgery to repair the fracture; and the cosmetic surgery
at the scar site. (Lebo dep., pg, 16 through 18).
In Jefferson v, Hallas, (Slip Opinion) No. 94-23256, C,P.
Montgomery, August 5, 1997, a Plaintiff sustained injury in a motor
vehicle accident including a laceration of the eyelid (copy
attached as Exhibit 3), This laceration required treatment by a
plastic surgeon and development of a permanent condition known as
ptosis or a drooping of her right eyelid, Medical testimony was
presented confirming the permanency of this condition including
that it obstr.ucted one's vision and gave an unnatural appearance.
The Court ruled that there was sufficient evidence of permanent and
serious disfigurement that warranted this case going to the jury
and they affirmed the verdict reached by the jury.
When this Court compares the facts of the present case to the
two decided scarring cases in Pennsylvania, it is clear that this
case is factually similar to the Walsh decision. The scarring by
Mrs. Lebo is nearly the same scarring that existed prior to the
accident. Moreover, by her own testimony, the scarring looks better
now than it did prior to the accident.
WHEREFORE, Defendant, Nancy Mumper, would request the Court
grant Summary Judgment on her behalf.
II
ENhlblt 1
,~",h'll <!)
.
I I,')
,
"
, ,
, '
, ,
,
,
,
I"
,
"
",
,
,
,
,
, ,
I,
"
"i
. ,
",;1\t~"",";-"::r,.
, '.',"';i~','~","'''l~.
,J.",:_l, ':.'. ,.
.~:~.
''';i~''p'^ ('~%.q~~:;l-oq~.)~ ~~\",; ~"'a")":'
. ,;\ ~"'lT'l ('1 K' ^ I. '. '.'
I... ji~l..
.... ,....... ."
. ~
RIIHINRRlojl
11/30/95
IN TUB COURT OF COMMON PLIAS OP BUCKS COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
DEBRA LALJDIA
Ho. 93-05783-20-2
VII.
I
I
I
I
I
:
I
nI:C! li'Z:> ::CC 1 J :995
. .. .... - .
HBLISSA tlURRAY, CBAIlLIS S.
IIDRJlAY and IIBLBII M1IRRAr
and
LAJfR.BICB SCBBIl'l'I, JR., Ilnd
SANDRA SCIIBB'l'S
.
.
I
OPI1IIOH
Thie matter i. betore the Court purauant to Plaintiff's
appaal to the superior Court of this Court'e Order dated
September 29, 1995, which granted the Motion for Summary JUdgment
ot Defendants Schsetz, Jr, and Hurray. Tho Order diami..ed the
Complaint .gai.net said Defendant.. A timely notice ot appeal wae
tiled.
Thi. oa.. involvee olaim. for per.onal injurie. ari.ing
out of an automobile accident on July 9, 1991. Plaintiff was a
pa..engar in an automobile driven by Def.ndant Meli..a Murray,
whioh was alleqedly struck by a vehiole driven by Defendant
La~enoe Soheeta, Jr. Plaintiff brought euit al.taing nuaerou.
injuria., a. well as pain and .uffering, a. a re.ult of the
allegld n.gligenoe and aarele..ne.. of the Defendant..
Th. gravamen of Defendants' Motion for Summary JQdqment
is that Plaintiff, An A matter of law, did not suffer any
"lIeriOUI impairment of body function. from the .ccldent, .. i.
\
......
.. ~"
~/:'
;.~ ..,1.. I : .... ',"
.-'-'
- . ,,,' ,., , .,-~,. ......r~""\:",:.'" "
, .' ,.,'../".~~:l.',\.\Ji.i:'("..A:"\'
.,'. ,",,,.', .. ...'':..: .......:.:-; :':-: . )"'i'
required under her in.uranc. policy in order to recover for
noneconomic lOBuea. For the reasons Bet forth below, the Court
agre.d with that po.ition and granted D.f.ndants' Hotion for
summary Judgm.nt.
Summary Judgment is proper where the pleadings,
depo.itiona, answers to interrogatories, admis.ions of record,
and affidavits on file support the trial court'e conclusion. that
no genuine issue of material fact exist. and the moving party is
entitl.d to jud~nt a. a matter of law. Pa. R.C.P. 1035,
Atkinlon v. Bauq, 424 Pa. Super. 406, 622 A.2d 983 (1993). In
this case, the Court determined that the injuries eustained in
the acoident were only minor and clearly not s.riouI enough under
the requirements of Plaintiff's limited tort in.uranoe policy
and that .~ry judqment wa. proper.
At ~he time of the acoidlnt, Plaintiff was in.ured
under the limited tort option provided for by 75 Pa.C.S. 81705.
The limited tort option provide' that, in exchange for a lower
premium rata, an insured may waiva his Qr her right to bring .uit
for -non.conomio- los. incurred .1 a result of an accident.
"Noneaonomic. 10.s is defined in 11702 of this Act, knOWP .. the
Pennsylvania Motor Vehicle Rssponsibility Law, .1 pain and
nullering and oth.r non.oonomic detriment. Und.~ ~ha Aa~,
however, there era c.rtain I%oeptione to this general rule. One
exception, the lubject of tbil litigation, allowe recovery for
pAin and luffering, or non.oonomic 10.1.1, in c.... involving
" 8erioua
injufY' .
an action
An in.urad under the limited tort option may
for noneconomic 10.. if he or sh. e.n prove
maintain
. ....
"J' ..
" ~..:- .
.'..... .
....~. ~
d,
~..,. 4' .' ,-"......,... ".,' .' .
4,-.J. ...~;.I"i~.~\~~,tl(.....t\.'..
.J
.. " "'I. ,',.
';
.,
that I\e or IIhe has Buffered a "urionB injUry" al definad in the
Act. 75 Pa.C.S. 61705(dl. "Serioul injury" ie defined al "[a)
perlonal injury resulting in death, .arioua ~pai~eDt of a body
function or perganant serioulI diufiguremsnt." 7S Pa.C.S. 61702.
The i..ua i. whethar Plaintiff's injurie. ri.e to the l.vel of
..riouB impairment ot a bodily function.
section 1701 et .eq. was originally modeled by the
pennsylvanla Legislature after a .imilar ~chiqan .tatute,
cau.lDg our court. to turn to Hicbigan oa.e law for guidance on
thiB i.Bue. ~, DiFranco v. pickard, t27 Micb. 32, 398 ..W.2d
896 (1986). More recently, howaver, the pann.ylvania superior
Court ha. provided instruction on thi. ie.ue, most importantly in
conltruing relevant portions of the .tatuta. !!!, Murrav v.
McCanD, _ Pa. Super. _, 6SB A.2d 40t (U9S). 'rhe Court in
Hurray affi~ed tha Delaware County trial court'. deciBion that
the plaintiff in that p.~.onal injury ca.. had Dot .uffered a
seriouB impairaant of body function within the ga&Ding of the
atatute. 'rhe court agreed with the tri.l court'. determination
that the plaintiff .uffered only -minor, rather than ..riou.,
inhrfennce with her daily Ufe. - I!!!1"rav, 658 A.2d at t09. The
Nurrav Court relied upon the .tandard .at forth 1n DiFranco Y.
pickard, .upra, the leading Michigan 0... on thi. i.lue, finding
that the factore to b. aonaid.red in deteca1niDg wbether a bodily
lmpairmant ia serioue are -the extlnt of the impairment, tha
particular body function ~paired, the length of time the
impairment laDted, (And) the tr.at~ent required to correct the
impairment.- Hurray, 659 A.2d at .07. Tha Murray Court added
.,
. ... ., , " . . ~, :::". , ',,}, ..
,',. I
.'
that "any other relevAnt faator may be utilized under the
DiFrAnco deai.ion." ~.
In applying the above-cited principles of law to the
facti of thi- case, the Court reviewed the record including
Plaintiff" deposition to determine the extent of Plaintiff'.
injurie. and how they affect ber life. Tha record indicate.
that, following the accident, plaintiff complained of pain in her
head and left foot. She waa taken to the Emergency RoOll at
warminater General Hospital, whera sbe reoeived two (2) atitch..
to h.r forehead and had x-raye of her left foot. She wa. then
diacharged. ~~enty-four (24) hour. later, .he was notified by
the hospital that she Bu.tained two (2) fractures in her l.ft
foot. Plaintiff waD treated for bar injuria. for a brief period
of approximately two (2) month. b~tween JUly and september, 1991.
This treatment included physical therapy for Plaintiff'- left
foot and for stiffness in Plaintiff'. neck. Plaintiff attended
phy.ical ~herapy appro~imately two to three timea per we.k
between July 18, 1991 and 8ept~er 12, 1991. Following
September 12, 1991, plaintiff received no further tr..~t. for
Any injuries .uat.ined in the accident. Plaintiff teetified at
her depo.ition that there wa. nothing that .he could not do after
the accident that ehe did befo~e it, atating .pecifically that,
-I don't l.t it .top me frOD doing anytbinq.- (Lalena Dep. at
25.) In addition, plaintiff returned to her pre-accident, ful1-
time work Dchedule three week. after the accident. It ia
noteworthy that, in a letter dated 12/9/91 from Samuel C.
santangelo, H.D., plaintiff'S treatinq pbysician, it ia indicated
~.
....,
",
......... '.;.;.'.a~~.-"\,', '~'I'"
, . Y~l_ "~
',:-" '"
04; ..
.' .. "
.".
thAt on a vioit to tho office on 8/20/g1, the plaintiff "had no
complaint.." Thi. letter 81so describeo a .ccmplete heAling of
All fracture.,. A .complete recovery. from fracturee of the firet
and seoond toea of the left foot, and, finally, an excellent
prognods.
The plAintiff in thie caoe suffered only minor injuri..
fro. the motor vehicle accident, from which ahe wa. treated and
has made a complete recovery. At her own ~.oion, tbe injuriea
that ohe oustatned do not prevent her from doing anythin9 that
ehe did before the accident. Such injurie., in the court's
determination, do not fall within the ".erioue impairment of body
functionH stAndard set forth by the applicable atatutory and caa.
law.
Aft.r & thorough roview of tho rAcord in thi. ca.e,
including the depoeition teeti~ny of Plain~iff Debra Lalena ..
well a. the medical documentation of her treatment and recovery,
the Court detMrmined that no genuine i..us of material fact
exi.ted concerning the nature and extent of Plaintiff'. injurie.,
and that the injuria. did not riDe to the l.vel of seriou.
tmpai~nt of a bodily function. Defendante Lawrence Soheetz,
Jr. and Meli.oa Murray were, therefore, entitled to .ummary
judqment a8 a matter of law.
BT 'fB]I COmrll
~I 19th'"
DAn
R(W-..E.:.~-::
i'
,"
"
Elllllblt2
lII,rUIII@'
I
I;'
,
II,
"
,J,
"
'I
I,
,
,
,
UMIRHlajl
7/U/97
UI TRB COURT 01 COMMON PLBAS 0' BUCICS COUR'l'Y, I'BlDISYLVAHIA
CIVIL ACTIOH - LAW
KtCDBL II. WALSH and
VBIlOIIICA AIIII WALSH, h/w
: NO. 95-01453-16-2
.
.
ve.
I
I
I
I
I
I
JlICIl1l"~ &. l'BILLIPS and
R.A. PB:u.r.n-S and
'VDOIIJ:C& AIDI WALSH
OPII1IOII
Thi. matter L. before the Court on the Plaintiff.'
Motion for Poet-Trial Reli.f pureuant to .a. R.A.P. 227.1. Tbi.
Court granted Defendant.' Notion for 8umD1oU'Y Jud~nt on Narab
l!I, 1997.
The aa.. iavolvee a cl&ia for per.oDaI injury ari.ing
out of a ~tor vehicle colli.ion on February 26, 1993. The
..tter wae aalled for trial on March 19, 1997. At a conference
t..ed~tely prior to trial, defen.. Cloune.l rai..d tbe i.eue of
whether Plaintiff Michael P. W.l.b va. entitl~ to .eek non-
econamic daaag.., .inc. it va. agreed that Plaintiff had elected
the limited tort option. The i..ue had been raiead in a Modon
for 8umaary Judgment vhich remained out. tanding at the time of
trial.
Liability in thi. case ie not dilputed. Plaintiff
Micha.l P. W.leb w.e a pae.enger in a motor vehicl. operated by
?-
1
Plaintiff veronica Ann walab. Tha vehicle collided with a
vehiole operated by Defendant, Riohard A. fhillip., cauaing
plaintiff Michael P. Wal.h to luffer laoeration. about tha face.
The faat. relating to the injury vere al.o undiaputed.
The Plaintiff .uffered laceration. to hiB right eyelid, temple,
and forehead, requiring autur.. and .urgery. According to hi,
pla.tic aurgeon, the laceration to the right temple area va,
approx1mately 7 em, the fore bead 3.5 om, and tbe right upper
eyelid, 2.5 ca. The plaatic eurgeon de.cribe. the acara aa
pe~nent.
It vaa allo agreed that at the ttae of the ooll1aion,
the Plaintiff. were in.ured under the liaited tort option
provided for by the Pennaylvania Hotor vehicle rinAncial
R.eponaibility Lav ("PKVFRL"). In exchange for lowered premiums,
individual. vho make the limited tort election may not recover
for non.economio 10.... .uch .. pain and auftering except upon a
ehowing of ".eriou. injury." 75 Pa. c.s. 61705. The PMVrRL
defin.. ".eriou. injury" a. "[a] per.onal injury re,ulting in
doath, ..rioue impai,~nt of body function or permanent a.rioue
diafiqurement." 15 Pa. c.s. IJ102. In the inatant c..., the
Plaintiff allege. that be .uffered permanent ..riou.
diafigur..ent a. a re.ult of the 0011ilion, and thu., h.B aade .
.howing of ".erioue i"jury" and i. .ntitled to ..ek non-econoalc
xecovery.
Prior to trial, Defendant. filed a Motion for Summary
JudgMent contending that the superior Court'. dlc1.ion 1n Dod.on
v. Ilv.v, ~~5 ,.. Super. 419, "5 A.2d 1~~3 (1995), ..nd.tad th.t
2
the trial court make a threshold determination, a. . aatter of
law, with r..pect to whether the plAintiff .uffered a .eriou.
injury.
The Dodlon caee .stablished the appropriate procedural
standard in penn.ylvania for determining whether, a. a matter of
law, the plaintiff who has sel.cted the liaited tort option haa
auffered aerious injury. Under Dodeon, -the court mu.t determine
initially, 1) wbether tho plaintitf .e moving party ha.
.stabliabed that he or ahe suffered sorious impA~eDt of . body
function, 2) whether the defenae .e moving party haa e.t.bli.hed
that plaintiff ba. not auffered .erioul lmpairaent of a body
function, or 3) whether there remains. genuine i.sue of ..terial
feet for the jury to decide.- Yd. at 494, 665 A.2d at 1231.
Although the iaau. before the Dodaon court w.. wh.ther the
plaintiff .uffered -aerious ~pairment of . bodily function,. the
Court lpeeific.lly noted that the procedure outlined would apply
to the .tatutory atandard involving .perman.nt .eriou.
di.tlguz...nt- a. well. ~ at t8t, 665 A.2d .t 122'.
In order for the Court to aake this deteraination it
w.. n.c....ry for the Court to closely examine the Plaintiff'a
taco to ..certain whether the aeara roee to the lovel of seriou.
permanent di.figuremont. This wa. done in open Court prior to
trial. The Court concluded that tho .care were hardly
disClernible.
In the Court's view, there was no evidence that
Plaintiff euffered permanent ..riou. diatigur...nt .. intended by
the legielature when enacting the PKVFRL. In .uch a c..e, tho
,
appearance of the Plaintiff furniahea the beat evidence of
permanent and eerioue diefiqurement. At the ciae of the Court'.
oblervation, the scarl had well healed over the four yearl ainee
~he .aaiden~. After twic. clo.ely examining tbe Pl.intiff, t.ki.
Court wal 'barely able to di8cern the ecars about which Plaintiff
complained. Tbus, becaule Plaintiff failed to adduce eithsr
lufficient evidence to'e.tablish he had, indeed, auffered
permanent a.rioul injury in the form of permanent leriouI
dilfigurement, the Court granted Defendantl' Motion for Summary
Judgment and diemieeed the ca.e.
Plaintiff cont.nda the Dodaon ca.e atanda for the
propo.itlon tbat any evidence the Plaintiff introduce. i.
.ufficient to raie. a material ileue of fact luch that the ca.e
~et go to a jury. Were that the .ituation, the trial jUdge'.
role in making a threlhold determination would be evi.eerated,
because every plaintiff can introduce some evidence to bolster
hi. or her cae.. Inatead, Dodeon mandatee that the trial judge
examin. the evidence pre.ented, and mak. a dete~D&tion whether
that evidence i. suffioient, .. a mattar of law, to raile A
material illue of fact for a jury to decide. In fact, in Dod.on,
tbe plaintiff presented evidence including an affidavit with two
aupporting mediaal reporta and hi. own depolition teatimony,
which tbe court found inBufficient to raiBe a triable i..ue cf
fact with respect to whether the plaintiff euetained ..rioue
injury. Dodaon, 445 Pa, Super. at 497, 665 A.2d at 1227.
ThiB caBe appearB to preBent an iBBue of tirat
impre..ion under p.nn.ylvania lAW. Under the holding 1n Murray
.
v. McCann, 442 Pa. Supor., 36, 658 A.2d 404, 407 (1995) (balding
that becau.. Pennsylvania ~eled the NVFRL on Michigan law, the
trial court could prope~ly turn to Michigan'. body of oa.. law
for guidance) the Court reviewed Michigan oa.. law for quidance.
For example, in petaia v. Guck, 178 Mich. App. 577, 444 H.W.2d
209, 210 (1989), the trial court granted the defendant. Motion
for Summary Judq.ment, noting that he observed only a ....11,
hardly,disoernibl. ti..ue scar immsdiately below the plaintiff's
lip." The appellate court upheld that determination, balding
that a "hardly diacernibl." .oar i. not the type of injury for
which the legielature intended to allow recovery when it
e.tablished the thr..hold of permanent .eriou. di.figurement.
444 H.W.2d at 210. In Nel.on v. Hyere, 146 Hioh. App. 444, 381
H.M.2d 407, 408 (1983), the court ob.erved that the ..riou.n...
of a acar i. a matter of common knowledge and experience of the
trial bench, at leaet initially. The cou~t, in fAct, held that
this is preci.ely the eort of c... which the trial bench mu.t
review and initi.lly deoide in order to further the legi.l.tive
policy of removing c.... of IeHsor injuries fro. the court
.y.teme. Likewi.e, the Penneylvania legisl.ture .nacted the
PKVIRL in an effort to reduce litigation and the co.t. of
1nsuranc.. DOdson, tc' Pa. Super. at 494, 665 A.2d at 1231.
Plaintiff'. compl.int that the trial Court ..de. eu.
eponte determination on the thr.shold i.sue ie ~ithout merit.
prior to trial, the Defendant had filed a Motion for Summary
Judgmont on preoisely the i~auc tho Court dotermined. Thus,
under Dodson, the i..us had heen rAi.ed by a pre-tz'ial motion.
5
Pin.lly, contr.ry to PI.intiff'. ....rtion, the Court
did con.ider .11 relev.nt ovid.nce in makin~ the deterain.tion
th.t, a. a matter of law, the Pl.intiff could not pa.. the
legislative tbre.hold and e.tabli.h permanent .eriou.
disfigurement. The be.t evidence with re.paat to p.~nent
aeriou. di.figurement J. the appearance of the Plaintiff.
Photogr.ph. t.ken .hortly .fter the accident cannot eetabli.h the
.eriou,n..., nor the permanency. Four year. hay. pa..ed .inee
~he .ccident and it i. clear from the appear.noe of Plaintiff
that the lacerationa have he.led, .nd no .eriou. di.fiqureaent
r..ulted. Pl.intiff fail. to p... th. thre~hold for permanent
.eriou. di.figurement. !2!, Nel.on v. Myera, 146 Mioh. App. 444,
381 N.W.2d 407, 408 (1985) (upholding tri41 court'. deterDlnation
that plaintiff's permanent acar failed to oonatitute . permanent
aerioua diafiqure..nt). Likewi.e, the PI.intiff'. eubjective
complaint that he experienced .ome -.tinging" in one ae.r fail.
to s.tablieb .erioue injury. Dodson, 49 Pa. Super. 501, "5 A.2d
at 1235 (finding .ubjeotiv. complaint. of pain in.ufticient to
e.tabli.h .eriou. injury where the reoord .bowed no interference
with plaintiff'. daily activitie.).
rinally, Plaintiff contend. hi. .oar. bec~ aor.
pronounced in the .ummer when hi. .kin .unburn.. Plaintiff
provided no evid.nce to sub.t.ntiate that contention. Noraovar,
.uch . re.ult would appear to be .a.ily ~emedied by taking
rudiaentary and cOaDOnpl.ce preoautions 8uch a. .pplying
.un.creen. !ana7.iz v. Rounds, 153 Hloh. App. 180, 395 N.W. 278,
281 (1986) (finding no seriou. injury where pl.intiff euftered a
6
, ,
1 '
,
, '
"
,
..
,
"
. Exhibit 3
~ ""iI I(~)
, '
,
,
"
I,
d
,
;1
"
,
,
AUlI ~~ '01 11 :b3 IO-016111a062~O
fRI>>HEllAL CCHiUNJCAIl~
l'el~ ',03/07 r'141
Plllnrift". cue consisted of her own testimony, U well as the resdJDClay of her IrOIIin&
pb)'li,ilUl, filler P. Oi&nUlWlCO, D.O., and defeDdants preteIIted \be restimony of defendant,
Mark Hallas and .~ tralinS physician olthc pllimift; OwIndolyn I. Lian" M.D. After
heIrIn, aU otlhc llYldCllAl UId the dwa. by 1M ColIn, the jury JI&1ned a verdict ill favor of the
plaintift'aM agailllt defendants 1u die amount ofFl1ly.seven ThoUSUld Flw HlIDdred
($57.500.00) Dollm.
Therea&r, an Pcbnwy 24, 1991 de~...t. tiIcd Post-Trial Mouo.n.s requc&tin. either a
IIOW trial or ajudgment DOrwltUtandilll tIl, verdiet, IIld. followfna oral UJIII1\tIlt tbeteOD. said
Modam were denied in U1 Order dated April 2., 1997. 011 the SIQ1t dare, this Court emercd
another Order grw:\D8 Plahauff's Petition for DeI4)' )')l1DqeI and mold1u, the vttdic:t
llCCordiDa1y.
em May 21, I 00'7, ~f_duata filed a Notlu fI' 4rr-1 fMrn the Ordar deoyiq tbeir Pon-
Trial MOrion, and in I CODCUc Statanenl ofMmen Complained of on Appeal, raised the
followiDg iaues:
I) Wbetbcr the Trial Court ened by denyiD& defc:ndantl' request for & cIlrectod
verdict.
2) Whether the Trial Court cmd by illltructiq the jury tbat they could CODIider
compensating tIIa plainti1rfor embattlssmeru aDd huml1~OD.
3) Whether the Trial Court encd by denyiq defll1danu' request that a special
ImmOlator)' be lidded to the vcrdiot ...
4) Whether the Trial Court emcl by not a1lowin. dotendabls 10 explaUi to 1he Jury
tho plaintiff's ee1eodon of Iimhcd ron.
nl~,.,r~!l10N
1. THE TRIAL COURT PROPE.RL Y DENIED DEFENDANTS' MOnON FOR
JUDOMENT NOTWITHSTANDING THE VERDICT AS 1HERB IS
SUFPICIENT EVIDENCE TO SUSTAIN THE JURY'S VERDICT.
'''lJIl'''''L~L. ""'1'IU'U\.Alllft~
1-61~ ',04/07 f-141
^ JudKJnelU nolWitMtandillll the verdi~ may be erantcd only in eleu case. wncre,
viewing the evidence In lllilht most favorable ID the vercI1tl winner and pclUlI tlM Vlltcllcc
winner every reasonable inference. there is insufficient evidCllCO ID I~D the verdiCL P'flr
S""dJlm VI. Bruc, Sho,mak4r. 421 Pa.Supcr. 353,617 A.2d 1330, 1333 (1992). IJ1ftAntIy,1S
stipulated by the partics. pwntift' was required 10 prove that she sustaiDed a serious, permanent
disfiguzemelll in order (or her to recover Jlon-cconomic losaes. AI th, verdict plainly indl".ccs,
the jwy found tiW Plaintiff met this burden.
Upon reviewiq the record in aligbt IIlOIt tallOl1h1e to the plaiDtiff IDd srantina p1ainri1f
evay reasonable inference, dlere ill clearly sufficient IVidollce ID SUltain the jury's verdict, and
accordinllly, de{~d.nl(' Motion fot Judiment NotWlthslllldi.D& the Verdict wu proparly denied
by this Court. Specifically, evideDc:e iDdlcmns that plainri1l's injury rcsul1ed in serioua,
penuanent disfilluza:nent ilWud.ed teatimoJlY of plaintifi' as well the testimony of twO of her
rreallna phyalcilUll.
Plaintiff herself restifted lhat, as a result ot d10 .mdcnt wbieh totaIld her plcko\Jp tnlCk.
she IUSlaiIlId il\iuries to Iw left shoulder, her low baa, lIIId bel'riaht eye; Ihe also swm dw .be:
suffered from intamittent bcadlldla in addition to 101M phobia about drMn& a trlotor vehicle,
Plalntltrundcrwcnt!our mODtba of'phydc.t ~py (or bet shoulder aDd back and CQIlSulted with
a psychololi:ist with regard to her driVllla phObia. P\aimiff lI:Itiflecl tbal her mon ""OUlUU1llY
was the laceratioD to her right eyelid, which requ.iJed tile servlcea 0(. p1utic lW1eO.lI.
In . videotaped deposition whieh was pl'eSCllted to the jury. Dr. GiImmanl:o wtilled
Within . ~ason.bl. decree of medical cenainty !hat the laceration sustained in the accidellt
tawed pcrrtWICDt scamna 'CO plaintiff's eyelid, He also lUted tIw the accident caused plt.intifI
"~W ~v g, II.\J,) IV-'ll 10 I' ,',uatOV
I HIIII-lUIAL COlt1~lCAlII>>lS
T-m '.05/07 Hn
to .ufflll' from a perI'AIIIC'It c:onditiDn bDWIl U ploala. or droopllll of_ rip! ~lId. Dr. LIani.
me physician called tly defendants, slJlIlllfly leltified, vi. videollpCd depoaitloo. that 1M IICaI' OD
plaintiff's eyelid was permanent, and Ulc qreed with Or, Oiarnm.~'. ~1V1f1\1 tba1 plAintiff's
condition of ptosis wu pc:rm.anent IS will. Or, Liang further staled lhat ptosis Wi obaruct
one', vi.ion, Ii". ODe U l.IIln&NIal ~,UId affcctlbc ability to pcdDrm onc'sJob.
Based upon this ume evidence, it is cllll' thal dcfCDdanll' IfJIIID*IlI that IbiJ Court cmd
by not gmnlifll their MotiOll for I Directed Verdia mllSt I1so filjJ, A Irial court may eater.
dlrcetId vctdlet only wbco the evidMcc clearly and unambiplSly supportS ailld&1"'"'1l in
favor of movizl.a party. P."1II)ImIllQ JhDuIf R,llItioM Com ',. v.r. ~ DiIItrlct Df
Phlladl,phia.681 A.2d 1366 (PL Cmwlth. 1996). AJ 1he ellove facts bvlie-t,\ I\ICb was not the
situation iIllhc wlfant cue.
I. nIB .TRlAL COUltT PROPEn Y DENIED DEPENDANTS' MOnON FOR A
~W TJUAL AS 'mE JURY'S VERDICT WAS NOT AGAINST nm
WI!IOHT OF THE EVIJ)!!NCE.
^ Trial Coun may grant . Dew trial only wben the jUJY's verdict is so COI1tta1y to the
evidence lhal It ",h"l"V one's seuse ofjuslice." N,lJoll \1.1. HiIru. 653 A.2c1634 (1995)(c/"'"
"Is,., VI. &hult.. 5]1 PL 219, -, 641 A.JcS I," (19904); BIIT"" VI. ,lt1ItIdlIpItIII DIe. (.'0.,43'
Pa. 216, 2119. 2&S A~ 51' (1970). Notiua plelntil!'1 bIInIen of pro4lfludd.itlOll to th8
evld4nce di.cuuod above, Ill. olear ~ . jury could properly rC1Um I vcnfie\ ill p1aiDtift". Ilvor.
and that such I verdict would CC1tIinIy DOl "ahoclt ODe's sense of justice."
One IrIWIICllI made by the clet'1ftdants in thair Motion for a New TriallIId iJl1hIlDIIUd
appeal ill that !he Court _cd by !A1lnIC1In8 llle jllfY thlt, I/t""./ow ,/wi ,I.;rtljff ItM ..".
bllrd,,, of proof, ltIcy could consider Iwarc1ln, ber compensatioll for cmlluraament ad
humilialioD. Defendants maintain lha1lhere wu 110 triallCStimony 10 support that particular
"..1
Alj(j 26 '97 11 :53 70-916117206250
FRlIl-UlIAL CQ9IIICICAlIlJl5
1-61\ P,06/07 f,Ul
point for etwsc. We disagree. In addition to mcdiWlIlIlimonY Iha.t plll.it efnftll CIIIe'. eyelids
10 look a.synwelrical and IIlv.. one an uruwura.tappoarancc, plalmUr specifically '-'i6ed that
the "drooplnl aIId exIra sag ot skin in \be comer" oCher rilht eye mab ber (eel "uncJI...fnrtablc"
and worry aboUI how she's beina viewed by othm. Sud1 teStimony provides dUcct IUppOn for
Ihis Court's clw&e OD embarras5menl and h",,,jlittln!L
MOther araument rai~ by die cWen.dMu UI that Ihia Cmm Impropcrty cleAied their
requat for a special inrerroplOlY 10 be added to !he sllDdani jury vetdict &beet Sl*ifi~ly.
defendanl claims that a question should have beeA IdcIecl to the vvdict sheet ...IM"I wbelher 1he
plaintifrhad, in fact, rMt her burden o( proo(, i.e., that she S\IfI'ercd . JlOr"'."-.. MriOIll
dlstiaurelMnt. AllUpport for their lII"CUlDCIIl1hat such In iDterrogalOry was e-t1..,. defendants
cile C.nhDy 11 H"lIap RIal/)' VI, 80". JIl6 PLSupcr. 373, 563 A.2c! 114 (1919). a ease cl~'y
distinruishable frOID that at bar, In C,nllII'Y 21 H,ritap RI4Itj. !be Superior of Court of
Pennsylvania foUlld thai in )jabt o( tho fact thai the Irial judac hid JIlOvided CI1'OIICOUI
illl1rUctiOll5 10 tho Jury, it wu error tor lb. criaJ c:oun 10 cicily lhc: appcllanl'. request tor special
iAmml&lOriu "'which It given would bave ellminaled any COIlAWOIl" thU was c:rea!Id by the
jury lnstrucdClll.S.
In the iastult cue, it was DOt error for tbo Coun 10 _ dcf-d,on...' tequeQ iur a ~cial
U1terro,atory u such an intenop!ory "- nOl ~O"II')' to OlimilWe l:OntbaloD. bur woUld
merely have nSlalcd Ln ~uecllon form plaintiff'. burdcD otprool, which bur_ Wu c:mphub.cd
by dcfcndsnu' COllnte! 'Ihroulhout the trial, and which wu spoc:illc;aUy anlcuJaled by tJ\e trial
judge in his chIra. 10 the jwy,
Finally. "fclIdants claim th.II il wq .11"0r (or lhiI CO\llt not to JNllIlh ~tend.ants' counul
to inquire Inlo tIwI plaindtf'aaclccLioll ollilJl.hed 1Ort. In n!&poll.U 10 this uJUlDenl, this Cow1
.,
'.
'.
path of Mrs. Lebo thereby causing a collision. (See Plaintiff's Complaint Paragrnph
5).
3. As a result of the :Kddenl. Plaintiffs al:ege." Mrs. l.t'bo has suffe."re."d a
Galeazzi's type fracture of the right forearm whkh required Plaintiff to ulHkrgo
surgery. Plaintiffs allege that Mrs. Ll'bo has a scar on hl'r forearm whkh measures 11
em. In length, 3 mm. in width and 1.2 n1l11. in height. (S<,<, Plaintiff's Complaint
Paragraph9).
4. Plaintiffs elected the Iimite."d tort option as defil\l'd in th... Pennsylvania
Motor Vehicle Financial Responsibility Law, 75 Pa.C.S.A Section 1705(a)( I). et .wl.
(See Plaintiff's Complaint Paragraph 8). As such, Mrs. Le."bo is predude."d from
recovering any damages for pain and suffering unless she can demonstrate that she
has suffered a personal injury resulting in serious impairment of body function or
pemlanent serious distlgureme."nt.
5. Plaintiffs have been d~posed in this mattcr. and Mrs l.ebo's deposition
is attached as Exhibit A. hereto. Mrs. Lebo testilled that she is able IOdo the things
after the accident that she did before." the accident with her right arm and hand. Mrs.
Lebo is also able to perform the same household activities as she did prior to the
accident. (Exhibit A, page 44 line 2-4 through page." .15 line S).
2
..
...
..
6. Mrs. Lebo Is still employed by the same employer, and is stili performing
t,he same type of work as before the accident. (Exhibit A. pagl."s 16 thr01lgh 18),
7. In September of 1992, Mrs. Lebo was involved in a motor vehicle
accident which led to her fracturing her right arm. (Exhibit A. pagl' 5 Iilll' 5 through
page 6 line 1).
8. The September of 1992 injury required Mrs, l.ebo to undergo surgery to
have a plate and six screws inserted into her right ann, (Exhibit A, page 6 line 20
through page 7 line 3),
9. The September 1992 surgery caused Mrs, l.ebo to suffer a scar on her
right arm. The 1992 scar developed a keloid, and thus was widened and thick.
(Exhibit A, page 44 lines 1-2).
10, The scar that Mrs, l.ebo has as a result of the 1996 surgery is only one
inch longer than the original 1992 scar. (Exhibit A, page ,n line,s 15-18),
11. Following the 1996 surgery, Mrs, Lebo underwent follow up care to
monitor her healing, An x-ray taken on March 20, 1996 demonstrated satisfactory
progress. (Se( March 20, 1996 by report of Charles K. Loh, M,D" attached hereto as
Exhibit B). An x-ray taken on May 9, 1996 demonstrated. "UncomplicateEl
progressive healing of the comminuted forearm fmcture following operative
reduction and fixation. (S(( May 9, 1996 report of Rand J, Cuthbertson, M,D"
-,--.
3
"
...
...
attached hereto as Exhibit C)(emphnsis supplied). All x-ray talu'll Oil 01' about
January 9, 1997 demonstrated, "Continued anatomic positioll alld allgllment at the
distal right radial fracture site. The fracture line hlls been furtlll'r oblltl'rnted. The
position of the side plate and screw assembly is ulIl'h:lIlg~d, (S,'" JallllnlY 9, 1997
report of Barbara K. Kunkel, M.D,. attached hereto as E~hibit D),
12. Mrs, Lebo's line healing of her illjury permitted )Il'r to l'Ollsider
removing the internal fixation device from her arm, On JallllalY 14, 1997, Allan J.
Mira, M.D., Mrs. Lebo's orthopedic surgeon reported that, "Susan L.ebo was in the
office today regarding follow up Oil her refracture of till' right distal forearm of March
1996. X-rays show that she is well healed and starting to remodel. She has
excellent function of her right upper extremity with minor pulling symptoms in
the area of the fracture site and fixation," (See January 14, 1997 report of Allan J,
Mira, M,O. to William P. Graham, III, M.D., attached hereto as Exhibit E)(emphasis
supplied) .
13, Dr. Mira's office record of January 14, 1997, indicates that Mrs, Lebo's
scar is small and very slightly nonfeeling but not in any sort of noxious way. (See
office Record of Dr, Mira attached hereto as Exhibit F). Mrs, Lebo felt that the scar
was slightly more prominentthall it had been as far as the plate is concerned.
4
'.
...
..
Dr. Mira infonlled her that this was due to the fact that the soft tissues have matured
and the swelling had gone down, (S...' Exhibit F).
14. Dr. Mira then recommended to Dr. Graham that till' internall1xation
device could be removed while Dr, Graham perfonlll'd l'Osnll'tk surgt'ry upon
Plaintiff's original scar. (S.... Exhibit E),
15. Mrs, l.ebo proceeded to havc the internallhation dl'vin' removed, as
well as cosmetic surgery on her previous scar,
16. An x-ray taken following the procedure revealed, "Esscntially complete
and uncomplicated healing of a distal radial fracture, and subsequent uncomplicated
removal of the fixation plate are both documented. (See May 13, 1997 ('('port of
Rand J. Cuthbertson, M,O" attached hereto as Exhibit G),
17. The May 13, 1997 office record of Dr, Mira revealed in part, "An x-ray
taken today with AP and lateral of the forearm and it shows excellent healing.
remodeling and alignment. Flexion of her ann is good". She has full
pronation/supination, no parasthesias, numbness or limited function in any way of
her right hand, I told her that she can increase her activities as tolerated in another 5
weeks including tennis, push-ups. etc. She should do light activities of push-up in the
meantime. She has a good prognosis," (S.... Exhibit F),
s
..
",
4
18. Following the surgery to remove the intel'llnl I1xntion device, Mrs. Lebo's
present scar is actually less appar('nt than the original Sl"nr in thnt thl' tissue Is not
raised as with the original scar. (Exhibit A, page 44 lines 5-9),
19. The trial court is permitted to make thl' threshold determinat.ion of the
exist('nce of th(' s('rious impairnll'nt of bodily function, f)otl.wI/ /', J:h'~y, 44.5 Pa,Sup('r,
479.665 A.2d 1223 (1995), af/ot', gml/tt'd, __ Pa, __..' 674 A,2d 1072 (1996),
20. In determining whether a claimed impairment is "serious," the trial
court must consider the following factors: (I )the extent of the impairment; (2) the
particular bodily function impaired; (3) the length of time that the impairment
lasted; (4) the type of treatment required to correct the impairll\ent; and (5) any
other relevant faclOrs, DodJol/ at 498-501, 665 A.2d :It 1233-4,
21. There is no requirement that an injury be permanent in order to be
serious; rather, the plaintiff must establish that, for an extended period of time. the
injuri('s substantially interfer('d with his or her nonnnl activities, 1 )odwI/ at 498-50 I,
665 A.2d at 1233-4,
22. Mrs, Lebo has not suffered a serious impairmclll of bodily function in
the present matter, Mrs, Lebo suffered a fractured wrist which healed without
complication within months of the acdden!., Mrs, Lebo is able to perform all the
activities, both domestic and employment related, that she performed prior to the
6
.
1
2
3
4
5
6
7
8
9
10
11
12
13
( 14
15
16
17
18
19
20
21
22
23
24
25
MlMW!,
\Q\Kii~ , : i
.
(~{y. fL-)\\'"rl.i
~~)~l(j [
COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
SUSAN LEBO AND RONALD LEBO,
PLAINTIFF
VS
NO, 97-4980
NANCY K. MUMPER,
DEFENDANT
DEPOSITION OF: NANCY K. MUMPER
TAKEN BY: PLAINTIFF
BEFORE: SHERRY BOWES, RPR, RMR, CRR
NOTARY PUBLIC
DATE: FEBRUARY 11, 1998, 10:10 A.M.
PLACE: HANDLER & WIENER
3"19 MARKET STREET
HARRISBURG, PENNSYLVANIA
APPEARANCES:
HANDLER & WIENER
BY: ERIC J. WIENER, ESQUIRE
FOR - PLAINTIFFS
GOLDBERG, KATZMAN & SHIPMAN
BY: THOMAS E, BRENNER, ESQUIRE
FOR . DEFENDANT
ALSO PRESENT:
STEPHEN GRANOI'F
SUSAN LEBO
.
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
.
.
C
1 .
2
3
FOR PLAINTI FF
4
Nancy K. Mumper
5
6
7
8
9
10
11
12
13
( 14
15
16
17
18
19
20
21
22
23
24
25
TABLB OF CONTENTS
WITNESS
DIRECT
3
..
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
2
.
(
1
2
3
4
5
6
7
8
9
10
11
12
13
( 14
15
16
17
18
19
20
21
22
23
24
25
.~
~
3
STIPULATION
It is hereby stipulated by and between counsel
for the respective parties that reading, signing, sealing,
certification and filing are waived; and that all objections
except as to the fonl of the question are reserved to the
time of trial.
NANCY K. MUMPER, called as a witness, being
sworn, testified as follows:
DIRECT EXAMINATION.
BY MR. WIENER:
Q Miss, Mrs" Nancy, what do you prefer to be
called?
A Nancy.
Q Nancy, okay. My name is Eric Wiener. I
represent Mrs. Lebo. I'm going to ask you some questions
regarding an accident that took place on March 8th of 1996.
Have you ever had your deposition taken before?
A No,
Q I'll just give you a few ground rules. Number
one, you have to wait until I finish before you answer the
question. I may not be going where you think I am. Number
two, you have to wait, you have to answer after me, because
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
.
(
(
.
.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
"
4
she can' only take one of us down at a time, and you have to
answer verbally. She can't deal with nods and things like
that. She's busy. Okay?
A Yes.
o Any questions? Is there anything that would
impair your judgment today, are you on any medication or
anything?
A No.
o Tell us your name and address.
A Nancy Mumper, 1821 Suncrest Drive, Carlisle.
o And how long have you lived at that address?
A Thirty-three years.
Q So you're permanently at that address?
A Twenty-three, I'm sorry, 23 years. We've
been married 33.
Q By whom are you employed?
A Pennsylvania Department of Health.
Q And what do you do there?
A I'm a clerk typist 3 now. I work for the
division, the Bureau of Communicable Diseases, and I order
vaccine in to be distributed to state health centers.
Q
A
Q
A
And are you married?
Yes,
And your husband's name?
Marlin F.
GEIGER & LORIA RP.PORTING SERVICE - 1-800-222-4577
.
("
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
(
~
5
O' Do you have II valid pennsylvania driver's
license?
A Yes,
o And at the time of this incident, did you have
a valid Pennsylvania driver's license?
A Yes.
o How long have you been a driver?
A Since I was 16.
o And do you have any restrictions on your
license?
A Must wear corrective lenses.
o Do you wear contact lenses?
A Yes.
o Were you wearing your glasses at the time of
this accident?
A I was wearing contacts,
o Yo~ were wearing your corrective lenses. And
can you tell me who your eye doctor is?
A I go to Royal Optical.
o What is that?
A Royal Optical.
o And where are they?
A Carlisle.
o Is that an optometrist or is he an
ophthalmologist, do you know?
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
.
(
(
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
@~~t
6
A
o
examination?
A
o
examinat ions
A No.
o -- before the accident and to date. Do you
have a recollection of when your eyes were examined prior to
this accident in March of '96?
A No.
o Dr, Royal is in Carlisle, did you say? I'm
sorry, Where is he?
A It's Royal Optical and it's in Carlisle, the
Plaza Mall.
I don't know.
Do they prescribe lenses and do your
\'es.
Have you been anywhere else for eye
o And do you know who the doctor is?
A No.
o Did you have your lenses changed at all after
this, accident?
A No.
o And have you had your eyes examined since the
date of this accident?
A No,
o Were you wearing sunglasses at the time?
A No.
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
.
(
1
2
3
4
5
6
7
8
I 9
I 10
I 11
I 12
I
Ie 13
14
i 15
I
16
17
18
19
20
21
22
23
24
25
~'
"
U
7
o
At the time of this incident, were you taking
any medication which would affect your ability to drive?
A
No,
o
Were you taking any medication for a medicRl
condition at that time?
A
I take medication for high blood pressure.
And what is that?
o
A
Zestril.
Did you receive a traffic citation as a result
Q
of this incident?
A
No,
Q
You did not, Did you have any traffic
violations within the five years prior to this accident?
A
No.
Q
Had your driver's license ever been suspended
or revoked?
A
No,
Q
Other than this motor vehicle accident, had
you been involved in any other accidents prior to this one?
A
Repeat that.
Other than this accident, had you been
Q
involved in any prior motor vehicle accidents?
A
I've been hit behind, from somebody hitting me
from behind years ago,
Q
Were you injured?
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
.
(
(
1
2
3
4
5
6
7
a
9
10
11
12
13
14
15
16
17
1a
19
20
21
22
23
24
25
~I~~
a
A No.
Q Now, what type of vehicle were you driving on
the day of this accident?
A '92 Camara.
Q And does that have rear wheel drive?
A Yes.
Q Was that vehicle equipped with snow tires at
that time?
A
Q
A
They're all-weather tires.
Is it an automatic or a stick shift?
Automatic,
Q And a va or
A va,
Q It's a Camaro. Was this a Z2a or --
A Rally Sport,
Q Rally Sport. Prior to this accident, had you
ever had any trouble with the vehicle not handling well in
slippery conditions?
A I've driven with it in the snow and on ice
before. No,
Q And you had never experienced problems before?
A (Shakes head negatively.)
Q So you felt that the vehicle handled well in
ice and snow?
A
Yes.
.
GEIGER & LORIA REPORTING SERVICE - 1-600-222-4577
(
(
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
t!t~
10
A 8.30.
Q And what time did this accident occur?
A Around 7:30.
Q Is this a route that you traveled regularly?
A Yell.
Q As I understand it, the accident occurred on
Interstate 81; is that correct?
A Yes.
Q Now, you had just entered from on the, I guess
it's t.he 17 on-ramp; would that be correct?
A Yes.
Q You were going to proceed north on 81?
A Yes,
Q Now, just before, as you were coming up the
entrance ramp, do you know how fast you were going?
A About 10 mile an hour.
Q And as you came up the entrance or the
on-ramp, was there any traffic behind you?
A No.
Q Now, as you proc~eded on the on-ramp, did you
accelerate?
A I came to a complete stop because there was
traffic getting off,
Q Now, where did you come to a comple'te stop?
A At the top of the ramp.
GEIGER & {,ORIA REPORTING SERVICE - 1-800-222-4577
(
1
2
3
4
5
6
7
8
9
10
11.
12
13
I (
14
15
16
17
18
19
20
21
22
23
24
25
~."
"''ii'
Y.~,l
11
Q
Oleay. And you came to a complete stop and
then what did you do?
A
I waited until several 18-wheelers got off,
and I had my left signal on and gradually entered the ramp
lane to get onto the first lane of traffic, to the driving
lane of traffic.
o
Okay. And then what happened?
It started to -- the back end started to slide
A
to the left and the front slide towards the bridge wall.
o
How fast were you going at that point?
A
Ten, 15,
o
And what did you do when it started to slide?
I immediately left off the accelerator and
A
corrected to the left,
o
And then what happened?
The car started to go straight and then it
A
started to go the other way, It started to slide towards
the -- with the back going to the right then and the front
end going to the left,
0 What were the road conditions?
A Icy,
0 Was there precipitation?
A No.
Q- Now, just prior to this. as you were on the
on-ramp, did you notice whether the road conditions were
.
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
(
(
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
..
12
slippery?
A
Judging by the way the traffic flow was going,
no,
What do you mean by that?
They were moving at a decent rate of speed.
Now, the speed limit on 81 is what, 55 at that
Q
A
Q
location?
A
that time.
Q Were vehicles proceeding at 55 miles an hour
on the highway at that time?
A No, I wouldn't -- I'm not a judge of speed,
but no, I wouldn't think they would,
Q Now, the trucks that went by, do you have an
estimate of how fast they might have been going?
A They were getting off to go into Middlesex
Township.
Q Was the road slushy?
A I don't recall.
Q From the time you left your house until the
time that you made the stop on the on-ramp to Route 81, had
you noticed your rear tires spinning at any tim~?
A No.
Q Your driveway at home, is it on an incfine at
all?
Fifty-five or 65. I'm not sure what it was at
.
GEIGER Ii. LORIA REPORTING SERVICE - 1-800-222-4577
(
1
2
3
4
5
6
7
8
9
10
11
12
C 13
14
15
16
17
18
19
20
21
22
23
24
25
.
1
. I .'
14
A
Then it just started gradually going to this
direction and -- to the left, and I tried to correct to get
it to go straight again and it just...
Q
Did you reaccelerate?
No.
A
Q
So you took your foot off the accelerator, you
corrected your wheel and the vehicle stopped sliding; is
that --
A
Yes.
Q
And then it started sliding again without you
putting your foot on the brake or the accelerator?
A Well, I started to put my foot on the
accelerator. After it had straightened, I proceeded with
accelerating again, yes,
Q
So you did start to accelerate again?
A
Yes.
Q
All right. What happened when you started to
accelerate?
A
Then it started sliding the opposite
direction, to the left,
Q
Would you say that the vehicle was fishtailing
at that point?
A
Yes.
Q
Whac did you do then?
I left off the gas again and tried to apply
A
.
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
(
1
:I
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
~'"
I"",
" .,
,.":!:
Q
the brakes and just tried to keep it under control.
A
Were you able to keep it under control?
Apparently not, I started goi.ng -- I mean it
15
just -- I wound up head1ng facing the southbound lanes of
81, facing the oncoming traffic at an angle.
Now, did you see Ms. Lebo's car prior to your
Q
hitting it?
A
Q
lane?
A
Q
I saw a lot of vehicles coming my way.
You were in the driving lane, the right-hand
Yes,
Was there a vehicle in the right-hand lane, it
would have been behind you or in front of you, depending on
which way your vehicle was turned. Was there a vehicle
there in that lane?
A
There were vehicles coming up behind me and
they went around me on the right onto the ramping lane to
get around.
Q There were vehicles coming up the on-ramp
behind you?
A No, I didn't say the on-ramp.
Q On the -- okay.
A Orl 81.
Q On 8l. So while you were in that lane of
travel, you saw vehicles move to the right of you?
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
.
16
A
Yes.
Q Okay. And was this before you started to
fishtail or after or during?
A During.
Q When did you first see Ms. Lebo's vehicle?
A When it hit me, I mean I saw vehicles. I
don't know which was hers.
Q After you started to fishtail and you were in
the lane of travel, what happened? You were in the
right-hand lane of travel. What happened after that?
A It fishtailed over to the left lane of
travel, It was going -- it was between -- straddling both
lanes,
Q Okay. And did your vehicle change direction?
A Yes. It was heading south at an angle.
Q Now, as that was happening, your vehicle was
out of control, was it not, at that point?
MR, BRENNER: Object to the form of the
question,
BY MR. WIENER:
o Well, you didn't intend to go south in the
northbound lane, did you?
A No.
o And you didn't intend to go into the passing
lane in a southerly direction; is that correct?
GEIGER & WRIA REPORTING SERVICE - 1-800-222-4577
.
C'
1
2
3
4
5
6
7
8
9
10
11
12
13
( 14
15
16
17
18
19
20
21
22
23
24
25
.
17
A. Correct.
Q So would you say that your vehicle was out ot
control at that point?
A I don't I was doing my best to control it.
to get it going.
Q Were you in control of it?
A I did everything I could.
Q I understand. I understand. Were you in
control of the vehicle as it was fishtailing and changing
direction on Route 81?
A Apparently not.
Q Did you see Mrs. Lebo before your vehicle
struck hers?
A I saw vehicles coming. That's all I can say.
I don't know which one was hers. I don't know how many. I
just saw vehicles heading north on 81.
Q There was a collision between your vehicle and
hers?
A
Yes.
Q Did you see the collision before it happened.
before you actually collided?
A I saw her coming. There was nothing I could
do. I was stopped at that point, My car had stopped at
that point.
Q Now, you're saying that your vehicle was
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
.
I (
,e
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
.
18
stopped'i'
A
Q
A
Q
your vehicle?
A Yes.
Q Now, did you see her vehicle before the two
vehicles collided?
A I don't know what you mean did I see it before
we collided.
It had come to a stop, yes.
Before you had made contact with her vehicle?
Yes.
So are you saying that her vehicle went into
Q Did you see her vehicle?
A Yes.
Q You did, Did you see it moving toward you?
A Yes.
Q And your testimony here today is that you were
totally stopped at that point?
A Yes.
Q Can you tell me what damage there was to your
vehicle?
A About $3,000 damage.
Q And where was the damage?
A The front end, probably about the mid hood to
the driver's side,
Q Did you have an air bag on your vehicle?
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
.
(
'"
1
2
3
4
5
6
7
8
9
10
11
12
13
( 14
15
16
17
18
19
20
21
22
23
24
25
ff
:,1
20
slippery out there, stay in the car,
Q Did you talk to Mrs. Lebo at all?
A No.
Q How long were you stopped before you pulled
out, how long were you stopped on that on-ramp?
A
There was at least three 18-wheelers got off.
How long in terms of time would you say it
Q
would be?
A
A couple seconds, A couple minutes, rather.
When you started up again, did you look to see
Q
if there was any oncoming traffic?
Yes.
A
Q
A
Q
traffic would
vehicle?
A
Q
A
Q
A
And did you observe any oncoming traffic?
Back, at a distance back.
Can you tell me how far back the oncoming
have been when you started to move your
NO.
Was it --
I'm not good at --
How about was it a f~otball field?
I couldn't tell you. I just know there was
nothing in the ramp lan.e that I was on and that's where I
started to enter first, onto the ramping -lane,
Q
There was nothing in the ramp lane?
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
.
(
(
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
AIll1J1:i,.
.
22
the other direction, looking to your left or in the
right-hand lane would be --
A On her right.
o To her right. Was there a vehicle to her
right?
A Yes.
o And to her left there was a guardrail?
A Bridge wall.
o So she couldn't go to either the left or the
right; is that correct?
A I know that the ones that were in the right
lane, the first lane of traffic, were moving over.
o Now, was the vehicle that was to her right
just prior to the collision, had that moved over?
A I couldn't tell you_
Q You didn't see that?
A I didn't see that, no,
Q Well, when you collided with her vehicle, did
you see vehicles in the other lane at that time in front of
you?
A Which would be to her right, is that what
you're
o Yes,
A Yes, but they were going all'ound, they were
getting over ontG the ramping lane and going around.
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
.
(
1
:I
3
4
5
6
7
8
9
10
11
12
13
( 14
15
16
17
18
19
20
21
22
23
24
25
.
,
23
Q. I'm talking about, you had a collision with
her vehicle, okay. Let's talk about after the collision.
Did you look to see if there was any vehicle in the
left-hand lane or in the right-hand lane to your left?
A
NO, I didn't notice.
You were sitting there for how long before the
Q
police came?
A
Well, the first person on the scene was the
.
fire policeman. I assume that's what his title is. And he
stopped in the first lane of traffic in the right lane, I
thought he was going to slide into me.
He come up and I just -- because I didn't
think he was going to get stopped in time. I closed my
eyes, because I didn't think he was going to get stopped in
time.
Q
Why was that?
Because it was icy.
Right after the collision, did you look to see
A
Q
where other vehicles were?
A
Yes.
Q
Was there a vehicle to the right, in the
right-hand lane, facing you?
A
No,
Q
There was not?
No.
A
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
.
(
(
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
~~
25
A . No.
a Who did you speak to, if you remember?
A No, I don't recall.
a Did your vehicle have a turbo charger on it?
A I have no idea what a turbo charger is.
a Do you know whether it was considered a
high-performance vehicle?
A No, I don't know that.
a Had you driven this car in the ice and snow
before this day?
A Yes.
a And had you ever had any problems with the
vehicle fishtailing?
A No. Only like if I was stuck on snow in my
driveway trying to back out when North Middleton hadn't
plowed our street.
a Did you ever have a situation where you
accelerated and the vehicle spun or fishtailed prior to this
accident?
A No.
a And how long had you had the vehicle prior to
this accident?
A I bought it brand new,
a So you had driven it for four years or 80?
A Yes.
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
(
1
2
3
4
5
6
7
8
9
10
11
12
13
( 14
15
16
17
18
19
20
21
22
23
24
25
~iiih
27
A .
Yes,
Did you ever have any discussions at all with
o
Mrs. Lebo?
A No.
o Were you aware of what her injuries were on
the day of th~ accident?
A When we were both escorted back to the
ambulance, she had mentioned that she thought her wrist was
broken and it was the same one that had been broken in a
prior accident.
o Did you hear her say that?
A Yes.
o So you didn't talk to her, but you did hear
her speak?
A To the ambulance crew, yes.
o Was there any discussion at that time as to
how the accident occurred?
A No.
Q Did you listen to her make any statements
regarding how the accident occurred?
A No.
o Now, do you have any idea or do you have any
recollection of how fast you observed Mrs, Lebo's vehicle
traveling just prior to impact?
A No.
.
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
(
1
2
3
4
5
6
7
8
9
10
11
12
( 13
14
15
16
17
18
19
20
21
22
23
24
25
28
Q .
A
Q
A
Q
going?
A
Q
A
Did you see her vehicle just prior to impact?
I saw vehicles prior to the impact, yes.
Did you see her vehicle?
It was the one that we collided with, yes.
Were you able to determine how fast she was
No.
Was she braking?
I could not tell you.
MR, WIENER: That's all I have.
MR. BRENNER: I have no questions of
Mrs. Mumper today.
(The deposition was concluded at 10.51 a,m.l
.
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
"
~~ ,I" (f~
, ,
, ,
"
"
, I " ,
,
,
"
ElIhlbit B
. ,
"
,
,
"
"
'I,
,J
"1
, ,
"
"
"
':'
"
"
"
'I,
,
II
,I
,I
ElChlbltC
"""lllP@
" ,
, I
, ,
"
I,
I
,
"''''Ill@
"
'i'
'I
"
"
, ,
, \
i'l
.
"
'il',
II
"
,
, '
ElIhlbllO
,
;, '
I.
I'..,
11I",,11I (~
;'1
,
,
I,
, '
, ,
"
.';
;1) ,
I
,
"
'd'
"
exhibit E
"
'; ,
.',
IllNtJll F
()
e
v
OFFICE RECORD
ALLAN J. MIRA, M.D.
.
Namo 1.F.80. SUSA"
---008 :--Uf9!6T------
'14/97 OFFICE VISIT: Thls patient is seen in follow up now 10 months since ORH' o( the
right rndiua. She hUB cxcultent fUIIKl.!' uf motion. cxcullunt nppcnrance. She h[\8
some pulling volarly or dorsally at times with extremes of dorsHlexion, palmar
flexion or with grip or weight uearing, She thinks her IIr1P is 0 uit weaker than
normal such os wringing out n washct'oth but lIenerally very good. She is
comfortaule and very (unctional,
i
1/13/97
I
I
I
X-rays were reviewed from Ritzman's dated 1/9/97. Those were AP & lateral x-rays
of the forearm and compared with the old films show remodeling of the callus and
virtually complete obliteration of the fracture line on AP & lateral views. There
is no evidence of loosening of the plate or screws or angulation o( any nort.
The patient's scar is small and very slightly nonfeeling hut not in any sort of
noxious way. She feels that it is slightly more prominent than it had been as far
as the plate is concerned and i told her that is due to the fact that the soft
Hesues have matured and swelUng haR 1I0ne down.
I told her that I feel that the plate can come out in March or later and that is
something we want to definitely do. Or. Graham would be involved in the plate
removal from the standpoint of the soft tissues and I told her that he could just
ss well remove the plate as well, which is perfectly fine with me. I would like
to see her about 2 weeks after that procedure Kor ..!In x-.ray. and evaluation of
healing and function with recommendations. She was very - pleased with that. She
will be proceeding to see Or. Graham in the near future and making plans with
taking her x-rays aloug with her for his information. AJM/clc
OFFICE VISIT: This patient is seen now 3 weeks post plate removol by Dr, Graham
with plessics closure of her wound which looks excellent At this time, An x-ray
was taken today with AP And lateral of the forearm and it shows excellent healing,
remodeling :lAd alignment, flexion of her arm is good, She feels that her grip
is stronger. Dorsiflexion is excellent at 80'. Palmar flexion Is 70' VR. 90'
on the other side. She hae full pronation/eupination, no paresthesiaa, numbness
or l1n.ited function in any way of her right hand, I told her that she can
increase her activities as tolerated in another 5 weeks including tennis, push-
ups, etc,., She should "do light activities of push-up In the meant ime. She has
a good prognosis. Discharge. Raturn prn. AJM/kss
.
.
,
,
.
,
.....
-
"
II"
'"
,.
,I'
,"
, ,
, ,
(") '.0 st\
, e;,
r"1: :;;1
~' , ',;; I,~
, \ , .,.... "~g
, , " ", I. "
, " '~
, (,1~' ,:,.,10.
'~!', , , '!1~ "If'""
, "-.'-' ,', ,,\
.'-' 'i-I
, , - '...I
,,__1 ~\; .. -\
"
,; ',I'l ;~
~. ",
"
"
",,0'
"
"
,'-"
..
-
"
-
C",,,,.,'."I'I"t
-
".,--
"
~'l
,,),'1
"'t,I'
, "
'-
.-...--'t..........--.-.-.-."- ~",..
..._~~.H ._."'_.--~.,,,.,
I",'
,
I. .'
,I' ,
Lt"
",'.
I',
"
,',I'
,
"
,,'
-:1
'"
'1');',4'1
.ill
'. li~'i :,t.: ',J:i,,!,:(I/:!:,':
'1), t'
',/ \ \ _,II ,'XI, ~:\,I!-'<~r,ll:),j~'::li'_:J?;
" . -~ . ,Il,!,,_--,':'hlr~~:,
,I :'," :.',"Ii!f ;;!iL'h
" q ~ I;; ~'I, :-' -j J ' f,j' (,i;.-;
, I ' ",,'. .r:_,'-tJ.'''ll~'''ll'''_'' ;
, ,';Ii\'-'-j,.- ' ,,1\ r' ,1\
",'I' .',/i", f r.-{ " ,;,;(,;: )t/',_: i_;'f;~~:~!-'
\, I ""\, I ';-'1; .yL)L-}!cll
d f i -' J- 1 . '':J) ;<, ';I! 1'!d~ll,"JI\",'- H6tJi'!.i
" ;,j -/' "I, I ,"'. 'I..t' L \\'t'''lllti:Y,:'~:
: I; ::,\ :'I'~ ~~,:\".u,', ',', ':,"i,,~~' ":,,, !\\:'~ 'J},: ~~~t~,,~~~t;~ t,i :{f: \-~:~ji~:
,- _ - - _ :,1: -_It'l,hJ;rl_,--I,J't,i~lD-t_!
" I' "Ii:,!t.','ll'll;j.k",:,r,,<',\'.':~'~.
",,,' (, ",r,_;'. ",' I I '11,1 II
I_'.',j-""P:'-i/l ,_,,;t-'\-/'/\I_il_/l
'-/:1,'-._'-;" -,-,,.. !,,,ll'l" 1f : /ci-,. t,,;-,j
J l ," _ >,"_11,-,<',;:,\,- ~;;I;,j~,;,!X,'\t,~'t.~ \i~_~-:,t,_~ !i.-},:J,:i
:," ~,::,,:{,: '1,'1" ,"" I." \;,,/,1,,,,,
, ,'" I"~ < J' II ,'. 11__\'~',~:~::~;':;~~:;~\~~l~l\~,r}{:~~~:t
"I" /'i" I' ,,~,<~',V!~';'.}'r,~;'\\~il~llt~,,~~:P!
.I, II.', ' ' \ ]I '1\ ' , ~:, .;'ll;'~I,h"'i~'
;1, ,I ,I'\''-\!I I "I!" ,'iWlf ~/\I,:;~'J!/~IJ~l".\1
t' ,', ..~, t ~ 11'.' \m' ~<;II
11 i,.',:': ',:1_: \1, lblJJjllhd\[{~,
!i,_'[ ,":;' ',', \"Hi II ) !Jill, ~"1,lJ A dfj'rt:!j
, '! ";" ,- I , ,1:,\ ," '!~i! \" ~f~l ..
I' Ji-'"il- i"':('-I,, ",~,~\I:-,\'i 1'">i'l,I",,~j.: \11
':':" '. :',:,~::);,:,,~;:<::;\;::i,;:,:\:;?j,I),:'l~
,f; \ .' ", ",,II, I, ,'. ;t",'lH.I;~i.lli 'Ji"~_I.I,
,,' "'.; t,~;,\:, ':/i,:i:}:t;'fN/;;'\:}!;\.,
,t' J )!, '('",\' ~ J j ,
" .,,(, L.t ""i ,f' It)'II' J ,I.
',\1, ~ <, '1~_:'lrl. '"1'.~ "i~'I>}t 'r'_'~'!'" \1
1';'- .1 "'.' "11,' '1,-,,1,," .. '-' ~ ,,' III
;u; '_~ 'U/\i_-"/I,';---1.1,',_'(jj;,,-I;f:
.l, "I jll' !Ir", - '_ ,__'" :1,,, \)-..'-
',; '-: :'j, i'" ~:; ,_! ' '1,: ~,:i.? !;;:-,-:'i;-.,~_'t(_~!
,,1 ' I !'. I'.I~",-- " 1""-1-,1-\ V"",-", -",-,
" ", :" .,:: ;~~f,f1~W~
'\,; I, ,',' ;';'~' :-';,:,"_1"'!,,',.,, .'Ii"'-" - H- ,'\~', ."el.
, I' ' ,I ~ , --, i ' , _"" ~'I' - ~ j '~I ,- -/ {- "
:,,' ~,", '..,::}i:"~"}J,r:,,::,'~;~'\,,/
I I ,,_.,_.\,1_\,,'_1 ""fI-
''I ".- 'I \.,~t_~_ II. "~Ii i'-; -I,
, '-,1: ;', ~'fJ,\, :;)~-;i("_i;,~!~?,
'I . ,I 't_' i'~- -"~i:'if \ ';,
'If" : ..: I 'f ':-//f'i~~'~~':~
','I I,!' '-:', "Il ,;t,!,,~-irll,"-I'~!,"
'i~'~( :'11' ' -J
1,\ i' ';_1'-' \,;~)';':'/!~'::K;?':
" ','i" l"l"-'-"!~j'/' "("I'
" \' I ,- :. ,"r; : _ "~_; ,_, ~,~' ,;;.,
1,1!I'"
.1",
',I:"
"
"
'1'
;,1'
'.
::,?;/;}:"lj
"It.
, "
"
,"
,
'I
, ,
,
,
',11,1
",
'I""!!'
'/1'1\'"
"
1\'
,1,'11
"'1
"
'I"
, , "I
"
"
,
'I,
,I
,';
',:1,
l. .1 "i"
,,'
,'t,
'0'11
'.1,
, '
, ,
"
"
'I"j,
':(
\'
I /"
,
il.
"
, '
",
, I
'I"~
;l!
1,1.',' J'
":r.
" II',
. ~! " I, ,iI ,
"
"
"
-'"
"
,_,' l'
I"," ,I,
"
~ I
I,
\ ~
iI'
I
1.'(
,:
"] I
. ,
'I
,.
"
,,:1/
~' ., '
"
"
I'
,
'./ 'i
,1,""\
, '
""
,\ ',;,
i"",.
i,'\ ,
"
"
'I
,,':.),
:1':,"
,'"~
,ii,'
,,'I
, ,
t_,
"
:',.-'
1
,(,I
\"',,
,r
I,
','
,If"
"Ii
"
,
, '
,
["i
,
,I,
"
'I',
,
I",
"
,
i',
,'I "
,"
,-"
.,
:'
"I',
"~I'
"
,
.
"
'"
",
"
"I'
'"
Iii
','11-'
. , d
J,',
.
,
,
"I,
"1,1
\,
,"":\
" I
, "
,
"
'I',
,
II"
"
,.1"
I'
i_'
.,
I;,','
,
",
',,;
"
"
"
"
',I
"I
I
t',/
, ~ ' .
,
,
r ~ .
'H,
" ,I
:,',
,,!-',I,
, ,
~ ,j
,\
, ,
,
"
"I,
'.
"
.r,'
','
'I'
, "',
','
~ ~':i ,,',
',;,',"
"1'\
.'J ,_,~ ~,: I '; l,
"
",
"
"
,
'I'
",-
,
,
"
"
"
,
"
,:;
,,'
,,'
"
.j'
,';','!
,
:1
'I Ii
"
, 1"
"'"
"/:':
"
"II'
,
"
\-;
1''<'-''''
"
1, I"
';i
,
'r,1
,,,
,
L:,'
"
"I j
"
,
.
'I"
,I}I.
'/'
I','
"
t'~
,I'
, ,
, <~" '
"
"
I
,I'
"
:-.
,
"
",
'I'j.
,
,",
",
,
"
,
'"
, ,
!
,j,
c'
"~I
,',<
"
\,
'.'\
"Ii
'I
"
,
"
,I,
',1,-
~;;' J\ ,ll ".
"'.
,
~
,-'
.~~'t",_
(y)
(.','.1 "'-Cf!!'T
r' 'I' ,_. ';"T"t":\I
,,' d,
(,., '''rn I
": . :.'
. 'I, ~ 7
" 'I' (
'.
;,. :',1
,I,.i'
;';,
(i~
I 6V
.L/c) .
t!f
'-1jf((J
"
,'I,
'i,
Pi )l7tL
C 3) d- ; 3,
1\ j(r!r-1S
"'-,
/ 'j',
, ,
..
L...w O"'ICCS
HANDL.ER AND WIENER
.3 I 0 MA"IC~T STlIt' IT
II"() lox 11?7
11""lItlS."""O, 11"'" I.' I 08
1717; Z3e-2CiOO
SUSAN LEBO AND RONALD IN THE COURT OF COMMON PLEAS
LEBO, HER HUSBAND, I CUMBERLAND COUNT'l, PENNS'lLVANIA
Plaintifts I 4q fo (lL:~t
. 97-
.
vs. No.
NANC'l K. MUMPER, CIVIL ACTION - LAW
Detendant I JUR'l TRIAL DEMANDED
NOTIel!
YOU HAVE BEEN SUED IN COURT. If you wish to detend
against the claim set forth in the following pages, you must take
action within twenty (20) days atter this Complaint and Notice is
served, by entering a written appearance personally or by attorney
and filing in writing with the Court your defense or objections to
the claim set forth against you. 'Iou are warned that it you tail
to do so the case may proceed without you and judgement may be
entered against you by the Court without further notice for any
money claimed in the Complaint or for any other claim or relief
requested by the Plaintiff. 'Iou may lose money or property or
other rights important to you.
'IOU SHOULD TAKE THIS PAPER TO 'lOUR l~W'lER AT ONCE. IF
'IOU DO NOT HAVE A LAW'lER OR CANNOT AFFORD ONE, GO 'ro OR TJ::LEPHONE
THE OFFICE SET FORTH BELOW TO FIND OUT WHERE 'IOU CAN GET LEGAL
HELP.
Court Administrator
4th Fl., Cumberland County Courthouse
Carlisle, PA 17013
7l7-240~6200
5. On aforesaid date, at approximately 7135 a,m" Plaintiff
Susan Lebo was travelLing in said automobile in a northerly
direction on, and in the left-hand lane of, State Route 81 in
Middlesex Township, Cumberland County, Pennsylvania, at or about
Exit 17, when Defendant Nancy K. Mumper, while attempting to enter
onto State Route 81 at the interchange of Exit 17, lost control of
her automobile and slide through the right-hand lane of State Route
81 and thereby travelled into the path of Plaintiff, resulting in
a head-on collision,
6, At the time of the collision herein described, Plaintiff
Susan Lebo was traveling at a speed that was in compliance with the
posted speed limit and appropriate for the road conditions and,
prior to impact, was lawfully and safely within the left-hand lane
of State Route 81.
7. Prior to the date of the above-mentioned collision, USF&G
Insurance issued a policy of motor vehicle insurance to Plaintiff
Susan Lebo, and said policy was in effect on March 8, 1996.
8. Plaintiff Susan Lebo elected the limited tort option
enumerated in the Pennsylvania Motor Vehicle Financial
Responsibility Law, 75 !la. Cons. Stat. S1705(a) (1), ~ GS;l, as
amended. However, pursuant to Act 6 of the Pennsylvania Motor
Vehicle Financial Responsibility Law, 75 Pa. Cons. Stat, 51701, ~
2
~, as amended, Plaintiff is entitled to seek damages as though
she had elected the full tort alternative due to the fact that she
sustained serious bodily injuries as a result of the collision
described herein,
9. Plaintiff's serious bodily injuries, which she sustained
as a result of the automobile collision described herein, include,
but are not limited to, a Galeazzi's type fracture of the right
forearm, which subsequently necessitated two surgeries: 1) an open
reduction and internal fixation of the right forearm by means of a
metallic plate and six metallic screws; and 2) an open reduction to
remove such metallic plate and six screws. As a result of said
surgeries, a permanent scar on the back of ClaiMant's forearm now
exists--it measures 11 em. in length, 3 mm, in width, and 1-2 mm.
in height and is red in contrast to the surrounding skin--and her
forearm is highly susceptible to refracturing due to the holes left
by the removal of the six metallic screws.
COUNT I
NEGLIGENCE
P14intiff. Su.an Lebo v. Defendant Nancy X. Mumner
10, The allegations contained in paragraphs 1-9 are
incorporated herein by reference as though set. forth at. length.
3
-
..
,"-"
-
~Gply
-
1,:1"
I",
I ,I'
,
'II'
i
,
I.',
:1"
'.
1..,1'.''-' ,.,
, '! I,it, 1".";-1 ;:I:I~lr\''''1
","',.\ ',j'_ IL'll'-"ji~I!J}I;;.;'!~
, . " c'_I,I"(\\I" ';'J~g
I' to, .",,1
P, '. ,I ~'!,r'l'" ,!L~"'~x
. \'. I \ I " IIJ~ \ 11i;!;.1
I I ':\'.. '.J',~,):I'!( /._~~I~!il:fl~
, ,':' ,"::\I\\:!~':!',i::,::;~I:
.' t{I', 'i,l"-., :--1'1 ~iil
\,;j , -, ~- , '" "\'_,1 "! ,i,' '1"1
" \, ".\' . ",1,'-,', .~I'{~t
-,'1. -'\\Jl(j,.,I',r-'I"r-I~r!;itl'j'
'--''',L;';-I.';-/;''('_:'')' __.,-,,;J_\,~
,I ~_ _".- ,j:: ',_,t{1 '~IU ~~hi'~
," 'I "'j-:,,'-q;'/!,"'l~-I-,;!Ni(!1 !
1''- iI','; ",-' __l'j\;"l.f pfl.~
vI' ,,-1,, >-,(:J:~q!,t;'L:~;;'_''>' .. ,
I r I', I, :'1,. -t,?<:.:'i:J,;;j~~f'/
'. ':,!,::,1:'1/1:-,1{,;:1 ;;,,;L;t;':")l~f[:.'.
,-,' 1.1' -nll,I'! \ll!'t,l'_I.""_)
, ? <'I~ I, ~!:;,>t< ,:J;/.: ,::,>)-)!'_\,! \-I;;'~~\;:j
"j 'rjlf'i 1--' "'- I,,' \-1 ',t' l,q" _'i~l(l \
,l'r' :. 'i:;'~"I,\,:,'.,-:,I\_~:'J~::~:\I,~l:J
'\ '1h'-' 1-'.'-' :"'""~' Ij--'!ln~j
',f:',_Ji,,,'-y,,-;'':;I- -J,-,r':dA"
'-1' '~' j' .,1,:;: ,; /,-- !J;,,~I".1 J.'l~\i~~ \\\
"_[:' """ 'i),,:-'!,t:#~\,t,(ft'
,r'" " " __ ,'~ ,!\ - ,1,," <lllr,: \\,_'~,
, '_ -',I' "" ~ 'L ,I,!,',' ._;~J..;",;-\I]
I. p ,,("",1 1./ .t' ( I, ;ql'(~;j-,"i1,f
,J,:..__ ""1"1"",-"", 11'1
li'" ',/ [' <"t;,",~;:l./i:('i -)3..
),l'i,'." -"_''-'I':I''.t'i,,''lj''il' i'
, ,ff"" --: ,\ !: :' - i~'ii'''\/ , i -
, ';'.,::;;it,;:,:;f.',::!{iKt
, I 1 \ . \' \ 1, ~
'(( 'd " II'.' I' ~'I } ~1
, ,'I' ;.)1'\/11'1,1"\
, )':1' I,Alll':r,,,,,q
:d' t ,I', ',''l_-,\Y.!!-;~,~t,1~;'
,l ;',\"\r' );(I,.~'t:""l_~
, ,\1 ,'I' ',t:~" 'Jj),J'"ctl-:>
,: i '.-, "~-l,' ~~,' "'1'-\1 ,:'-1.
'I ",' I 1;\1'(",- ,}?\ II:"'\'} ~~'1i,.L.':
, ' 1\, .:' ,;,-,:,:",t'-,i!,:;-~,,;:r:'(;::!~~YI;
, ,I:' " , "j,~:>I{II~ ~
"I., l "', '1;' ',\h'\iJ~
j 't 1'1" I) ,; ..I
, I", IJ ltl'J'\'TI/;r1l"
" 1 II' " 'I 'Ii~ J,'I 'lj
( ,i J '(:~. I' -' .,/' \
I'll ,",,' ' ~l I \(11 oI"~' I,' 11'1
. .\' 11 !',tU'II;~lf: ': \'1,1\.\
, j I' , 1\.1", I ! "'l Il 'it; l,
" \ 'L' 1," '1' ".;Jf;111, '~k\'",
lei: :' q , I,' 1111.,,-, .. 1: ,r,\ ~ "
I, I I"t "~_I _"t,. 1.'1~'"
1 j' .'r- i\ \ II ,,:\~-'-,~li;;"'-,\'. 1;":
'!' ' ' ,__1 ,f!", '1 '1.1(' t"fl '~~
" ",::'(.,' ~ :'.( :'::~~,:!;}i:d~i
:"1',1,:" /1_,f", '!" _I : .-1,,',1 i
I'" , ,.:';I"'_I'\{;;;-'l;o;)-!
1 " , "\"'I''?,;r I':\,II,_,,~\~J
II, '->_,-,-,'""rll';',I:
,\ 1" _',l'!'-'(';
,,:i. ,jl" ;"i'_:'r;l'!,:",':;:.:';-:'t
.1 Ii " ,. I" i' 'i~
, '~ ,,~.j I: J I,' , Jil'
.;:,',1 ':!"'- ,'11;.":,,:'
,t ;\'l~' ,\ . j ,,;t~', I}\~
:! ' " '-, ", 0'" - }, ~: 'I: '.-'
1.-,' 1',-"'f'!tV};;
'I,,/~, <' ,1-;' ',-, ~,I\,~\.I~--:'i'-\~~'
"','-;'< ',I ';.-qj1:'f.~\;tl(~li
.",'" ,.. ,,_J,',-I',f1ti''''111
___, ,',-'J _ -,,""
'i'~'i'l)I\-/
, '.' ..',\~ :V~t~:JI
r'-i;!!
"
"
~._~"';'_l-"."''''''''''''''''-'-'''-''~~' ..".......
,. '
,~....ri,._......I'......____.~..__J"'------;,
, .
, ,'I,
,,11.:-1,:
, ,
'!'
" ,
.,
,
';
JIL
"
<1,',1;
"
, I
'.
,"
, ,
,"
I"
,
"
,I
"I I'
,"','/
, ,
\'
,
,
,', I,
,
,I,":,;{: "
'I ,'),'-,';'
I, ,,0',
"\.'1
,I,ll
"
"
','
~! 'II
L"I
"
."
I' ;,
,
"
\"
~ !
,
, ','t"
, !
1\ i.,
, ,
"',I"
',It: ':,'
",
'.-, ~ \ )
"
,
'/',-,,'
'I-I'
",I',fi!!;
"
"
"
"f
','
",
,I
,-,'
.
,"
, '
,',
"
"
" ,
!
,,"1,'
"
"
,',,!
,'1,;'1
,I
\:':;.,
,r,,1
'I
"
,
I'
,
.
"I' ,
I,"
; \, ~
.,,--,
,J,:
'iI!
,~ '
.',
"
\,
,"-
,I: ,"
d,,"
,
" '
",I.
I'i'
'"
, ,
"
"
,
',I'!.
,'1,,1',1 If I'
,
,
'"
"
,
\ '"
'"
rl",
;;,'i.r'."I:\:
'1,"1;'/:',,',1;
'1,1'
-.:\ '""
P" '-I'
"f,i
','
, .
'I'
~ l, ' " I,
I
"
"
'1',1
'-I.,'"
...' '
i
I'
"
"
",Il
,
;/
"
II",
",I
"
,'"
"
! 1- ~
'I!
1 / 1- ~.
'II, ,_1:,:,(1,
i'" ! i, !.' {~ :
'II,
, ,
,
'",
'I
'"
.
't .'11
'.
.
,
',t,
',!' .,.-/'
"
..,'
':,/
1";:,',)":'-'
"I,,'
'"
, "
,
, ,
"
,
I,:"
"
"
,';',1
:",F'
r! ,.-, ~,l~ ',l~,:\f"_,,, J'-,
',:\'.'r ,jI f,_,'.',,'_-:
'I l.""i;' :','
,.' I ~ ,I,: , ( ..., ,
\' -,,' '11"1
,I. "I'
,
;_J
'I'
:';, ,'OJ
1"',\.\,
"
,
,
'I'
,'1
',I,
"
:i,I'\,
( II
,-, "I'
\' ',\
"'I
,',
'\'1
','I 'i
, ,
i.'
';1',
"
,
'I';,
'I'
lo
. ,
"/ ,'II,
''-',:("",1,
.',:,1,'
'I"
",
"
i",j,
"I'
"
'f'l
, ,',
j'/- I'"
1"Il'" 'I
' j:d'l:
,h-,_t
,
"I
.'
,
I'
"
.'
'I"
.
.'1
,
',,'
11,
,
,"
,
"
, '
,.'
'I',
'1:/;
'1_;,
,
.
,1"-
I,
"
",
,,1-"','/10""1'
"
'.,,'
, ,
"I
"
"
" ,1\ j
L":
',,"'-
.i"
"
"
,
I " . ,-',' ~
'"
I'~ ,",
" '
'.
.
."
"
"
,',:',",
;, ; ~I: .;,
!:-',r,-;:',:\,'
I.,,'
',' I
:,'
"
I,,'"
,',
,:!I
;',
j,
I,;
,
"
'ii,
'j')
"
"
,:;
!:"
,'1 'I.'
"
,,.,
,
',1 !
"
,',t
1':,',1
I','
"
"
.
',;
:!
"II
"
,,'
.f'
','
':J' _,'I'
;'1;,_1,
"':1::1,,'
"
, ,
"
1
"
'Il,
,.
.1,;'"
,
'1"('
, ,
" '11
,1',1,
'I"
",
i"
"I,
i-r,
.'
I:'
,
,
"
'i,\
,
, ,
.\1'
01'1
I'r,'
,.1
1-;"
"
','
,,"
,-, 'j,';'\
, "
,-I; '):,~lii.t.--,;.I,t,tl,,;.i. '(;',.;tl;~~~~t~'i~_'
,',
,
~
,-"
,
FILm OFFICE
C;r: '[: ,,' I . ,', I ",\')'rA ny
'I " ,).,1'" 11"'-1\
97 H~V 2~ Pil 2: !is
CUI.!'" " ",", N'ry
lV,i.:.I':!iL':.." LUU I
PENWiA'/I\,\J:i\
'I
'\ I
"
',I
,I
I,
",
LAW O"lcca
I'
HANDLER AND WIENER
318 ~"''''lCn SrlltlET
",0. 80.11; I 177
HAllIlIt,..UIIlO. ,..... I '1 108
17171 2311-ZOO0
I,
",
d, ';1'
,
,I
".
SUSAN LEBO and RONALD LEBO,
her hUlband,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
NO. 97.4980 CIVIL
CIVIL ACTION. LAW
JURY TRIAL DEMANDED
P1aintif"
VI.
NANCY K. MUMPER,
Defendant
REPLY TO NEW MAnER
AND NOW coma Plaintiffs, by and through their counlel, and replla al follows:
20. It il denied that Plaintiff was negligent at all, thil averment il a conclullon of
law to which no relponse is necessary in any event.
21. The averment of Paragraph 21 are conclulionl of law to which no relponse
il deemed necalary. Said averm$O" are denied and proof demanded at
trial thereof.
22. The overmen" of Paragraph 22 are conclusionl of low to which no response
il deemed necessary, Said avermen" are denied and proof demanded at
trial thereof. Additionally, Plaintiffl aver that her damaga ore above the
limited tort threshold.
23. It II denied that the accident of March 8, 1996, wal unavoidable, To the
contrary, it wal approximately ca...sed by Defendant's negligence.
24. Denied. It il specifically denied that PlaintiHs' injuries were unrelated to lhe
occident. To the contrary, her injuriel claimed were directly related to the
accident.
Relpectfully lubmilled,
HANDL~
~
By :::- it
~r~.Ji 18046
319 Market Street
Harrisburg, PA 17108
(717) 238.2000
Allorney for PlaintiHs
7. Denied. Mter reasonable investigation, the answering Defendant Is
without knowledge or information sufl1c1entto foml a belief as to the truth of this
paragraph and proof thereof is demanded.
8. Denied. Mter reasonable investigation, the answering Defendant Is
without knowledge or information sufficient to form a belief as to the truth of this
paragraph and proof thereof is demanded.
9. Denied, Mter reasonable investigation. the answering Defendant is
without knowledge or information sufficient to form a belief as to the truth of this
paragraph and proof thereof is demanded.
COUNT I
10. The answers to Paragraphs 1-9 are incorporated herein by reference.
11. Denied. It is denied that the accident was the result of any negligence
or recklessness of Defendant Mumper. As to the remainder of this paragraph and the
subparagraphs, they are denied pursuant to Pa. R.C.P. 1029(e). In further response,
they set forth a series of legal conclusions to which no response is necessary.
12. Denied, It is denied that Defendant Mumper was negligent or reckless
in the operation of the motor vehicle, As to the remainder of the paragraph. the
answering Dtfendant is without knowledge or information sufficient to form a belief
as to the truth of this paragraph and proof thereof is demanded.
2
13, Denied. It is denied that Defendant Mumper was negligent or reckless
in the operation of the motor vehicle. AJ to the remainder of the paragraph, the
answering Defendant is without knowiedge or information sufficient to form a belief
as to the truth of this paragraph and proof thereof is demanded.
14, Denied. It is denied that Defendant Mumper was negligent or reckless
in the operation of the motor vehicle. AJ to the remainder of the paragraph. the
answering Defendant is without knowledge or inform:llion sufficient to form a belief
as to the truth of this paragraph and proof thereof is demanded.
15. Denied. It is denied that Defendant Mumper was negligent or reckless
in the operation of the motor vehicle. AJ to the remainder of the paragraph. the
answering Defendant is without knowledge or information sufficient to form a belief
as to the truth of this paragraph and proof thereof is demanded.
WHEREFORE, Defendant, Nancy K Mumper, requests that Count I of
Plaintiffs' Complaint be dismissed with prejudice.
COUNT II
} 6. The answers to Paragraphs 1.15 are incorporated herein by reference.
17. It is denied that Defendant, Nancy Mumper, was negligent. AJ to the
remainder of the paragraph, Defendant, after reasonable investigation, is without
J
knowledge or information sufficient to form a belief as to the truth of this paragraph
and proof thereof is demanded.
18. It is denied that Defendant, Nancy Mumper, was negligent. AJ to the
remainder of the paragraph, Defendant, after reasonable investigation, is without
knowledge or information sufficient to form a belief as to the truth of this paragraph
and proof thereof is demanded.
19. It is denied that Defendant, Nancy Mumper, was negligent. As to the
remainder of the paragraph, Defendant, after reasonable investigation, is without
knowledge or information sufficient to form a belief as to the truth of this paragraph
and proof thereof is demanded.
WHEREFORE, Defendant, Nancy K Mumper, requests that Count II of the
Plaintiffs' Complaint be dismissed with prejudice,
lS~W MATIER
20. This accident arose as a result of the comparative negligence of Plaintiff,
Susan Lebo.
21. This accident arose as a result of the assumption of risk of Susan Lebo in
the operation of her motor vehicle.
22. Plaintiffs' claims for non-economic loss and pain and suffering are
precluded as the Lebos had a limited tort policy and there was not a serious lnjwy.
4
.'
.--,"
-
,.
..
-
DepIJ5itiOtJ
-
c,
"
, ,
"
,_........,_.,,~~.U,...,.,'" ......\I.~
" ;,' I
>'J,'~.
I '
'It'.;;"'i
,',
"'! '
, :,.':: ',':"~~;";:!::)im
'I, -'llp;'j-,[ll~t\"l
I -' \ ,j t' ,~' - ,,~[ 1 ~-i :, \ ,'. .;
, ",J'" '__'-'_'.j1([; '-";-~\--'i)
.\;,'.1,;- ;-;', ,;-if:\,\\;;.;/t\~!
, :i".,I,'fY'J -'';111,\ ,1,1.1-'_'
,1'1, I ',.';,' d :\J~'\'!I'.'I51~:;':;.n~HTi
"1 ';' ,;'.: ;:L':;',,!)~-~,;';':~~~~M:
'Xl;r;l~J"-~ ?J:~ 1\~i''1;urPl
1',,; I" - , '" ,',: '.11:-;' -'i'], It,,l\Iti-;\!:~~~
".,'j, ,,', '/,,-.';_,,;i(,;-,<;",t
'J ,I ' 'I lO't" . -,1,\,1. ,lit.!
:"',). .",1, ',':'-,',"I",'.'"I;f
, . ,~l' i ,l, I)' . ',' " I
, -(,~ -, 1\ ,,[ ,'I .... \ "lit: ,J '.!
IJ ( I '. ,lit d "k',
, I I' ir 't l~ jl" !
'I C "~, \~~I';ll(t'tr. 1\\1
1/1 (1)"','Jll1 1<14",
j, '\ \'I',I~'\" ~"J~
' " I"~!'"~ rLIf',
'1'11. " ,r' ) ~II ,1'\':/ ''t{l'\'} II
'I " . :'I'/,;.."",II/I'lr./'\J.'!J.'
, ,j, ,II,{,j{) f l' ':(1~1}
"!\'t' "~~\' '{!lri.'.~4J
, C !,' ,,:1' ~"l~.\ef.
1'1, I' "'. l'l'lr,rv",'
, , I; I r' f'll I' 'fif! \,,';,1/
,i l_ ",'~_ '__)'~i;,~.'rlc~Y':lll,
tit I '" 1.'_;' ',-".t,(""VI,')i
/,/ /, i:~' ~i".;'-",_'ii"!,})(:)(Cl ~,,;
, .. -'! t" I.', " l! !:' ,I -_ ,; L~ IJ I \
j - __I, _' -, - J ), k_ _J ',~. "( ;lf1i
i I _f F' ~ ' '!;\:'\:""-.!:'l;,~-i"tJ :,:
!' "1''/'' ',' ~ -':':'I'\.rf': '1:a)~\ ~-"i i,1 ~Y.'~i
,'I I f i '-1_'\ -,', FI',; \"!':"l':;':-~'"
I ',: :/11/1.' --!':"l,-;({Jf;'/-lI~,.b:,'tt;.j
1." ,1'11 " <, " ':1 "li!,,,VI1tl!\1!i:~{r'i'
t" ,j C,',\,,l"/:i '(r,ii "'~;~'\:j1"".l'~itl;!,
,I "" \" '" "_ ,,-, - '" l. t )\1, It,~~
, ,;' ":-i\;'.';,'f';"lr'(~\'\'i.\.ftji)I')
I_I _,' I-PI"'I""""._'!'-)"'-"
,_ I(m!"'_' I', -f"f-d-
,!,~' ;;,,: '-. "i' ,{:, 1;,~::\'!;::?I~,',l-,: JiJ "I;~'
I,l, - . " I' I ~ - ,\', f, ft- '/"':'1"1,,1,.; ',"" .
,I. 11"_,1'_: -_-I'I":\'lr'l!il
", '. 1;"!"\"-1 :,""")('-J',..N,r.
"~,I _:' 11-1 ,1-;:.,\, -,;I~;~ !!'-l-:~~f,,~~;
",;,' '-, I, '",',--, ! 11'--,',--,,-, . - ,~ .
I;, j ]! _,_ ,~'"\ ';.' ~ ,I, _' -! :, l! ;".1-1)1,1
" i, ;'1''-'' ", -,-., ,j' -1;1,(1 ',lt~Y'-
'\'i -r "J! ,\ ~\I ':d~,~lllt\\~",'ff,l:
, ,~, ;i~:);.; ftr;":~iC'" \',
\' (',";I,'U';,\:_lr;',
'" 'I ("',<i:, :'~~:"it: I;:},:
',/; :'}:~;:~:\i,~,';;"~~~I:i;',,, ,{l'.,('
"
Ii ':'\-':;_'k_I,!:'\\~li
iI.' 'fr'.It,-,(I,
i" 1::\.'!;:!,;(,Y:ii;;;:
\'1 I, " I', I", I)J,II\l:\~t~
": ":, , ,~I~i,::::",I\~,~.,::';:~'(~W
i-~' di'" i',~'l.' ) i I)",>,!,t,,'if,
, I , ' ',I , " "'j' I ~;. d Il :.- II
,f', j ,I' ~ :~!{Hf:-t~,l,~1
,t ',/1 ~'IJi',
II,,' 'ltd'
, I, ,,, j.' "/'-":':~/.!ki - ,
"I"(o>f"
",'j,l\,
y., I --rfJC,
"illI:
"
r,;
,I:
" ' I,
.
'~"""""_~~_.""_;'t~..._-....."...,-,..~.,.
,
" '_,r> .,_ ~__...... '-,".~" .l,~.....,;,_,~ 'I' ,a, j,_. .~.'
"
"
, .
"
.
;";',,,'
/' I
i ',"
1:/ ,,"
I" ,
,II r
I
"
"
'i'
.
"
,
''',
Ii' ,
"~to
'"
,','
"
,
"
J~ '
"
il..
"
,
I,
"
I': \1--':',1
(,/'
I" I'
"
"
'.
I
""
I,
,
'" "
"1',,/
'I
! ',I
II
'-,'
:1' :
I
i,'
,
,
,
,1' ,/,'"
ii,
01'
',-'I
",,'
,
.."
'-.,,'
'F lj
,
""
"
"
"~I
"
..'
"
"
I
,-'-.
,: '
""".
'--,",
,
-I, ':~ Iq
,J,:
, ~, ,,'
",
, I:
"
,1-,
1-'
il.
i_I
I"
':,'
,
"
"
,
,
, '
,
, ,
I,',
illl
, I
"
I
'"
"
, '
I
"
,
'I'
',',
,
, ,
" ,
1';1:'
"
, '
'"
I
,_,I
" .
Ii,',
',/1'-;
'1
'i,
, ~ ' , ' 11
!
"
,-"
/"1
\:'-',"
II"
.
;,
"I'
, "
,.
, '
1,,1;..',-:1"
, ,I'
",It.
!'
1'1:11 I,
,',
,I,' "1'
"
"il
,
I' ](,
'I"
'.::"\3,
;'
, .'
};-,',,: ,',
_, :,,;(,,1111,\
l,'.,l ',11;':'1"
!I'
,
,
i\,
"
""I'
"
,
,\,
,Ii
\, '1-',
"
1,_'1
,
i'
I:
I,
I'
"j
I' '!,' i,l,
1~ I ,\:; _ , ," ,1, "
" ".-.I',;lj'!I''-'
I y' I " ,;
:' L ~I:I,I , ,,'
'; ""1'/('
'1,1 ,
"
'I'
.
"
",
I,
"
"
I'
'I"
. ',j'
,
"
1,1
'I"
.-,:
,',1
!, 'I
'.",
i'
,j"
"',;-1,"",
"',
J'; ,;,1
"
,"
, ,- ~
\,' ,
".,
"I
il'
,'I'
"
,,1
,'""1/
I
.,
I',
"
:'/
"
,
I"l:
iI'
".
'ii,
',,'
,
1,1,'
,
"
.1,,"
"
1\: '
"
','
"
"
. '.
..
,
"
"',
'\1'
;',
,,'
",1:
,
, '
"
",
'\JI,
'"
/,
,"
f_'"!'
'~ .j
'/1, 1--"
",-"
'(1
,
"
"
, ,
"
"
,'i I',
,
"i'
",
'I .
'" i ~ .-'
",
,I
",il
'~H ':,
'/'1
"
'"
"
,
,
I,
,
,.
,,-,
"
,
"
"
, ,:1\,'(']
'1
I
I,
'I
~", "l' I I
I'"
",
,'I,J:I
1,./
,
.",
,
,,',',(
,
'I',',
I"
',,','-
I'
, '
l,t'l
",1
"
"
,,'
,I"~
I'"
,II
'" '"
'''I
I,'
"
,,':1
,
'i ;,If
"
",.",
I
'1'"
",'I'
',1
1,1
"~'of
';,'
'I,'
/2""
..
I
;1 ,I
',I
,
I,f ii'
,
"
'.'
"
',.-....-..-
:,j
,
,
,
,'-:,
",
'"
,-'
',-,,-,-, . .
~ 1 '
"
"
,.
"
~
, ,
i,')
I -j,
, ,
, :
I,
1 "1
i!
.:
,,'
I'
,
"
Ii;
.
'"
1'1
, ,
. ,
I
R ,~ IJ
CO -',-,
-,- t:':)
.,.[C ,I
tJ~11/ [.) ,::.1"1
~:J,.1 -I C'.
, , 'n
",...r~, 1'>', " '-'
<,., ".'
"'-:, , ,J.,
;::.{;" I J
i.~~; (~; -:n -1-,
. ',; .:~J
'"l J
'ELJ ~t ,~ ) rt J
. ~c,; .;~}
><'[ :..~
'''1 ~
,-.; 'V
,._, "
1
2
3
4
5
6
7
8
9
10
11
12
\
. 13
i
14
15
16
17
18
19
20
21
22
23
24
25
COURT OF COMMON PLEAS
CUMBERLAND COUNTY. pENNSYLVANIA
SUSAN LEBO AND RONALD LEBO,
PLAINTIFF
(') ", "
NO. 97-4980 ~J "
,-"
.,,, , I
, , ... '1
I"
,ill
.' ,
"
",:
.., ;
,
".J "tl
i
" :
,....
VS
NANCY K, MUMPER.
DEFENDANT
DEPOSITION OF: SUSAN M. LEBO
, TAKEN BY: DEFENDANT
BEFORE: SHERRY BOWES. RPR. RMR, CRR
NO'rARY pUBLIC
DATE: FEBRUARY 11, 1998. 10:55 A,M,
pLACE: HANDLER & WIENER
319 MARKET STREET
HARRISBURG, PENNSYLVANIA
APPEARANCES:
HANDLER & WIENER
BY: ERIC J, WIENER, ESQUIRE
FOR - PLAINTIFFS
GOLDBERG. KATZMAN & SHIPMAN
BY: THOMAS E. BRENNER. ESQUIRE
FOR - DEFENDANT
ALSO PRESENT:
STEPHEN GRANOFF
NANCY K. MUMPER
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
3
1 STIPULATION
2 It is hereby stipulated by and between counsel
3 for the respective parties that reading, signing, sealing,
4 certification and filing are waived; and that all objections
5 except as to the form of the question are reserved to the
6 time of trial,
7
e SUSAN M, LEBO, called as a witness, being
9 sworn, testified as follows:
10
11 DIRECT EXAMINATION
12
13 BY MR. BRENNER:
14 0 Could you state your name, please, for the
15 record.
16 A Susan Melissa Lebo.
17 0 Susan, my name is Tom Brenner. We met before
18 we're starting here today. I'm the attorney representing
19 Nancy Mumper in this lawsuit filed in Cumberland County.
20 I'm going to ask you some questions today about your
21 background, medical history, and about this accident.
22 You have provided through your attorney
23 ce,rtain infOl'mation, so it may seem that I'm doing bits and
24 pieces of things. I'm not going to waste your time by going
25 over things that I think are clear from some records I've
GEIGER & LORIA REPORTING SERVICE - 1-600-222-4577
4
1 received, but I may ask you some questions that seem like
2 just a nitpicky detail because I didn't understand a
3 particular record, So I'll jump around a little bit, but
4 I'll try and organize it and move it through in certain
5 blocks so I don't confuse you,
6 The same directions apply that worked with the
7 earlier deposition. If you don't understand a question, ask
8 me to repeat it, I don't think we're going to be overly
9 long, but if you want to take a break at some point, just
10 give us a high sign and we'll take a break.
11 If you want to stop and talk to r~r. Wiener at
12 some point, you're entitled to do that and we'll accommodate
13 you on that. Keep your answers oral so they can be heard by
14 the court reporter and we'll be fine. Understand the
15 directions?
16 A Yes.
17 Q I always like it when people nod thei r head at
18 that point. Your address, present address is what?
19 A 2844 Ritner Highway, Carlisle.
20 Q That was the same address you had at the time
21 of this accident back in 1996; is that correct?
22 A That is correct.
23 Q Are you married?
24 A Yes,
25 Q Your husband's first name is Ronald?
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
5
A
Yes.
o How many children do you have?
A Two.
o I'm going to jump to your medical history for
a moment. I understand you were involved in an injury
creating situation to your right arm or right wrist that
predated this accident; is that correct?
A Yes.
o Tell us a little bit about that, please. When
was it, what happened?
A It was September of 1992. I was going through
a divorce and it was Saturday morning, I was going to the
cleaners to pick up laundry, And I believe it was at the
intersection of Willow and I'm not sure what the cross
street was.
I was making a left-hand turn. There's a red
light there, and it was on yellow. And the traffic that's
coming towards me, there's a curve on that road. And I was
turning on the yellow light and a car coming around the
curve had the green light and I did not see that.
o And there was a collision of the vehicles
then?
A
o
accident?
Yes.
And what injuries did you sustain in that
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
6
1 A I fractured MY right forearm,
2 Q Now, I know you had Bome medical work with
3 Bome doctors, as I understand it, Specifically, what bone
4 did you fracture, if you know?
5 A My radius.
6 Q Radius. Prior to this accident in '92, had
7 you ever sl\stained any injuries to either your right
8 forearm, the radius area, or the wrist?
9 A Never.
10 Q Any sports injuries, anything back to high
11 school or anything like that where you'd injured that area
12 of your body?
13 A When I was in fourth grade, I broke my right
14 wrist in a sledding accident.
15 Q Any other time in your life that you can
16 recall an injury to either your right wrist or right
17 forearm? We've got sledding in the fourth grade and we've
18 got this 1992 accident. Anything else before this accident?
19 A No.
20 Q Tell me about the medical treatment you
21 received and your recovery from the 1992 break of your
22 radius, What did they have to do for you, how did it go in
23 terms of recovery?
24 A I was directly shipped to Carlisle Hospital,
25 where they performed x- rays and immediately pushed me right
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
,
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
7
into surgery, put a plate in my arm with I believe six
screws. That's the only way you can fix a radius that's
broken in half,
Q And that's the condition at that time, it
actually broke --
A Yes. It was a complete fracture.
Q How had that happened in the auto accident,
had you struck it on something or what had caused the break?
The air bag,
Air bag?
Yes.
Wh~re was your arm when the air bag deployed?
At 2 o'clock. I was turning left. So it was
A
Q
A
Q
A
right there,
Q
arm then?
A
Q
surgery?
A
Q
And the deployment of the air bag struck ycur
That is correct.
Did you have physical therapy after the 1992
No.
Did the plate and screws remain in your arm
after that surgery?
A Yes.
Q In 1996, when you were involved in the
accident we're going to talk about in a little bit, did you
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
1
2
3
4
5
6
7
8
9
10
11
12
13
I
, 14
15
16
17
18
19
20
21
22
23
24
25
8
still have that plate and screws in your arm?
A Yes.
Q In terms of recovery from the 1992 surgery,
were there any limitatiorlls placed on what you could or could
not do with your right arm?
A No. The only thing that was told to me, if I
ever broke my arm again, it would break off at the end of my
plate, the weakest part, which is exactly what happened.
Q In terms of activities following the' 92
surgery, any recreational activities that you engaged in
where you would use your arms, tennis, anything at all in
terms of recreational activities?
A Our family is avidly involved in horses. So
we ride horses. We are outside people. So I'm an outdoors
type of person and involved in many sports.
Q Did you ride horses subsequent to the recovery
from your arm injury in '92?
A Yes.
Q Did you tend to horses after that injury?
A Yes.
Q And that's one of those terms, everybody
thinks tend to horses means different things. Did you groom
horses after that?
A Yes.
Q How about clean up after that, do stall or
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
9
1 barn work?
2 A Yes.
3 Q Do you have horses at your property?
4 A Yes.
5 0 How many horses?
6 A Sixteen.
7 Q It sounds like a daily chore. Prior to the
8 accident in '96, what role would you play in the maintenance
9 of the horses on a day-to-day basis?
10 A Only in the summertime.
11 Q Who would do the winter care for the horses?
12 A My father-in-law.
13 Q All right. So in the warmer weather, what
14 would be your role on a day-to-day basis in terms of horse
15 care?
16 A Grooming and walking.
17 Q Now, wi th that many horses, do other people
18 board horses at this property, or are they all owned by
.19 you? What's the situation?
20 A My father and -- or my father-in-law and
21 husband sulky race. So they're all their horses.
22 Q In terms of working out or training the
23 horses, do you do anything?
24 A Just training. And only when we have like
25 three going out at the same time, then I will train.
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
1
2
3
4,
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
10
Q
horses?
DO you get on a sulky and ride behind the
Yes.
Did you do that from the time 1992 through
A
Q
1996?
A Yes.
Q Have you done that since 1996?
A Yes.
Q And in doing that, do you have the reins for
the horses when you're in the sulky in each hand?
A Yes.
Q In terms of the trainJ.ng, do you use a whip or
any type of device to direct the horse other than the reins?
A No.
Q Do you have a little track type area that you
train the horses on?
A
house,
Q
Yes, we have a quarter mile track behind our
And when you are training a horse for the
sulky type racing, how long do you have a particular horse
out on the track? Is it a short time or do you have them
out there for what length of time?
A Usually no more than 15 minutes.
0 And in terms of getting a horse ready to go
out in the track, attaching the sulky and the reins and the
GEIGER f. LORIA REPORTING SERVICE - I-BOO-222-4~77
12
1 envision riding with a saddle on horseback. Have you ridden
2 horses in that fashion since 1996?
3 A No.
4 0 Of the 16 horses, do you ride or do other
5 family members ride any of those horses other than in the
6 sulky situation?
7 A We put our son on some of the calmer ones on
8 their backs, but as far as classic riding, no.
9 0 Most of the horses are used with the sulky
10 buggy?
11 A Yes,
12 0 I think I misunderstood that. When you spoke
13 of riding horses before, you were sulky riding at that point
14 also?
15 A Yes.
16 0 Other than the horses, which sound like a
17 full-time activity, any other leisure or recreational
18 activities that you're currently involved in?
19 A Other than a lot of swimming and just outdoor
20 activities.
21 0 Can you give me some examples of what you mean
22 by outdoor activities, things that you and family have done
23 over the last two, three years?
24 A Tennis and bowling and softball, and I throw
25 baseball with my son.
.....i',.
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
13
o Are you ri.ght-handed or left?
A Right-handed.
o Now, your son, and I know I've got it here
someplace, Jesse is now what, about ten?
Nine.
Nine. Is he involved in sports?
Yes.
Is he a baseball player?
Yes.
Do you coach sports at all or help out with
A
0
A
0
A
0
teams?
A
Q
to time?
A
0
A
0
No, no.
But you do throw the ball with him from time
Uh-huh.
Yes?
Yes. I'm sorry,
That's all right. You mentioned softball. Do
you play softball?
A I used to.
o When did you stop playing softball?
A 1988.
o You mentioned tennis. Do you still play
tennis?
A
Yes,
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
14
Q How often do you play tennis?
A A couple times a year.
Q How about bowling, you mentioned bowling. How
often do you do that?
A A couple times a year.
Q Are you in any bowling leagues at all?
A No.
Q Are you in any type of sporting activity
presently that you do on a regular basis, whether being
involved with a team or a league of any sort?
A No.
Q You mentioned Jesse played baseball, Do you
help in any fashion with any other organized sport as a
coach, an assistant, anything of that sort, with any other
sport that ~e might be involved in?
A No,
Q How about home activities, who at the present
time does the cooking at your house?
A Me,
Q Grocery shopping?
A I do.
Q Laundry?
A I do.
Q' Vacuuming?
A I do.
GEIGER & LORI~ REPORTING SERVICE - 1-800-222-4577
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
,,,/
15
o At this point, I'd say doesn't your husband do
anything, but I won't say that. How about maintaining the
area around the house, gardening or shrubbery or lawn work,
who does that?
A He mainly does the outside work,
o How large is your property?
A Our house sits on two and a half acres, but we
have about 40.
o And the other acreage is used for the horses?
A Yes.
Q What type of car do yo~ drive presently?
A A 1992 Honda Accord.
o Is that an automatic or a stick shift?
A It's an automatic.
o And that's the car you drive regularly?
A Yes.
o At the time of the accident that we're going
to talk about shortly, you were driving a 1990 Toyota
Celica, according to the police reports, Does that sound
right?
A Yes.
o Was that a stick or an automatic transmission?
A Stick shift.
Q Between 1992, then, and the accident in '96,
did you sustain any other injuries to your right arm or
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
16
1 right wrist?
2 A No.
3 Q When was the last time you'd seen a physician
4 regarding your right forearm prior to the accident in March
5 of '96?
6 A I would say the beginning of 1993 was
7 probably he had me back like at a six-month type of
8 checkup. So I would say probably the beginning of 1993 or
9 March or something like that.
10 Q I know in your record, in some of the medical
11 records we've seen an indication that as you work with a
12 medical group sometimes you get a little complimentary
13 medical care or evaluation.
14 Did any of the doctors that you work with
15 examine your arm or do anything at all for your right arm
16
17
18
19
20
21
22 A No.
23 Q Employment history, you work with Ore.
24 McMillen and Magargle in Camp Hill; is that right?
25 A Yes.
between the time you stopped seeing the doctor who had done
the surgery in Carlisle in '93 through the time of this
accident in '96?
A No.
Q Were you taking any pain medication or
anything at all for your right arm prior to March of 1996?
GEIGER & LORIA REPORTING SERVICE - 1-800..222-4577
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
~
17
Q
A
0
A
0
A
on the market.
How long have you worked with them?
Seventeen years.
And what is your present position with them?
I'm a research nurse.
What is a research nurse?
We do clinical drug trials, drugs that are not
o Any other duties?
A Previously, before October of this year, I was
pretty much handling the -- I was the office manager and
everything, but we got so busy in research that I otopped
that part of my job and just mainly do research now.
o Your education, as I recall, you went to
Central Penn Business School; is that correct?
A
o
A
o
A
o
that?
A
o
A
Yes.
Do you have a degree from them?
Yes.
What was the degree you got from Central Penn?
Associate.
Was there a particular specialty area with
Medical adsistant.
Any other education beyond Central Penn?
Just several courses at HACC and credited
that sort of thing.
courses,
GEIGER & LORIA REPORTING SERVICE - 1-800-222..4577
1
2
3
4
5
6
7
8
9
10
11
12
" 13
14
15
16
17
18
19
20
21
22
23
24
25
...,"..,'
18
o No further degrees?
A No.
Q With the clinical drug trials, are you trained
by a particular pharmaceutical manufacturer before you
participate in a trial as to what the product is and side
effects and things to look for?
A Yes.
o These are what, seminar type situations?
A Yes.
Q Other than the work with the doctors' office
and the horse training/raising, any other business type
activities you're involved in?
No.
What is your current rate of pay with McMillen
A
0
and Magargle?
A
Q
A
Q.
A
Q
This past year I made 40,000.
That would have been '97?
Uh-huh.
Yes?
Yes.
Do you have an annual salary or are you paid
an hourly rate?
A My annual salary is 20,000. Depending on how
much research we do depends on the extra amount that I
receive.
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
"
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
2S
.
'-'
19
Q In '96 then. this accident is in March of '96,
do you recall what your annual salary was in March of '96?
A Usually it's about 30,000, between 30 and 34.
Q And this would be a combination of a salary
from them plus moneys generated from the research work?
A Correct.
Q Did you receive compensation for lost time
from work from your insurance carrier following the accident
in March of '96?
A No.
Q How much time did you miss? I know that was a
question I had asked in some documents and I wasn't sure of
the answer when I reviewed what information I received. Do
you remember how much time you missed after the accident?
A The actual time that I had off work because of
the accident was -- I believe the accident occurred like on
a Thursday or a Friday.
Q The police report says Friday.
A Okay. I just basically had my surgery and I
was back to work on Monday. I had taken several half days
for doctor's appointments and things like that.
Q Do you have any cumulative total in your mind
as to how much time you missed from work?
A I see whenever I had figured it out, I
think it came to maybe like eight days or something with my
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
1
2
3
4
5
6
7
8
9
10
11
12
13
14
lS
16
17
18
19
20
21
22
23
24
2S
;
"'-.11'
20
appointments and all that.
Q And that's putting half days together, you
have a total of eight days?
A Yes, things like that.
0 Did you determine a rate of pay, 1 ike how much
you lost per day as a result of this?
A No.
0 In terms of compensation, do you get a weekly
or biweekly check from the medical practice as your salary?
A
Q
A
Yes.
How are you paid for that research work?
Right now we're working on percentages of
total grants.
Q And does that come as separate compensation
for you, like a certain time of the year they say here's --
A Yes. I usually get two bonus checks a year.
o And how is that bonus computed, to your
knowledge?
A As I said previously, it's basically a
percentage of we try and work it around 10 percent of our
total grant per patient, depending on how many patients we
have and that sort of thing.
o And in terms of the money that you get for
that, that's then some component of that 10 percent or
whatever?
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
1
2
3
4
5
6
7
8
9
10
11
12
13
) 14
15
16
17
18
19
20
21
22
23
24
2S
21
It's -- 10 percent is a component of the total
A
grant.
o Okay. So if you're working with a particular
patient, you might get 10 percent of the money of the grant
that's paid with regard to that patient?
A Correct.
o
And that money is paid at, you said twice a
year?
A Correct.
o And grant funds come into the office
periodically, and those are the funds that are used to be
distributed to the persons that have worked with that
particular patient?
A Correct.
o Do you keep hours with regard to each patient,
some type of time sheet or the like to show how much actual
time you work with each patient?
A Nothing on paper, no.
o Obviously, you have to record information
about how the patient is doing on medications, keep records
in that fashion; is that correct?
A That is correct.
Q But if you spend five minutes dealing with a
person one week and a half hour the next week, there's no
time differentiation noted?
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
22
1 A No.
2 Q Do you have a recollection of the accident?
3 A Yes.
4 Q Let's walk you through it. where were you
5 going, where had you been?
6 A I was coming from the baby-sitters, had just
7 dropped off my youngest son, and I was on my way to pick up
8 dry ice for my research, my specimens.
9 Q Where were you headed to pick up the dry ice?
10 A On Wertzville Road,
11 Q You were traveling north on Interstate 81?
12 A Yes,
13 Q The Toyota that you were operating, is that a
14 vehicle that you regularly drove at that point?
15 A Yes.
16 Q Had you encountered any inclement weather that
17 morning from the time that you had started to drive through
18 the time of the accident?
19 A Yes.
20 Q Tell me what you recall about the weather.
21 A Traffic was moving very slowly on 81, It was
22 slippy.
23 Q Did you adjust your driving that morning
24 because of the slippy road conditions?
25 A Yes.
--,../'
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
1
2
3
4
5
6
7
8
9
10
11
12
13
.,
14
15
16
17
18
19
20
21
22
23
24
25
...,)
23
Q Do you remember your speed, general speed as
you were traveling on 81?
A Thirty to 35 miles an hour.
Q And this is probably significantly slower than
you normally travel on 81?
A Yes.
Q Was it precipitating, anything falling from
the sky prior to the time of the accident?
A That I don't recall.
Q Had you noticed on 81 any particular areas of
the roadway that seemed to be worse than others as you
traveled on 81?
A I do remember seeing a car off in the gully
between the York Street exit and Middlesex.
Q How about the road conditions themselves, do
you recall any areas of the roadway as you traveled on 81
that seemed to be different in terms of the road conditions
than others?
A No.
o Where had you entered onto 81?
A At the Plainfield exit, exit 12.
Q As you entered on the entry ramp at
Plainfield, had you noticed if there was any slipperiness
about that entry ramp?
A No.
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
24
1 Q There are a number of bridges and overpasses
2 on 81 between Plainfield and the site of this accident. Had
3 you noticed any difference in the road conditions when you
4 had crossed over any of the bridges or overpasses as you
5 traveled on 81?
6 A No.
7 Q Had you skid or slid at all on Interstate 81
8 as you traveled prior to the time of the motor vehicle
9 accident?
10 A That day?
11 0 Yes.
12 A No.
13 Q Had you had to brake for other traffic as you
14 traveled on Interstate 81 that morning and noticed the road
15 conditions made it more difficult when you were braking that
16 day?
17 A Yes.
18 Q What can you tell me about the situation you
19 encountered as you applied your brakes that morning?
20 A Usually when there's ice oJ:.' precipitation out,
21 whenever I leave my house I usually test my brakes to see
22 how the road conditions are. And when r got on the Ritner
23 Highway, I noticed that it was slippy, because I had --
24 there's a red light coming down to 465 where you turn to go
25 on Interstate 81, and you have to come down to a red light.
__I
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
1
2
3
4
5
6
7
8
9
10
11
12
13
I
14
15
16
17
18
19
20
21
22
23
24
25
.,,-,.1
25
And usually coming up to that red light I'll pump my brakes
or something to see if it's slippy, and it was slippy that
day.
Q When you got on 81 and were traveling from
Plainfield towards the site of the accident, had ycu had
occasion to have to stop or slow down and apply your brakes
that you noticed it was slippy on 81 that morning?
A I probably did.
o Do you recall any specific instance of that?
A I don't recall any specific instance on that.
o Was anyone with you in the car that morning?
A No.
Q Were you due to pick up the dry ice and be at
work by any particular time?
A No.
Q The police report suggests the accident was
7: 30 to 7: 35. Was there a time that you were trying to get
to the facility to get the dry ice?
A No. I just told him that I would be there
probably around 8, something like that.
o Had you talked with the individual with the
dry ice that morning?
A No.
Q This arrangement was made on some --
A The previous day. He - - this is - - he would
GEIGER & LORIA REPORTING SERVICE - 1-800-222"4577
,"-,
1
2
3
4
5
6
7
8
9
10
11
12
... 13
,
I
14
15
16
17
18
19
20
21
22
23
24
25
-)
26
leave it on his front porch and so I could pick it up any
time.
Q All right. As you approached exit 17, you
were here when Mrs. Mumper testified, She recalled that
there was some truck traffic exiting off of 81, taking the
loop, the ramp to go down and get on I think Route 11 is
what you get on there off of 81. Do you recall seeing
vehicles exiting at exit 17?
A Yes.
o She indicates she was driving a Chevrolet
Camaro. Do you recall seeing her waiting to get onto the
highway?
A Yes.
o Why don't you take it from there and in your
own words recollect what you recall about what you saw and
the occurrence of the accident.
A I was in the left-hand lane going north. Upon
coming to the on-ramp of exit 17, I remember seeing a red, a
rust colored Camaro coming up the ramp and fishtailing up
the ramp. Before she reached 81, traffic was moving very
slowly.
When I seen the Camaro fishtailing, I knew she
wac in trouble. I was almost at a dead stop. From what I
can recall, once she accelerated and hit the interstate
bridge there, which is right at the top of the on-ramp,
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
27
1 that's when she started to spin, And there was a car
2 directly beside me,
3 Q Did you see her begin to spin?
4 A Yes.
5 Q Now, you said you wer.e almost at a dead stop.
6 Why was that?
7 A When I seen her -- traffic, from what I can
8 remember, came to a stop. She was coming up the on-ramp and
9 everyone -- well, I shouldn't say that, The guy beside me
10 had seen also that she was having trouble and --
11 Q So when you say everyone was stopped or people
12 were stopped or nearly stopped --
13 A Yes.
14 Q -- your perception is you were nearly stopped
15 and eomeone beside you was nearly stopped?
16 A And he -- yes,
17 Q When she was up on 81 then, is that a bridge
18 surface there
19 A Yes.
20 Q -- where you actually enter on?
21 A Yes.
22 Q And what happened when she was up on the
23 bridge surface?
24 A That's when she started to spin.
25 Q Now, she described that she originally was
-,>
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
.......
1
2
3
4
5
6
7
8
9
10
11
12
13
) 14
15
16
17
18
19
20
21
22
23
24
25
".....
28
going right and got that back and ended up going left. Die
you see that?
A That I don't remember,
Q When she spun, did you see her spin left, that
is, her car caMe into the left-hand lane in front of you?
A What I remember is that it just started doing
doughnuts. What way it was going, I don't remember,
Q All right, What happened next? You saw her
doing doughnuts or the car doing doughnuts. What happened
from there?
A My car was stopped and her car clipped my
right fender.
Q So the spinning of her car took her into you?
A Yes.
Q Now, her recollection was she thought she was
stopped and your car came into her. You would disagree with
that recollection?
A That is correct.
Q And was there any further contact other than
the ~lipping of the right fender of your car?
A No. It was -- my car was not even hit in the
middle and I don't know why my air bag went off, but it did.
Q When her vehicle came to a stop and your
vehicle was stopped, were they against each other or was
there some distance between the vehicles?
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
-..........,
1
2
3
4
5
6
7
8
9
10
11
12
13
.
) 14
15
16
17
18
19
20
21
22
23
24
25
. ..'
29
A I can picture her car a distance away from
mine for some reason.
o Did you move your car at all before the police
came?
A
Q
police came?
No.
Do you know if her car was moved before the
MR. WIENER: I think we need to establish
whether she was there when the police came.
MR. BRENNER: Okay', fair enough.
BY MR. BRENNER:
Q How about this question then: Do you know if
either car was moved while you were still at the scene from
the position you just described, you being stopped and you
seeing her car some distance ahead of it?
A No, I don't recall them being moved at all.
Q okay. The right fender of your car is, as you
said, clipped. What happens within the car?
A The air bag goes off and your car fills with
like thi.s powder that hits you directly in the face.
Q Were you injured either in the collision or in
the deployment of the air bag?
A As soon as the air bag went off, and it
inflates and deflates very -- quicker than the human eye can
really see it. And as soon as it deflated, I looked down at
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
'~,
I
1
2
3
4
5
6
7
8
9
10
11
12
13
) 14
15
16
17
18
19
20
21
22
23
24
25
30
my arm and it was broken.
Q Where was your arm as the air bag inflated?
A I believe I when I seen her car coming
towards mine, I must have bared down on my steering wheel
(indicating) .
Q You've got your hands positioned as you say
that at about a 3 and a 9 o'clock position.
A Yes, I believe it was.
Q How did you know your arm was broken?
A It was just hanging there.
Q Where was the arm broken?
A Right at the end of my plate, right here
(indicating) .
Q You're pointing, as your shirt sleeve is on
your arm, you're pointing at a point
A It was my right radius again in the forearm.
Q Just so we're clear for the record, you
pointed to an area sort of at the end of your shirt sleeve
right above your wrist area; is that correct?
A Correct.
Q And we know this from the medical records, but
I think you understand you can help us through this. What
bone was broKen?
A The right radius,
Q And this is the same bone that had been broken
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
1
2
3
4
5
6
7
8
9
10
11
12
13
) 14
15
16
17
18
19
20
21
22
23
24
25
,
.......,.,
31
back in '921 correct?
A
That is correct.
Q
But this break was at a different location?
A
That is correct.
Q
What did you do then after the air bag
deflated when you're looking at your arm and you believe
your right radius is broken?
A
I got out of my car because the car was
filling up with powder and you can't breathe, and I went
over to the side of the road, and the man that was next to
me ran -- I can't seem to remember how he got -- I don't
remember a car going in front of me, but he must have pulled
his car over to the side of the road, because he said, can I
get you anything? And I said, do you have a plastic bag, I
have to put some snow in it because my arm's broken. And he
said, set in my car, and he said, I think I have a plastic
bag.
Q
A
Q
A
Do you know who that was?
No.
Name, address, anything?
No.
o
As you got out of the car and walked to his
car, did you notice that the area where your cars were
situated was slippery at all?
A
I'~ sure that I was cautious as I got out of
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
1
2
3
4
5
6
7
8
9
10
11
12
13
I
14
15
16
17
18
19
20
21
22
23
24
::as
32
my car. I don't recall, you know, slipping,
Q Mrs. Mumper recalled the arrival of a, I think
she said a fire policeman, being concerned that he was going
to apparently slide into her car. Do you recall that
vehicle arriving?
A I don't recall them arriving. I recall them
being there.
Q Did you notice if people walking about in the
area of the accident were having any difficulty with their
footing or their traction?
A I didn't even notice that.
Q You went and sat i.n this other fellow's car.
Did he get you a bag with some snow in it?
A Yes.
o What happened next?
A He was sitting in the driver's seat and he
told me, I seen her coming, it was just a matter of who she
was going to hit.
o Did you ever speak with Mrs, Mumper that day?
A No.
o What happened next then? You had this
conversation in the car. What happened from there?
A Then by that ti.me I think the fire police came
up and asked me what was going on, and they -- I told them
my arm was broken, and they called for an ambulance. And
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
, ,
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
..,...../
33
then as soon as the am -- I Bat in his car for quite Bome
time until the ambulance arrived and then we were both taken
back to the ambulance,
Q Do you know which ambulance it was, ambulance
service?
A
Q
Oh, no, I don't.
Did you know anybody that was on the ambulance
crew?
A No.
Q What did the ambulance people do for you?
A They took my blood pressure and asked me what
happened, that sort of thing, asked me if I was on any
medication.
Q Were you on any medication at that time?
A No.
Q Did they transport you then to a hospital?
A Yes.
Q Oid you speak with the investigating police,
which we understand were the state police, at the accident
scene?
A No,
o Do you recall their arrival while you were
either in the car or dealing with the ambulance personnel?
A No,
Q Did you ever talk to the state police?
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
.,
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
-..J
34
A I talked to several people, but I don't think
any of them were police,
Q You're taken then to the Carlisle Hospital; is
that correct?
A Yes.
Q I've got some of the records here, but if we
can just walk through this. You're seen in the hospital
that day?
A
Q
A
Q
Yes.
You had surgery that day?
Yes.
You were seen in the emergency room.
Were
x-rays taken?
A
Q
Graham.
Yes,
The surgeon's name I see was Dr. William
A No, that's incorrect.
Q That's incorrect, okay. Who was the surgeon?
A Dr. Allan Mira.
Q Okay. I saw two names on the records, I
picked the wrong one. Had Dr. Mira worked on your arm
before?
A
Q
A
Yes.
And his office is in Carlisle; is that right?
Yes.
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
35
Q Did he come to the hospital and review the
x-rays and then talk with you about what needed to be done?
A I requested him, because he had worked on my
arm before.
Q And when he came to the hospital, did he talk
to you about what he was going to do?
A Yes.
Q Just what did he tell you at that point?
A He said, Sue, you did it again. He said, you
know exactly what's going to happen. I said, yes, I do, put
me out, and that was it.
o What was done in the surgery, as you
understand it?
What was done?
Yes.
He realigned my bone and attached a plate to
A
Q
A
either end.
0
A
Q
present time?
A
Q
A
Q
Affixed some screws again, I imagine?
Yes,
And does that plate remain in your arm to the
No.
How long did this plate remain in your arm?
It was I believe a year.
How long were you in the hospital for the
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
~
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
,
.~
36
original surgery?
A Two hours. I mean, well, surgery waa two
hours, but I was in the hospital probably until like 2 or 3
that afternoon, I believe,
Q So you actually went home on Friday the 8th?
A Yes.
Q 50 you went to the hospital, had the surgery,
and were discharged later the same day?
A Yes,
Q Did you have follow-up visits then with
Dr. Mira?
A Yes.
Q If my summary of the records is accurate, I
see a visit about three or four days later and then it looks
like about a once a month visit for about four months. Does
that sound accurate to you?
A The first visit was approximately four days
later, but I had thought that I was there a week, two weeks,
and then possibly a month.
Q Do you have a recollection as to how many
times you visited his office for follow-ups?
A No, I didn't look that up.
Q I count eight, according to the records I've
seen, between March 11th, which would be three or four days
later, and a last visit I show of May 13th, 1997, which
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
37
1 would have been about 14 months later. Does that sound --
2 A Yes, that sounds fine.
3 Q Was your arm casted after the surgery?
4 A It was in a half cast.
5 Q How long did you have the half cast?
6 A I believe like 10 to 14 days that it actually
7 had to be worn all the time.
8 Q After the 10 or 14 days, what was done?
9 A Then I had to wear it just at night.
10 Q So it was some --
11. A Or to protect it if I did anything.
12 Q It was removable, then?
13 A Yes.
1.4 Q And you were wearing it at night or depending
15 on certain activities?
16 A Yes.
1.7 Q How long did you continue to wear it on I'll
18 say a part-time basis?
19 A Six weeks.
20 Q And after that time, was the cast removed
21. completely?
22 A Yes.
23 Q Did you have to undergo any therapy or any
24 follow-up care after the cast was r.emoved other than the
25 office visits with the doctor?
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
~"""""-
38
1 A No,
2 0 Other than Dr. Mira, there is reference to
3 Dr. William Graham in the medical records. Did you begin to
4 see him at some point?
5 A Yes.
6 Q Why?
7 A Because my scar was ugly and I wanted
8 something to be done about that.
9 0 Was the purpose in seeing him to see if
10 something could be done about the scar?
11 A Yes,
12 0 The first reference to a visit I see with him
13 is in July of '96, which would have been about four months
14 after the accident. Does that sound right to you?
15 A Yes,
16 Q And then there's a gap in visits, according to
17 the records, until January of '97. About six months later,
18 you went back to see him again?
19 A Yes.
20 0 Why the gap there?
21 A Because there was nothing for him to do until
22 it was time to take my plate out, and my plate could not be
23 removed for 9 to 12 months.
24 0 And then there's an indication of visits in
25 April and May of 1997. I count five visits during that
.,....'
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
.--.......
1
2
3
4
5
6
7
8
9
10
11
12
13
)
14
15
16
17
18
19
20
21
22
23
24
25
,......)
39
time. Did he do anything in terms of treatment or any type
of procedure in April or May of 1997?
A
I'm not sure when it -- well, it was before
that. The only treatment that he had given me is silicone
gel sheeting to try and minimize the scar as much as
possible.
Q
Now, I've heard of the silicone gel, but I'm
not sure exactly what that does or its purpose. Could you
explain that for us, please?
A It's supposed to thin, if you have a keloid,
which is what I had, thin it and flatten it and make it
somewhat transparent, the scar,
Q
A
Q
So you apply the gel to the skin surface then?
Yes.
And would you wrap the arm then after you
applied the gel?
A Yes.
Q
A
Q
A
Q
A
Q
night?
What would you wrap it with?
Like an ace bandage.
How often were you doing this?
I usually left it on overnight.
How often a week would you do that?
Every night,
For what period of time did you do this every
GEIGER & LORIA REPORTING SERVICE - 1-800.222-4577
40
1 A Three months.
2 Q Did it help?
3 A No.
4 Q And the suggestion of the silicone gel and the
5 wrap, that was one of Dr, Graham's suggestions?
6 A Yes.
7 0 Now, you had the plate removed in April of
8 '97, as I understand it,
9 A Yes.
10 0 That's what the records indicate. And again,
11 this is at the Carlisle Hospital?
12 A Yes.
13 0 And this was a one day in and out type
14 procedure; is that correct?
15 A Yes.
16 0 Why did you have the plate removed?
17 A The orthopedic surgeon, Dr. Mira, after I was
18 in and he had to take my old plate out and put this new
19 plate in with the recent accident, right after surgery he
20 had told me that if I ever break my arm again, he said it
21 will break off right at my wrist and he said, you will lose
22 full functicm of your wrist, and he said he didn't want that
23 to happen.
24 He said, I'm going to recommend that you have
25 the plate out in 9 to 12 months. And at that time is when I
.....'-
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
,...)
41
started to think about having a plastic surgeon, since I
have to have it operated on again, go over my scar,
Q So when the surgery was done in March of '96,
did Dr, Mira actually take out your old plate at that time?
A Yes.
o So the only hardware, if you will, that you
had in your arm after March of '96 was the new plate put in
following the March '96 accident?
A That is correct,
Q And this ia the plate that was then removed in
I believe April of 1997, according to the records at the
Carlisle Hospital.
A That is correct,
o And who removed the plate in April of '97?
A Dr. Graham,
o And what, in addition to removing the plate,
did he do at that time?
A A scar revision.
Q And indications are that you had four
follow-up visits in '97 following the April procedure. I
see May 2nd, 16th, 28th, and then a June 20th, '97 visit,
A And then I was just there on Friday for my
last follow-up visit.
o Between June of '97 and February the --
A 9th. No, 6th.
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
. -",
1
2
3
4
5
6
7
8
9
10
11
12
13
)
, 14
15
16
17
18
19
20
21
22
23
24
25
,~..'
42
Q
6th of '98, have you been there any other
time during that interim?
A
No,
So there was a gap there of about eight months
Q
from your June '97 until you went back here in February of
, 98?
A Right,
Q The silicone gel, when was that tried?
A It was tried before my surgery, before he took
the plate out.
Q Oh, okay. So this --
A
To see if it could, you know, lessen.
So that would have been sometime prior to
Q
April of '97?
A
Correct.
Q
Following the visits in May and June of '97,
were you doing anything for the scar in that eight-month
period until you saw Dr. Graham recently?
A
Yes. I have to massage it every day and put
Vitamin E on it.
Q
Any other persons you've seen for your right
arm and the scarring that you're talking about here other
than Dr, Graham or the visits that we've already talked
about with Dr. Mira?
A
No.
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
1
2
3
4
5
6
7
8
9
10
11
12
13
)
14
15
16
17
18
19
20
21
22
23
24
25
......J
43
Q Who is your family physician?
A I have a gynecologist, but. ,.
Q Who do you go to if there's colds, flus,
things of that sort?
A The doctors I work for.
Q Good point. Have the doctors you work for
done anything at all in terms of treatment of your right arm
since the accident of March 1996?
A No.
Q Could we see your arm?
A (Indicating. )
Q And we're looking at, for the record, a scar
that's on the upper portion of your arm, upper, as you would
look at your arm, your palm would be on the table. It's on
the upper portion of the arm as we look at it. Do you know
the length of the scar, have you ever measured it?
A No. All's I know is it's an inch longer than
what it was prevlously,
Q Okay. And that was going to be my next
question. The scar that you had from the '92 procedure was
nearly as long as the scar you have now; is that correct?
A It was an inch shorter.
Q An inch shorter. In terms of the appearance
of your arm now, is it different now than it appeared
following the '92 surgery?
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
1
2
3
4
5
6
7
8
9
10
11
12
13
) 14
15
16
17
18
19
20
21
22
23
24
25
~
44
A Following the 1992 surgery, I developed a
keloid on my scar. So my scar was widened and thick.
Q Was it actually raised a little bit, too?
A Yes, That was the only appearance.
Q It appears now that you do not have a raised
area and it's a -- I don't knew the width, but it's a fairly
narrow band where the scar is located now, and this is after
Dr. Graham's work; is that correct?
A That is correct.
Q Do you have any follow-up visits scheduled
with any other physicians as of the present time?
A No.
Q You said you saw Dr. Graham last week. What,
if anything, did he tell you at that time?
A I was concerned about the scar tissue that I
have because I've got a bump right over my incision, and
since -- because usually if you massage your -- I mean the
reason I was massaging my scar is to help the scar tissue
diminish, and it just hasn't been working.
And I asked him if there was any other ideas
or if I'm -- the scar tissue is going to remain in my arm,
and he said it's very likely that it would not diminish at
all.
o In terms of function of your right arm and
hand, are you able to do the things that you did before at
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
1
2
3
4
5
6
7
8
9
10
11
12
13
)
1'0
15
16
17
18
19
20
21
22
23
24
25
-'
45
work at the present time, writing, carrying, doing whatever
it might be at work, can you do the same sort of things now
as you did before March of 1996?
A Yes.
o In terms of home activities, are you able to
do the same things in terms of activities around the house
as you did prior to March of 1996?
A Yes.
o Is there any limitation at all in any activity
that you partake in that has changed from prior to MaI'ch of
1996 to the present time?
A I have a numbness sensation in my fingers and
also a constant muscle type of fatigue in this arm. So
anything that I do I can't do for long periods of time.
o You can do things, but if you do them for an
extended period of time you notice this numbness or
tightness?
A Correct.
o Following the '92 accident and the recovery
from that, did you have the numbness or tightness in the arm
between '92 and' 96?
A No.
o Are you continuing to use the Vitamin E?
A Yes.
o How often do you use that?
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4S77
-.........
1 A
2 Q
3 A
4 0
5 A
6 0
7
8
9
10
11
12
13
,) 14
15
16
17
18
19
20
21
22
23
24
25
'-'
46
At least every other day.
And you rub that in or apply that to the arm?
Yes,
Do you wrap that at all after you apply it?
No.
That's all the questions I have. Thank you.
MR, WIENER: I have no questions.
(The deposition was concluded at 11151 a,m.)
GEIGER So LORIA REPORTING SERVICE - 1- 800 - 222 - 4 "-'"
.-,
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
."-
47
STATE OF PENNSYLVANIA ss,
COUNTY OF DAUPHIN
I, Sherry Bowes, a Reporter Notary-Public,
authorized to administer oaths within and for the
Commonwealth of Pennsylvania and take depositions in the
trial of causes, do hereby certify that the foregoing is the
testimony of SUSAN M, LEBO.
I further certify that before the taking of
said deposition, the witness was duly sworn; that the
questions and answers were taken down stenographically by 18
the said reporter Sherry Bowes, a Reporter Notary-Public,
approved and agreed to, and afterwards reduced to
typewriting under the direction of the said Reporter.
I further certify that the proceedings and
evidence contained fully and accurately in the notes by m~
on the within deposition, and that this copy is a correct
transcript of the same.
In testimony whereof, I have hereunto
subscribed my hand this 18th day of February 1998.
-
~
/ ./ ~I/;'
, /; )
~?~
Sherry Bo e
RMR, eRR
My commission expires:
December 13, 2001
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
).
-
/
111
'"
,1'
-
""'S "II Ill1e"W
-
'.-f'!
"
'-
.JIIII....I;Wlll
LL __
._II'';';',l.I.._111.
)
,
d:t
.,
.,
"'.'
,
I
"
.,
,
':1'1"1"
1.\ ','
:. ,r;-I/:' I
.;
.,
.,'
t'lll '!
.
'.
,..
"
"
, '
'I,
'.
I.
.
...
I',l
'\'/
"
,
"
I, 'I .",,1
"
1,'1
,.,,"
"" '
,,"
"
1'1'
'1,'/
.Ii'
,
,'il
11.
"
"
l' .j,'
,,'I
,
,.
,I,
I,
I
.
.
, ,
',I .1
.,
".'1
.
ii'
..
,
""
,-r,
I, ",.
, ,.
'I'
"
II;
',d'
,\1,
"
"
"
I
,11 t,
I:
Ii'
, '
,:,<
.,
"
,
\
,I"
:";
,d'
"
,
.
',:!
"
, ,
.
/'
,'II
.,
,
,
<I
, ,
"
'I".
,
"
.
'I',
, "
".
"
i !,
'.'1
.,.
,JI"
'I'
"
.
"i',
".','
I.'
,.
:,"
',p
'-'i
JI\>"
"
"Il
,
i'
"r,
. ,
,
f't
,'-I),
..
'L-,'
'"
I
,
"
I.
I.
,
"
""
',',
1'_1
:i" )
,:1
,'II'
"
1 '
,I -II
.',
"'j
. ,
"
,
"
-,:--:",,).::,(-:1,\"\
ill,_i,
p;','
.'tl
I',';
','
"
"
"
I
"11"1'
\
,
-.(\
1,\'"
,
t,,1,'
"1;1,-_\ '
. ~ , '
"
,
"
,..
,
" '
'.
."
I
.'
.[
'\1
;'-1'.1
,'"
.,.
d'
."
"
,
,"
,..
1:\
,
"
"
,"
.
,
'I"
I)',
,\
.
'.
ii '/
,.
'.'''
'I!
.'J
","
",
,I
,:'1,
I"
,',l
I" .1
j. .,'
',:1
..
.
.1
" ,
'1
" ' I ~ I
,
"
.
"
."
., .'
'I')
,
"
"
.,
,.
'1':' 1
'.'
I
\!If..
"
"
".,
"
"
I,
'1
,
,
[
,,'.'
"
.,
r..._._
.
"
,-
.
~....~."
"
',I
"
,.
II
I,
I.',
,
,
,
, ,
C, 1:J, .,
C ..J 'I
. ': ::'t I
'1' , J I
II :" I II
I,
i I
" .
, ,
" , .)
,
" " I
(..J. '" "
~q
"- .oJ -'.
.
CJ ....
...- I
ir y'.
i ..
l.J.,': ,,";
,
\:
(, ',.'.
L, ,
,
" <
,. I , )
U C_
It
W
Z
~ ~ ~
~Bq
eo~-.,
· ~ ~i~..~
li .. ~ CD , _
l...lcq~
.J .... 01 Go _ "
w . _
oJ ~ ~
o <
z
<(
:r:
.
"
.
\
fIUII..-Oj G
,..~......~.~~I.LVI.O
1NI 'IOlIoWWD .0'1
JUl 07 ,.lIt'
5, Therefore, pursuant to Pa, R,C.P, 1033, PlaintilTseeks leave of court to amend their
pleadings,
6, Pursuant to Pa. R,C.P. 1033, PlaintilTs may amend their pleadings to conform the
pleadings to the evidence olTered or omitted,
7, Leave to amend the pleadings will not be granted where the amendment would not
likely cure the defects in the pleading, Releillh v, Pennsvlvania Human Relations Comm'n. 660 A.2d
177, (Pa. Cmwlth.1995).
8. PlaintilTs averred in their original Complaint that they were covered by . limited tort
insurance policy, Through the discovery process, they determined their insurance policy covering the
present cause of action wu not covered by a limited tort policy,
9, Plaintiff, Susan Lebo, originally had an insurance policy under her previous married
name, Shatto, where she signed a limited tort policy. This insurance policy is attached as Exhibit "A"
and is number PPA 10588076401.
10, Thereafter, Plaintiff, Susan Lebo, was married to Ronald Lebo and her insurance
coverage changed, The insurance policy covering the present cause of action is attached as exhibit
"B," and is number PPA 105880.,6412. This insurance policy does not elect a limited tort option,
II. PlaintilTs now seek leave of court to amend their complaint to cure this defect, ~
attached amended complaint, Exhibit "C".
12, In exercisins it. discretion as to whether to allow amendments to the pleadinss, the
trial court should liberally allow amendment. so as to permit cases to be decided on their merits,
2
I,
I','
,I
,I
0(
...
...
~
a
"
"
,.
, I
I,
.
.
-r-----r-
.
NOTICE TO NAM~D INSURF.DS
SECOND ANU FINAL ~9.JICE
L. ' C
"
SUSAN M SHATTO 8058
G'EORGE R SHATTO
END~RS INSURANCE ASSOCIATES
POBOX 8118
,- 'l'
, .
,
I I -, I\. (.J H,I\RRIS8URG PA,17112
'- ~ ,', (717) 652'4~ ,{ c..l
Pnllr.y Number: I-'I-'A 'UO~~U/b4UI ~' J'
Agency Code: 2~39~1 / r/
IMPORTANT: Please disregard this request If you have already returned your option form, \
2301 SPRING ROAD
CARLISLE PA. 17013
/'.. "'Lhn!t~~ T,:,rr Or'lo!'" . Th~ 11W'5 n( 'hp. (~"n',"'T'''''nwfloplth nf ppnn~ylv~"IA glvp ynll tnp r1nht tC'1 r:hoose a
form of Insurance that limits your right and the right or member$ 01 your household to seek financial
compensation for Injuries c.aused by other drivers. Under this form of Insurance, you and other
household members covered under this polley may seek recovery for all medical and other out-of-pocket
expenus, but not for pain and suffering or oth~r nonmonetary damag~s unless the Injuries suffered fall
within the definlllon of "serious inJury' as set forth In the polley, or unless one of several other
exceptions noted In the polley applle~, (See previous booklet for a description of 'serious injul"f" and
tha excepllons.) The premium for basic coverage Is S 621 which renects the coverages and
amounts of coverage ycu have now. The premium for basic coverage as reqUired by law under this
'1lmited tort" option is S 484,
Additional coverages under this option are available at additional cost.
8. If you wish to choose the "limited tort' option described in paragraph A, you must sign this notice
where indicated below and return It. If you do not sign and return this notice, you will be considered to
have chosen the 'fulltort" coverage as described in paragraph C and you will be charged the 'full tort'
premium. I wish to choOllse the "limited tort" option described In paragraph A:
( I J ,. f
" Signature Line I. ..-it ~}"c l - { 1 ,-I! I c_ ( l'-
, ~ Named Insured
C; 1')./ is c
Date
C. "Full Tort" Option - The laws of the commonwealth of Pennsylvania also give you the right to cheose a
form of insurance undM which you maintain an unrestricted right for you and the membe. s cf your
household to $eek financial compensation for injuries caused by other drivers Under this form cf
in.urance, you and other household mAmb"'s covered under this poli.:y may seek recovery for all
medical and other out-of.pocket expenses and may also seek financial compensation for pain and
suffering and other nonmonetary damages as a result of injuries caused by other drivers. The premium
for basic coverage Is S ~21 which refiects the coverages and amounts of coverage you have now.
The premium for basic c.,v~rage as required by law under this "full tort' opllon i$ S 559.
Additional coverages under this option are available at additlc,nal cost.
D. If you wish to choose the "full tort" option ducribed in paragraph C, you may sign this notice where
indicated below and return it. "ow ever, If you do not sign and return this nOlice, you will be considered
to have chosen the 'full tort" coverage as described in paragraph C and you '0'1111 be charged the 'full
tort" premium.
RECEIVED
Signature Line II, ~
Named Insured r1i/tr4" 2 ~ 1990
E. You may contact your insurance agent, broker or company to discuss the cost of olhe~~~~d~. ASSOC,
NOll :
The premium ilmounts snown are t:lased on tn. term or 'lour current pOlle'f. It you currently n.ve a S-monlh POliCY.
In. grlmlym, snown are :!emt..nnual. It our CIJrrlnt OOIlC'( IS . 12-morun POltCY, tl"le orlmlums SMown .!" '""1..1.'
,U.~1(11101
l~~
r'\
r'\
I'
Ii,
I.,
III
..
~
I.
,'1
I"
,
.' ,
,I
,
,
I,
'1
"
"
i'
,
""
I,
,'I
"I
,
:'
.'"
,
I
."
"
. .l:~ CONTINUJ\ilON CERTIFICATE ANOjREMIUM BILL
"'-,'. FIDELITY~D GUARANTY INSURANCE UNDERWRITERS INC PAGE
V'S N'G' "A STOCK COMPANY"
111111111 COMPETITIVE PERSONAL AUTO POLICY
8RANCH OFFICE AGENCY PROD. -,-- POLICY PERIOD
ARRISBURG I' 02 26 63921 Pf'AI0S88076412 -- 120lAMSTANDARDTlME
DIRECT 81LL RENEWAL OF: CPA376418346'i---- ,-,-- FB9~_(),('!_!.U9~_~q 10/17;'96
OOR EMENTS M 0< PARr OF THIS POLICY ATIiME OF ISSUE ------
20F
NAMEOINi;'ijf;j"OSUSAN M LEBO-------.- -----~~---
ANt)M....llINtl
AOO",,5 2844 RITNER HIGHWAY
CARLISLE PA 17013
----..-- PIH'nl)C"'l.;--('-.crf7-}.6.5.~r-::(;-9-02'----
"^"'~ "'/I)
AUOI",;,; ENDERS INSURANCE ASSOCIATES
POBOX 6118
HARRISBURG PA 17112
COVERAGE IS PROVIOED WHERE A PREMIUM ANO A LIMIT OF LIABILITY IS SHOWN FOR THE COVERAGE
COVERAGES LIMIT OF LIABILITY AUTO 1
filE LAWS OF CO 0 EA OF PENNSVL , S
ENACTED BY THE ~ENERAL ASSEMBLV. ONLY REQUIRE
THAT YOU PURCHASE LIABILITY, AND FIRST-PARTY
MEDICAL BENEFIT COVERAGES. ANV ADDITIONAL
COVERAGES OR COVERAGES IN EXCESS OF THE LIMITS
REQUIRED BY. LAW ARE PROVIDED ONLY AT YOUR
REQUEST AS ENHANCEMENTS TO BASIC COVERAGES.
YOUR PREMIUMS FOR THE MINIMUM REQUIRED
COVERAGE AREI
A. LIABILITY $35,000 EACH ACCIDENT
BASIC FIRST PARTY BENEFITS - $5.000 MEDICAL $110.00
LIMITED TORT OPTION APPLIES
INSURED HAS ELECTED UNINSURED COVERAGE BUT
REJECTED UNDER INSURED COVERAGE ON VEH. 1
PREMIUMS
AUTO 2 AUTO 3
ACV MEANS ACTUAL CASH VALUE OED MEANS DEDUCTIBL
OPERATOR'S NAME
TRADE NAME. MOOEl.
VIN
~~~----~---------------r----------------------------____________________________.._~_________________________________
KEEP THIS PART ~ 04953
FOR YOIJR RECORDS ~
YUUA CANCUlliD CHEel(
15 YOUR R,eEl" U S L' f'G"
'AIOA BAUNCI r
III" .. II
SEE NEXT PAOE FOR BIll
':1IMIUM CHANGI-
SURClofARGI.
RETURN TO-
'OLICY BALANCE
AGINCY COOl
INSURID
iCiiNTi' HAMl
'Olley NUMBER
MINIMUM DUI
L. DUE D'iT1 __
!t01.1: TV'E COMPA~POi:jcy ~ALANCE ~UM DUE J
MAKI CHECK OR MONlY ORDIA PAYAILI TO:
DUIOAT.
INSURED'S COpy
AUr'1J,IIl(llli'll/i
.
.
"
u
...
i
I,
I, ,I
..'
"
,..",......'\i;'_I".....,.,..:-;:..;.;,.........'I"
FROM
11111
AlTENnON: ./fir,
HANDLER AND WIENER
POBOX 1177
HARRISBURG PA 17108.1177
"..,/""",."1/""..1...."".11I.,."...11,"1/,"1,,,/1.I
,.....>1...".,,"..' 't,.,..~,.
...
.
.
/
f'
"
~
.....:;.. ...;...-- ". '._~. .~- ,~._..ri__ ._.:. ._ ",
- .
\
, ,
, "
"
,
,
1j .~
~ r. .....
;:]J.i,i'
. -. I,
, ..
,._ _4.
....
~
0;
i
~ -
t~ !j
dH~~~
UH:H
, ,
"
..
/,
'I ''If
"
i' !
,.;'
"
.. r
,\
,j
,
. t~
.
, "
"
. ,
.
..
-
.....-- ._'.'-'.~..'>f' r....-.
:-.~ ~ -
'.
,
,"A.2<1""
(('il.,L': I'I9M WI. 75145611'0,))
Kflllll'lh W^SIllN(jTIl~. ^llllrllOIlI
",
Rohfrt I.. II^Xn:R. ,Ir.. ^ppt'lIff,
SUflr~ltIl. ('ourt lll' l'L'nntlyl\lllnill.
(h:t. 29, (lNX.
Suhmilh.'cJ April 22. 199M.
l>....ddl".1,,1 Od. 29, Il)l)X.
AppcRJ frolll the Judgl11lonr l'nll"rl'd hy tlw SUfx'rior
Cuurt of PL'nnsylvllniu on Mnrl.:h 5. \lN7 ut Hltl4
PHILADELPHIA 199h, Aftinning th\' unl!.'f l.l\ll'r,,~1
in Ihl~ ('ourt of ('oml11on PI('us uf IJII1Cllsh.'r ('ounl)'
dlll,'<I July 29, 19'1rl1l1 # ~64K-Il}94,
OPINION OF TilE COURT
CAPPY. Justice,
-. Th~ question pn.>scntl>U in lhi:i llppt.'1l1 i~ Whl.!lhcr
summary judgl1l~nt was pro~rly L'ntt'roo 1l~lIin.'it
Kenneth Washington ("Appdlant"). II limited turt
lo'Ilcctor, in his action for noneconomic lossC's I\ri!'ling
out of an automohile accidl'nt. !keRusl.' we find thuI
Appellant h38 not presentoo sufficient evidL'IKL' 10
show that he auffer&! a serious impairment of Il hody
function. and therefore has not shown he is enticle.'t.t Co
recover nontconomic damages. we aflirm thL" L'ntry l)f
summary judgmenc against Appt'lIant.
Th. r.cord r,v,"I. IFNlllhat on I\pril I~, 1994,
Appellant WIlS o~rating 11 molar vehicle whkh WAS
struck by a vl'lhide driven by Robert L. Baxter
(" Appell....), A. II result of Ih. accidenl, Appellanl
suffered injul'it."1i which included ct'rvicBI stmin or
sprain, culs and contusions. as wdlas IUl injury to his
right foot. The injury to the fool was dill~nO!i\."d us II
mild sprain or strain. St. Joseph ffospitnl Eml'r,!!Wl1l..'Y
Room Records, 4/15/94. He was trl~l\h'd Ilt Il h1lspitlll
emergency room rhat dllY, rl'lc~ived I' prl.'!'I...:riplion-
strenglh analgesic, IFN21 and WllS dis...:hnrged within"
few houn. Id; Depollition. ;4i1O~/95. ,,( 2\.
Immt."dialely aft"r Ih~ acdd~lll, Appcllnnt WI\S Ul1llhlt'
to work al his two jobs. holh of whkh fl.'tluired him 10
porform Ihe bulk of hL. work whik on hi. feel. Al hi.
tirst job. where he worked R forty....ighl hllul' n wl..'l..'k
schedule, hl! was unl,hle 10 rl..'porl tCI work for
RpproximRt~ly foul' or tiw dllY!4. ()\.'po~iti'm. ~1O";/9~,
lit 19. At hi~ !It."t'ond joh, wht.'r~ h~ .....nrk~d nnCt.' U
-'
.'- t IL
----
l'Il~" I
"".'t..'k for Ihrt."" IIr four hlllln'l, Apf'k"lIulIl dillllllt rl'I)t.lrf.
tnr ",urk fur nppru'\llllllll'l) till'" 10 t"" 1I)1U1lh~
I>l..'pol'iiliulI, ~IO~N~. III ~I,
Approxill"'ll..'ly IiVl' IUllnlh~ Ilf...or Ih~ Ilt'l.;'idl'l11.
Appellnnt hl,.'~lIn Irl.'ntin~ with (){, I>tlUllln~ nn~lUl1,
Dr, nn~l\m indknh'tl tllllt Ih..'n' ""II!'> "Sl)lIll' tnk' of
:o.lIhlldlU joint WN lllu1hrili., or l.."tlnlitiul1 in Ihl' rip:hl
fUllt," nnd Ilml AJlI'k'II11nl mip:hl I1L'l'd tn utili/L' l,Jrtholi~'
h..,1..'I lilh. Altlh.:llIlIl."nlN III Plaintiff'" I{l'81)l.II1Kl..' hi
Dl'fl"rulnnl'!Ii Mll(jOI1 for PUI1illl SUllunllr) JlldgnwlIl.
1l)!12/l)~, 'JoN41 AI'i pnrt of ^rl'k.'III1IU'It Irl'nlllll'nl
It'.Ilinwl1. Ik Un'nm ndl1lini~ll'rl'd IInl' Injtol'lillll ill
l.'urtis')f1l' inlo Al'pt.'lhllll's fllll!. Dr. Br..'UlIIltholl stllll'd
tlml ^ppL'llnnl hnd Iimic,,'d mng.., of IIIlltion in 1I11l' III
Ilh~ joinl... in hi~ ri!(ht funt: hL' did nul, howl.'v..'r.
l..'UIllI1lt."l1t UI1 Whl'lhl."r Ihnt Iimilntion was minimnl Ilr
,"V,,,,', rd. IFN~I
Appl.'lInnt ",us tl....pU!il.'d IIppruximutdy Onl' Yl.~nr Illt....r
thl." Ill;ddl.'nl. At Ihnl Iilllt.'. ^p~lInnl h.',slili,,'d thut Ih.."
injury litilll.'UUSl.'d him pllin roughly l;;"wry olh.."r we,,"k,
Ilnd thut his onkll;;" WllS on,,'n swull~n. Id. III 4.\.
hlrthl:rmor..". hI..' stutC'4.I that h,," w",.. uble to ('k'rfunn hili
norm"l job rcspon!libiliries liS h..~ had be!.!n llhll.' 10
prior to th~ Ilccidcnt. [)~position. ~/O~/9~, at 44,
Finlllly, Ih" only lI.peel of hi, Iif. 10 which Appellant
could point to I'S being CruUlgoo l\S a result of the
accident wa~ that he could no longer Ufll..' u lawn
moW,,~r Ihat hnd to be pushlod. but instend mUllt U!l~ "
riding lIlUWl:lr. nt."pottilion. ~1O~19~, (1164.
"'2 At the til11t~ of th,,~ ,v:ddent. Ar",,'lIant Willi insurt'd
under Iln nutomohil.., insurance polky iSSlh.od hy Stlltt.'
Fllrm Mutual Allloml)bile Jnslln,"!.:... ('nmpany. llnder
thiR policy, Appelhmt had el",ch.>d the limill"(J tort
option pursunnt to the provisiol1H of ~ 1705 of II",
!\totnr Vehicll' FinanciAl R""/lpunsibility L..nw
("MVFRI."). IFN61 S,.ctiuo 170~ '1111.. in ",.rtinenl
pllrt th"t
Il~ln.ch person who del.'I., Ihl! Iimit,,"(1 tort Illtl.'rl1ACivl.'
rl'll1llinll I..'ligihll.' to sl."ck cump,,"nHution for cl:unomk
hHi" sllstain,,'o in II molor vehkll.' llceident 11.'1 11ll'
l,.'nnlil'tlut'nl,.'l.' of Ihe fuult of Ilnoth..."r pt'uun PUl'!tlllint
In upplknbll..' lort Illw, lInless th..." injury sUl'ltllinl..'d is
II Sl.'riou.. injury, t.'llch 1>I..'r...on who i" bmmd hy th..,
lil11il,,'u tort e1l.'clion !Ihnll t:w pr,,"chu.I,,'d from
lI1uinluining An. llcttnn fur IlIlY nunC'l;On1.Jnlk IUKS..
7.~ I'n.C',S. ~170~(dl. IFN71 Th" MVFRI. deti",',
"st.'rinu~ injllry~ ns "II p"rsonnl' injury r,.~ulling in
d"'llIh, lil'rioWi impllir11ll'nl of hody fundiun Ilr
I'k.'rlllulll'nt :'Il!'riull~ di"tigurt."l11l'nt." 7:"i Pl\.(' .S. ~ 1702.
('opr.' Wl.~t jl)i)M No ('Illimlll ori,l!. I ~ .S. Om!. Works
, ",\,O:d"',,,
It'II.ll" 19'IK WI. 7SI4~~. .Z 11'11,))
nlll~, \\hlll" 1m il1MHl"t \!olin Ill"" l'I\'dl,,1 Ih,' Iilllih'tl
tUl1 "lltiun n'lIlltiul\ diJlihll' hi ,,"'\'k "IlIllIk'IIMltillll lur
.....:unlllllk lll!'l'i ~Wll"iIWd ilt II IIIlllur \'I'hidl' Ill'l'idl'lIl
l:lIwwd by 11ll' l1l'glillt'l1(l' Ill' ltlllllhl.'r, IhL' illMIrL'll will
hl." pr\'dudtrtl frulII lIU1inlllining IlII lIdllln fllr 1111)'
I1lmrl.'mlomk ItllltH'" unl,,'!'l!'l Ihl' II1!ilun'll nUl "hLIv, Ihllt
hi.. injul'il'ti l:rO!U'l lhl" "lIl'riUU!! injnr)'" Illn'"hlll"l.
Atthl.' dlll\t.' lIf lli"l:u\i\;.'ry, ^PllI.'lIl'l,' IiIt'lln IIIlltiun I'lIr
pnrtiftlliul1Imnry jUlI~lJIl'llt, ItlIIl,'rtinLl I hili APIlt.,IIIIIII'!il
stntuIl Itll II limih'd tmt l"l,'dtlr prl'I.'lu,h...1 hi" ft'l,'U\l'ry
for nonl.'l.'tlllilll1k dlll1l"~l',\ bl"l:IUI!'ll" his injuri"'1\ ..h'r"
nut lIerillUS, Thl" trilt! "ourt. I'dying 1111 tll<' SUI'k.'rhlf'
('ourt's dt"l.'illiull in DudM11I \I, I>:I\ll'Y. 445 I'll Sup..'r.
~79. b6:fi A.2d 122.1 (1'1\.Sup..'r.CI.I')j).~) I\lIm'lIlur
granlw, S44 I'll. ~nK, rl74 ^.2d Ion (1'11.1'1'1('1,
grAntt.>cJ ApP""IIl"c'" 1110111l/1 fllr pltrtinl "ulllllUlry
judgml.'nt, Hdyin,g un till' Sup""rior Court's lhlC.lSill1
dl."f:i!lion, Ihe trillll..'llllrt ,'oIKlud..-u rlmt It dl'l..'rmilllllilln
r~gftrdin~ thl! sl!riolllUll's!! tlf II limil...d turt d"l"l'lr's
injurj~s II1Ullt initiAlly hI.' iliad.., hy till' trial ~'OUJ1 judg",
Tr. I.'t. slip op. Ilt :l. The Irinl ..:mlrt "'lI1phnsill'..1 thltl in
making this dl!hmllinlltion. Ihl' " 'jUdgl' ~huuld ntlt
focus on the injury hut should flll'US on Ih~ nn!url' 11I1d
ex.tent of plaintiff' II ill1pBirl11~l1t ns n I.'OnSl'llllen":l! of
the injury.' " Tr, ct. slip op, "t 4 (I.'itinn Dodson. 6(l,'li
^,2d al 1231:, Th. I,illl court ,llll.d thllllhe fact, uf
this maUClr, when taken in th~ light lIlost favorahll! to
Appellant 85 the non.moving pArty, establish..xl thut
Appellant suffered from continut."d pain, intlammation,
and "arthritic changes" which mAY n~cl"5sitate the
wearing of orthotic hcellifh, Tr, ct. slip op, At :fi, Th~
trial court went on to notl" thAt since the al.'cident,
Appellant had to use R riding mOWl!r mther thlll1 1\
push mower, Finally, the trial court nottXIthllt aller R
b,ief ab,ence following lh. lIcdd.nl, ^ppcllllnl hud
returned to both of his pre-Reddent positions of
employment with no rClluction jn r~sponsihilitil's. Thl~
trial court conclud...d thAt thelll~ fRets. IlII /I ll1uUl"r of
law, did not constituh." n 'l"riQus injury And therefore
grantw Appdlt"e's 1110tion for pllrlinl sUl1Illlnry
j\ldgm~nt.
-.1 AppdlAnt tik-'(t nn llpp..-nl fmm thut order to th~
Superior ('ourt; th... Sup~~ri()r ('ollrt '1\lI\sh...{) thlll
appeAl RS interltH.:utory. The mnttLlr WIU rl.'turr1l'd In
th~ trial court where An arbitrAtion Award Wll.'t l'ntl"r.."d
which seul.."d IlII of the r..~n1Rining i.~~lI~!f. At thllt
juncture. ^p~IIRnt tilffi hi!j appell! with thL: Su~'ri(lr
COllrt, again ..:hnlle'nging th.., Itinl' '.'Hurt's
d~hmninAtion thllt I\S R matter of law he hnd nllt
!'!uff~rt.:'d 11 lIerinu'l injury.
I'IIM" Z
1'Ih' SIII'h'riur t 'uurl, in II h!'il'l' IIh'lIIllmndum upiillllll,
.lnirnh'd, I{dyillfot \',dlllti\ll'ly 1111 ilh l>11C.1~11I) ulllniul1,
tilL' SIIIlt.'riUI" ('utlrt ~llIll'tl thnt thl" Ih(l'~htllll 'IUl'lilinn
tlf ""Iwllh'r Appt.'lInlll'" injlll'il'h WI'n' hl'rilill" WIlS lHll"
fur Il triltl lOllrl jlld~.., hi Itn"Wl'r prillr hi Ihl' mnth"r
h,,'illll pn''''''lIh',llo n jury, TIll' Supl'riur (\lll(t lIgrl'\;.'ll
wilh tIll' lrilll nlHrt thnl Apllt.'lhmt IJlld fllill'(l tll
"hluhlish Ihut h..' 11IllI ~ufl'..'n'd It M'rillulI injury Ilnd
llwn'hln' Itnin11""ll. Apl'h-'llltl1l ~uh/l"'I.III"'lItly lil..'() n
1lt.'litiulI fllr nlluWIUln' Ill' "l'pl'ltll Itlld w..' !-!mntL',1
n'v,,'\l'.
III I'''ltlllinilll! Ihis IIUltll'r. liS with It II !iUlIlIllllry
jIlJ~IIli..'nl l'II.~..'II, '~"l.' l1Iu~t vi..,w th.." rl'l'lHlI ill till' light
1I11l"! fll\'lll'llhll' tu till' 1l11IH1\ll\Iin~ pllrly. nnd nil
duuhts Il~ III till" "'.\i"tl'lIl,'I' of II g"'l1uilll' iSSUl' III'
IIl11tl'rial flll,:t IIlUst Ill' r,,'slll\l..'(.1 lI,1luinst Ihl' l11t)vil1~
pnrt)'. P"'lInl'i)'I\lllnill Sinh' Uniwr",it)' v, County Ill'
('..'III r... , .'S \2 Pn, 1~2. (d.'" A.2d .10.1. .104,PI\.11.)1)2). In
ordl'r to with.'ihllld II lIIution for !iIlIllIl1IUY judglll"'f1I, "
rllll1.lIIl)\lin~ pnrty "1111111t "ddul.'''" lIuftkil"nt "'\li,ll'lll..'t~ lln
An issu~ l'ss...nlinl hi hill I."us..' nnd un whil;h h.., be"rll
th..' hurdl'n of prllof SIKh thnt u jury (.'ould rt!turn Il
wrdic:t in his fl\\lor, Fllilurl" to IIdducl'l this evid~nl:l'l
I,.'shlblish...s thltt ther... ill no g...nuine iL'lSUl! of material
fal.'t (\110 thl" moving pnrty is t~ntitll'(l to judgllll.'nt 115 8
matter of lAW," Er1rcl v, Patriot-News Co,. 674 A.2d
10:lij, 1042 (1'11.1996). Finally, w. 'I,." Ihal
sUJIlmary judgmt.'nt will be gmnk-d only in tho/te cl\Ses
whkh art.:' rr,'~ nnd deur fn1m douht. Marks \I,
TII'I1111n, S27 I'll. \.12. Sij9 ^.2d 205 (Po,l991). Ou,
scope of revicw in this mntter ill plenAry, See Phillip!'!
v. ^,IIEST I',odud' Co.. S42 I'll. 124, 6r,S ^.2d
1167, 1170 (1)11,1<)95).
The lowl'r I.'ourtli hcr.., dt!l~rl11int"d thAt th~ Superior
Court's Dodson opinion mAndntt't1 the l'ntry of pArtiAl
lIulIIlllAry judgJ1ll'nt in this l1utlll!r, Dodson hA~ "Iso
h,'cn dtl'.41 Wi tht.' controlling l\uthority in nUITIl'lroUII
other lov.'er I.'curt l'I\S~S conl."t"rning nont.:'c(}l1omic
dlll1\l\gl'S ((aims ruiSl'(l hy Iimit,,'d tort dt.:'ctufII. See,
o.g.. Kelly v. Ziolko, 70S A,2d 868
(1'1I.Sul'''',.Ct.I<)<)7): Willi, v. Schocklo,. 700 ^.2d
.t\2 (PIl,Supc'r,('1.1997); lA'nndli \I. McMlIll~m. 700
^,1d ~2~ (PI\,Supcr,{'t.l997). ni!CilUS~' of th..,
imporllml'''' whkh l>ndsl.1I1 hold,'i in this I.'RSe in
p"rtkuIAr. ilnd in this nr~I' of th..~ h\w in g"'I1t.:'ml, w\.'
hdi..,v.." thnt A thorough rl"vil~W of thRt opinion ilJ
nppropriuk lit Ihi.'i junl'tun'.
.4 !\1khn~'1 I>od'ion ("lh'lllsOIl"), Il Iimit..'d tort
Copr. ( W~lJt JiNR No ('IHim to ()ri!t. (I.S. (in\l!. Wnrk~
. .
..-^.~d..--
lI'il. IL" 1'1'1" WI. HI4~/). "411'",))
d,'dor. IA',,~ inJuh",1 in IUI 1l11lulHllhik. ltu:I,ll'nl.
DudlHlIl till,..1 n ('lll11plllilll. n"lu,'flIlinfl. illlllr IIli"
nuru.'(HIUlIUk llulllug"". Tlh' dl'l.mdillll lil,'d II
!lllll1l\1nr)' jUdgl1ll'lll IItlllillll. IIl1l'~inlt Iluu ()lX!J.;llll'S
InjuriL'/i w"",. I1llt flIt'rillllN, rhL' l>o...bnll Irill! l.:ulIn
grl\nh'll till' ,h.'fl'ndIUll's mllli~ln "~lr sUl1\11Ulry
jud!tllll'lIt, I.:ulldullin!t Ihut d,'h'rmimlliIlI1S n..!tllnlinl!
Ih,' l'i,'riUUI'iIl,'KH lit II Iimih.,,,1 tll!1l'll'l'lor'!'o II1juri,'l'j must
hl' I1Il1d~ hy Irilt) ulluh nl. till' "ItrIi,'sl Pll!lsihll' "tn~l' in
111.., f1rm':"Lo,lin!ll'i in Ilflh.'r III dh'((Uull' 11ll' Iq/:i!lluhln"s
inh!l\l III tnwN inSllmnl,,'l~ I.:ush. Thl' ,riull"ourl furtlll'r
n'llSnl1l00 lhlll if this ilooMIL' wal.' to Ill' suhlllilll'd III II
jury fur n.'Nohllion in all ~'n~l'S. 11ll' Il'gi!lluhlh"S
plJrpc.lIll" for l:rnliing S~diun 170~ would 111.' Ihwl\J1l'd,
Tht." IriRI ~our1 Ih,,"n r,,"vi,,'w,,'o th,," n~~"'r..J IInJ
~onduded that AppclllUlI had 1101 sustnint."tl 1\ s\."riou:'l
iml'mirment of n body funclion,
()lldson apP""al,,"(J this dt'h:rminntilln In till' Su~rior
('ourt, which IlftinU,,"U, TI'!l' Dodson ~ourt llgrt',,'d
with the trinl,,'ourt thRI the- I\."gisllltur..-, in I.:rnlling Ad
6, hN.l inhmd...-d to l11inil11ill.' insumn~c ~llKtft, TI1I..'
Su~rior ('ourt dt'c1nr....-d thlll in order to stllY true 10
the ugislature's intent, the trial judgt.~ musl mMe Ihe
threshold deh.mnination of whether thl.'re hl\s been ft
serious lnjury in all eRSes where the pl\rties ngree on
the objective evidence relating to the nature and Ih,,"
exlent of lh. injuri.. 8uffer<<) by lhe plaintiff. Dod,on.
665 A,2<\ at 1232-1233, The SUp"rior CoUrI in
Dooson e)lpressly rejeck-d the- position, c!ipouscod hy
our siltter court in Michigan, that
Itlhe question of whether the plaintiff suffl."r"'tl a
serious impllinnent of body timdion lIlust hI.'
submitted Co the trier of faet whcnl.'vcr tht! evidl."nl..'l."
would cause reasonable minds to differ R~ to the
answer. This is Cruo evten whtere: thN~ is no mllt~rilll
factual di!Jpute a!J to th~ nalure: nnd ~xf'.nt nf th~
plllintiff's injuries.
Id. nt 1230 (quoting DiFran,o v, Pic kllrd , ,127 Mich.
32. 3q8 N,W,2d 896. qOO (Mich, 1 986J). The Dod,on
court arguw thRt to follow the I>i,t'mnl.:o approach In
this i!lsu~ would "allow non-s~riou!i injury CI\S~S h,)
proceed to Il jury land I would frustmle th,,"
I~giftlature's gORI of rc."dudn~ litigation llmIChc.~ cmt of
insurance," Id, at 12.11.
.Judge (now Jmtiee.'!) Saylor di'isenh,'J vigorulIsly in
Doollon. B.'nerting that s\lml11llry judgment is
appropriate only in the dearest of ca.,es, .Ie ftssert"oU
thllt even if the partie:t were: to agree \1n th,,- objl"ctiv,,'
mookal evklence, they could !Jcill dblRgrl"1.!' on whr:lher
thRt evident:,~ estahlished IhlU the plllintiff suffl.'rl'd Il
l'uJ.l\'.\
Morinu" 1IIll'ltirnll'111 of hud) IlInl:tillll, Ill. III 12 n
1~1,)'I'Ir. I,. llihhl"ulinK). hhlgl' SI'ylm Iwli,,'vl'cJ Ihul
whl!f'l" 1111" pnrl"'" dll diMI!tfl.'l' Oil Ihi" ihhU"', hUl.h Il
lh'h'rminllliun !lhuHld ,,... Il.n III Ihl.' jury ill 1111 hilt till'
dl'llr,,""1 Ofl'IlNl.'h, hI.
"'~ Thl' 111"l'r .:ollrh in llll' IIIlIHl'r Jilllh i"(lin'
Upplln~l1lly (fl.dih.d Ih.' Dlltlhlll1 rntiUlIiII,,' Ihul tilt'
Il',..dsllllllr,,', vill Ad h. llklnh'lllhul in I..'nJill'~ ~lIdl u...
Ilw lIullh'r "Ih judi"'l", Illl' Ilm...hllld d".tl.'nuinnliun III
1,\ twtlwr 1\ pllrtlculnr Ill'l Ill' il1jurit~1t l'nnJiltilull.'N 1\
~,,'rious impuirllll'nt of htKly funl..'lion i~ In h,,' nuuJl!
flHllinely hy thl.' trinl l'llllrt, Thus, in rl.!'vil."winl!!
whl'th,,'r Illlllllllllry judgllll'nl \lon.. pr"IX'r1y ,'nt,,'n'd in
thi!i 1I111111.'r, \\1,' must nrJilt "'~lIIl1il1l." Ad 6 hi Ils",,,.rtllin
wh\'lh,,"r il dm"!'j l.:nntnin Mh:h il din."div,,",
It is Il,illl1111tk chuc in ..:onstming sllllutory mllt~rinl,
Yol" tirht "'~I'JIIinl'" the;" lan~uage of th~ statute in
ljll,,'slioll. If th,,' Innguagt' in llut.'i'llion Lot llnsllnhigutlw~.
W,," muy not uvoid its plain applkulion under the
pr~t,,""'1 thnt WI.' arl.! rcmaining failhful III lht'
Il."gislaturt"s hU,,'nt. St'1." I pu,c.s, 9 P>2t(b). Where
thl." stntut,," is llJ1\biguom, however, wt' d...tennine the
intention of ch,,~ Gent' rill AlIscmbly hy considering,
ilmong other matters, the.'! occasion and necessity of the
statute lU1d the contemporanoous legislative history. I
Pa,C.S, 91921(,'), While ,lalelllenl, made by
legislators during the enactment process are not
dispositive' of Il.'gislativl." int~nt, they may be properly
I..'onsiderl'd a~ purt of Ih,,~ contt'IIIFKmmCOOUJ legislative
history, ('ol1lmonwt'olth v, Wilson, 52lJ Pa, 268, 602
1\.2d 12'lO, 1294 n, 4 (l'a.1992).
The language at issue: !Hates that where an individual
who hu.':I sdeded thc limitoo tort option cannot
~'stn~li!ih that h,.! htlS 5ustninl'J Il sl."rious injury, then
chAt individual "shall bl." prl"c1udcod from I1mintainin,
nn action for Rny l1ont'conomk lOR',,,," 15 Pll,e,S. ~
1705(d). We do not S""C' this "millage all an
unmnhiguolls ditl"ctivlO" chut the trial judge, and not the
jllry. should IT1nk,,~ th,,' thrc,hold delermination o(
whdlwr thl" plaintiff hlL'i indC',,'d $uffl~n-d a se:rious
impnirlll,,'nt of It hoc.ly fundion, Of I..'oun~, the
11'l1gtll\~C dk:d uneA plninly rl~~Hrid Il Hmit('d tort
e1C'dor'!i rel.'lwery 10 Ihll~l." 5itutltitln~ wher... h~ can
"'!4ltlhli,h that h... hU:I SllSh,inl"o Il s('riou:l injury,
Uowl.'vt;.~r, th... !ftututt' i, ultl.!rly silent n., to which
t'l1tity-~- thl.! judge or th~ jury--- i.. ,,'ntrus~N with
n111kin!t thllt threshold derl'!rminntinn, Thus, U the
plnin Innguagl" of th,,~ stlltul~ nff~rs no dirl:ctive on
whdh,,'r Ihl.!' juc.'gl~ or the' jury shnuld make 11m
('opr, I' W"',II'NX N,~ Claim 10 Orig, ll.S, Onvt, Work_'!
I
I" .' ,i')K WI. 7S14S6,'S il'II,))
dl'l'isiun. Wl' 11Il1,t nllW It~(aIJlill 1111' inll'nl tlf 1I\l'
Il'~iltl"turl' illl'llItdin~ till' lil1lilt'd 10l"t optioll,
Wt1l'1l Ihl." Il'ghslltlun' rl'l'x,IIlUilll'd Ihl' I\IVHU. in till'
IRh." IIJKOH. it. WIU uppurl'nt Ihlll tlw ..:01\1 Ill' I\ululllohil..,
inHurnnl..'e had h"'l.'n nlt!llI.hly inl'rt.'lllllng t)\'l'f 11ll'
pr~l,.'l.."t!ing Yl'ur't, (hll' ut' IIIL' k'gi~lllli\l\.' pllq'll)Hl'~ in
,,'l1ading Ihl.' Iimitl~llurt option IlS purt of Al.'t h 1,1,I11.\ 1',1
Inw~r immnull'l' (lrcrniulII~ hy n.'lhh,..in~ 11ll' Ilulllhl'r Ill'
1t1111\1I c1lliam fur pRin 11I1t1 ~ulh'rin~: till' inll"1l1 WlIl\ Ihllt
hy Iuwl.'ring il1ltllnUlI.''''. pn'miul1Ili, ltull11110hill' UWIll."r!'o
whn hlld hl"C'11 pUl'llu.'d uut Ill' 1111.,- inSlIrlllll.'l' Illurk,,'!
h"'I..'lllHIl.' of 5kyrlll'kl'ling l'llsl", (uHld UIl"'''' lignin uhlllin
I\ffordllbl\;" I1hltlJr ..dlkll' in~lIrnn~\'. S\'C Lcgislnliw
JO\lrllllt-HumL', No. (I, h'hnmry 7, !I)l)(), pp. ~02,
223,
.6 Whil~ fn!'lhioning the.' Iilllih~J tort uptiun, II1\'
I~gislnt\lre sp."nt " grl'llt d...llt of til1lt~ hlllllndllg tilL'
rights of tht" limih."d tol1 L"le\.'tor to rel.:tJver for
noneconumic.: IOSSl'S Rgllinst thl' g01l1 of low...ring
insurI\.nc.e cosh. In striking !'IUdl Il bllhU1t't~, thL"
legislature rejeclC'd Ilut"mpts to inst"rt langunge whkh
would haw made Ihe." '1Ut'stion of whelher a Iimil~d
tort elector had suffen..-o 1\ seriou:s injury on~ for thi,,!
trial judge to dehmnine rather thllJ1 the jury. One such
IlHempt was made by Senlltor SCIUllon on Uccemhc.'r
II, 1989 when he introduce-d IUl amendment whic.:h
would have altered the limited tort option .0 Ihat it
read that ~ltlhe detenllination of whether an injury
constitut,,! a serious injury shall be a question of h\w
and not a question of ract." Scanlon Amendment,
A-4129, Printer'. No. 2829. Senator Lae""r
immediat"ly introduc'lXl his own amcndment nullifying
the Scanlon Amt!ndment; the L.oe~r Amendment
passl.od by II wid~ margin. l.oeper AIl\t:lndment, No.
A4196. Sec gl!nerally Le."gislntive Journl\l~Sen'\le. No.
44, December II. 1989, pp. I-IJO-I-I79.
Another attempt occurred when Repn.'St'nt:llivl;'
Stephen Freind offered an amendment at the HOll.'it'-
Senate Conference ('onullillt'e M~e'ting which, Iikl'
the Scanlon AmtJndml.'nt, ,""ould IU"'l~ mildI..' Ihis
threshold determination UnL" fllr the judge to dt"ddc.
1990DOO394, IXlJ9411GS:AO 2/111/90 # 18
Representative i=reind's amendment did nol schievt! l~
\lote at the CommiUi.!c meding bt:clluse hL' WAS lInRhl,~
to ohtain 11 tls~cond" on his motion to cotlKider thl~
I1mendl11cnt. 1hul'l, bolh houses of the Gene",1
Aut!llllbly con/tidL'lred making the ill.,ut.'! of wht'lhL"r
there had been 1\ !icriuus injury a purdy legal
determination which ulUld he resolVL"d only hy Iht~
l'II~I' -I
Idal l'llllrt. !tnt! Pipt't'i1kI1Ily h'je.'dt"4.J pllll'illll ..lIdl a
h'tluin'lIIl'lIl into Ad fl.
Wl" gllin l\1I11wr inl'ii~hl inlll lhe.' tlUl'hlill1l tit" Whl"lhl'r
Ihl,;' Ut'lt"rmilllllilll1 nf "e.'rltl"" impninnt~l\t uf Il hndy
fundiun IK III htl I,~n In thl.' jury from till' flh:t thlll till'
It'gi..ll\turt' IIItltldt'tl the.' thrt'.\huld Iltll~UI'gt' of thl'
limitt'd tort option Itllt'r !Iimilllr IlIn~Ull)W in
~1h,.'higlln'~ nll~rll~lIt :\11\11I1e.'. lFNMI Se.'l' 1...."gislllliVl'
Journul-Uolli'll', No. 42. Junt' 11. I t)X9, I'p. 9Kh~l)X7.
In drnfHn~ Ad h, Ilur Ie.'gislnlurl! WllS llt1 douht l.\WIW'
lIr I Hh'Ull"'O. Mlprn. Iht' L'l\l'it' in whkh tht' Mk.hi~IUI
Suprt'IlI\' ('ourt hdd thlll Ihl" Mkhi~nn slllluh' ft'l.)uire.'c.!
Ihl" till' thrt'shold Ut'hlrJlIinution nl' WhL'tl1l'r till'
plltintiff lUlU sufft'rc.,J n Sc.>rillllS impltimwnt of hOtly
fl.lnc.::liol1 wus tu hI! Idttl) tht.' jury. II:N91
Upon rl!ViL'W, Wt' l'nl1dudL~ Ihllt the ".'gilllnlivl' history
dllt~~ 1101 Mlrrort thL' vil~w thltt IhL' Ihn.'shold
dt"h!rmirmtiun of whl"thl!r Il Kl'rinus injury hilS hl;'l"n
slIslninl!o is 10 ht! ml\dt" hy IhC' Irial judgl!. In fl\I.:t. WI.'
tinu Ihnt IhL' ll!gislutllH', hy following thl' Mkhigl\11
lI1odd, indkntl;'d that th~ tmditional Slllll.llllUY
judgll1l;'nl slRndnrd WIlS to ht' followt'd /lnd thllt till'
thrt!shold dettmnination WIlS not to he made routinely
by l' trial court judge in nUllters such 85 the one- befor....
us now, but f1lthl'f was to be left to R jury unle!!'!
reasonable minds could not differ on the issue of
whether. .erioll' injury had heen .u.tained, IFN 101
.7 Now that we h"v~ decidt."d thai the ultimate
detemlination should bL' nuwe by th~ jury in all but
the clearest of ca~t!8, we turn to the question of whAt
that dctenllination C0l1Si5tS. AI.'t h does not pro\lid~
any 1I1'1siidance to us in d~tining "sl!rious impairm~nt
of Rhody function"; nor do w~ nnd any ~llIcidatinn of
tht' mt,.\ning ufthb term in the legis\ati...." history. w~
do, however, find that the DiFranco d~finition of
"st'riotls impl\irm1!nt of hoc.ly function" i.'i 1\ sound one
and h~r~hy i!';(,prc.'Hsly ndopt il. That definition stall.'s
Ih.t:
Tht' "seriotl.'l impairment of body funcLion"
threshold contains two inqllirie/ol:
a} Whut body l\mction, if Imy, WI'S impl\irnl becall:i~
of injuries slIstninl.'(l in R motor \lL"llicl~ accidl"nt'!
h} Wa... the impninllC'nt of the body t\mction lI~rioull?
The fOi.::ul'I of thes'~ il\l)uiric/ol is !lot on the injuries
thL~l1\selve.~s, but on how thc injurie:t I\ft~cted a
pllrticulnr hody fundion. (j~ncmlly, mnlical
teo",til11ony will ht' nl't'dl.'.d to cstt,hli9h Iht! e",isttertete,
e:\tt.'nt, anti pt~rnU1.nt~I1CY of the impnim\ent.... In
dctl'lrmining whl,thcr tht! impairment was serious,
('opr." W~st (INR No CIllim to Ori~. U,S. <iuvl. WClrb
I.t.t,
,.
'-./\._~I"
(('il. '''' I'I'IH WI. 7~14~6. *7 (I'",))
,oil'Yl'fIll l"lldnrl'i I'Ihuuld Ill' l.'lln"idl.'n"I: Ihl.' l.,,,Il.'1I1 Ilf
Ih~ impninnl.'nl, Ihl.' Il'lI.!dh Ill' timl' IIw Imp"lrnwlIl
Ill.'ttl!d, th... lrl.'lllnwnl n'l}uin'll hI l'urn'd Ilw
impnirnwnl, 11Il11 IIIlY ,,11lL'r rl.'ll'..'lull fn..:hmL ^II
ill1painncn1 ncl'tl nul IJl~ 1'k.'rI1llU1l'nl In hl' fiil."rinu~,
Ilil'",,,,,,, l'IH N.W.~.!/lI'~'t.IFNIII
Now .....l.. lml,~t Ilpply Ihil'i hlltJ1lJnrd III I h..' 1H1l1h'r SlIh
judicL', ^~ noll.'ll !;Upru, nil iflh'rl.'I)r~'.~ lIIu!'ol be
r...,wIYl.'J in fllYor Ill' ^pp..'IIIU11 ".~ 11ll' nun.lllovill!!
pnrly, Ilnd ,hl' lllllUL'r 11I11~1 hl' MJhlllilll,J III n jury
unl~IHI Wl' \,'1\11 NIlY n..lt~lllwhl... minds ..:uulJ nol Jith'r
nn IhL' l,.'llllL'lwiiol1 Ihul ^fllX'lIllnl l.'Iu1I101 rl'l,.'OVL'r nn Ih.:
t'vidl.'nl,.'t' Ildduc......t. As lu th.... tin'il flldor in Ihl~
l>iFrnnl.'o I 1."/'1 t , il i:; Ihl.' WiC of AppdllulI'I\ right fOlll
Ihtll hilS ht."en impllirl'd, Th... next llUl."stiun to hI.'
1U1!6W~rOO is wheth...r this il11pllirl1ll.'nt of Ihl." 11M' of
AppelhUlI's right fool Wlltl Iieri()u,~. TI1l' l'Yidt'l1n',
wheen Yit~WI.-U in the light mosl fn'o'o,'lIhlt~ to Appdlufll.
shows thai Appt."lInnt wns inul1l.'tlintdy trl..'ul\.'(1 in a
hospitul el11Clrgl..'l1CY room, wh!..'rL' hili injuril..'K \.lo'L'rl.'
diugnosc.><J 1ll'1 consisling uf contu"ionli, spmins, and
strains; h~ WlU dischargw frum thl..' I..'lIll.'rgl."ncy room
wllhin 1\ fl.'lw hours, He misIH..-d four or till... days of
work at his full~liJ11e joh, and missl'd nppro:\imlltcly
four of his wel..'kly shifts at his pnrl~timl! joh,
ApproxUnately six months Iliter thl! a.:cWenl. one of
Appellant'. phy.ician. .Ialoo Ihallh<r< appellroo 10 b,'
some type of joinl arthrilis or coni it ion in the righl
fool, and that lippcllanl might neoo 10 utilill." ortholic
heel lifts; his physician Illso injl..'ctlXi one shot of
cortison~, HnaJly, ftl his deposition approxiJt1lltel)' onl..'
year aftcr the Rcdd~nt, Appc!lIllnt indicnll.'d Ihllt
although hi., fool Cllused him pain approximAlely CVl"ry
other week, he WRS still able to perform his work
duties and, aside from haying 10 utilill.' 1\ riding
mower, he WAS able to """gage in his norlllal dRily
activities.
"'8 Even wh!..'n this e'o'idenc!..' is takl..'n in Ilw light most
favorable 10 ApP"lInnt a., Ihe non~moying purty, we
find Ihftt reasonable minds cuuld not differ nil the
conc)u.,ion that Appellanl's injury wns nnl !h~riollS.
Appellnnl'8 injuril..'l't n8 dil\gnOlh.'C.1 hy lilt' ~~m...~rgl'I1l'Y
room physician w~re mild Rnd he WR.'i dis~hl\rgl..',1 ufter
1\ few hours, FUrlherl11or~, hl.' misst.'J only four or liw
shift! At bOlh his fllll~lil1le nnd pRrt-til1ll' joh~, wh~rl'
he wns re'1uirt."d to perform IllO:'!t of hi~ work whilt.' 011
hia f~t. Also, the trenemt!nt for his injuril:"1i wn~ "'Jt
exlenaiv,"" Finally I nlthough some typ..' of nrthrill.'i or
cORlition is affecting one of th... joint~ in Appelllll1l'S
righl foot, the injury ~cems to hnw hnd linll.' or no
l'Il~I' ~
implld uti Appl.IIIlIlI'II 1X'l'l"lIrIIlllnl.'I' 01 hi!! jllh
fUI1l'tiulI\ IIl1d 1'l1lUlH,l'Il\l'1I1 In 1)I.'rl'l1l1l1l1 lu.:liviti,'s.
TI)l'I'I'fufl', 1\llhllll~h (1)l' ~''I'idl.I1l't', wht'n IlIkt'n in Ilw
lillhl 1I\0llt I""'I'llrllhll' III ApJX'lIllnl. dlll'h "hllw (lu\I Ill.'
Wl\1i injur~',1 in IIIl' n~d,h'lIl. (Ill' illlpllirllll'nl rl'huhin!~
from Ihal injury is dt'lHly dl' lIIinilllil'l.
Appt.'!IIIIlI, hllwl'Y~r, [s (If Ih,' opinion Ihllt Ill' hu!'o
nddlKI'd !lullidl'nl l'vidt'IKI' ot' II !il.riIlU!'o il1lflllirllh"nt Ilf
hody fUlldinll .\11 lhlll tlw iSMll' should go In II jury. III
lH,\tuillg Ihis, Appdlllllt ""~IISl'li prilllllrily 011 Dr.
Brl.'am's prllllollnl.'l..'lIll'nt Ihl\1 thl'rl' WIIS MllI\l' tYPt" III
1I1'Ihrilis or l.'lllllilio" ill Appl.'lInnl's ri~hl foot:
l\ppun'nll)', ^ppt.'\lllI1llt~slll1ll'N Ihlll Ihis l'vidl.'I1l'l.' nllll1l'
b :lullidL'1I1 tu hril1H, till' 1l1I11ll.'r III " jury, Appcllunt
Sl'l'I1JS 10 hl1VI.' mislt.pprdll'f1dl.'d thl.' nllhlr..., uf (hl'
inlllliry twrl.'. TIll' 'Ilh'~tjlln tll hl' nnswl'n"4l is not'
whl.tlll'r Appt.dlllnt 11I11i IlLldllCl'tl I'lllffkil'nt C'yidL'nc~ 10
show tlllll Arl'k'lInnt sllll~nxJ nny injury; rrttht.'r, the
'11ll."sliul1 b whl."lhcr Appt.'lInnl hllR lihown Ihllt hI! has
Nuz"h'rl'd Il sl~riuus injury such Ihulll hoJy fundion hilS
hl.'l'n sl'riuusly impnirl."d, (,buly, il ili il1suffidt."nt for
App..-lhull lu show (hilt ther.... has hl."l!n HOIllt! injury~n
no nmltl'r how minor--- in orJl!r to l\\Iaid the ~nlry of
slIl1l111nry judg11\l..'nt l\gnimt him, Were we to fall 10
r....')l'irt! Appellant to adduce l!videncl..' IhB.t nol only
wus Ihl..'rl..' i\J1 injury, but Ihlll it wns also serious,
hdore ltllowing him to present his case to the jury, w~
would mnk~ n lIlock!..'ry oul of the summary judgment
utandurd. Although Appellant hilS inlroducl.>d evidence
thlll th~r~ is some tY[ll! of Rrthritis or coalition in his
fnol. h.... hilS filil....d to shnw thRt this injury hall had
such an impnc1 on him so thlll il constitutes f\ st:rious
injury. Thl..'rL"fllre, we rl'jl'c1 Apptll.ml'ij IIrgunient,
For Ih.... for....going reasons, w.... nffir1l1 Iht,;' order of thl!
~l'p"ri",('ourt, tFNI21
FL.AUERTY, (,.J., tilt,;'ij l\ conl'urring opinion which
is joirwd hy ZAPPALA nil.! (,A~Tll.I.E. JJ.
FLAHI:RTY, ('hi....,- Justkl.', concurring.
It is Initially for Ihl~ lrial cuurt, not th.... jury. to d....cidc
Wh....lh~.r l\ plaintiff hilS SlIfrNl,d It "sl'riulIs injury"
whkh, for purpl.)sl!s of 7~ Pn.C .s. ~ 170~(d), nllows
suit to hl' 1111lintllincd for 1\4111l."l.'onomic dlllll1lgl.'S, su~h
liS pnill and 8uft,-"ring, whtm: limitl."d tOl't ..:oyC'rnge hilS
bl......n dl'(fl.d ulldt.!r nn Ilulo in~mrl\l1~e policy, Section
170:ti(d) states in pcrtin~nl part: "lInlcs~ the injury
sustllint."J is It s...'rious injury, tl'lIch person who ili
bound hy lhl' limitt."d Inrt t'1l."ction IIhnll hl' prl."dudt"d
Copr, I W~.~t ~tNM Nil CII\illl to Orig. II,S. (jllVt, Works
I ., ) r ' ,'~ I " I II I , ~
,\. !~J
It'II.IL" IWN \\'1, 71114116. oN 11'11.))
l'II~I' 6
frum "I/.inlllinill~ IU) "....IInll fur nny III)fJI."nmulnk lu~~
.,.." III i.'I'~"K wh,'r,' Ihllr" i.\ 110 ~"llIIhlL' ittHlI~' II" 'ild
"" In Ih~' I1llItJrt' l1nd ",,,I,'lIll1f I Ill' plnillliff'~ illjury, Ill,'
~1'h"KIj.m I)" Wh~lh,'r Ilw Ill'lilm I,'un he IIllllllluhwJ l!i
on~~ fllr th~ ,.tridl ClIurt, In providing th~~ Iimih.'tJ lort
upliun, Ih~ IL'lliKI"turco inh.',KlLoJ 10 n'thll.'" hulh
lili8:"tjofl nnll Ih~' CliNt uf InKumnl.'". TIl pWlllit ~'lINI'~
wh,'n, phtillliffli ".'Inim M.'riuu~ injury 10 gu In Ih,' jury
wilhlHII fir~t hnving th,' nJllrt dl'h.'rmin,' wh,'llwr th,'
injury ill It Kl'rlllll!i ~IIW (Imld prllvl' liS ,'xJ)I,.'nsiv~' AS IUI
unr~Klrkh.'J dghl 10 Mil', llnu would nul ~uhl'itnnti"lIy
rt"in In 1.'luHIt (If in:;umn........ IInu litignlilll1, PL'rlllilting Ih~'
trilll court lu milk!! fh,' Ihn'!ihold d....l....rlllinulinn liS In
Ih~ H,'riut!liIlCHIt of all injury, wtwrL' IIll'r.... i,., no is!iul! of
'itd lilt Ie) th~' nllturc 111111 l':dl!l1t Llf Illl' injury, 1II11l.:h
bcltl!r !ierWli the k'gislnliVl' g01\1.
t II}II~ h'rhlllll) l",IIIY jI"")' IlhlY Illlfh' "" 'ollllUllH1}
PH1tlllll!Il1 IItl tilL' plL'IIlhIlJl~ IIml 'UIY IlL'llill.lllllll'o.
1II1KWi,lrll lu illlL'rrll~II"'nl.'ll, lIlhlllllKIIIIl_'o 1111 till.' HIIII
1l1l1'''1I1t11l~ IIffiIJIlVlh~): 1"1 M (' P '1,. iIl....11l1l1l1ll11l1
~jlmdu...it"). Yl.'t, Ihl.' Inlll 1:111111 1I11IWlhL'll.'ll~
ClIlIlIllll.'tl!11 thlol''': IIINIlIIll.'lllK III rl.'lIlltnllW illl 11"'1,,'111I1111
111\ thlt K11l11ll1ll1)' Jlldltllllflll tlIl~11I11 III h~hl Ill' 111111
Ildlllll lit' Ihlt tnlll 1,;111111, IIml 11/'1 VoL' ':lln flllll 1111
ll11h~'lIlltlll III Iht: Iwunl Ihlll ApJh'llL'L' 1!\lL'r ohl"'....IL',1
III fila: I:Ullllldl!nillllll lit" Ihlltilt Ihk:lIt1IL't1IIl, Wlt, 1.)0,1,
11111111 .,;'OIillldL'r IhL'1I1! IIIICllltlL'1l11i itl rL'llIhml1~ lIur
I.leCI1I.1l111
FN 1. All thill iH it Mummnry judglllcnt ,"ltltL'r, WL'
view the ~I.:UN in IhL' light lllUHt fnvomhl.: to
Appellllllt IlH th.: nun-moving pltrty, lII1d ull douhtK KI4
to the OlliHtenl.:1f IIf It gcnuinct il/HUC Ill' lTllth:rial fill.:t
mUllt he rellnlwJ IIKlUnKt thct mU'Jing plllty.
Pcnnltyl'JlUlilt. Slurl! Uni'JeNlity v, Cuunty nf ('cmlre,
.H2 Pll. 142, 1-l4-14~, 61~ A2d :\03, 304 (1992)
~N\ Alth,"l~h AI'I'.lhull "I',u'..lIy du",u<I.",",
hilt IIlJllnLlK 1114 ":'IIIIlIIllIIl~ III' II hrnhn hllIlL' III Iii"
flllll, ~I!" Allptdhllll'/i tll'il!f III el, thl!r!: i~ IIU Illtli":lIlltlll
ill lh~ r~":llnl Ilmt Illl)' lit Ill~ l,h>,~i..:illnK l!.IIpr!:'1hl'd
11111.:11 un 11llininn ~lllllhill II rl!lllUlllllhll Ilt:1t"..e nl
lIlet!icOiI ..:trtllinly Ur BNiUll dil.l hlltle III 1111
UIl/iiLtIlI!I.!, llllltWnnl notL' wntten "Ikllll 1I11L' II' hl.~
inililll ":IlIlIlUlllltinnll with Appe:lIulIl 111111 tlle'n: '\:1111111
he i11l uhl frIlL'IIIrt:" III Appt:llllllf.'~ n~hl 'not Yl!t.
Iherl.' WItH no fllrther lIuhl:IlllOI1 1l.'1 tn wlle'lhL'r Dr
Brt.tlll hill! inuettl ":1II1<.:hult!d tlUlI Iht!rt WII/'l 1m ultl
fnldlllV in Apl,dlllnl'.'1 nLtht !'Iltlt ^~ l)r Bn.'lll1l
I1cVtr C.IIpn:IIHl!tl IUl ClllulIilll, wilhin II rCltHHlUthlt!
degree: tlf metli":ltI <.:crtllinty, thltl It hllne: in
Appt:lhlllt'~ ft"~ hml hccn hruken. We 11/"1.' ullllhlc III
itIlKlIlIlIt the e,,-iHhm":e Ill' lIuch II t'm<.:tllre in e.lll\Jllinin~
the propridy of ~ntlllillg Appellee'lI ~ullllllnry
judKlmmt muti,m, SeLl' CnUlInul1wltullh v, Slnltl:fulI,
462 Pit, 43, 337 A.2d 873 (f)".11}7.~) (ll ll1c:dil.:lI.J
opinion iK Iluftidc:nl In Kuppnrt It lil1din, whl!n IhL'
opin,oll ill ~i'Jt:n wllhin It rt:W1ll/lllhlt tlcKntt: uf
llHUlil.:ld l.:crtwnty)
*9 Thl! fl"cord in Ihi:; i;'IU.... "mrl)' SlIp(XJrts t"~ trilll
court's conclusion that Ih~ injuri....s ~u.'iraif1l.d hy
l\ppcllal\t Were not Sl!Vcrc enough to permit rt:,,:o'Jl'r)
of noneconomic dRJllftgejj, The sunmllu)' judgment
l!ntcred in falvor of appellee W(lli properly ufl"irmeJ by
Supc:rior Court,
ZAPPALA Md CASTIl.LE, JJ" join in Ihi,
concurring opinion,
FN2. DepuHitill1l tCHtim"IlY mdicIUCK tlml Ihe
tlOllJKt:llil,1 WitIl Ihupruftn,
FN6. The fthttllhH)' IIUl~\Ht'1I relutin, tu the Iimltt:d
turt uptiun WltH ~l1ucted Itll plltl uf tht: 1990 UlIll1ihu/i
ltlllL'nt!lI1t:rll!i tll Ihe MVFRL. Act 6 1990. Feh, 7,
P,l. l. Nn. 6, 7~ PIt('.S ~~ 1701 L'lHtll' ("A..:t6")
FN3, The: MuhtnlllJ' juint iN hllilow thl! lalwl in tht: fllllt.
... Wint~r <Jriftith, Cllmplele Guide In Spnr1M
Injurilt!l (1986).
FN7 Sectil)n 170~(d) .,I,m pruvideM certllin
e.llCeptillll1l II) the lirnitl\tinnM plu<.:cd 1111 hilt N,,:uvel)'
Fllr t'i.ltltlllple, ur,c of thllMC t.ltL:eptillllfl pruvll!cM thllt u
limiled lort cle..:rnr whll l\IIll not lIuffen:11 It flllrilMlfI
in.Jlll)' 1111'>, ,'Itlll recll'Jer fur hill l1une~llnlllllil: IIIKKUOM
whltre ht: Wltlt injurtd whdt! II pltltHengtt ill It vthil:le
other IhulI It privllle pllllflL'll~llir n\UIllr 'Jthide We
nul" rhll! Illllli.t IIf tlit:l/L' e"':ttptllltl~, hllwe\ltr, Iii
lIpplkllhltt in rhili ":lllie
FN4. TWI) Ilifferltllt dllClllllenh, pllrpllltei.!ly
i&ctnltntllld hy [)r, Brtlun, went lttll'emlell III
Pluinlitl'!i Rct,'1PIlIlIiI! hi Dct'lJndllnt'N Mntillll fur
PltrtinJ ~\lll1mllry Jlli.!jllllllll AM nOltd hy tht: trlMl
..:uurt hl!bw, thelle dI)ClIlTlellt.'I from [)r, HrcllHl WL'rl:
nllt llwnm tn tun! tlid mil .:nntltin It 1I1111elllt:nt rctlltlill~
tn UI1KWt>m fnlliift':lttulO tll ltulhllrililtM; tlllC of Ihlt
dlM:UlllltntM dOltK nnl eVt:n hCI" thlt !Iiil.nldllr\! IIf Or
Brutun. ThltHtI dlllllllTlltnt.~ thltNl'lIrtt l.:Huld nnt hit IIltei.!
hI !luppnrt Appclhmt'K pllllilillll Ihllt IIUIl111lnry
judamltnt llhrMlld nnt ht ~nteNd lI~llinNt him KII Ihlt)'
Wt:N nnt enmpelltlll ltVilltl1clt. ~tTe PI,RC,P, 10:1.1
FNI\, Th... ":lIlllp1lnlhfu MJdHi&IUl fll.llHre ~tlltt:'" Ihllt
1111 pl:r~IllI rltlllilil1l1 HllhlUd to hilt lillhillty fllr
nnnt":lllllllllil,' IUIIM ":1l11Ill:tl hy hiH IIr htr nWlll!r.~hip.
1ll1lilllUl1lllll.:l!. IIr (lMt: nf " Illlllur vllihilllc tlnly if Ihlt
injllrt:d purKIl" hutt KlIfftrcd Ilttillh, Ittrlllll.K impninnctnt
lIf h'li.l.v flll1..:tiUII, Ilr pltnllllllt:lIt !turlillltl
diMfi~llr~I"clll
Copr, 1'1 Wl"ltt lqtj8 No C'Jllim 10 Orig. U.S. (ill'Jt. Work.",
.-oM UIlIl'i\TIONi\1. liSt: ONI,\'
,\.:.!d
(I'U. ,"': I!)IIK \\'1. 7~14~6, .'llI'll,)l
l'IIW.7
Ml~'h ('1111I11 lilIA-II ~ \iJt) lll't I)
H'~ 10 Wll Illlhl Ih.11 Ihl.' SUpl.'rlut 1'II111t III 1)0,1"'10
~'lmll.'lhl,',1 Ihllt IhL' l)lh'lllI>:I' "'MlIt HUhllllloltll,,",J II
1,.,,11111111111 "lllllIlU") \lnl~lIllllll Iml,t)'",,," 1),"1111111,
f)b.\ ^ lJ III 1.1\0 'I'll.. SlIl'lfrll'" l'lIll1t 1I1)lllInmrly
h.:II&!\lL'd I hili Ulhllll"1I 1I111ull)I,lu:J 1111111111111")'
Ju.J~Il\ltllt l'lw whit" it 'hllhl Ihltt '-'\11.'11 wlwn' 11\l.'
pu,tlllll ugNl! lit) 111" IIltlllr" "11l1 1.'.\11.'111 "f I)llllllllfl'"
lIIjllnt:ll, Ill", ';IUt\" "hllllhl IIldl )1.11 III Ihl.' \111)' whl.'rc
NII/HIIIUhl", III11UJK \'IMd,1 .hllL'r 1I\1.:r whclhlfr Ihl.' fll,..'tll
","tnhli..hL't1 thld Ihl.' 1'111I111111 hml "lIHen!ll II "CrllIll"
1I1lllllinlli.'lll ..r It hlll.ly hlll~11I11I
('nlllm,.) hI Ihu SUl'lHlllr ('IMII1'" 1lIllIllllljlllllll, Ih",
UIFrun':I,..:uur1'1l ,h.'\'11I11I1I III 1lI11":":11n1 \\lIlh ~llllll11llr)'
11Idk/,llumt IlIw E\I~11 whltn: III.:r!'! L~ III' 111"1'111,.
":1I111.'.:nllll~ Ihll 111':h, II IIlUllllll IlIr MIIUltllU)
11ldM,lIIltlllllhulihlllul hI: ~runl"'ll whl.'r~ Ihll~1.' flld~ 1.:1111
1l111'llUt1 1.:1I1111 1..:1 IlllC IIIltr"II":1.'1I 71 Alii Jurlll
SlIlllIllIII'Y JllllilHtnl U7, Whlln Ih~ flll:b I.'UIl 1ll11'1"1I1
.:nntll~'llnlllll"ItNIWI!II, 1I~llllllltt h~ IIllilllhnl Ihl! ~UII'"
III fn:1t IIlltJ .:1I:lIr fnulI 1111111.1 IUIlI IhulI rll'~ IlIr
1I111111111lry jlldilmvnt. Silt.: MurkM, KlIJlm
I:N" WI! 1I11f~ Ihlll Ih... Mldllk/,llll 11.'~1\lllrllrt.: ,,'n'II11\
1II11",,"11t,1 ~ ."nn .\1,\" III llnl\llllll Ihul Iht.: IMII~ III
Iil!nuUJI 11I11I()' III nllll Illr IIn: frllll ':IMII1 tlhl}ta: hi
,1~ltJt' III tllhltr ..llh... hlllllwlIIll "II\lIlIlIIIIM tirlll.
\to'hunr II\lnl.' III II" 1'11...111111 ,hllllllll.' "IIIWl.'rIlIlIlt 11\1.'
Illlhlfl.' IUlIl I.'-','nl III 11lL' Ill.'rllllll'll l11IUril.'ll, 111111
1Ia:':IIIUI, \to'hrN Ihl!N III II fll,-IUIII tJllljlL1la: ,'IIIIr.:L'nH111l
Ih... 1l1,lun! 111111 ""111111111' Ihl.' 1)l.'naIlU'!1 IIljllrll.'K, hili Ihl.'
Iiillpllllt I~ IIl1t 11l111l!rUlI hI 1111.' J,'ltr.lllfJllliun lit'
whftlhtr Ihl! 1"mulI. Ihl.1 IIIJftl.'rl.',1 II IIl:nllllll 1Il1lJlllnJll:II1
III' hlkly hlll.:liullllr 1..,nIlIUll.'nt "unllllll ~hliti~IINI1I~1l1
SI.'i: MLlr;h, ('mill" LIIW~ ~ .'liOO ,1lJ'a) 11lrlll:IUIHll.'Il1
I.'''f".:tlv~ MIln:h lK, 191'6)
The t"1I..:t lhllt th~ MI.:hi'l\ll h.'gl"lullIl"\' hll,,. dHl~"'" III
CflU.:f Ihi,. IIHll!l1l1lllenl in \91)6, hllwlI...tr, III irnd"'\l111I1
in tJl.'h:nllinill~ wllltl IMIf lll~illllllllru inll:lIIll:ll wht.'1I 11
~nullell Penllllylvllnill'..llllliled tlllt IIplillfl III 11)1)0 In
IUI.:ertllinin, wl1ll1 lIur h:iillllllure IllhmtJ",1 whit" II
III1CtJ tlUt Mi.:hiiltll luw 11M II H1lkt.:1 in lllhldllllL A.:t (I,
we mUlt Iim,t 1M" e~ltInirllltillll In thl! MllIlL' "f 111,- 11I\A.'
11.11 it iU.iNlctJ them, In lqi)(), IhL' Midll"IUlllllllute "1'1111
whidl tlur limilctJ hlt1 Illuinn WIlli hUIIIHI dill IIlIt
t.:llllt.nin (hi" IIUlgUIt~Lt llirt.:tin.r; thtd Ihlt tJ~hmllinllrillll
lit" "lIfril)l11l injury" WM tn he! IlllltJL', III ':L.'r1i11l1
cin:umlll,'n':I.'II, hy lhi! lrilll .ilJII~L.', FIJrtht:Mlltlru, Ihl!
DiFnmllll CHUrt inh:rpl"\!h:tJ lht: prtt-II}t}6 11Ithmtlmt:nt
M entNlltlnll Ih. dehtnninllllulI II" whtlhcr 1'''lInllll
11Iut lIuffftl'tttJ It lIerinulI impllinnt!'llt lit' II h,kly fllll.:tlun
lu Ih.j'uy.
W.. Rl\t, uf ..nun"" fully "UMl1iz,tnt IIf the 1)UlIllihililY
Ihllt nur leJl,illla.ruN .:nuhl tJctt!'nuinL' Ihlll Ihe puli..:y
Cllll~.mA whi~h n1Utl~.ucd Ihe Michi&IU1 "r~if'lllttllra: tn
Ilmend illl ,.tlttute ItR ut" a:qUld t:llnt:ltnl in IIllr
CnmrnnnwoRlth IU1d Iherefor.: A..l 6 IIhlMlhl he
lunarntJcd in " ~nlnplU'lthl" ftUthinn. Yet, IUI1.:mlin& II
HhUut. iA " IInitjuely Ir&illll\li~d funt:linn, t)n~ whil.lh
'wlluld he impropt!f rur UN In undcrtitk~. Thcrt!"nn:,
wo cut1iJlud. Ihllt Ih. rcc.nt tUlUuuhnenlll tn thlt
Mi-:hijtw IIlntul.s lU'e nut OIl,vKnl 10 IMlr rellnlutiun Ilf
Ihill mutt.r,
t:N II Wit nllhl Ihlll IIhhulllth Ih.,. Slll'l:riut ('uurt 11\
J)lldMllII N.lltl.lh:d thl: l>IFnlll':" ':IMII1',. 1II'f1ntltL'h 111\
thlt IMIIIIIt 1'1' wl1l:lht!'r Ihl: 11ItJ~1.' or Iht jury ~hlMlld
tJ,:tennine Ihl: IhrcllhllltJ 1~1I1lt:, it did lUll II'I 11ll:
OiFnuli:U IIhlnllnnJ 1m wlllll ':1'I1l1lllull:lI u H"lfriIMI~
illlPI'innent nl' hlMly fUII.:tinn". l>lJdllllll, 6b~ A,2ll111
12))-12:14 II 16.
FN 12, Apl)ltlhmt ..ll'u hriefly MlIudt:" In IhL.' IU'JI,lImcnt
Ihlll K limih:tJ Inrt. c1a:.:tur',. ,:ul1l1tiluliunw right III It
jurylri..1 will ht: dClliltll if Ihlll t:nut1 were III IIIUl..:lillll
Iht: Jrn"lin" nf IIUllllllltry jlUlj.lIlcnt ItlPlinMI " lilllitt!'tI
turt. .(ltlJlllr whl) hUll nul Nhuwn 'hilt h.: 11IlII 1IL1l1tltincll
K "";I)U" injury. Thill "r~llInilllt if'l 1I11Cl:illllll, Nt3ilht:r
I'h. Pltnl1"yl~ltnilt nut Iht lhUlttJ SIIlI~1I ('ul1l1tilulinnf'l
Mntnt M Mltlllute ri&ht In II jllry trilll in It ~i\lilll":li'lll
Whdnt " plllinlifl' hlUl f"iIltd hI ef'lli,hlillh thllt he hlUl II
""l1f'1" ur "..Iiun, th" ':llIIlIlilutillllld riMllt In" jury Irilll
Iii nllt \li\111I11t11 wh':ll (hili pluilltiff'III1I1:~ if'l diMlIli""l:d
I!NI> OF IXIClIMENT
..
('opt.,1' W"'sll"~)K No ('((dill 10 Orig. U.S, 00'111, Work"
" ,
"
"
,
'i
8 , "" !?,
""
1)[.(i .~ ji~
t .1
rf"J";oll. N '!'I"r
...:"l ,..I
(J),' .' . )
" r', (, . ~ J
., ~:: . -" ":;i?J
't:C1 :;,;
f'n W ....'11
.J.>"c' ~
'r- 0 ~
~ I:;)
, ,
""
"I
I
I
,I
"
'I
1.\'
\:
U
~
(
-1
~
"
II
'I
I
,II
\.
I..,
~
,
'1
"!
,
,
1'.:
~
~
II
\
1]'
11.\
ti
'I
IX
i'i
,'Lt
I'.
"
.1
,,'
"
I,
"
~
-...(
~
/
.;
l .~ i
,'I,:
iil
,
,
'1'1
;';,
'.V
/1;
I
,
.,
I't
:1
"
",
,
iF
;j
.'~
".r!'
"
>1,\
\ :f
I!;~;
'".
.\;
II
11
:~
.1,.
II
,Ii
"!;':11
J
.~
:'1,:!1
;','11
,.,.
,
,'J
'If
,j
I
I,
"
i'i
"
"
,
,
I,
,
"
.,
'1'1
;,
I
" ),'.'
:.,
,:
"
"
-"j
"
').
I,
"
/1
, I
,'1
'I;
I
"
"t
','11
,
,i,
"
I'",
'Ii
I
.,
1"
"
",
'I
,I
", I
"
.1
,
"
I"
".
,
"
i
. .r
L
i,.;i,
"'I
I'
"
,I,
, I
LI
_,
.
,
"
I '.,
~ I
0.- )
>
t
to. I
0-
,
~
,
I'
j;'
I, ,
li,/
,.
I,i
:;j
,I
,
I,
"
-'I
,I "
, ,
I,
'/1
,,',
"
'i'.,
"
'-';:\
\\t:~
:~1
",:,~1
,'~
,!j
t ~il:;
":':fr/
'..;
i,f'
I
I
,
I.
'I
'"i
'"
I,
SUSAN LEBO and
RONALD LEBO. her
husband.
Plaintills
IN TilE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY. PENNSYL VANIA
v,
tlVIL ACTION - LAW
NANCY K. MUMPER.
Defendant
NO, 97-4980 CIVIL TERM
IN RE: DEFENDANT'S MOTION FOR PARTIAL
SUMMARY JUDGMENT
BEFORE HOFFER, P.J., OLER and GUIDO, JJ.
OPINION and ORDER OF COURT
OIer, .I" Februaryd3. 1999.
In this negligence case, a limited tort plaintiff has tiled a complaint against an
individual delendan!. The complaint prescnts a count lor personal injuries against the
Defendant on behalfofthe limited tort plaintilI' The complaint also states a claim for loss
of consortium on behalfofthe limited tort plaintiffs husband against thc Dcfendant.~
Presently belore the Court is a motion lor partial summary judgment tiled by the
Defendant. The Delendant notes that a plaintitfwho elects the limited tort option lor his or
her car insuram~e can recover noneconomic damages only if that plaintilf has suffered a
"serious injury," Defendant further notes that. if a limited tort plaintiff cannot establish that
he or she has suffered a "serious injury." the delendant involved is entitled to summary
judgment on the issue of noneconomic damages,
For the reasons stated in this opinion. the Court will deny Detendant's motion for
summary judgment on the issue of recovery for noneconomic damages.
I Plaintin's' Complaint. para, Ill.IS.
1 Plaintiffs' Complaint. para, 16.19.
STATEMENT OF FACTS
The lollowing Iilcts ure ullcged in 1)luintill's compluinl: On Murch 8. 1996. ut
approximately 7:35a,m.. PluinliffSusan Lebo wus lmvelin!! norlh in the len lune of 1m vel
on Route 81 in Middlesex Township. Cumberlund COllnty. neur Exit 17. I At this time.
Defendunt Nuncy K, Mumper lost control of her autonlObile while uttel1lplin~ to enter onlo
Route 81 at the interchange of Exit 17,and slid into the path ofPluinlill'Susan Lebo. thereby
causing a collision.'
As a result of the accident. Plaintiff Susan Lebo sustained a number of injuries.
including a Galeazzj's type fracture of her right Il,rearm. which subsequenlly necessitated
two surgeries.s These surgeries lell a scar on the back of Plaintill's lorearm" measuring II
cm. in length. 3 mm. in width, and 1.2 mm. in height.J
At the time of the accident. the Plaintiff was insured by a USF&G motor vehicle
insurance policy.~ Prior to the date of the accident, PlaintilT had elected the limited tort
) Plaintiffs' Complaint. para. 5
4 Plaintiffs' Complaint. para. 5.
5 Plaintiffs' Complaint. para. 9; Plaintiff Susan Lebo underwent two surgeries as a
result of her forearm Iracture: (I) an open reduction and internal fixation of the right forearm
by means ofa metallic plate and six metallic screws: and (2) an open reduction to remove
the metallic plate and six screws.
" Plainti t1' Susan Lebo was involved in a motor vehicle accident in 1992. as well. In
this accident. Plaintin's right forearm was tractured and required surgery. This surgery left
a residual scar on her right lorearm, Dc/endant asserts that the scar on Plaintill's right
forearm caused by the accident involved in this matter is only one inch longer than the earlier
scar from the 1992 accident, See Defendant's Motion 11'1' Summary Judgment. para. 7-11;
see a/so Plaintills' Answer to Delendant's Motion lor Summary Judgment. para. 7-11.
J Plaintiffs' Complaint. para. 9.
~ PlaintilTs' Complaint, para. 7.
2
option provided lilr in Ihe I'ennsylvunill Motor Vehicle Finllncilll Responsibility Law
(MVFRl.).75 I'll, Cons, Stut. ~ 1705(u)( I). in eOllnection with her insllrunee policy."
Pluintiffs liIed II compluint on Septcmber 15, 1997.111 As notcd previously, in the
complaint Pluintill'Suslln Lebo asserted u c1uim lilr personul injuries lIguinstthe Delendunt"
und Plaintiff Ronald Lebo set outu claim lilr loss of consortillmugainstthe Defendunt,I2
Presently bclilre Ihe Court is u motion tilr partial Sllnllllury judgment liIed by the
Delendant. The Delendantargues thllt since Plainlill'Susun l.ebo. as u limited tort plaintill:
eunnot estublish thut she suffered u "serious injury," Ihe I>elendunt is entitled to summary
judgment on the issue of recovery lilr noneconomic dum ages, I J
DISCUSSION
Motions for summary judgment arc governed by Pennsylvania Rule of Civil
Procedure 1035.2, which provides us lollows:
Aller 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 pari as a mailer of law
(1) whenever there is no genuine issue of any materiallact as to
a necessary clement of the cause of action or defense which
could be established by additional discovery or expert report. or
(2) i1: aller 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 lailed to produce
evidence of facts essential to the cause of action or defense
q PlaintitTs' Complaint, para. 8.
10 See Plaintiffs' Complaint.
11 Plainti ft's' Complaint. para. 10-15.
12 Plaintiffs' Complaint, para. 16-19.
Il Defendant's Brief in Support of Her Motion for Summary Judgment, at II.
3
whkh in u jury triul would require the issues to he suhmitted to
a jury.
In ruling on u motion lor summary judgment, a court will "view thc record in the light
most lavoruble to thc nonmoving party, und ull doubts us to the existence of u genuine issue
of materia I I act must be resolved against the moving party." Erlel I', I'alriol News Co" 544
Pa. 93, 97-98, 674A,2d 1038,1041 (1996),
The "ennsylvania Suprellle Court. in WashillKlcl/I v, BaXII!r, _ Pa. _, 719 A.2d 733
(1998), recently held that this tntditional standard lilr sUlllmary judgment is to be used in
cases involving a limited tort plaintill' who seeks to recover noneconomic damages. such as
Plaintill'Susan Lebo in the case suhjudice. In so holding, the Washingloll Court rejected the
previously accepted approach for these types of cases, whkh was adopted by the Superior
Court in Dodson v. Elvey, 445 Pa. Super, 479,655 A2d 1223 (1995), allocatur Kranted, 544
Pa, 608, 674 A.2d 1072 (1996), reversed. _ Pa. _' 720 A.2d 1050 (1998).
The DodsoY/ Court had set out the following approach tor cout1s to utilize in
determining whether a limited tort plainti tT could recover for noneconomic damages:
In the context of summary judgment. the Court must determine
initially ( I) whether the plaintitl. as moving party has established
that he or she has suffered serious impairment of a body
function; (2) whether the defense as moving party has
established that plaintitl'has not suffered serious impairment of
a body function, or (3) whether there remains a genuine issue of
material tact tor the jury to decide.
445 Pa. Super. 479, 494, 665 A.2d 1223, 1231 (1996). The Court thrther stated that. "where
the evidence conclusively estahlished that the plaintiff has suffered 'serious impairment of
4
body Itlnction,' thcn thc jury mllY dccide only the issucs nf lillbility IInd dumllges." lei. at
497,665 ^.2d lit 1232,11
The Waslling/oll Court concluded thutthc legisllltivc history of the MVFRI" which
provided lhr the Iimitcd tnrt election, did not support sm~h lInllpprollch. Wasllillg/cJ//, _ I'll.
at_, 719 A.2d ut 740, Rather. the Washing/oil Court indicated that "the truditional summary
judgmel1l standurd was to be Ii.lllowed" and thut "the threshold determination" liS to whether
the plaintill' could recover ti.lr noncconomic damagcs "should be made by thc jury in 1I11 but
the clearest ofcuses," lei.
The factors involved in the threshold determination as to whether a limited tort
plnintill' cun recover for noneconomic damages arc Ii.mnd in Section 1705 of the MVFRL.
Section 1705 states in pertinent partthut
[elach person who elects the limitcd tort alternutive remains
eligible to seek compensation Ihr economic loss sustained in a
motor vehicle accident as a consequcnce of the fault of another
person pursuant to applicable tort law, Unless the injury
sustained is u serious injury, each person who is bound by the
limited tort elcction shall be precluded from maintaining an
action for any noneconomic loss ....
75 Pa. C.S, * 1705(a),
The MVFRL det1nes "serious injury" as "a personal injury resulting in death, serious
impainnent of body function or permanent disfigurement." 75 Pa. C.S,^. *1702.
Washing/on at _,719 A.2d at 740.
The Defendant's motion for summary judgment argues that the Plaintitrs injury docs
not constitute a "serious injury" because it was not "a personal injury resulting in death.
14 The Doc/son Court sought to limit the jury's role in this respect, reasoning that "to
do otherwise \vould put the plaintiff to the double burden of showing 'serious impairment of
body function' twice. once to the judge and again to the jury," Doc/son v, Elvey. 445 Pa.
Super. 479. 494, 665 A.2d 1223. 1231 (1995), al/ocClllIr grilll/ed. 544 Pa. 608,674 A.2d 1072
(1996). rever.~ed. _ Pa, _. 720 A.2d 1050 ( 1998),
5
serious impaimlelllofbody limction or permanent disligurement:' While the personal injury
ofPlaintitrSusan Lebo obviously did not result in death. this Court is unable tllllgree with
the Dclcndant that reasonable minds could not diller liS to whether PllIintitrs injury resulted
in "serious impairment of body lillletion" or "permanent disfigurement:'
The Washingtoll Court lid opted Ihe det1nition of "serious impairment of body
lunetion"lirst setlbrth in DiFranco v. Pickard, 427 Mich. 32. 398 N.W,2d 896 (1986), The
Michigan Court stated that the "serious impairment of Illllction" threshold involved 1I two-
prong inquiry:
(1I) What body lunction. if any. was impaired because ofinjuries
sustained in a motor vehicle .lccident'?
(b) Was the impairment of the body function serious'?
The locus of these inquiries is not on the injuries themselves.
but on how the injuries affected a particular bodily lunction....
In determining whether the impairment was serious. several
lactors should be considered: the extent of the impairment. the
length of time the impairment lasted. the treatment required to
correct the impairment. and any other relevant lactors. An
impairment need not be permancnt to be serious,
Washington at _. 719 A.2d at 740 (quoting DiFl'ilnco at 39-40. 398 N. W. 2d at 90 I),
The record rel1eets that Plaintiff Susan Lebo is a limited tort plaintilTwho claims that
the injury to her lorearm. sustained during her collision with the Defendant. impairs her
ability to perlonn a number of tasks, First. Plaintill'has alleged that her injury has prevented
her from fully attending to her usual duties as a research coordinator for McMillan &
Magargle.'\
Second, Plaintiff has testilied in a deposition that. while she is able to do some of the
things she did before the accident. she cannot do these things for an extended period of time
Il Plaintills' Complaint. para. 14.
6
and oncn cxpcricnccs "u nUlI1bncss scnsution in [hcrl lingcrs und ulsoa constantll1usclc typc
of latiguc in Ihcrlurm:'I" In uddition. I'luintiff maintains thut shc has ulso cncountcrcd
di Iliculty in cnguging in Icisurc uctivitics with hcr husbund thut shc cnjoycd prior to thc
uccidcnt duc to hcr cxpcricncing u "jurring or vibration-typc" feeling in her wristund arm
and "decrcuscd grip-strength in hcr hand" in hcr ullempts to cngagc inthosc activitics,')
Thc Supcrior ("ourt in F/lI'/l/1I1/ v, Shllpi/'(). 721 A.2d 1125 (I'a, Supcr, Ct. 1998).
rcccntly rcverscd the grunt of u motionlhr SUIl1I11U1'Y judgmcntmotion against a limited tort
plaintill: In support of this reversal. thc Court citcd thc lhctthat thc plllintifl7appellant had.
in a manncr similar to I'laintitl'Susan l.cbo. rcduccd her work status and sutlercd a decrcascd
ability to cngagc in activities shc had participated in prior to hcr injury. 1M
This Court. thcrcl(lrc. noting thc cxistcncc in this cusc of allegcd Ihcts similar to those
in F/ll'man. and viewing those Illcts in the light most Ihvorublc to thc Plaintiff: believes that
reasonable minds could differ as to whcther thc Plaintiffs injury reprcscnted a "serious
impairment of body function:' Conscqucntly. the threshold detcrmination as to whether
Plaintiffs injury was scrious so as to allow Plaintiff to rccovcr for noncconomic damagcs
should be made by the jury.
In addition. this Court is of thc view that the issuc of whethcr Plaintill's injury
constituted "permanent disfigurement" is also onc upon which reasonable minds eould differ.
Based upon these conclusions. and I(lllowing thc traditional standard for summary judgment.
the Court holds that the issuc of whether Plaintill' Susan Lebo sutTered a "serious injury" tor
16 Deposition. at 45.
17 Plaintiffs' Answer to Detendant's Interrogatories. No. 14.
1M In F/ll'man. the Court eited the fact that the appellant reduced her work status from
full-time to part-time due to her back pain as part of its reasoning that reasonable minds
could differ as to whcthcr appellant's injury was "scrious." The Court reversed a motion for
summary judgment against the limitcd tort appellant/plaintitl'. Furman v, Shapiro. 721 A.2d
1125_ _ (Pa. Super, Ct. 1998),
'"
7
.
\
" ,f: ~ ~
qJ~ ;co. -.:I
;8 ;:'If2
,...,..., w :,,~
~~;l~ 0 "
'+1-
r-:.l:j :':! ,,' I
'l"r ""j1
"","'i..il - ~frl
(i"p N
~. '"
':;Jl ..
N ~
~ I.;>
I
I,
",