HomeMy WebLinkAbout95-965 CivilSTEPHANIE MURRAY
Plaintiff
Ve
HARRY BLOSE,
Defendant
Ve
MICHAEL J. PAUL,
Additional Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 95-965 CIVIL TERM
IN RE: MOTION FOR SUMMARY JUDGMENT OF DEFENDANT HARRY BLOSE
BEFORE HOFFER and OLER, JJ.
ORDER OF COURT
AND NOW, this ~day of November, 1996, upon consideration of
Defendant's motion for summary judgment, and for the reasons stated
in the accompanying opinion, the motion is DENIED.
BY THE COURT,
Lawrence F. Barone, Esq.
4503 North Front Street
Harrisburg, PA 17110
Attorney for Plaintiff
J~'~esley - , Jr.,
Thomas A. Lang, Esq.
Kenneth J. Buggy, Esq.
Peters & Wasilefski
2931 North Front Street
Harrisburg, PA 17110
Attorney for Defendant
Stephen L. Banko, Jr., Esq.
Reynolds & Havas
101 Pine Street
P.O. Box 932
Harrisburg, PA 17108
Attorney for Additional Defendant
: rc
STEPHANIE MURRAY
Plaintiff
Ve
HARRY BLOSE,
Defendant
Ve
MICHAEL J. PAUL,
Additional Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 95-965 CIVIL TERM
IN RE: MOTION FOR SUMMARY JUDGMENT OF DEFENDANT HARRY BLOSE
BEFORE HOFFER and OLER, JJ.
OPINION and ORDER OF COURT
Oler, J.
This case arises out of an automobile accident that occurred
on March 13, 1993. Presently before the court is Defendant's
motion for summary judgment contending that Plaintiff, who elected
limited tort option automobile insurance coverage, did not receive
a serious injury as a matter of law and, thus, should be precluded
from recovering non-economic damages under the Pennsylvania Motor
Vehicle Financial Responsibility Law.~ For the reasons stated
below, Defendant's motion will be denied.
STATEMENT OF FACTS
In reciting the following facts, the court has viewed "the
record and any inference therefrom ... in the light most favorable
to the nonmoving party." Drapeau v. Joy Technologies, Inc., 447
Pa. Super. 560, 563, 670 A.2d 165, 167 (1996) (standard for review
of record on summary judgment motion). This recitation is not
Act of Feb. 7, 1990, P.L. 11, S8, 75 Pa. C.S.A. §1705(d).
NO. 95-965 CIVIL TERM
intended to represent an endorsement by the court of the version of
events stated hereafter.
Plaintiff, Stephanie Murray, is an adult individual who
resides at 530 West Cumberland Road, Enola, Cumberland County,
Pennsylvania.2 Defendant, Harry Blose, is an adult individual who
resides at 23 Trout Lane, Marysville, Perry County, Pennsylvania.3
Additional Defendant, Michael J. Paul, is an adult individual
residing at 515 Second Street, West Fairview, Cumberland County,
Pennsylvania.4
On the morning of March 13, 1993, Defendant was plowing snow
in the parking lot of a Texaco service station located at 630 Enola
Road, Routes 11 and 15, Enola, Cumberland County, Pennsylvania.s
Plaintiff was injured when Defendant backed his truck into the
passenger side of a 1986 Ford Bronco operated by Additional
Defendant.6
Plaintiff's Complaint, paragraph 1.
Defendant's Answer and New Matter, paragraph 2.
Complaint of Defendant, Harry Blose, against Additional
Defendant, Michael J. Paul, paragraph 2.
s Plaintiff's Complaint, paragraphs 3, 6.
6 Plaintiff's Complaint, paragraph 7.
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NO. 95-965 CIVIL TERM
Plaintiff was a passenger in the front seat of the Bronco.?
As a result of the collision, the passenger-side door was driven
into Plaintiff's side, impacting her right hip and right shoulder.8
Plaintiff was initially treated at Holy Spirit Hospital for
injuries received in the accident.9 At this time, her main
complaint related to headaches she experienced following the
accident.~° Hospital personnel prescribed pain medication and
instructed Plaintiff to contact her family physician if the pain
persisted.~
Plaintiff's headaches continued.~2 In addition, she noticed
a stiffness in her neck.~3 Consequently, she contacted her family
physician, Dr. Stephen Snoke.~4 Dr. Snoke began treating Plaintiff
? Plaintiff's Complaint, paragraph 4; Motion for Summary
Judgment, Exhibit G (Report of Dr. Rex A. Herbert, D.O., dated
September 17, 1993) at 1.
8 Motion for Summary Judgment, Exhibit G at 1.
9 Motion for Summary Judgment, Exhibit B (Deposition of
Stephanie Murray) at 53.
Id.
Motion for Summary Judgment, paragraph 3, Exhibit B at 54.
Motion for Summary Judgment, Exhibits B at 55 and J (Report
of Dr. Danyo, dated July 26, 1995) at 1.
Id.
Motion for Summary Judgment, paragraph 4.
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NO. 95-965 CIVIL TERM
on March 24, 1993.~5 Dr. Snoke prescribed physical therapy for
Plaintiff's injuries.~6 As part of her physical therapy regimen,
Plaintiff participated in a swimming program at an area YMCA.~? Dr.
Snoke also recommended that Plaintiff contact a clinical
psychologist, Dr. Edward Batista, who specialized in the use of
hypnosis to manage pain.~8
Despite the physical therapy and the pain management,
Plaintiff's condition did not improve.~9 Therefore, Dr. Snoke
recommended that Plaintiff consult an orthopedic surgeon, Dr. Rex
Herbert.2° In her initial consultation with Dr. Herbert, on August
17, 1993, Plaintiff described right shoulder pain, neck and back
pain, and right hip pain.2~
At this time, Dr. Herbert diagnosed Plaintiff with (1)
!cervical and lumbar sprain, (2) contusion of the right hip, (3)
rotator cuff impingement syndrome right shoulder, and (4) possible
~5 Motion for Summary Judgment, paragraph 4; Plaintiff's
Response to Defendant Harry Blose's Motion for Summary Judgment,
paragraph 4.
Motion for Summary Judgment, Exhibit B at 55.
Motion for Summary Judgment, Exhibit B at 56-57.
Motion for Summary Judgment, Exhibits B at 57 and L
(Progress Notes of Edward Batista, Ph.D.).
Motion for Summary Judgment, Exhibit G at 1 and J at 1.
Id.
Motion for Summary Judgment, paragraph 19, Exhibit G at 1.
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NO. 95-965 CIVIL TERM
right rotator cuff tear.22 Dr. Herbert prescribed a treatment of
physical therapy and medication and scheduled an MRI of Plaintiff's
right shoulder.23
The MRI was performed on August 23, 1993, and revealed
evidence of supraspinatus tendonitis and a possible rotator cuff
tear.~4 Dr. Herbert recommended surgery for Plaintiff's right
shoulder.~s According to Plaintiff, Dr. Herbert had told her that
her "arm bone had been shoved into [her] shoulder and it was
pinching something in there.''~6 Prior to performing the surgery,
Dr. Herbert opined in his notes that, "[t]o this date, it does not
appear that the patient had sustained any serious impairment of
bodily function.''~7
At this time, Plaintiff was a twenty-three-year-old mother of
three children, all of whom were under the age of three.28 Due to
her injuries, she found that she could not carry her children.29
If she had to do a task which involved carrying, she had to have
Motion for Summary Judgment, Exhibit G at 1.
Motion for Summary Judgment, Exhibit G at 1-2.
Motion for Summary Judgment, Exhibit G at 2.
Motion for Summary Judgment, Exhibits G at 2 and L at 7.
Motion for Summary Judgment, Exhibit B at 59.
Motion for Summary Judgment, Exhibit G at 2.
Motion for Summary Judgment, Exhibit B at 63.
Id.
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NO. 95-965 CIVIL TERM
other people assist her; for instance, she had other people carry
her groceries upstairs for her to her apartment,so In addition, she
described everyday cleaning activities as "hard" and reaching
overhead as "impossible."s~
Plaintiff had attempted to return to her job at Texaco Tower
Sales following the accident,s2 Plaintiff had worked as a cashier
at a Texaco service station which included gas pumps and a small
convenience store.TM As part of her ordinary duties, Plaintiff was
required to stock shelves as well as do sweeping and mopping at the
station,s4 Due to her injuries, however, she found that she could
not perform her job adequately,ss She needed the assistance of her
co-employees to complete the heavier tasks at the station.36
In July of 1993, Dr. Snoke decided to take Plaintiff out of
work for medical reasons,s7 Plaintiff was not released to go back
so Motion for Summary Judgment, Exhibit B at 63, 81.
Motion for Summary Judgment, Exhibit B at 63-64.
Motion for Summary Judgment, Exhibit M (Tower
Employment Records).
Sales
Motion for Summary Judgment, Exhibit B at 19.
Motion for Summary Judgment, Exhibits B at 11-12 and M.
Motion for Summary Judgment, Exhibit B at 64.
Motion for Summary Judgment, Exhibit B at 81.
Motion for Summary Judgment, Exhibit B at 64.
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NO. 95-965 CIVIL TERM
to work by Dr. Snoke until October 23, 1993.38 By that time,
however, Dr. Herbert felt that Plaintiff should not work due to the
impending surgery which was to be performed on her shoulder.39
Concerned about the prospect of having surgery, Plaintiff had
sought a second opinion from a Dr. Balog.4° Dr. Balog confirmed
that Plaintiff needed to undergo surgery for her shoulder injury.4~
Even with the second opinion, Plaintiff was still apprehensive
about the surgery, but she agreed to it because she "wanted the use
of [her] arm back.''42
Plaintiff underwent surgery on October 8, 1993.43 Dr. Herbert
performed a near acromioplasty on her right shoulder with an
inspection of the rotator cuff.44 A high speed burr was used to
shave Plaintiff's prominent acromion in the area where it was
impinging on the rotator cuff of her right shoulder.4~
Motion for Summary Judgment, Exhibit G at 2.
Motion for Summary Judgment, Exhibits B at 64 and G at 2.
40 Motion for Summary Judgment, Exhibits B at 60 and J at 1.
Motion for Summary Judgment, Exhibit B at 60-61.
42
Motion for Summary Judgment, Exhibit B at 62.
Exhibit H (Dr.
Motion for Summary Judgment, Exhibit H at 2.
7
43 Motion for Summary Judgment,
Operative Report) at 1.
44 Id.
45
Herbert's
NO. 95-965 CIVIL TERM'.
Approximately four millimeters of Plaintiff's acromion was removed
during the procedure.46
Following the surgery, Dr. Herbert ordered Plaintiff to
continue to restrict the use of her right arm.47 He also ordered
her to continue to stay out of work pending recovery from the
surgery.4e
Dr. Herbert's progress notes indicate that within two months
following the surgery Plaintiff was making marked improvement with
her range of motion in her shoulder during physical therapy.49 It
wasn't until January of 1994, however, that Dr. Herbert's notes
indicate that Plaintiff was able to obtain full range of motion in
her shoulder,so Even as Plaintiff regained full use of her right
arm, she reported pain and the feeling that there was still
"something pinching in her shoulder" to Dr. Herbert.s~ In March of
1994, Plaintiff was still "complaining bitterly of pain" to Dr.
Herbert.s2
46 Id.
47 Motion for Summary Judgment, Exhibit I (Dr. Herbert's
Progress Notes) at 3.
Id.
Motion for Summary Judgment, Exhibit I at 2.
Id.
Id.
Motion for Summary Judgment, Exhibit I at 1.
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NO. 95-965 CIVIL TERM
On April 1, 1994, Dr. Herbert released Plaintiff to return to
work.53 However, by this time, Plaintiff had been let go by her
employer, Texaco, and was unable to find suitable work due to her
right shoulder pain.s4
In December of 1994, Plaintiff's pain remained.5~ She reported
to Dr. Herbert that the pain interfered with her sleep.~ In
addition, she informed Dr. Herbert that she still had problems with
reaching.~7 Tests performed by Dr. Herbert on December 20, 1994,
indicated that Plaintiff had full range of motion in her shoulder,
but that this motion was accompanied with pain with abduction and
external rotation,s8 Dr. Herbert did not feel that further surgery
was warranted at this time, although he opined that scar tissue may
have been the cause of the irritation Plaintiff felt.s9 He stated
that he could "understand why [Plaintiff] would have difficulty
living with her symptoms at this time ... but ... [he] did not know
what else to offer her ... that [had not] already been tried.''6°
Motion for Summary Judgment, Exhibits B at 64 and I at 1.
Motion for Summary Judgment, Exhibits I at 1 and J at 2.
Motion for Summary Judgment, Exhibit I at 1.
Id.
Id.
Id.
Id.
Motion for Summary Judgment, Exhibit I at 1.
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NO. 95-965 CIVIL TERM
Therefore, he recommended that Plaintiff seek help for her pain
elsewhere.6~
While Plaintiff's condition was improved by the surgery, she
still experienced a periodic numbness and tingling in her entire
right arm.62 She also continued to have a hard time lifting and
reaching overhead.63 According to Plaintiff, any type of reaching
would exacerbate her right shoulder pain and lifting would cause
discomfort.~4 She found it especially difficult to lift her
children.~s Although she was right-handed, Plaintiff trained
herself to use her left arm as much as possible.6~ This allowed her
to do her cleaning and other everyday chores following the
surgery.~7 There were some things, however, which she found that
she could not do left-handed; and she had to give up certain
pastimes that she once enjoyed, such as needlecraft and
volleyball.~8
Motion for Summary Judgment, Exhibits B at 67 and I at 1.
Motion for Summary Judgment, Exhibit J at 2.
Motion for Summary Judgment, Exhibit B at 71.
Motion for Summary Judgment, Exhibit J at 2.
Id.
Motion for Summary Judgment, Exhibits B at 71-72 and J at
Id.
Motion for Summary Judgment, Exhibit B at 73-74.
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NO. 95-965 CIVIL TERM
Still experiencing pain and difficulty, Plaintiff contacted
another orthopedic surgeon, Dr. J. Joseph Danyo.69 Dr. Danyo
conducted an examination of Plaintiff on May 31, 1995.7° Dr. Danyo
noted that there was a prominent surgery scar on Plaintiff's
shoulder, but opined that it was not disfiguring.7~ In addition,
although Dr..Danyo found that Plaintiff's right shoulder motion was
full, he noted that she was apprehensive and hesitant regarding
internal rotation and achieving the overhead position with the arm
brought in front of her.72 Dr. Danyo also noted considerable
tenderness over Plaintiff's supraspinatus tendon and the mid
trapezius, as well as a decreased grip on the right.TM Dr. Danyo
did not feel that Plaintiff demonstrated the ability to gain
overhead use.TM He also noted that she had pain with all maneuvers
of her shoulder.7s
At this time, Dr. Danyo diagnosed residual rotator cuff
tendinitis involving the supraspinatus.TM He noted that Plaintiff's
Motion for Summary Judgment, Exhibit B at 69.
Motion for Summary Judgment, Exhibit J at 1.
Motion for Summary Judgment, Exhibit J at 2.
Id.
Id.
Id.
Motion for Summary Judgment, Exhibit J at 3.
Id.
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NO. 95-965 CIVIL TERM
condition was chronic and permanent.77 Dr. Danyo opined that
Plaintiff had incurred a serious injury as a result of the
accident.TM He further opined that, due to the surgery, Plaintiff's
condition had improved, so that, by the time of his examination,
one year and seven months after the surgery, her condition was no
longer "serious.''79
In her complaint, Plaintiff alleges that Defendant's
negligence caused the automobile accident of March 13, 1993, in
which she was injured. Accordingly, Plaintiff seeks damages for
medical expenses, pain and suffering, and loss of earning power.
In Defendant's answer with new matter, Defendant asserts that
Plaintiff is barred from recovering non-economic damages because
she selected limited tort option automobile insurance coverage.
Additional Defendant, Michael J. Paul, was joined in this action by
Defendant's filing of a third-party complaint.
In Plaintiff's reply to Defendant's new matter, Plaintiff
admits that she elected limited tort option automobile insurance
coverage;8° however, she avers that, because she suffered a serious
injury, her election of limited tort coverage does not bar recovery
for non-economic damages in her case. Defendant's motion for
Id.
Id.
Id.
Plaintiff's Reply, paragraph 19.
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NO. 95-965 CIVIL TERM
summary judgment, presently under consideration by this court,
followed, contending that Plaintiff did not suffer a serious injury
and therefore should
damages.
be barred from recovering non-economic
DISCUSSION
Pennsylvania Rule of Civil Procedure 1035.2 provides that a
motion for summary judgment as a matter of law is properly granted
"(1) whenever there is no genuine issue of any material fact as to
a necessary element of the cause of action or defense which could
be established by additional discovery or expert report, or (2) if
... an adverse party who will bear the burden of proof at trial has
failed to produce evidence of facts essential to the cause of
action or defense which in a jury trial would require the issues to
be submitted to a jury." Pa. R.C.P. 1035.2.
In addition, "the record and any inferences therefrom must be
viewed in the light most favorable to the nonmoving party and any
doubt must be resolved against the moving party." Drapeau v. Joy
Technologies, Inc., 447 Pa. Super. 560, 563, 670 A.2d 165, 167
(1996). A court should grant summary judgment "only in the
clearest of cases, where the right is clear and free from doubt."
Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 204, 412 A.2d 466,
468 (1979).
Under Pennsylvania's Motor Vehicle Financial Responsibility
Law (hereinafter MVFRL), persons who elect limited tort option
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NO. 95-965 CIVIL TERM
insurance coverage are precluded from maintaining actions for non-
economic loss unless they sustain a "serious injury." Act of Feb.
7, 1990, P.L. 11, §8, 75 Pa. C.S.A. §1705(d). A serious injury is
defined as a "personal injury resulting in death, serious
impairment of body function or permanent serious disfigurement."
Act of Feb. 12, 1984, P.L. 26, §3, as amended, 75 Pa. C.S.A. ~1702.
This case does not involve a death. The only evidence in the
record regarding disfigurement suffered by Plaintiff is the opinion
of Dr. Danyo that a prominent surgery scar on Plaintiff's shoulder
was not disfiguring. Thus, the only issue before the court is
whether there is evidence in the record which could establish that
Plaintiff has suffered a serious impairment of a body function.
To determine whether a person has suffered a serious
impairment of body function under the MVFRL, the Pennsylvania
Superior Court has indicated that the inquiry should focus on the
effect which the injury received by a plaintiff has had on a
plaintiff's life, not on the injury itself. Dodson v. Elvey,
Pa. Super. , , 665 A.2d 1223, 1234 (1995). Consequently,
factors which should be considered in determining whether a serious
impairment of body function has occurred include: the extent of
the impairment, the particular body function impaired, the length
of time the impairment lasts, and the treatment required to correct
the impairment, as well as any other relevant factor. Id. at __,
· 665 A.2d 1223, 1233.
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NO. 95-965 CIVIL TERM
In addition, the Superior Court has said that a plaintiff may
not create a triable issue of fact with subjective evidence alone.
Dodson v. Elvey, Pa. Super. , , 665 A.2d 1223, 1233-35
(1995). However, the Superior Court noted that, once subjective
complaints of pain are objectively manifested, they may be
significant enough to seriously impact on a body function. Id.
First, as to the particular body function impaired, the record
contains objective medical evidence that Plaintiff suffered an
impingement of the right shoulder.
Second, regarding the extent of this injury, the record
supports the proposition that Plaintiff was denied full range of
motion in her right arm. According to Plaintiff, this seriously
impacted her life and her normal activities in a number of ways:
Plaintiff, a twenty-three-year-old mother of three children, all of
whom were under the age of three, could not lift or carry her
children. If she had to do anything which involved carrying, she
had to have other people assist her. For example, she had to have
other people carry her groceries upstairs for her to her apartment.
She could not do anything which involved reaching overhead.
In addition, due to her shoulder injury, Plaintiff was unable
to perform her job adequately. Unable to carry or reach overhead,
Plaintiff needed the assistance of her fellow employees to complete
her ordinary job duties, such as shelf-stocking. Plaintiff had to
go off from work on medical leave.
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NO. 95-965 CIVIL TERM
Third, regarding the treatment required to correct the
impairment, Plaintiff had to undergo surgery to recover full motion
in her right arm. Four millimeters of Plaintiff's acromion had to
be removed during the surgery.
Fourth, concerning evidence of the time the impairment lasted,
even after the surgery, Plaintiff was without full range of motion
in her right arm from March 13, 1993, when the accident occurred,
until January of 1994, when Dr. Herbert's progress notes indicate
that she was able to obtain full range of motion in her shoulder.
Finally, also of relevance in this case is the fact that there
is conflicting expert medical opinion concerning the seriousness of
Plaintiff's injury in the record. Before performing surgery on
Plaintiff's right shoulder, Dr. Herbert opined that she did not
suffer a serious impairment of body function. However, after
examining Plaintiff, seven months following the surgery, Dr. Danyo
opined that Plaintiff did suffer a serious injury as a result of
the automobile accident, although, at the time of the examination,
Dr. Danyo felt that Plaintiff had recovered to such an extent that
her injury was no longer serious.
Examining all of these factors, the court is of the view that
evidence exists in the record that could lead a trier of fact to
conclude that Plaintiff did suffer a serious injury in this case.
Therefore, Defendant's motion for summary judgment must be denied.
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NO. 95-965 CIVIL TERM
ORDER OF COURT
AND NOW, this 6th day of November, 1996, upon consideration of
Defendant's motion for summary judgment, and for the reasons stated
in ~he accompanying opinion, the motion is DENIED.
BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
Lawrence F. Barone, Esq.
4503 North Front Street
Harrisburg, PA 17110
Attorney for Plaintiff
Thomas A. Lang, Esq.
Kenneth J. Buggy, Esq.
Peters & Wasilefski
2931 North Front Street
Harrisburg, PA 17110
Attorney for D%fendant
Stephen L. Banko, Jr., Esq.
Reynolds & Havas
101 Pine Street
P.O. Box 932
Harrisburg, PA 17108
Attorney for Additional Defendant
: rc
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