Lysykanycz, B. v. Reidenhour, W. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BORIS LYSYKANYCZ AND MICHELLE : IN THE SUPERIOR COURT OF
LYSYKANYCZ, HW : PENNSYLVANIA
:
Appellants :
:
:
v. :
:
: No. 1178 EDA 2018
WADE D. REIDENHOUR :
Appeal from the Order March 28, 2018
In the Court of Common Pleas of Lehigh County Civil Division at No(s):
2016-C-2527
BEFORE: DUBOW, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY NICHOLS, J.: FILED SEPTEMBER 24, 2018
Appellants, Boris Lysykanycz (Husband) and Michelle Lysykanycz
(Wife), appeal from the order granting Appellee Wade D. Reidenhour’s motion
for summary judgment and dismissing all claims against Appellee. Appellants
argue that the trial court erred in granting summary judgment in favor of
Appellee because they presented sufficient evidence to meet the limited tort
threshold. We affirm.
The trial court set forth the relevant facts and procedural background of
this case as follows:
According to the Complaint, [Husband] was operating a 2007
Cadillac Escalade at or about 9:09 p.m. on April 26, 2015. [Wife]
was in the front passenger seat. [Appellants] were traveling
westbound through the intersection of South Cedar Crest
Boulevard and Lincoln Avenue in Salisbury Township, Lehigh
County, Pennsylvania. [Appellants] allege [Appellee] was
operating a 1995 Volkswagen Passat traveling southbound on
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Cedar Crest Boulevard toward the same intersection. They claim
[Appellee] ran a red light and negligently crashed into the
passenger side of [Appellants’] vehicle, causing both to sustain
injuries.
[Appellants] allege that [Husband] “sustained bodily injuries to his
neck, C[-]4 - C-6 disc herniations, right arm, [and] right
shoulder.” Complaint at ¶ 9. They further allege that [Wife]
“sustained bodily injuries to her knee, lower back, fear of driving,
anxiety and panic disorder.” Id. at ¶ 16. Additionally, both
[appellants] allegedly suffered “physical and mental pain,
anguish, anxiety and distress.” Id. at ¶¶ 11, 18. [Appellants]
have also each advanced a count for loss of consortium.
In [Appellee]’s Answer and New Matter, [Appellee] generally
denied all of [Appellants’] factual averments. [Appellee] also
asserted that “[Appellants] have elected the limited tort
alternative, and [Appellants’] alleged injuries are not serious as
defined by the [Motor Vehicle Financial Responsibility Law], [so
Appellants] are precluded from recovering damages for
noneconomic loss by the applicable provisions of that law.”
[Appellee’s] Answer and New Matter, at 41.
Appellants filed their Complaint on September 27, 2016 alleging
various injuries. On October 25, 2016, Appellee filed an Answer
to the Complaint with New Matter. As noted above, in Appellee’s
New Matter, he argued Appellants’ injuries do not pierce the
limited tort threshold. On June 23, 2017, Appellee filed a Motion
for Partial Summary Judgment on Limited Tort[,] which requested
the Court to preclude Appellants from presenting any testimony
or evidence for non-economic damages at trial.
On September 21, 2017, the Court heard oral argument on the
summary judgment motion and took the matter under
advisement. On September 26, 2017, the Court entered an Order
with an accompanying Memorandum Opinion granting the partial
summary judgment motion.
By agreement of the parties, the matter was to be submitted to
arbitration. However, on March 14, 2018, Appellee filed a second
Motion for Summary Judgment. Appellee asserted that because
Appellants had not claimed any economic damages, and because
the Court’s order granting the prior Motion for Partial Summary
Judgment resulted in a preclusion of the recovery of any non-
economic damages, there were not any damages remaining in the
case for Appellants to request of the arbitration panel. Appellants
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filed an Answer to Appellee’s motion on March 27, 2018, which did
not oppose the motion and requested that it be granted so as to
render the September 26, 2017 Order “final” for appellate
purposes. The Court granted the March 14, 2018 motion as
unopposed on March 28, 2018.
On April 10, 2018, Appellants filed the instant Notice of Appeal.
In the within appeal, Appellants challenge the Court’s decision
with respect to the partial summary judgment motion, not the
subsequent summary judgment motion which resulted in
dismissal of the case as a whole. Appellants filed a Concise
Statement on April 13, 2018.
Trial Ct. Op., 4/17/18, at 1-3 (some formatting altered).
Appellants raise the following issues on appeal:
1. Whether or not the trial court erred by granting partial
summary judgment on the limited tort defense because our
Supreme Court explicitly ruled that the limited tort defense is
for the jury and not the trial court[.]
2. Whether or not both [Appellants] meet the limited tort
threshold given the facts of the injury and the impact it has on
both lives[.]
Appellants’ Brief at 4 (full capitalization omitted).
Appellants contend that the trial court erred in granting partial summary
judgment, as the question of whether Appellants suffered a “serious injury” is
exclusively reserved for the jury. Appellants argue that the Supreme Court’s
decision in Washington v. Baxter, 719 A.2d 733 (Pa. 1998), supports their
claim for relief. Id. at 20. Further, Appellants argue that they presented
sufficient evidence to show that they both suffered a “serious injury” and met
the limited-tort threshold. Id. at 23.
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The standards governing our review of a trial court’s grant of summary
judgment are well settled.
Our scope of review of a trial court’s order granting or denying
summary judgment is plenary, and our standard of review is clear:
the trial court’s order will be reversed only where it is established
that the court committed an error of law or abused its discretion.
Summary judgment is appropriate only when the record clearly
shows that there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law. The
reviewing court must view the record in the light most favorable
to the nonmoving party and resolve all doubts as to the existence
of a genuine issue of material fact against the moving party. Only
when the facts are so clear that reasonable minds could not differ
can a trial court properly enter summary judgment.
Hovis v. Sunoco, Inc., 64 A.3d 1078, 1081 (Pa. Super. 2013).
In Pennsylvania, when selecting automobile insurance, drivers have the
option of choosing full or limited-tort coverage. 75 Pa.C.S. § 1705. An
individual who has purchased full-tort coverage and who is injured by a
negligent driver can recover all medical and out-of-pocket expenses, as well
as financial compensation for pain and suffering and other non-economic
damages. Varner-Mort v. Kapfhammer, 109 A.3d 244, 248 (Pa. Super.
2015) (citing 75 Pa.C.S. § 1705(a)(1)(B)). “A limited-tort plaintiff also can
recover all medical and out-of-pocket expenses; however, such a plaintiff
cannot recover for pain and suffering or other non-economic damages unless
the plaintiff’s injuries fall within the definition of ‘serious injury.’” Id. (citing
75 Pa.C.S. § 1705(a)(1)(A)). The term “serious injury” is defined as “[a]
personal injury resulting in death, serious impairment of body function or
permanent serious disfigurement.” 75 Pa.C.S. § 1702.
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In Washington, the plaintiff selected the limited-tort option and,
following a motor vehicle accident, he claimed that he sustained a serious
injury that would allow him to recover non-economic damages pursuant to 75
Pa.C.S. § 1702. Washington, 719 A.2d 733, at 638. The defendant filed a
motion for summary judgment, arguing that the plaintiff failed to establish
that he had suffered a serious injury, and the trial court granted the
defendant’s motion. Id. at 638.
On appeal, the Supreme Court noted that “the threshold determination
was not to be made routinely by a trial court judge . . . but rather was to be
left to a jury unless reasonable minds could not differ on the issue of whether
a serious injury had been sustained.” Id. at 740. However, since it was clear
that the plaintiff had failed to establish that he suffered a “serious” injury, the
Supreme Court affirmed the trial court’s decision. See id.
The Washington Court explained:
Plaintiff, however, is of the opinion that he has adduced sufficient
evidence of a serious impairment of body function so that the
issue should go to a jury. In arguing this, [the plaintiff] focuses
primarily on [his doctor’s] pronouncement that there was some
type of arthritis or coalition in [his] right foot; apparently, [he]
assumes that this evidence alone is sufficient to bring the matter
to a jury. [Plaintiff] seems to have misapprehended the nature of
the inquiry here. The question to be answered is not whether
[Plaintiff] has adduced sufficient evidence to show that
Appellant suffered any injury; rather, the question is
whether [he] has shown that he has suffered a serious
injury such that a body function has been seriously
impaired. Clearly, it is insufficient for [Plaintiff] to show that
there has been some injury—no matter how minor—in order to
avoid the entry of summary judgment against him. Were we to
fail to require [a plaintiff] to adduce evidence that not only was
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there an injury, but that it was also serious, before allowing him
to present his case to the jury, we would make a mockery out of
the summary judgment standard. Although [Plaintiff] has
introduced evidence that there is some type of arthritis or
coalition in his foot, he has failed to show that this injury
has had such an impact on him so that it constitutes a
serious injury. Therefore, we reject [Plaintiff’s] argument.
Id. at 741.
Additionally, we note that
[o]ur Supreme Court has held that in determining whether a
motorist has suffered a serious injury, “the threshold
determination was not to be made routinely by a trial court judge
. . . but rather was to be left to a jury unless reasonable minds
could not differ on the issue of whether a serious injury had
been sustained.” Washington v. Baxter, 553 Pa. 434, 719
A.2d 733, 740 (1998). In conducting this inquiry, “several factors
must be considered to determine if the claimed injury is ‘serious’:
‘[1.] the extent of the impairment, [2.] the length of time the
impairment lasted, [3.] the treatment required to correct the
impairment, and [4.] any other relevant factors.’” Graham v.
Campo, 990 A.2d 9, 16 (Pa. Super. 2010), appeal denied, 609
Pa. 703, 16 A.3d 504 (2011). Our Supreme Court has cautioned
that “the focus of these inquiries is not on the injuries themselves,
but on how the injuries affected a particular body function.”
Washington, supra. We remain cognizant of the principle that
“[a]n impairment need not be permanent to be serious” under
section 1705(d). Robinson v. Upole, 750 A.2d 339, 342 (Pa.
Super. 2000) (citation omitted).
Cadena v. Latch, 78 A.3d 636, 640 (Pa. Super. 2013) (emphasis added).
Following our review of the certified record, the parties’ briefs, and
relevant legal authority, we conclude that the trial court’s Pa.R.A.P. 1925(a)
opinion comprehensively and correctly disposes of Appellants’ claims of error.
See Trial Ct. Op., 4/17/18, at 1-6 (reciting the facts of record, applying the
four factors noted in Cadena above, and concluding that reasonable minds
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could not differ on the conclusion that Appellants did not suffer a serious
injury, given the lack of objective medical evidence stating so.)
We agree with the trial court’s conclusion that Appellants, having
selected the limited-tort option, failed to establish that they suffered “serious
injury” as that term is defined, such that Appellee’s motion for partial
summary judgment should have been denied. See Cadena, 78 A.3d at 640.
We further agree with the trial court that Appellants did not identify
objective medical evidence nor any opinion that their injuries were serious or
resulted in serious impairment of a body function. Therefore, reasonable
minds could not “differ on the issue of whether a serious injury had been
sustained.” Washington, 719 A.2d at 740. Accordingly, we discern no error
or abuse of discretion in the trial court’s conclusion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/24/18
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1178 EDA 2018
IN TH.E COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA
CIVIL DIVISION
BORIS LYSYKANYCZ, MICHELLE )
L YSYl724 A.2d 938, 940-41 (Pa. Super. 1998) (citations omitted). The standard for summary judgment
is well-established:
A court may grant a motion for summary judgment only when there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter of
law. Bronson v. Horn, 830 A.2d 1092 (Pa.Cmwlth.2003), affd, 577 Pa. 653, 848
A.2d 917 (2004), cert. denied, 543 U.S. 944, 125 S.Ct. 369, 160 L.Ed.2d 257(2004). The right to judgment must be clear and free from doubt. Id. In reviewing
the granting of a motion for summary judgment, this Court must "view the record
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in the light most favorable to the non-moving party, and all doubts as to the
existence of a genuine issue of material fact must be resolved against the moving
party." Pappas v. Asbel, 564 Pa. 407, 418, 768 A.2d 1089, 1095 (2001).
Lambert v. Katz, 8 A.3d 409, 413 n.3 (Pa. Cmwth. 2010).
In his partial summary judgment motion, Appellee sought an order precluding Appellants
from presenting any testimony or evidence in support of a claim for non-economic damages at
trial because Appellants have not presented any evidence of a "serious injury."
Pennsylvania's Motor Vehicle Financial Responsibility Law (MVFRL) authorizes the
selection of either the "full tort" or "limited tort" coverage option for a driver purchasing motor
vehicle insurance coverage. 75 Pa.C.S.A. § 1705(a). The limited tort option authorizes an insurer
to offer automobile insurance coverage at reduced premium rates to an insured who gives up the
right to sue for non-economic damages. Id. § l 705(a)(l). A party who elects limited tort may sue
for non-economic damages only if he or she suffers a "serious injury" in an automobile accident.
Id. §1705(d). The term "serious injury" is statutorily defined as "[a] personal injury resulting in
death, serious impairment of a body function or permanent serious disfigurement." Id. § 1702.
The Pennsylvania Supreme Court has held that when determining whether a motorist suffered a
serious injury, "the threshold determination was not to be made routinely by a trial court judge ...
but rather was to be left to a jury unless reasonable minds could not differ on the issue of
whether a serious injury had been sustained." Cadena v. Latch, 78 A.3d 636, 640 (Pa. Super.
2013) (quoting Washington v. Baxter, 719 A.2d 733, 740 (Pa. 1998)).
In determining whether a plaintiff suffered a serious impairment of body function, courts
utilize a two-fold inquiry:
a) What body function, if any, was impaired because of injuries sustained in a motor
vehicle accident?
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b) Was the impairment of the body function serious? The focus of these inquiries is not
on the injuries themselves, but on how the injuries affected a particular' body function.
Generally, medical testimony wilt be needed to establish the existence, extent, and
permanency of the impairment.. .. In determining whether the impairment was serious,
several factors 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 factors. An impairment need not be permanent to be serious.
Washington, 719 A.2d at 735 (quoting Dihranco v. Pickard, 398 N.W.2d 896, 900 (Mich.
1986)).
To overcome the limited tort threshold, a plaintiff must generally present "objective
medical evidence as to the degree of any impairment and extent of any pain suffered" in
connection with the accident. McGee v, Muldowney, 750 A.2d 912, 915 (Pa. Super. 2000).
"[SJubjective allegations presented by [a plaintiff], in the absence of objective medical evidence,
do not permit a finding that [the plaintiff] suffered the requisite 'serious injury."' Id,
Accordingly, a plaintiff must adduce evidence demonstrating both the existenceof an injury and
the fact that the injury was serious in order to overcome a motion for summary judgment.
Washington, 719 A.2d at 74 l.
In this case, the Court reviewed Appellants' evidence in the light most favorable to them
as the non-moving party and determined that Appellants did not present any objective medical
evidence to demonstrate that either of them sustained a serious impairment of body function.
Appellants failed to produce any medical expert opinion that their injuries are serious or resulted
in serious impairment of a body function. Furthermore, both of the Appellants' depositions and
medical records show sporadic treatment and admissions of details of their injuries which
Appellce argued are not serious enough to overcome the limited tort threshold.
Appellant Boris Lyskanycz testified at his deposition that upon impact in the accident, he
did not lose consciousness. (Defendant's Exhibit C, at 23.) He was not cut or bleeding, did not
break any bones, and had no visible bruising. (Id. at 23-24.) After the accident, he was able to get
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out of the vehicle on his own without any assistance and he declined an ambulance. (Id. at 25;
29.)
Mr. Lyskanycz treated for injury the day after the accident. (Plaintiff's Exhibit B, at
[24].) According to the Radiology Results record Appellant submitted, he was experiencing left
shoulder pain after motor vehicle collision." (Id.) The radiology findings reflected that there was
not any evidence of an acute fracture or dislocation of Plaintiffs shoulder. (Id.)
Appellant also submitted a Physician Clinical Report dated April 27, 2015. (Id. at [32).)
The report reflects that Appellant was "experiencing mild pain." (Id.) He also "didn't notice the
shoulder pain" on the night of the accident, but woke up with it the next morning. (Id.) The
report indicated that the healthcare professional explained to Appellant "that he might have
injured his rotator cuff but he could also be stiff from the [motor vehicle accident]. [Appellant]
will [follow up] with [orthopedist]." (Id. at (33].)
Appellant waited for more than a month before following up with subsequent treatment.
(Defendant's Exhibit C, at 33.) On June 9, 2015, he treated at Iron Run Orthopedics. (Plaintiffs'
Exhibit B, at (6].) The records indicate that Appe1Iant reported "persistent left shoulder pain"
since the accident, as well as "episodes of parcsthesia into both upper extremities, especially at
nighttime." (Id.) Appellant was provided Tylenol for short-term pain and was referred for an
MRI. (Id at [8).)
Appellant followed up with the MRI on July 11,2015. (Id. at [9]-[IO].) The report reflects
that there was some disc degeneration and mild disc protrusion, but there was not any evidence
of a fracture or dislocation. (Id. at [9].)
Appellant did not treat again until August 22, 2016, more than a year after he had the
MRL (Id. at [14].) The records from that visit reflect that Appellant "presentjed] to the office for
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a spine surgery consultation with right arm pain, and hand numbness." (Id.) The assessment plan
authored by James C. Weis, M.D., indicated that Appellant was experiencing "numbness in his
first through fourth digits, which has been ongoing and persistent since a motor vehicle accident
in April 2015." (Id. at [16].) He has not treated for his claimed injuries since October 14, 2016.
(Id. at [36].) Appellant can still lift up to 50 pounds as part of his job duties. (Id. at [11 }.) There is
not any evidence that he has been completely restricted from doing as a result of his injuries
from the accident. (Id. at {41].)
Based on the foregoing, Appellants' evidence offered in opposition to Defendant's
Motion for Partial Summary Judgment established that Appellant suffered an injury to his
shoulder for which he received sporadic treatment over the course of the> year-and-a-half
following the accident. Appellant's medical records reflect that he suffered an injury in
connection to the motor vehicle accident. However, all of the medical records reflected that the
injury was mild.
There is not any indication in any of the documentation showing that Appellant sustained
an injury about which reasonable minds could differ as to whether it is "serious." Appellant
failed to produce any medical expert opinion that his injuries are serious or resulted in serious
impairment of a body function. Furthermore, both the Appellant's depositionand his medical
records reflect sporadic treatment history. Taking Mr. Lyskanycz's assertion that he used to be
able to lift 100 pounds and can only lift 50 pounds now as true, there was not any evidence to
show that this impairment has significantly impacted his life or his job performance.
Similar to her husband, Appellant Michelle Lyskanycz did not treat until five days after
the accident and did not follow up until two weeks later. (Defendant's Exhibit D, at 25.) Her
initial treatment was on April 30, 2015, at which time the report from St. Luke's Health Network
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indicates that she "likely has mild knee contusion" and was advised to take Advil for her pain.
(Plaintiffs' Exhibit C, at [18].)
Appellant's treatment records reflect that she sought treatment on August 18, 2016, at
which time she saw her psychiatrist. (Id. at [28].) The report indicates she was seen for follow up
regarding her "Panic Disorder/Agoraphobia/[Generalized Anxiety Disorder]." :(Id.) Appellant
reported that she has difficulty driving, and that it took her a longer-than-normal amount of time
to get to the psychologist's office, "but she did okay." (id.) It also indicates that "She has a good
relationship with her father and he has been getting out ore and spending time with family,
friends. She saw her brother at a neighborhood block party and it did not go well. She is feeling
better overall about her mothers (sic) death." (Id.)
Appellant did not subsequently treat with any healthcare professionals until March of
2017, when she treated with a chiropractor with whom she treated on two lprior occasions.
(Plaintiffs Exhibit C, at [27], [3].) Appellant claimed she suffered from panic attacks, but
acknowledged that the frequency of her panic attacks had not increased after the accident.
(Defendant's Exhibit D, at 30.)
Significantly, the medical records did not draw a distinction between any pre-existing
anxiety-related conditions and any psychological conditions stemming from the motor vehicle
accident, and Appellant did not produce an expert report linking the two. Appellant conceded she
had not received any injections to any parts of her body since the accident. (Id. at 38.) She did
not undergo an MRI to any part of her body to confirm the nature and extent of her injuries, and
she was not recommended to undergo surgery to any parts of her body since the accident. (Id. at
33, 37-38.)
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In Appellants' response to Appellee's Motion for Partial Summary Judgment, Plaintiffs
asserted that Mrs. Lyzkanycz "was bleeding from the head and knee at the scene of the accident.
As a result of the accident, she has panic anxiety syndrome which is continuing and for which
she is still treating." (Brief in Opposition to Defendant's Motion for Partial Summary Judgment,
at [10] (emphasis added).) However, as noted above, Appellant's medical records indicated that
family issues and Plaintiffs mother's death are issues for which she was receiving psychological
care. Appellant did not offer any affirmative evidence linking the motor vehicle accident to her
anxiety disorder. Appellant's treatment for back pain came two years after the accident, and there
was not any testimony or evidence of record indicating that during the time between the accident
and the treatment she received in March of 2017, Mrs. Lyzkanycz suffered an 'impairment of a
body function as a result of the accident.
On appeal, Appellants contend that the Court's determination conflicts with the
Pennsylvania Supreme Court's holding in Washington v. Baxter, in which the court determined
that in all but the clearest of cases, the question of whether an injured motorist has adduced
sufficient evidence to overcome the limited tort threshold is reserved for the jury. Washington,
719 A.2d at 740. In Washington, the injured motorist presented evidence that his right foot was
impaired following an accident. 1d. He was treated in the emergency room and discharged a few
hours later. Id. at 740-41. The plaintiff missed a few days of work as a result of the accident, and
approximately six months later, a physician observed that Appellant had an arthritic issue which
might require the use of an orthotic heel. Id. at 741. The plaintiff reported that he was still able to
perform his work duties and the only impairment from which he suffered was that he had to use a
riding lawn mower. Id. Based on this evidence, the Pennsylvania Supreme Court concluded that
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the grant of summary judgment was proper because reasonable minds could not differ on the
conclusion that the plaintiffs injury was not serious. Id.The same conclusion applies in this case. Both Appellants produced evidence indicating
that they sustained an injury as a result of the motor vehicle accident with Appellee. However,
both had a sporadic history of treatment, and the medical records did not indicate instances of
treatment stemming from the motor vehicle accident as opposed to other· pre-existing or
subsequently-developing conditions. Appellants neither offered expert reports classifying their
injuries as serious, nor testified to any serious impairment of a body function under the test laid
out in Washington v. Baxter.
Conclusion
Because Appellants failed to offer any evidence demonstrating that either of them
suffered a serious impairment of a body function, partial summary judgment was properly
granted in favor of Appellee, and the Court's Order of September 26, 2017 should be
AFFIRMED.
By the Court:
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IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA
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CIVIL
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Document Distribution List . '
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File No,: 2016-C-2527
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JChristin L Kochel, Esq · · Forry Ullman ..
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236NOTICE
. Pursuant t� Pa.R.C.:i>. § 236, 11otice is hereby given that an order, decree, or judgment in'
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. the above captioned matter has been entered.
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Andrea E. Naugle
· ·. Clerk of Judicial Records
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CV15b