Lysykanycz, B. v. Reidenhour, W.

J-S51018-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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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2016-C-2527 /s/L S
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1178 EDA 2018

IN TH.E COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA
CIVIL DIVISION

BORIS LYSYKANYCZ, MICHELLE )
L YSYl 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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2016-C-2527 /s/L S

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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 FILED 4/17/2018 3:19:12 PM,CJerk of;Judicial Records, Civil Division, Lehigh County, PA
2016-C-2527 /s/L S

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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2016-C-2527 /s/L S

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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·.I:··. ·.

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IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA
. . ·. ' . . . . . . ·. . . ' . !. . . . . ·. ·.

CIVIL
. COURT DIVISION
. .

Document Distribution List . '

.: 4/18/2018 �
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File No,: 2016-C-2527
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I I •

JChristin L Kochel, Esq · · Forry Ullman ..

·· ... Suite450 (

150 South Warner Rd '{

· · King of Prussia PA 19406
. ; .··

.· Jruchard J. Orloski, Esq •·. The Orloski Law Finn
.. 111 North Cedar Crest Boulevard
i
Allentown PA 18104-4602
. ·. � '

236NOTICE

. Pursuant t� Pa.R.C.:i>. § 236, 11otice is hereby given that an order, decree, or judgment in'
. .. '.:
. the above captioned matter has been entered.
.. \

··.\ ' ·.·

. '··

Andrea E. Naugle
· ·. Clerk of Judicial Records

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CV15b