J. A32002/16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JAVIEL HERNANDEZ, : IN THE SUPERIOR COURT OF
Appellant : PENNSYLVANIA
:
v. :
:
MICHAEL AMORATIS :
:
: No. 1359 EDA 2016
Appeal from the Order Entered April 19, 2016
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2014-27025
BEFORE: DUBOW, RANSOM AND PLATT, JJ.*
MEMORANDUM BY DUBOW, J.: FILED DECEMBER 27, 2016
Appellant, Javiel Hernandez, appeals from the Order entered on April
19, 2016, granting summary judgment in favor of Appellee, Michael
Amoratis. After a thorough review of the parties’ briefs, the certified record,
and relevant law, we affirm on the basis of the trial court’s June 23, 2016
Opinion.
The trial court’s Rule 1925(a) Opinion includes a thorough and
complete narrative of the facts and procedural history in this case, and we
adopt its recitation for purposes of this appeal. See Trial Ct. Op.,
6/23/2016, at 1-3. We summarize as follows.
*
Retired Senior Judge Assigned to the Superior Court.
J. A32002/16
This case arises from a September 11, 2013 motor vehicle accident in
which Appellee rear-ended Appellant’s vehicle as Appellant waited at a red
light. Appellant reported to police responders to the scene of the accident
that he was not injured, but later experienced mild lower back pain.
Appellant underwent approximately seven months of chiropractic therapy, at
the close of which he advised his doctor that he had not had any pain for
over a month, and that he was back to full activity with limited to no
restriction. Appellant testified that the injuries he sustained were not severe
and had only ever caused minor inconveniences in daily life. At the time of
the accident, Appellant had limited tort motor vehicle insurance coverage as
defined by the Motor Vehicle Financial Responsibility Law (“MVFRL”), 75
Pa.C.S. § 1705. See Trial Ct. Op. at 1-2.
On September 30, 2014, Appellant filed a Complaint against
Appellee raising claims of negligence. On January 19, 2016, Appellee moved
for Summary Judgment. On March 18, 2016, Appellee filed an Argument
Praecipe, certifying that Appellant failed to file an Answer to Appellee’s
Motion. On March 31, 2016, the trial court notified the parties that it
scheduled a hearing on Appellee’s Motion for April 19, 2016. Following the
hearing, and in accordance with Pennsylvania Rule of Civil Procedure
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1035.3(d)1 and Montgomery County Local Rule 1035.2(a)(4)(c), 2 the trial
court entered summary judgment in Appellee’s favor. Appellant timely
appealed. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
On appeal, Appellant claims the trial court erred in granting Appellee’s
Motion for Summary Judgment because a genuine issue of material fact
exists as to the extent of Appellant’s injuries. See Appellant’s Brief at 6.
Appellant argues that the question of whether he suffered a “serious injury”
as defined by the MVFRL is a question of fact for a jury.3 Id. at 19.
We review a grant of summary judgment under the following well-
settled standards:
Pennsylvania law provides that summary judgment may be
granted only in those cases in which the record clearly
shows that no genuine issues of material fact exist and
that the moving party is entitled to judgment as a matter
of law. The moving party has the burden of proving that no
genuine issues of material fact exist. In determining
whether to grant summary judgment, the trial court must
view the record in the light most favorable to the non-
1
Pa.R.C.P. No. 1035.3 provides, in relevant part, that the trial court may
enter summary judgment against a party who does not respond to a Motion
for Summary Judgment. See No. Pa.R.C.P. 1035.3(d).
2
This rule provides, in relevant part, that if the non-moving party to a
Motion for Summary Judgment fails to file a responsive brief within 30 days
of the service of the motion, the assigned judge may either grant the
requested relief or “[l]ist the matter for argument, at which time only the
complying party shall be heard.” Pa. Montgomery Cty. Local R.
1035.2(a)(4)(c).
3
The MVFRL defines a “serious injury” 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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J. A32002/16
moving party and must resolve all doubts as to the
existence of a genuine issue of material fact against the
moving party. Thus, summary judgment is proper only
when the uncontraverted allegations in the pleadings,
depositions, answers to interrogatories, admissions of
record, and submitted affidavits demonstrate that no
genuine issue of material fact exists, and that the moving
party is entitled to judgment as a matter of law. In sum,
only when the facts are so clear that reasonable minds
cannot differ, may a trial court properly enter summary
judgment.
On appeal from a grant of summary judgment, we must
examine the record in a light most favorable to the non-
moving party. With regard to questions of law, an
appellate court's scope of review is plenary. The Superior
Court will reverse a grant of summary judgment only if the
trial court has committed an error of law or abused its
discretion. Judicial discretion requires action in conformity
with law based on the facts and circumstances before the
trial court after hearing and consideration.
Weible v. Allied Signal, Inc., 963 A.2d 521, 525 (Pa. Super 2008)
(citation and quotation omitted).
Moreover, the question of whether a limited tort policy-holder has
suffered a serious injury is a determination to be “made by the jury in all but
the clearest of cases[.]” Washington v. Baxter, 719 A.2d 733, 740 (Pa.
1998). The trial judge should make this determination only if “reasonable
minds could not differ on the issue of whether a serious injury had been
sustained.” Id.
Based on our review of the record, the arguments presented by
Appellant, and the relevant case law and statutes, we agree with the trial
court that, given the instant facts, “reasonable minds could not differ on the
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J. A32002/16
issue of whether Appellant suffered a ‘serious injury’.” Trial Ct. Op. at 5.
Accordingly, we rely upon the sound reasoning of the trial court in its June
23, 2016 Opinion, and affirm the Order granting Appellee’s Motion for
Summary Judgment. See id. at 3-6.
Order affirmed. The parties are directed to attach a copy of the trial
court Opinion in the event of further proceedings.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/27/2016
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Circulated 12/06/2016 02:50 PM
Page 1
IN THE COURT OF COMMON PLEAS OF
MONTGOMERY COUNTY, PENNSYLVANIA
CIVIL DIVISION
JAVIEL HERNANDEZ
Plaintiff/ Appellant NO. 2014-27025
v.
MICHAEL AMORATIS
Defendant/ Appellee
Tolliver, J. June c?3 rd, 2016
1925(a) OPINION
Appellant Javiel Hernandez ("Appellant") appeals this Court's April 20, 2016 Order
granting Summary Judgment in favor of Appellee Michael Amoratis ("Appellee").
I. FACTS
On September 11, 2013, Appellee rear-ended Appellant's vehicle as Appellant waited for
a red light on Blair Mill Road in Montgomery County, Pennsylvania. The impact caused
Appellant to "jerk[] forward a little bit" and hit his chest against the steering wheel. He was
wearing a seatbelt. Appellant did not suffer any cuts, bruises, or bleeding as a result of the
accident, and he was able to exit the vehicle without aid. The impact from the· collision did not
push Appellant's vehicle into the vehicle waiting in front of him. At the scene of the accident,
Appellant informed police responders that he was not injured. Approximately six days after the
accident, Appellant visited Temple Hospital and reported mild lower back symptoms. Michele
Y. Holding, M.D. diagnosed "Lumbosacral radiculopathy involving the bilateral L4-L5 nerve
roots consistent with the timing of the motor vehicle accident 09/11/13 and the MRI which
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Page 2
revealed disc bulge at L4ML5 and spinal canal stenosis at L4ML5." To date, Appellant has not
received any injections, has not been advised of any fractures or disc herniations in his neck or
back, and has not been provided a back brace. The MRI taken at Temple Hospital on October 10,
2013 was "unremarkable." Appellant underwent approximately seven months of chiropractic
therapy. At the close of therapy, Appellant advised his doctor that he had not had any pain for the
last 1.5 months, and that he was back to full activity with limited to no restriction.
Appellant testified that the injuries he sustained are not severe and have only ever caused
minor inconveniences in daily life. Appellant experiences occasional pain in his lower back if he
spends long periods oftime sitting. The pain is substantially remedied by standing up and
walking and by taking over-the-counter analgesics. Appellant has decreased the intensity of his
workout regimen of lifting heavy weights and engaging in cardiovascular exercise in order to
prevent exacerbation of the injury. Appellant's expert Geoffrey W. Temple, D.O. advised
minimizing running because running may cause aherniation. Following the accident, Appellant
engaged in Muay Thai martial arts and CrossFit training multiple times per week until he injured
,_ ·.-
his ankle in a separate incident. No work restrictions or limitations have been imposed. He has
not undergone any medical treatment since 2014.
At the time of the accident, Appellant had "Limited Tort" motor vehicle insurance
coverage, as defined in 75 Pa.C.S. § 1705, through State Farm Mutual Automobile Insurance
Company.
II. PROCEDURAL HISTORY
On September 30, 2014) Appellant initiated this action by filing a Complaint. On January
19, 2016, Appellee moved for Summary Judgment. On March 18, 2016, Appellee certified that
no answer had been filed by Appellant. Under Local Rule 1035(a)(4)(c), if the non-moving party
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to a motion for summary judgment fails to file a responsive brief within thirty (30) days of the
service of the motion, the assigned judge may either grant the requested relief or "(l]ist the
matter for argwnent, at which time only the complying party shall be heard." Pursuant to that
rule, on April 19, 2016, this Court heard only Appellee's argument. On April 20, 2016, this
Court granted Appellee's motion. The Court received notice of appeal to the Superior Court on
April 26, 2016. On May 13, 2016, Appellant filed a Concise Statement of Matters Complained of
on Appeal pursuant to Pa.R.A.P. § 1925(b) and the Court's May 3, 2016 Order.
III. DISCUSSION
a. Summary JudgmentStandard
Summary judgment may be granted only where the evidence of record creates no issue of
material fact. when viewed in the light most favorable to the non-moving party, and where the
movant is entitled to judgment as a matter oflaw. Pa.R.C.P. 1035.2; Davis v. Pennzoil, 264 A.2d
597 (Pa. 1970); Rohrer v. Pope, 918 A.2d 122 (Pa. Super. Ct. 2007). After movant has set forth
in the motion the necessary elements warranting summary judgment, the non-moving party must
demonstrate that there is a genuine issue for trial and may not rest on the averments set forth in
pleadings. Accu-Weather, Inc. v. Prospect Comms., Inc. 644 A.2d 1251, 1254 (1994); Ertel v.
Patriot-News Co, 674 A.2d 1038 (Pa. 1996). Summary judgment will be granted only in those
cases which are free and clear from doubt. Marks v, Tasman, 589 A.2d 205 (Pa. 1991).
Non-movirig party must file an answer and a brief or memorandum of law to a motion for
summary judgment within thirty (30) days. Pa. Montgomery Cty, Local Rule 1035.2(a). A
motion for summary judgment must be granted in favor of moving party if the other party
chooses to rest on its pleadings, unless a genuine issue of fact is made out in the moving party's
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evidence taken by itself. Carollo v. Forty-Eight Insulation, Inc., 381 A.2d 990, 995 (Super. Ct.
Pa. 1977).
b, "Serious Injury" Under the Motor Vehicle Financial Responsibility Law
A motorist who elects limited tort coverage is barred from seeking non-economic
damages arising out of a motor vehicle accident unless that motorist sustains a "serious injury."
Under the Motor Vehicle Financial Responsibility Law ("MVFRL"), a "serious injury" is a
personal injury resulting in death, serious impairment of a body function, or permanent serious
disfigurement. 45 Pa.C.S. § 1702. In this case, the Court was not presented with claims of death
or permanent serious disfigurement.
The test for' determining whether an individual has suffered "serious impairment" of body
function requires that the court consider the extent of the impairment, the particular body
function impaired, the length of time the impairment lasted, the treatment required to correct the
impairment, and any other relevant factor. Cadena v. Latch, 78 A.3d 636 (Pa. Super. Ct. 2013);
Long v. Mejia, 696 A.2d 596 (Pa. Super. Ct. 2006); Washington v. Baxter, 719 A.2d 733 (Pa.
1998).
In Washington, our Supreme Court examined the issue of whether the trial court or the
jury should determine whether a limited tort motorist had sustained a "serious injury" under the
MVFRL. The statute is "utterly silent as to which entity - the judge or the jury - is entrusted
with making that threshold determination." 719 A.2d. at 443. The Court concluded that the
determination of whether a plaintiff had suffered a "serious injury" "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. This falls in line with the maxim that summary judgment will only be
granted in cases which are free and clear from doubt. Id. at 73 7.
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c. Reasonable Minds Could Not Differ on the Issue of Whether Appellant
Suffered a "Serious Injury"
In the case at bar, there is no dispute that Appellee's vehicle rear-ended Appellant's
vehicle at a red light. Appellant avers that in spite of his limited tort election, the injuries he
sustained as a result of the collision caused a serious impairment of body function, passing the
threshold of "serious injury" and allowing recovery of non-economic damages. The Court
disagrees. As in Washington, this Court believes that reasonable minds could not differ on the
conclusion that the injuries suffered by Appellant do not constitute a "serious injury."
The trial court must consider the extent of the impairment, the particular body function
impaired, the length of time the impairment lasted, the treatment required to correct the
impairment, and any other relevant factor. The extent of the impairment is minimal, manifesting
in occasional "slight" lower back pain. The impairment began shortly after the accident.
Appellant engaged in some physical therapy for his lower back and takes over-the-counter
painkillers but otherwise does not require further medical treatment.
In consideration of the objective evidence presented, this Court concludes that granting
summary judgment was appropriate, as reasonable minds could not differ on the issue of whether
Appellant suffered a "serious injury."
d. Plaintiff's Claim for Economic Damages are Without Merit
With regards to economic damages, Appellant denied paying any medical bills out of
pocket and is unaware of any liens. Appellant has indicated that all medical expenses have been
paid by the Personal Injury Protection portion of his automobile insurance. Under Accu-Weather,
the non-moving party must demonstrate that there is a genuine issue for trial and may not rest on
the averments set forth in pleadings. 644 A.2d at 1254. Because Appellant has not produced
evidence of economic damages, summary judgment as a matter of law is appropriate.
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IV. CONCLUSION
This Court's April 20, 2016 Order granting Appellee's Motion for Summary Judgment
was proper and, accordingly, should be AFFIRMED.
RESPECTFULLY SUBMITIED,
Original: Prothonotary
Copies sent 6/J.3 /16 to:
By First Class Mail:
Marc I. Simon, Esquire
Rebecca E. Jellen, Esquire
By Interoffice Mail:
Court Administration - Civil Division
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