author: NEALON, J.,

text:
    Bodnar v. Mesko

      Jeffrey M. Kornblau and Justin L. Groen, for plaintiffs.

      Ryan C. Blazure, for defendant.
    June 11, 2012
   NEALON, J.,

In anticipation of their impending trial, the plaintiffs in this automobile accident case have filed a “motion in limine to preclude evidence of plaintiff Michael Bodnar’s prior accidents as irrelevant and unduly prejudicial.” Plaintiff Michael Bodnar (“Bodnar”) seeks to bar any evidence of or reference to his 1997 slip and fall incident and 1998 automobile accident for which he received treatment at the Community Medical Center (“CMC”). (Plaintiffs’ brief in support, p. 3). Bodnar claims damages in this action for injuries allegedly suffered to his neck and back on May 14, 2009, and argues that any evidence concerning the 1997 and 1998 injuries is inadmissible since the defense “cannot present evidence that either accident affected plaintiff Michael Bodnar’s life in any fashion.” Bodnar also asserts that any reference to such evidence “serves only to bias the jury into making it appear that plaintiff Michael Bodnar is litigious.” (Id. pp. 4-5). The defense contends that Bodnar suffered injuries to his neck and low back in the 1997 and 1998 incidents and “that the jury should be shown the whole picture of [Bodnar’s] claimed injuries, not the mere glimpse proffered by his counsel.” (Defendants’ brief in opposition, pp. 4-5).

The exclusion or admission of evidence is within the sound discretion of the trial court whose decision will not be disturbed absent an abuse of discretion or misapplication of law. Schuenemann v. Dreemz, LLC, 34 A.3d 94, 100 (Pa. Super. 2011). To be admissible, “evidence of previous medical complaints must be connected to the complaints at issue,” and if it is not, the trial court “should exclude the evidence as irrelevant and prejudicial.” Odato v. Fullen, 848 A.2d 964, 966 (Pa. Super. 2004) (“Since the previous medical complaints of left-shoulder pain were connected to the medical complaint at issue, we find the evidence relevant, and we further find no abuse of discretion or error of law committed by the trial court in denying the [plaintiffs’] motion in limine.”), app. denied, 580 Pa. 698, 860 A.2d 124 (2004); DeVita v. Durst, 167 Pa. Cmwlth. 105, 113-114, 647 A.2d 636, 640 (1994) (evidence of plaintiff’s prior emotional problems and anti-anxiety drug prescription was admissible because it “bore a direct connection to the allegations made by [plaintiff] concerning her emotional disability from the accident.”), app. denied, 540 Pa. 606, 655 A.2d 993 (1995). As the Court in Papa v. Pittsburgh Penn-Center Corp., 421 Pa. 228, 218 A.2d 783 (1966) aptly observed, “[testimony concerning any prior fall [i]s not admissible for any purpose unless the injuries from that alleged accident could be connected to those claimed in the present suit, so as to raise the inference of a pre-existing condition.” Id., 421 Pa. at 228, 218 A.2d at 789. Accord, Valentine v. Acme Markets, Inc., 455 Pa. Super. 256, 261-262, 687 A.2d 1157, 1160 (1997) (trial court erred by allowing evidence of plaintiff’s two prior falls since “[tjhere is also no testimony that [plaintiff] suffered injuries in his two prior falls that are similar to the injuries he suffered in this fall.”). Compare, Musselman v. Davison, 41 D. & C. 4th 302, 308 (Bucks Co. 1999) (since plaintiff “suffered a concussion in the 1982 fall” and “had suffered from migraines” following car accidents in 1980 and 1986, “[t] hese prior falls and accidents would go to establishing that her migraines and memory loss were prior existing conditions” before her 1990 fall), aff’d, 757 A.2d 1004 (Pa. Super. 2000), app. denied, 568 Pa. 665, 795 A.2d 978 (2000).

The defense retained an orthopedic surgeon, Thomas J. Allardyce, M.D., to perform a medical examination of Bodnar pursuant to Pa.R.C.P. 4010. In his report dated June 20,2011, Dr. Allardyce itemizes the records which he reviewed, including the police’s accident report, selected pages of Bodnar’s deposition, and Bodnar’s medical records, which pre-date and post-date the subject accident on May 14, 2009. Included among those records are: (1) CMC emergency room records dated January 27, 1997 indicating that Bodnar “fell on the ice and injured his lower back” and complained of numbness and pain in his right leg with “radiation down the right leg”; and (2) CMC emergency room records of July 20, 1998 reflecting that Bodnar “was a restrained driver in a very large vehicle which was struck from behind”, complained of “right-sided neck pain and lower back pain,” and was diagnosed with “acute cervical strain and acute [lumbosacral] strain from a motor vehicle accident.” (Report of Thomas J. Allardyce, M.D. dated 6/20/11, p. 5). The lumbosacral spine x-ray that was performed on January 27, 1997 and the cervical and lumbar spine x-rays that were conducted on July 20, 1998 were all interpreted as normal. (Id.). There is no indication in Dr. Allardyce’s report that the radiographic studies from 1997 and 1998. revealed any degenerative findings or disc disease. (Id., pp. 1-7).

In addition, Dr. Allardyce notes in his report that on January 22, 2007, Bodnar “complained of lateral neck pain” and “severe pain in the left trapezius when he was drying his hair” and was prescribed “Skelaxin.” (Id., p. 5). Dr. Allardyce further states that Bodnar’s medical records indicate that on April 7, 2009, he complained of “lower back pain at night; it feels like he has to go to the bathroom.” (Id.). Dr. Allardyce does not identify any other instances where Bodnar complained of neck or back pain or received treatment for such an ailment during the almost eleven year period between July 20, 1998 and the date of the instant accident on May 14, 2009. (Id., pp. 1-7).

Dr. Allardyce reviewed Bodnar’s radiographic studies and opined that the cervical spine x-rays of September 26, 2009 demonstrate degenerative disc disease and that the cervical MRI datedNovember 3,2009 “shows degenerative changes throughout.” (Id., pp. 5-6). He interpreted Bodnar’s lumbar MRI of May 21, 2009 as “reveal[ing] disc desiccation with end plate changes and slight collapse at L5-S1” and “evidence of facet hypertrophy,” but “[n]o evidence of acute herniation.” (Id., at p. 5). In the diagnosis portion of his report, Dr. Allardyce opines:

After reviewing the history, physical and medical records available to me, the most accurate diagnosis in the prospective record is contusion of the left ribs and left hip. The patient complained of left shoulder and hip pain. The patient had pre-existing neck and back arthritis. He also had pre-existing neck and back symptoms. Low back symptoms date back to 1/27/97 when he developed right leg pain after a fall. He also was evaluated for neck pain and treated with Skelaxin on 1/22/07. There are no symptoms recorded in the prospective record immediately prior to the car accident. The MRI of the neck and lumbar spine post 5/14/09 injury showed no acute findings. The treatment should be over the counter anti-inflammatories and avoiding all invasive forms of treatment since they are all going to predictably fail.... The treatment for 12 weeks after the injury is appropriate and necessary.
The injury sustained in the 5/14/09 accident which were (sic) documented in the ER should not continue to cause pain. Natural resolution should be 12 weeks. There are no orthopedic restrictions on him as a result of the 5/14/09 motor vehicle accident. He will not require any future treatment as a result of the 5/14/09 accident....

(Id., pp. 6-7).

Dr. Allardyce states that Bodnar “had pre-existing neck and back arthritis” as presumably reflected by the degree of degenerative changes indicated on Bodnar’s 2009 MRI scans, which arthritic findings arguably may account for his pain more than twelve weeks after the accident on May 14, 2009. However, Dr. Allardyce does not conclude that Bodnar’s current symptomatology is causally related to the injuries that he suffered in 1997 and 1998. As noted above, other than an isolated instance of neck pain in January 2007 and low back discomfort in April 2009, Bodnar’s treatment records are devoid of any neck or back complaints or treatment during the 130 month period between July 20, 1998 and May 14, 2009. Ostensibly for that reason, Dr. Allardyce has not opined that Bodnar’s present back complaints are traceable to his fall on January 27, 1997 or that his neck symptoms are attributable to his automobile accident on July 20, 1998.

In a personal injury suit, [a] plaintiff need not exclude every possible explanation and ‘the fact that some other cause concurs with the negligence of the defendant in producing an injury does not relieve defendant from liability unless he can show that such other cause would have produced the injury independently of his negligence.”’ Jeter v. Owens-Corning Fiberglass Corp., 716 A.2d 633, 637 (Pa. Super. 1998) (quoting Majors v. Brodhead Hotel, 416 Pa. 265, 273, 205 A.2d 873, 878 (1965)). Dr. Allardyce’s opinions conceivably furnish the jury with a basis for finding that Bodnar’s pre-existing degenerative disc disease is a factual or contributing cause of Bodnar’s current neck and back symptomatology. However, neither Dr. Allardyce nor any other medical expert provides any evidentiary support for the conclusion that either the 1997 fall or the 1998 accident “would have produced the injury complained of independently of [defendant’s] negligence.” Pa. SSJI (Civ.) No. 7.90 (4th Ed. 2011). As the official subcommittee note accompanying the Pennsylvania Suggested Standard Civil Jury Instruction on “other contributing causes” has cautioned:

Although rulings on the admissibility of evidence are left largely to the discretion of the trial judge, a preliminary determination must first be made to ascertain if such evidence of prior complaints is to be connected by the defendant to the complaints alleged to have originated from the defendant’s conduct; otherwise such evidence would be irrelevant and prejudicial. Papa v. Pittsburgh Penn Ctr. Corp., 421 Pa. 228, 218 A.2d 783 (1996). The mere assertion by a tortfeasor that a plaintiff had prior complaints of a back ache, for example, is not probative evidence necessarily. Where, for example, a plaintiff alleges a herniated disc and there is evidence of prior back complaints, such prior complaints should be excluded from evidence unless the defendant’s evidence furnishes the jury with an adequate basis for finding that independent of the defendant’s negligence, the plaintiff’s condition would be the same today. Short of such showing by the defendant, such evidence would be inadmissible.

Id., Subcommittee note.

The defense has not adduced any evidence that would provide the jury with sufficient ground for finding that independent of the defendants’ negligence, Bodnar’s neck and back condition and complaints would be the same today due to his 1997 fall or 1998 automobile accident. Absent such causal proof, any evidence concerning that earlier fall and accident is not properly “connected to the complaints at issue” and must therefore be precluded “as irrelevant and prejudicial.” Odato, supra; DeVita, supra. Thus, the plaintiffs’ motion to preclude evidence of Bodnar’s 1997 slip and fall and 1998 accident will be granted.

And now, June 11, 2012, upon consideration of “plaintiffs’ motion in limine to preclude evidence of plaintiff Michael Bodnar’s prior accidents as irrelevant and unduly prejudicial” and the exhibits and memoranda of law submitted by the parties, and based upon the reasoning set forth above, it is hereby ordered and decreed that plaintiffs’ motion in limine is granted and that defendants are barred from referencing or introducing evidence of plaintiff Michael Bodnar’s slip and fall on January 27, 1997 and automobile accident on July 20,1998, including any medical treatment received at the Community Medical Center on those dates.

      . Plaintiffs have not filed a motion in limine seeking to prohibit the defense from referencing Bodnar’s 2007 complaints of neck pain and 2009 history of lower back discomfort. To be admissible at trial, evidence of those prior complaints must be adequately “connected” to Bodnar’s present symptoms by Dr. Allardyce or some other expert witness.


source: Caselaw Access Project

author: YEAGER, J.,

license: Public Domain

text:
    Meredith v. Steel Dynamics Inc

      Douglas J. Olcott, for plaintiff.

      Michael P. Leahey and Daniel R. Michelmore, for defendant.
    May 4, 2012
   YEAGER, J.,

Before this court for consideration is defendant’s, Steel Dynamics, Inc., preliminary objections to plaintiffs’ complaint. For the following reasons, the preliminary objections are sustained.

I. Background

This case arises from personal injuries allegedly sustained by the plaintiff, Kenneth D. Meredith, as the result of an accident that occurred on or about May 20, 2010, at the defendant’s, Steel Dynamics, Inc., flat roll steel mill facility located in Butler, DeKalb County, Indiana. On or about April 19, 2011, the plaintiffs, Kenneth D. Meredith and Olive L. Meredith, husband and wife (hereinafter, collectively, “plaintiffs”), commenced the instant action against the defendants, Steel Dynamics, Inc. (hereinafter “SDI”) and R.A.M. Transit Lines, Inc. (hereinafter “R.A.M.”) (hereinafter, collectively, “defendants”), by filing a complaint in civil action in the office of the prothonotary of Butler County, Pennsylvania. In said complaint, the plaintiffs assert claims for negligence, vicarious liability, and loss of consortium, respectively, relative to the injuries allegedly sustained by the plaintiff, Kenneth D. Meredith (hereinafter “Mr. Meredith”) on or about May 20, 2010, at SDI’s flat roll steel mill facility situate at 4500 County Road 59, Butler, DeKalb County, Indiana, and the circumstances associated therewith. See generally plaintiffs’ complaint.

On or about June 23, 2011, SDI filed preliminary objections to plaintiffs’ complaint, arguing that the plaintiffs’ complaint should be dismissed pursuant to rule 1028(a)(1) of the Pennsylvania rules of civil procedure because the court of common pleas of Butler County, Pennsylvania, lacks jurisdiction over SDI; alternatively, SDI stated an objection to Mr. Meredith’s claim against SDI for vicarious liability at count III of the complaint, arguing that said claim should be dismissed pursuant to Pa.R.C.P. No. 1028(a)(1) for failure to state a claim upon which relief can be granted. See generally defendant’s, SDI, preliminary objections to plaintiffs’ complaint (hereinafter “preliminary objections”). An argument on SDI’s preliminary objections was scheduled and heard by the undersigned on October 5, 2011. Pursuant to an order of court under date of October 5, 2011, this court overruled SDI’s objection' to Mr. Meredith’s claim for vicarious liability at count III of plaintiffs’ complaint due to the fact that vicarious liability and personal negligence are recognized as separate causes of action in the Commonwealth of Pennsylvania. See paragraph numbered II of the order of court under date of October 5, 2011. The court declined to enter a decision on SDI’s primary objection, i.e., plaintiffs’ complaint must be dismissed pursuant to Pa.R.C.P. 1028(a)(1) Because this court lacks jurisdiction over SDI, until discovery could be conducted by the parties to determine the extent of SDI’s business operations within the Commonwealth of Pennsylvania, and allotted the parties sixty (60) days to complete discovery in this regard. See paragraph numbered I of the order of court under date of October 5,2011. Subsequently, the plaintiffs were allotted an additional ninety (90) days to engage in jurisdictional discovery. See order of court under date of December 1, 2011.

In accordance with the orders of court dated October 5, 2011, and December 1, 2011, respectively, subsequent to the close of discovery on the issue, on or about March 15, 2012, SDI filed a motion to set briefing schedule and argument, thereby moving for further argument on their preliminary objection regarding this court’s jurisdiction over it in this action. As such, argument on the jurisdictional issue was scheduled and held before the undersigned on or about April 24, 2012, thereby necessitating the instant memorandum opinion. See order of court under date of March 15, 2012.

The first eight (8) paragraphs of the plaintiffs’ complaint identify each of the parties involved in this civil action, include general facts as to their respective residences and/or locations, and provide certain information relative to the named defendants’ jurisdictional ties to Butler County, Pennsylvania. While SDI is the only party whose jurisdictional ties to Butler County, Pennsylvania, are presently in question, we shall relay what has been stated pertaining to each party named in this matter. The plaintiffs, Kenneth D. Meredith and Olive L. Meredith, husband and wife, reside at 110 Red Rose Street, apartment A, Butler, Butler County, Pennsylvania; thus, it is clear and uncontested that the plaintiffs are residents of Butler County, Pennsylvania. See paragraphs numbered 1 through 3, respectively, of the complaint. It is likewise clear and uncontested that the defendant, R.A.M. Transit Lines, Inc., is a Pennsylvania corporation, with a principal place of business located at 3651 South Noah Drive, Saxonburg, Butler County, Pennsylvania. Id. at paragraph numbered 6. The plaintiffs provide that the defendant, Steel Dynamics, Inc., “is a corporation organized and existing under the laws of the state of Indiana, with a principal place of business located at 7575 West Jefferson Boulevard, Fort Wayne, Indiana.” See paragraph numbered 4 of the complaint. The plaintiffs go on to allege that, “At all times complained of herein, defendant SDI regularly conducted business transactions and operations in Butler County, Pennsylvania.” Id. at paragraph numbered 5. Moreover, the plaintiffs maintain that, “At all times complained of herein, defendant [R.A.M.] was acting individually or under the control, authority and direction of defendant SDI as its agent, servant, employee, joint venturer and/or representative.” Id. at paragraph numbered 7. Furthermore, the plaintiffs claim that, “At all times complained of herein, defendants SDI and [R. A.M.] were acting for their individual and mutual financial gain.” Id. at paragraph numbered 8.

In support of their claims against the defendants, the facts of plaintiffs’ complaint are set forth as follows. The defendant, SDI, owns and operates a flat roll steel mill facility situate at 4500 County Road 59, Butler, DeKalb County, Indiana (hereinafter “DeKalb County facility”). See complaint at paragraph numbered 9. The plaintiffs allege that SDI entered into a contract with R.A.M. to provide trucking services, and specifically, to transport materials to SDI’s DeKalb County facility, “for their mutual benefit and profit.” Id. at paragraph numbered 10. The plaintiffs further contend that, “defendant SDI controlled [sic] managed and/or supervised the manner and method by which loads were to be transported under its contract with [R.A.M.], including but not limited to the time shipments were to be picked up and delivered, the routes to be taken, payment restrictions, and extensive instructions pertaining to driving, loading and unloading.” Id. at paragraph numbered 11.

On or about March 29, 2010, it is alleged that R.A.M. entered into an equipment lease agreement with Mr. Meredith “whereby [Mr. Meredith] would be retained as an owner-operator by [R.A.M.] to provide transportation services. See paragraph numbered 12 of the complaint. Subsequently, on or about May 20, 2010, the plaintiffs maintain that SDI directed R.A.M., “to transport and deliver an abrasive, hazardous dry mixture of lime, sand and aluminum shards,” to their DeKalb County facility. Id. at paragraph numbered 12. Also on or about May 20,2010, Mr. Meredith was retained by R. A.M. to transport the diy mixture of lime, sand and aluminum shards (hereinafter “lime mixture”), to the DeKalb County facility, “using a tractor owned by [Mr. Meredith] and a dry-bulk trailer and attendant equipment owned by [R.A.M.].” Id. at paragraphs numbered-13 and 14, respectively.

The complaint further alleges that on May 20, 2010, Mr. Meredith arrived at SDI’s DeKalb County facility, proceeded through a checkpoint, and made his way to a silo on the premises where he was to deliver the lime mixture. Id. at paragraphs numbered 15, 16, and 17, respectively. The plaintiffs maintain that once at the designated silo, a rubber hose with cam locks at both ends was affixed to the silo so as to enable the lime mixture to be transferred from the dry-bulk trailer into the silo. Mr. Meredith then purportedly attached the cam lock at the opposite end of the hose to the dry-bulk trailer and began the unloading process by engaging the blower equipment on the truck, which created pressure to force the lime mixture from the dry-bulk trailer, through the hose, and into the silo. Id. at paragraphs numbered 18 through 23, respectively. The plaintiffs allege that at this time, Mr. Meredith “approached the hose to evaluate the unloading process, and the cam lock unexpectedly decoupled,” causing the hose to whip “violently and forcefully spray the [lime mixture].” Id. at paragraphs numbered 24 and 25, respectively. The plaintiffs further allege that the hose repeatedly struck Mr. Meredith and sprayed him with the lime mixture, which the plaintiffs contend is a hazardous material, thus causing Mr. Meredith to suffer physical injuries. Id. at paragraphs numbered 26 and 27, respectively. The complaint goes on to state that Mr. Meredith then deactivated the truck’s blower and used the CB radio to contact personnel at the checkpoint of the DeKalb County facility. See paragraphs numbered 28 and 29, respectively, of the complaint. The plaintiffs claim that SDI personnel failed to timely render first aid treatment to Mr. Meredith, that he did not receive treatment for his injuries until emergency medical technicians arrived at the DeKalb County facility, and that this delay and “the negligent and reckless conduct” of the defendants caused Mr. Meredith to suffer “serious and permanent injuries and damages.” Id. at paragraphs numbered 30 through 36, respectively.

The foregoing allegations form the basis of the plaintiffs’ four-count complaint. See generally, complaint. In count I of plaintiffs’ complaint, Mr. Meredith asserts a claim for negligence against SDI. In part,' count I alleges that SDI was negligent due to its failure to maintain the hose, as well as the components of the hose, used to unload the lime mixture from the dry-bulk trailer into the silo, and in failing to have readily available and accessible first aid treatment. Id. at paragraphs numbered 38(a) through 38(ff), respectively. Moreover, the complaint alleges that SDI was negligent due to its entrustment of the “transportation and unloading of [lime mixture] at the silo on the premises of the [DeKalb County facility] to [R.A.M.], when it knew or should have known that [R.A.M.] was inexperienced, unsafe and/or incompetent.” Id. at paragraph numbered 38(ee). In count II of plaintiffs’ complaint, Mr. Meredith asserts a claim for negligence against R.A.M., stating allegations similar to those listed under count I of the complaint. Mr. Meredith raises a claim for vicarious liability against SDI in count III of plaintiffs’ complaint, maintaining that at all relevant times “SDI was acting by and through [R.A.M.], its authorized agent, joint venturer, servant and/or directee,” and that “[R.A.M.] was acting in furtherance of the business interests of [SDI].” See paragraphs numbered 50 and 51, respectively, of the complaint. In their fourth and final count, i.e., count IV of the plaintiffs’ complaint, the plaintiff, Olive L. Meredith (hereinafter “Mrs. Meredith”), asserts a claim for loss of consortium against both SDI and R. A.M., alleging that due to Mr. Meredith’s injuries, she “has been and will be in the future deprived of the services, assistance, companionship and consortium of her husband and has suffered loss of enjoyment of the ordinary pleasures of life, including marital and family life, and has sustained damages as a result thereof.” Id. at paragraph numbered 55.

II. Rule of Law

Under the Pennsylvania rules of civil procedure, preliminary objections may be filed based upon a “lack of jurisdiction over the subject matter of the action...” as well as the “legal insufficiency of a pleading.” Pa.R.C.P. No. 1028(a)(1) andPa.R.C.P. No. 1028(a)(4). The movingparty has the burden of supporting its preliminary objections to the trial court’s jurisdiction. Schmitt v. Seaspray-Sharkline, Inc., 531 A.2d 801 (Pa. Super. 1987). Once jurisdiction is challenged, the burden of proof falls on the plaintiff to set forth facts establishing that jurisdiction in Pennsylvania is proper. Barr v. Barr, 749 A.2d 992, 994 (Pa. Super. 2000). Moreover, once the plaintiff has produced some evidence to support jurisdiction, the defendant must come forward with some evidence of his own to dispel or rebut the plaintiff’s evidence. The moving party may not sit back and, by the bare allegations as set forth in the preliminary objections, and place the burden upon the plaintiff to negate those allegations. It is only when the moving party properly raises the jurisdictional issue that the burden of proving jurisdiction is upon the party asserting it. If an issue of fact is raised, the court shall take evidence by deposition or otherwise. The court may not reach a determination based upon its view of the controverted facts, but must resolve the dispute by receiving evidence thereon through interrogatories, depositions, or an evidentiary hearing. Schmitt v. Seaspray-Sharkline, Inc. at 803 (citations omitted). “[Wjhen deciding a motion to dismiss for lack of personal jurisdiction, the court must consider the evidence in the light most favorable to the non-moving party.” King v. Detroit Tool Company, 682 A.2d 313, 314 (Pa. Super. 1996) (quoting Scoggins v. Scoggins, 555 A.2d 1314, 1317 (Pa. Super. 1989).

When considering preliminary objections, the court must accept all material facts set forth in the complaint, as well as all inferences reasonably deducible therefrom as admitted as true, and decide whether, based upon the facts averred, recovery is impossible as a matter of law. Wiernik v. PHH U.S. Mortg. Corp., 736 A.2d 616 (Pa. Super. 1999). The pleader’s conclusions of law, unwarranted inferences from the facts, argumentative allegations, or expressions of opinion are not admitted as true. See Giordano v. Ridge, 737 A.2d 350 (Pa. Comwlth. 1999). Further, preliminary objections should only be sustained in cases that are clear and free from doubt. Pennsylvania AFL-CIO ex. Re. George v. Com., 563 Pa. 108, 757 A.2d 917 (2000). Additionally, it should be clear from all the pleaded facts that the pleader will be unable to prove facts sufficient to legally establish a right to relief. Id. As such, any doubts should be resolved by refusing to sustain the objection. Ellenbogen v. PNC Bank, N.A., 731 A.2d 175 (Pa. Super. 1999).

III. Discussion

PLAINTIFFS’ COMPLAINT MUST BE DISMISSED PURSUANT TO PA.R.C.P. 1028(a)(1) BECAUSE THIS COURT LACKS JURISDICTION OVER SDI

In their preliminary objections to plaintiffs’ complaint, SDI argues that this court lacks subject matter jurisdiction over it as SDI is an Indiana corporation, organized and existing under the laws of the state of Indiana, it has not consented to the jurisdiction of Pennsylvania courts, and the requisite minimum contacts between SDI and the Commonwealth of Pennsylvania under the long-arm statute, 42 Pa.C.S.A. § 5301 et seq., and the due process clause fail to exist. See generally, SDI’s preliminary objections. In their supplemental brief in support of preliminary objections to jurisdiction, SDI further contends that, “The record created through discovery shows that SDI has virtually no contacts with Pennsylvania, much less the “continuous and systematic” contacts required for jurisdiction.” See page numbered 2 of SDI’s supplemental brief in support of preliminary objections to jurisdiction (hereinafter “supplemental brief in support”).

A state may exercise in personam jurisdiction over a nonresident defendant based either upon the specific acts of the defendant that gave rise to the cause of action or upon the defendant’s general activity within the state. See Kubik v. Letteri, 532 Pa. 10, 614 A.2d 1110 (1992); Derman v. Wilair Services, Inc., 404 Pa. Super. 136, 590 A.2d 317 (1991). When a state exercises personal jurisdiction over a nonresident defendant in a suit arising out of or related to the defendant’s contacts with the forum, the state is exercising specific jurisdiction. See Kubik v. Letteri, 532 Pa. 10, 614 A.2d 1110 (1992). In order for a Pennsylvania court to assert specific jurisdiction, the cause of action must arise out of the defendant’s particular acts or activities within Pennsylvania. See Efford v. Jockey Club, 2002 Pa. Super. 100, 796 A.2d 370 (2002); Fidelity Leasing, Inc. v. Limestone County Bd. of Educ., 2000 Pa. Super. 244, 758 A.2d 1207, 147 Ed. Law Rep. 216 (2000); Hall-Woolford Tank Co., Inc. v. R.F. Kilns, Inc., 698 A.2d 80 (Pa. Super. 1997); Derman v. Wilair Services, Inc., 404 Pa. Super. 136, 590 A.2d 317 (1991). General jurisdiction, on the other hand, exists regardless of whether the cause of action is related to the defendant’s activities in the commonwealth, as long as the defendant’s activities are continuous and substantial, or continuous and systematic. See Derman v. Wilair Services, Inc., 404 Pa. Super. 136, 590 A.2d 317 (1991); Efford v. Jockey Club, 2002 Pa. Super. 100, 796 A.2d 370 (2002); Fidelity Leasing, Inc. v. Limestone County Bd. of Educ., 2000 Pa. Super. 244, 758 A.2d 1207, 147 Ed. Law Rep. 216 (2000); HallWoolford Tank Co., Inc. v. R.F. Kilns, Inc., 698 A.2d 80 (Pa. Super. 1997). Thus, if in personam jurisdiction does not exist, Pennsylvania courts may still exercise general personal jurisdiction over nonresident defendants based upon the defendant’s general activity within the forum state. See Derman v. Wilair Services, Inc., 404 Pa. Super. 136, 590 A.2d 317 (1991)

Pennsylvania law provides two bases for a court to exercise in personam jurisdiction over a corporation: general or specific jurisdiction. Fletcher-Harlee Corp. v. Szymanski, 2007 Pa. Super. 310, 936 A.2d 87 (2007), appeal denied, 598 Pa. 768, 956 A.2d 435 (2008) and cert. denied, 129 S. Ct. 1581 (2009). Regardless of whether general or specific in personam jurisdiction is asserted, the propriety of such an exercise must be tested against the state long-arm statute and the due process clause. Haas v. Four Seasons Campground, Inc., 2008 Pa. Super. 136, 952 A.2d 688 (2008), referring to 42 Pa.C.S.A. § 5301(a) and U.S.Const. Amend. XIV.

42 Pa. C.S.A. § 5308 governs jurisdiction based on minimum contacts and provides that, “The tribunals of this Commonwealth may exercise jurisdiction under this subchapter only where the contact with this commonwealth is sufficient under the Constitution of the United States.” 42 Pa. C.S.A. § 5308. The question of whether a state may exercise in personam jurisdiction over a nonresident defendant must be tested against both the state’s long-arm statute and the due process clause of the fourteenth amendment to the United States Constitution. Kubik v. Letteri, 532 Pa. 10, 614 A.2d 1110 (1992); Kenny v. Alexson Equipment Co., 495 Pa. 107, 432 A.2d 974 (1981).

The Due Process Clause of the Fourteenth Amendment imposes a limit on the state’s exercise of jurisdiction over a nonresident defendant, and protects an individual’s liberty interest by not allowing the individual to be subject to the jurisdiction of a foreign forum with which he or she has established no meaningful contacts, ties, or relations. See Kenny v. Alexson Equipment Co., 495 Pa. 107, 432 A.2d 974 (1981); Kubik v. Letteri, 532 Pa. 10, 614 A.2d 1110 (1992). The due process limitations on the assertion of specific personal jurisdiction over a nonresident defendant are as follows: (1) the nonresident defendant must have sufficient minimum contacts with the forum state, and (2) the assertion of in personam jurisdiction must comport with fair play and substantial justice. See Nutrition Management Services Co. v. Hinchcliff, 2007 Pa. Super. 167, 926 A.2d 531 (2007); Kubik v. Letteri, 532 Pa. 10, 614 A.2d 1110 (1992). Thus, the determination of whether sufficient minimum contacts exist for the exercise of personal jurisdiction to meet constitutional muster is based on a finding that the defendant’s conduct and his or her connection with the forum state are such that the defendant could reasonably anticipate being called to defend itself in that forum. See Kubik v. Letteri, 532 Pa. 10, 614 A.2d 1110 (1992); Efford v. Jockey Club, 2002 Pa. Super. 100, 796 A.2d 370 (2002); Hall-Woolford Tank Co., Inc. v. R.F. Kilns, Inc., 698 A.2d 80 (Pa. Super. Ct. 1997).

In the instant matter, the evidentiary record created through jurisdictional discovery and the laws of the Commonwealth of Pennsylvania support SDI’s argument that this court lacks jurisdiction over SDI. The accident that forms the basis for the plaintiffs’ lawsuit occurred at the DeKalb County facility in the state of Indiana. See paragraph numbered 9 of the complaint. SDI is an Indiana corporation with its principal place of business in Fort Wayne, Indiana. See affidavit of Richard A. Poinsatte, exhibit “A” of SDI’s supplemental brief in support. SDI has no officers or directors in the Commonwealth of Pennsylvania. Id. SDI does not maintain a mailing address, post office box, or telephone number in the Commonwealth of Pennsylvania. Id. SDI does not own, lease, or operate real property situate in the Commonwealth of Pennsylvania. Id.; see also, Deeds, exhibit “B” of SDI’s supplemental brief in support. SDI pays no property taxes in Pennsylvania. Id.; see also, 2011 Allegheny County, Pennsylvania, real estate tax statement, exhibit “C” of SDI’s supplemental brief in support. There are no SDI employees in the Commonwealth of Pennsylvania. Id.; see also, SDI and affiliated entities employee count by location, exhibit “D” of SDI’s supplemental brief in support. SDI has no agent to receive service of process in Pennsylvania. See supplemental affidavit of Richard A. Poinsatte, exhibit “E” of SDI’s supplemental brief in support. SDI has not paid income taxes in the Commonwealth of Pennsylvania. Id. SDI has never purchased advertising directly targeted to Pennsylvania residents. See SDI’s answers to plaintiffs’ third set of interrogatories, no. 183, exhibit “F” of SDI’s supplemental brief in support.

While SDI made purchases from non-party vendors, the record shows that SDI makes no sales in the Commonwealth of Pennsylvania, and purchases are insufficient to confer jurisdiction. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); Whalen v. Walt Disney World Co., 274 Pa. Super. 246, 418 A.2d 389 (Pa. Super. 1980). All products manufactured by SDI are sold in the state of Indiana to Steel Dynamics Sales North America, Inc. (hereinafter “SDSNA”), a wholly owned subsidiary corporation; SDSNA, in turn, sells the products it purchases from SDI to thousands of different customers throughout the world. See summary of SDI sales to SDSNA from 2005-2010, exhibit “G” of SDI’s supplemental brief in support; SDI’s answer to plaintiffs’ third set of interrogatories, no. 184, exhibit “F” of SDI’s supplemental brief in support. As SDI and SDSNA are separate corporations, SDSNA’s contacts with Pennsylvania can only be imputed to SDI for jurisdictional purposes if the two (2) companies do not maintain corporate separation and SDSNA is merely the “alter-ego” of SDI. See Cannon Manufacturing Co. v. Cudahy Packing Co., 267 U.S. 333, 45 S.Ct. 250, 69 L.Ed. 634 (1924); Botwinick v. Credit Exchange, Inc., 419 Pa. 65, 213 A.2d 349 (Pa. 1965). The evidentiary record does not support the contention that SDI and SDSNA do not maintain corporate separation.

The evidentiary record created through jurisdictional discovery likewise demonstrates that “The Techs-A Division of Steel Dynamics, Inc.” is a wholly-owned subsidiary of SDI, and is registered with the Pennsylvania Department of State as a fictitious name, and is owned by The Techs Industries, Inc. (hereinafter “The Techs”), and is not a part of SDI. See Pennsylvania Corporations Database Business Entity Filing History, Exhibit “H” of SDI’s supplemental brief in support. As The Techs is a wholly-owned subsidiary of SDI whose contacts with the Commonwealth of Pennsylvania cannot be imputed to establish jurisdiction over SDI unless there is evidence that corporate separation has not been maintained; there is no such evidence here.

In light of the foregoing, SDI has clearly established that jurisdiction in the Court of Common Pleas of Butler County, Pennsylvania, is improper as SDI lacks sufficient meaningful contacts with the Commonwealth of Pennsylvania.

ORDER OF COURT

And now, May 4,2012, upon consideration defendant’s, Steel Dynamics, Inc., preliminaiy objections to plaintiffs’ complaint, brief in support of preliminary objections to plaintiffs’ complaint, plaintiffs’, Kenneth D. Meredith and Olive L. Meredith, response to defendant Steel Dynamic [sic], Inc.’s preliminary objections, plaintiffs’ brief in opposition to defendant Steel Dynamics, Inc. ’s preliminary objections, defendant’s, Steel Dynamics, Inc., reply brief to plaintiff’s [sic] brief in opposition to defendant’s preliminary objections, defendant’s, Steel Dynamics, Inc., supplemental brief in support of preliminary objections to jurisdiction, plaintiffs’ supplemental response to defendant Steel Dynamics, Inc.’s preliminary objection to jurisdiction, supplemental brief in opposition to defendant Steel Dynamics, Inc.’s preliminary objections as to jurisdiction, defendant’s, Steel Dynamics, Inc., reply brief to plaintiffs’ brief in opposition to SDI’s supplemental brief in support of its preliminary objections to jurisdiction, oral argument thereon, and in accordance with the foregoing memorandum opinion, the defendant’s, Steel Dynamics, Inc., preliminary objections to plaintiffs’ complaint, relative to lack of jurisdiction are sustained, and this matter is to be forthwith transferred by the prothonotary’s office of Butler County, Pennsylvania, to office of the DeKalb County Clerk of Courts, P.O. Box 230, Auburn, Indiana 46706.


author: FORD, J.,

text:
    Geryville Materials, Inc. v. Planning Commission of Lower Milford Township.

      Stephen B. Harris, for appellant.

      David M. Backenstoe, for appellee.

      Mark S. Cappuccio, for intervenors.
    June 26, 2012
   FORD, J.,

Geryville Materials, Inc. (appellant) filed a notice of appeal from a decision of the Planning Commission of Lower Milford Township, Pennsylvania (commission), which is the appellee in this matter. The decision was announced at a meeting of the commission on October 3, 2011, and it was explained in a letter dated October 14, 2011, from Commission’s counsel to appellant. In the decision, the commission denied appellant’s preliminary plan for the development of a stone quarry. Because the commission acted in accord with the law, its decision is sustained and the appeal is denied.

Factual and Procedural History

Appellant is the owner of a 628.48 acre property in Lower Milford Township (township). Township is one of the intervenors in this case. A stream and two public roads, West Mill Hill Road and Buhman Road, cut through this land.

On June 18, 2009, appellant submitted an application to the commission for approval of a preliminary land development plan (preliminary plan). Through the preliminary plan, appellant sought permission to develop a non-surface, stone extraction quarry on a 84.56 acre portion of its 628.48 acres. Appellant proposed that the quarry be located on the north side of West Mill Hill Road, with a water infiltration facility on the west side of West Mill Hill Road. Sections 241.2 and 241.4 of the Subdivision and Land Development Ordinance of Lower Milford Township (SALDO) direct that the commission review and approve or deny all preliminary land development plans in the township.

On August 3, 2009, the commission held its first meeting on appellant’s preliminary plan. The commission conducted many public meetings on the project over the next two years. Throughout this process, appellant made revisions to the preliminary plan, with submission of its last revision to the commission on October 11, 2010.

Beginning in May of 2011, township actively opposed appellant’s preliminary plan at the commission meetings. From May through July of 2011, township presented testimony to the commission that appellant’s plan failed to adhere to various sections of the Lower Milford Township Zoning Ordinance (ordinance) and the SALDO. Specifically, the township contended that appellant’s plan contained improper site capacity and natural resource protection calculations and violated the prohibition against partial subdivision of land. Township concluded the presentation of its evidence at the public meeting held on July 11, 2011.

The commission held its next public meeting on appellant’s preliminary plan on August 1,2011. However, appellant did not appear for this meeting. Instead, appellant submitted a written stipulation to the commission indicating that appellant agreed to an extension of the time period for the commission to consider the preliminary plan. (Appellant executed the stipulation to avoid a “deemed approval” of the preliminary plan pursuant to 53 P.S. § 10508(3).) Appellant consented to the commission’s entering a decision on the preliminary plan by a date no later than October 31,2011.

At a public meeting conducted on September 12,2011, the commission again offered appellant the opportunity to present rebuttal evidence. However, counsel for appellant informed the commission that appellant would not be offering any rebuttal witnesses. Instead, counsel for appellant notified the commission that he would only be making legal argument in opposition to township’s position. Because the evidence was completed on the preliminary plan, the commission asked each party to submit a written memorandum on the issues. Finally, the commission announced at this meeting that it was scheduling a meeting for September 28, 2011, to publicly deliberate on the issues surrounding the preliminary plan.

At the September 28, 2011, public meeting, the commission heard arguments on the preliminary plan, in addition to the memoranda that had been submitted. After considerable deliberation, the commission decided that it would enter a decision at the next public meeting to be held on October 3, 2011.

At the start of the public meeting on October 3, 2011, appellant submitted a written request to the commission seeking another extension of time for the commission to consider the preliminary plan. The commission denied the extension request and resumed its deliberations. At the conclusion of the October 3 meeting, the members of the commission voted unanimously to deny appellant’s preliminary plan. In doing so, the commission determined that the plan: (1) used improper site capacity calculations under section 314.22 of the SALDO and Section 472.d of the ordinance; (2) proposed an impermissible partial land development under Section 318 of the SALDO; and (3) did not comply with the natural resource protection standards listed at Sections 470, 471 and 472 of the ordinance.

On November 10, 2011, appellant filed the present “notice of appeal and petition for review of denial of land development plan.” In this appeal, appellant challenges the commission’s October 3, 2011, denial of its preliminary plan. The commission filed a reply to the appeal on December 1, 2011.

On November 30,2011, township, acting under 53 P.S. § 11004-A, filed a notice of intervention in support of the commission’s denial of appellant’s preliminary plan.

On January 23, 2012, an order was entered accepting a stipulation allowing Lori Sickenberger and Don Weinberger to intervene in this appeal. Ms. Sickenberger and Mr. Weinberger are Township residents who oppose appellant’s proposed quarry.

On March 30, 2012, the attorneys made excellent arguments on the appeal. At argument, each party agreed that the court’s review was restricted to the record developed before the commission. No additional evidence was presented at the argument. Appellant, the commission and township had earlier filed very helpful briefs in support of their respective positions. Ms. Sickenberger and Mr. Weinberger filed a brief adopting the arguments of the commission and township.

Discussion and Conclusions of Law

Appellant argues that the commission’s decision to deny the preliminary plan must be overruled for three primary reasons. First, appellant contends that the natural resource protection standards contained in sections 470, 471 and 472 of the ordinance are preempted by state law and are therefore unenforceable against appellant. Second, appellant argues that the commission erred in concluding that appellant’s site capacity and natural resource protection calculations violated the SALDO and ordinance. This argument assumes that the natural resource protection standards are not preempted. Third, appellant asserts that the commission violated its duty of good faith in acting on appellant’s preliminary plan. For the reasons that follow, all of appellant’s contentions lack merit.

In a land use appeal where the court does not take additional evidence, the court’s review is limited to whether the local agency committed an abuse of discretion or error of law. Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 554, 462 A.2d 637, 639 (1983); and 53 P.S. § 11005-A. The court may not substitute its judgment for that of the local agency unless the agency manifestly abused its discretion. Nascone v. Ross Township Zoning Hearing Board, 81 Pa.Cmwlth. 482, 486, 473 A.2d 1141, 1142 (1984). An abuse of discretion occurs when a local agency’s findings are not supported by substantial evidence. Allegheny West Civic Council, Inc. v. Zoning Board of Adjustment of the City of Pittsburgh, 547 Pa. 163, 167, 689 A.2d 225, 227 (1997). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Lantos v. Zoning Hearing Board of Haverford Township, 153 Pa.Cmwlth. 591, 597, 621 A.2d 1208, 1211 (1993).

Preemption

Appellant argued before the commission that the natural resource protection standards listed at sections 470, 471 and 472 of the ordinance were preempted by Pennsylvania’s Non-coal Surface Mining Conservation and Reclamation Act (Mining Act), 52 P.S. §§3301-3326. Among other things, the Mining Act grants the Pennsylvania Department of Environmental Protection (DEP) the authority to regulate the operation of Non-coal surface mining in the commonwealth. The Commission rejected appellant’s preemption argument and applied the natural resource protection provisions of the ordinance in reviewing appellant’s preliminary plan. Appellant repeats this argument in this appeal.

Under the Mining Act, “all local ordinances and enactments purporting to regulate surface mining are hereby superseded.” 52 P.S. § 3316. The case law interpreting this language has differentiated between zoning ordinances, which regulate the location and physical configuration of mining operations, and those which directly regulate and control the operation of mines. Only the latter is subject to preemption. Pennsylvania Coal Company, Inc. v. Township of Conemaugh, 149 Pa.Cmwlth. 22, 26, 612 A.2d 1090, 1092- 93 (1993).

In addressing the subject of preemption, the commonwealth court held that, as a general proposition, zoning ordinance provisions seeking to protect and preserve the environment constitute traditional zoning regulations. Arbor Resources, LLC v. Nockamixon Township, 973 A.2d 1036, 1046 (Pa. Cmwlth. 2009); see also 53 P.S. § 10603(b) (1), (3) and (5). Examples of environmental ordinances not subject to preemption are those which “regulate lot size and proximity to threatened or endangered species or crucial habitats” and those which require the production of environmental reports showing compliance with federal environmental regulations. Arbor Resources, LLC v. Nockamixon Township, 973 A.2d at 1046 (Pa. Cmwlth. 2009). Further, the Commonwealth Court has stated:

While the DER (Department of Environmental Resources, the predecessor to the DEP) is empowered to protect the environment, it is not a zoning board. If we were to say that a grant of a permit by the DER removes all environmental concerns for an industry to operate in a particular district, we would effectively chill the rights of citizens to come forward with evidence regarding their health, safety and welfare, and thus, would emasculate the purpose of a zoning board to resolve these issues.

Abbey v. Zoning Hearing Board of Borough of East Stroudsburg, 126 Pa.Cmwlth. 235, 245-46, 559 A.2d 107, 112 (1989).

Here, the sections of the ordinance which appellant contends are preempted do not regulate the operation of mines. On the contrary, the challenged sections compel the preservation of natural resources. Specifically, section 471 (d) of the ordinance limits the amount of woodlands that can be destroyed in a land development proj ect and requires a developer to replace removed trees in some instances. Section 471(e) mandates that any land development which alters a watercourse must be based on a design approved by the township and, if required, the DEP. Section 471(f) prohibits the alteration of designated wetlands except in instances where required state and federal permits have been obtained. Finally, section 471(g) limits the amount of wetlands that can be altered by a land development project. Because these sections of the ordinance operate to preserve natural resources and do not regulate the conduct of mining operations, the commission properly concluded that they are not preempted by the Mining Act.

Site Capacity and Natural Resource Protection Calculations

The commission, in interpreting the ordinance and SALDO, found that appellant’s property constituted three separate parcels for purposes of the required site capacity and natural resource protection analyses because of the roads which cut through the property. Thus, the commission concluded that.appellant’s preliminary plan had to contain separate analyses for each ofthe three parcels. However, the site capacity and natural resource protection calculations contained in appellant’s preliminary plan analyzed appellant’s 628.48 acre property as one large parcel only. The commission cited appellant’s failure to analyze the property as three separate parcels as a reason for denying the preliminary plan. On appeal, appellant maintains that its property constitutes one parcel under the provisions of the ordinance and SALDO and that the commission committed an error of law in determining otherwise. For the reasons that follow, appellant’s contention lacks merit.

“It is well-settled that the interpretation and application of ordinance terms are within the sole discretion of the [local agency charged with applying the ordinance] and will not be disturbed absent a demonstration that an abuse of discretion or an error of law was committed.” Morris v. South Coventry Township Board of Supervisors, 836 A.2d 1015, 1023 (Pa.Cmwlth. 2003) (citation omitted). Also,

[w]hile it is true that zoning ordinances are to be liberally construed to allow the broadest possible use of land, it is also true that zoning ordinances are to be construed in accordance with the plain and ordinary meaning of their words. (Citation omitted.) Further, zoning ordinances should be construed in a sensible manner. (Citation omitted.)

Zappala Group, Inc. v. Zoning Hearing Board, Town of McCandless, 810 A.2d 708, 710 (Pa.Cmwlth. 2002).

In determining the proper method of performing site capacity and natural resource protection calculations for the proposed quarry project, the commission had to interpret section 314.22 of the SALDO and section 472.d of the ordinance. Section 314.22 of the SALDO requires that all land development plans submitted to the commission contain a natural features map which depicts certain natural features calculations. Specifically, section 314.22 reads:

Site capacity calculations per section 472.d of the zoning ordinance. All measurements used for these calculations shall be indicated for each resource on the natural features map.

Section 314.22 refers to section 472.d of the ordinance, the relevant portions of which are:

Site capacity calculation. Each site is unique; it has physical features which are rarely duplicated precisely on another site. Portions of some sites may not be usable. The portion of this subsection is to determine the appropriate intensity of use to which a specific tract may be put. For each tract, the following calculation shall be submitted by the developer.
(1) Base site area: Certain portions of tracts may not be usable for the activities proposed for the site; these shall therefore be subtracted from the site area to determine the base site area.
(c) Subtract — land which is not contiguous; i.e., a separate parcel which does not abut or adjoin, nor share common boundaries with the rest of the development; and/or land which is cut off from the main parcel by a road, railroad, existing land uses, and/or maj or stream so as to serve as a major barrier to common use, or so that it is isolated and unavailable for building purposes.

In ascertaining the meaning of these provisions, the commission focused on the plain language in section 472.d(l)(c), which mandates that “land which is cut off from the main parcel by a road” is subtracted from a base site area upon which site capacity and natural resource protection analyses are to be conducted. The commission reasoned that the notion that bisection by a road creates distinct parcels of land was consistent with the definition of “lot” contained in the ordinance. That definition reads:

A parcel of land held in one ownership not divided by a public street. A lot, for purposes of this ordinance, shall also mean that total plot in single ownership, whether or not it is made up of one or more contiguous parcels and whether or not such contiguous parcels were acquired at the same time or at different times. Upon the acquisition of contiguous parcels, they, together with the original parcel, shall be considered as a single lot.

(Emphasis added).

Furthermore, the commission relied on township precedent in interpreting section 314.22 of the SALDO and section 472.d of the ordinance. Specifically, at the public meeting on September 28, 2011, the commission considered a June 11, 1993, letter from attorney Edward McGee, then the township’s solicitor, whose letter was used to record a determination made by the township board of supervisors. The letter explained:

At the meeting held on June 10, 1993, the board of supervisors decided to change the policy where a piece of real estate has a road running through it. The supervisors have decided that, in the future, a parcel of land which has a public street dividing it shall be considered as two lots.

Based on all of the above, the commission interpreted the ordinance and SALDO to mean that public roads passing through a property create separate parcels within that property for site capacity and natural resource protection calculations. The commission noted that two public roads, West Mill Hill Road and Buhman Road, cut through appellant’s property. These roads divided appellant’s property into three separate parcels so that appellant was required to perform site capacity and natural resource protection calculations on each of the three lots.

Appellant relies on the second sentence in the definition of “lot” contained in the ordinance as support for its position that its entire 628.48 acre property should be treated as one parcel for the required calculations. That sentence indicates that a” lot...shall also mean the total plot in single ownership whether or not it is made up of one or more contiguous parcels....” Appellant argues that because it owns the entirety of the 628.48 acres, the property should be considered one lot regardless of the roads. Appellant contends that the commission committed an error of law by not adopting this interpretation.

The commission did not commit an error of law. First, the commission acted reasonably in basing its interpretation of the provisions of the ordinance and SALDO on the ordinary meaning of their language. Both section 472.d of the ordinance and the definition of “lot” contained in the ordinance clearly state that a public road severs one parcel of land from another, thereby creating separate parcels. No language in the second sentence in the definition of “lot” directly contradicts this clear interpretation. Second, the commission adhered to township precedent by relying upon the board’s prior determination that road division of property creates separate lots (as recorded in the June 13, 1993, letter prepared by attorney McGee). Finally, to the extent that one may perceive any contradiction or confusion in the ordinance’s definition of “lot,” discretion is given to the commission for a reasonable interpretation of that provision.

With the determination that the commission properly concluded that appellant should have analyzed the property as three parcels and not one, it is unnecessary to reach the question of whether an analysis of the land as one parcel would have met the applicable standards, (township, in opposing appellant’s preliminary plan, presented several expert witnesses who testified before the commission that appellant’s plan failed to meet the standards of the ordinance, even when site capacity and natural resource protection calculations were based on an analysis of appellant’s 628.48 acre property as one parcel of land.)

Good Faith

Appellant argues that the decision to deny its preliminary plan should be reversed because the commission did not act in good faith. Appellant lists examples of the commission’s alleged failure to act in good faith at pages 16 through 19 of its brief. These claims lack merit.

Appellant contends that the commission had a duty to offer appellant guidance as to the proper method of computing site capacity and natural resource protection calculations for the preliminary plan. Instead of offering such guidance, the appellant says the commission refused to draw attention to defects in its method of calculation until the point that the preliminary plan was denied without the opportunity to amend. Contrary to appellant’s assertion, the record shows that appellant received adequate notice of these deficiencies in its preliminary plan.

The commonwealth court has held that,

[a] municipality has a legal obligation to proceed in good faith in reviewing and processing development plans. The duty of good faith includes discussing matters involving technical requirements or ordinance interpretation with an applicant, and providing an applicant a reasonable opportunity to respond to objections or to modify plans where there has been a misunderstanding or difference of opinion.

Highway Materials, Inc., v. Board of Supervisors of Whitemarsh Township, 974 A.2d 539, 544 (Pa.Cmwlth. 2009) (quoting Raum v. Board of Supervisors of Tredyffrin Township, 29 Pa.Cmwlth. 9, 48, 370 A.2d 111, 798 (1977)).

Township engineer, Cowan Associates, Inc., reviewed appellant’s original preliminary plan shortly after its submission to the commission on June 18,2009. In letters to appellant dated July 29, 2009, and October 1, 2009, the engineer suggested that appellant should consolidate the multiple tax parcels on its property into one parcel for purposes of the required calculations in the preliminary plan. Thereafter, appellant submitted and presented a preliminary plan which contained site capacity and natural resource protection calculations based on an analysis of appellant’s property as one parcel of land. (The process of appellant’s presentation of its evidence on its preliminary plan to the commission covered the period of August of 2009 through June of 2011.) Then, on July 11, 2011, township presented the testimony of Charles Schmehl, the township’s planner. Mr. Schmehl testified that, pursuant to the provisions of the Ordinance and SALDO, appellant’s 628.48 acre property constituted three separate parcels for purposes of site capacity and natural resource calculations. This means that appellant had notice of a potential deficiency in the calculations in its preliminary plan approximately three months prior to the commission’s denial of the preliminary plan on October 3, 2011.

Over the three months following the July 11, 2011, public meeting, the commission granted appellant ample opportunity to present evidence in opposition to Mr. Schmehl’s testimony and to challenge township’s interpretation of the ordinance and SALDO. Specifically, appellant had the opportunity to present rebuttal evidence at the public meetings held on August 1, September 12, and September 28, 2011. Appellant chose not to appear at the August 1 public meeting. Further, at the September 12 meeting, counsel for appellant informed the commission that appellant would not present any evidence to rebut the testimony of Mr. Schmehl (or any township witness). Appellant made the strategic decision to stand by its original calculations and solely present legal argument in opposition to the township’s and Mr. Schmehl’s interpretation of the ordinance and SALDO. Appellant was at liberty to file an amended preliminary plan which contained calculations in conformity with the township’s position, but it chose not to do so.

The above history does not show bad faith by the commission. First, in acting on the preliminary plan after painstaking proceedings over many months, the commission was not bound by any views that may have been expressed by the township engineer to appellant. The township engineer had no formal affiliation with or connection to the commission. It was the independent duty of the commission to ensure that all development in the township conformed to the ordinance and SALDO. Second, appellant was put on notice of the potential defects in its site capacity and natural resource calculations approximately three months prior to the final vote on the preliminary plan. The commission, acting in accord with its duty set forth in Highway Materials, Inc., 974 A.2d at 544 (Pa. Cmwlth. 2009), afforded appellant the opportunity to respond to the objections of the township, but it chose to stand on its original presentation.

Appellant contends that the commission showed bad faith by refusing to grant the application for an extension (for the commission to render a decision) presented by appellant at the start of the public meeting held on October 3,2011. This contention lacks merit. As is described above, the commission afforded appellant numerous opportunities to make its presentation as it saw fit. At some point, the matter had to be decided. Further, the commission originally scheduled deliberations on the preliminary plan for September 28, 2011. It was conceivable that the commission would actually vote on the preliminary plan on that date. At no time before or during the September 28 meeting did Appellant request more time to present evidence or argument. The commission delayed voting on the preliminary plan until the October 3, 2011, meeting only because it determined that further deliberations were necessary. The commission reasonably exercised its discretion in denying appellant’s eleventh hour extension request made at the October 3 meeting.

Appellant next argues that the commission showed bad faith by denying the preliminary plan instead of granting a conditional approval. However, where a preliminary plan does not comply with substantive requirements of a zoning ordinance, a local agency may, in its discretion, deny the plan or grant a conditional approval. CACO Three, Inc., v. Board of Supervisors of Huntington Township, 845 A.2d 991, 994 (Pa.Cmwlth. 2004). Here, because the commission properly found that appellant’s preliminary plan violated provisions of the ordinance and SALDO, it acted within its discretion in denying the plan without the opportunity to amend.

Appellant claims that the commission improperly engaged in numerous ex parte communications with third parties about the preliminary plan. However, under sections 234 and 235 of the SALDO, the commission is required to contact multiple government agencies and officials affected by the submission of a preliminary plan. All of the communications challenged by appellant were authorized by the SALDO. This claim lacks merit.

Appellant complains that the commission inspected appellant’s property without the knowledge or consent of appellant. Appellant overlooks paragraph 4 of appellant’s application for review of the preliminary plan submitted to the commission reads:

Owner permission: I hereby give my consent to this subdivision/land development subdivision and permission for the township agent(s) to enter the property for site investigation purposes.
David S. Rittenhouse, President, Owner (of Appellant)

Finally, appellant criticizes the “adversarial” nature of the public meetings on the preliminary plan. Appellant accurately notes that members of the public were allowed to voice their opposition to the preliminary plan at the meetings. The objection appears to stem from (what appellant considered) vociferous comments by public attendees. Appellant alleges that the commission was improperly influenced by this public participation. Under Pennsylvania’s Sunshine Act, 65 Pa.C.S. §§701-716, the public has the right to participate in meetings of local agencies and voice opposition to proposals pending before such agencies. Moreover, I find no evidence in the transcripts of improper influence on the commission by members of the public. Statements from citizens appear in several of the transcripts. They seem to have been made with propriety.

Other Allegations of Error

Because the commission properly denied appellant’s preliminary plan for the reasons I explained, I do not reach appellant’s challenge to the commission’s finding that appellant violated section 318 of the SALDO by proposing an impermissible partial land development. Where a local agency’s denial of a proposed land use is based on several grounds, a trial court must uphold the denial so long as one of the cited grounds has merit. Herr v. Lancaster County Planning Commission, 155 Pa.Cmwlth. 379, 387, 625 A.2d 164, 168-69(1993).

With the order that the court enters today, the commission’s decision is affirmed and the appellant’s appeal is dismissed.


author: MOTTO, J.,

text:
    Dengler v. Marsh.

      Carmen F. Lamancusa, for plaintiff.

      Richard E. Rush, for defendant.
    October 3, 2012
   MOTTO, J.,

Before the court for disposition is defendant’s motion for summary judgment asserting that plaintiff is precluded from recovering non-economic loss by 75 Pa.C.S.A. § 1705(d) because the plaintiff made a limited tort election and, plaintiff has failed to adduce sufficient evidence from which a finding could be made that plaintiff suffered a “serious injury” within the meaning of 75 Pa.C.S.A. §1702.

At approximately 3:34 p.m. on April 17,2009, plaintiff Kimberly Dengler was operating a motor vehicle and stopped at a traffic light on East Washington Street in the city of New castle, when she was struck from behind by a vehicle driven by defendant, Amy March. The force of the collision caused plaintiff’s vehicle to strike the vehicle directly in front of her, causing a chain reaction with two other vehicles. After the collision, plaintiff was able to exit her vehicle and stated that she didn’t experience any pain at that point in time. As a result of the collision, plaintiff’s forehead hit the rear-view mirror and was bleeding. Plaintiff did not request to be examined by the EMS personnel that were present at the scene and did not request to be taken by the ambulance to the hospital. Plaintiff drove her vehicle home from the scene of the accident. At home she cleaned the blood from her forehead and treated her forehead cut with a Band-Aid.

Approximately four hours after the accident, plaintiff went to the emergency room at Jameson Memorial Hospital to seek treatment for the injury to her forehead. The hospital records indicate that she had a 3 cm superficial abrasion to her forehead that was closed with the skin glue, Dermabond. Since plaintiff also complained of neck and shoulder pain, a cervical spine x-ray was performed. The x-ray was negative for a cervical fracture. The radiology report did note that plaintiff suffered from a cervical spondylosis, a chronic degeneration of the vertebrae in the neck. She was discharged with orders to follow up with her primary care doctor in three days.

Plaintiff started to experience neck pain approximately three days after the collision, she first noticed back pain that she described as progressively worsening within a few weeks of the accident. On May 21, 2009, five weeks after the accident, plaintiff visited her chiropractor, David Hosaflook, D.C. A CT scan of her lumbar spine performed on August 6, 2009 noted an old healed fracture of the spinous process of L5. Dr. Hosaflook reported that the fracture noted on the CT scan occurred sometime prior to the April 17, 2009 accident. Dr. Hosaflook’s medical records indicate that plaintiff complained of a “dull ache” in her neck and back with the intensity described as “moderate.” Medical records indicate that plaintiff received chiropractic care from Dr. Hosaflook through April 30, 2010 with adjustments of the neck and back.

On May 29, 2009, approximately six weeks after the accident, plaintiff went to see her primary care doctor. During this visit, plaintiff did not indicate that she was suffering any neck or back pain. The doctor noted that plaintiff appears healthy with no signs of acute distress present.

Plaintiff contends that she suffers from neck and back pain as a result of the motor vehicle accident. Plaintiff explained that the feelings of tiredness and weakness that she initially experienced after the accident went away a few days after the accident. She believes that she started to experience neck pain three days after the accident. Moreover, she first noticed back pain a few weeks after the accident and she described it as progressively worsening. She first sought medical care for these complaints a few weeks after the accident.

The purpose of the summary judgment rule is to eliminate cases prior to trial where a party cannot make out a claim or defense after the relevant discovery has been completed. Miller v. Sacred Heart Hospital, 753 A.2d 829 (Pa.Super. 2000). Any party may move for summary judgment in whole or in part as a matter of law 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 if, after 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 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. No. 1035.2.

Summary judgment may be granted only in cases where it is clear and free from doubt that there is no genuine issue as to any material fact and that the moving party is entitled to a summary judgment as a matter of law. Kafando Erie Ceramic Art Co., 764 A.2d 59, 61 (Pa.Super. 2000)(citing Rush v. Philadelphia Newspapers, Inc., 732 A.2d 648, 650-651 (Pa.Super. 1999)). A material fact, for summary judgment purposes, is one that directly affects the outcome of the case. Gerrow v. Silicones, Inc., 756 A.2d 697 (Pa. Super. 2000).

When determining whether to grant a motion for summary judgment, the court must view the record 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. Hughes v. Seven Springs Farm Inc., 563 pa. 501, 752 A.2d 339 (2000); Dean v. Commonwealth Department of Transportation, 561 Pa. 503, 751 A.2d 1130 (2000). Summary judgment is proper only when the uncontroverted 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. P.J.S. v. Pennsylvania State Ethics Comm’n, 555 Pa. 149, 153, 723 A.2d 174, 175 (1999); Basile v. H&R Block, 761 A.2d 1115 (Pa.Super. 2001); Kuney v. Benjamin Franklin Clinic, 751 A.2d 662 (Pa.Super. 2000); Stevens Painton Corporation v. First state Insurance Company, 146 A.2d 649 (Pa.Super. 2000).

Only when the facts are so clear that reasonable minds cannot differ, a trial court may property enter summary judgment. Basile, supra. If there are no genuine issues of material fact in dispute or if the non-moving party has failed to state a prima facie case, summary judgment may be granted. Dudley v. USX corporation, 414 Pa.Super. 160, 606 A.2d 916 (1992). Thus, a proper grant of summary judgment depends upon an evidentiary record that either (1) shows the material facts are undisputed or (2) contains insufficient evidence of facts to make out a prima facie cause of action or defense. Rauch v. Mike-Mayer, 783 A.2d 815 (Pa.Super. 2001). The trial court must confine its inquiry when confronted with a motion for summary judgment to questions of whether material factual disputes exist. Township of Bensalem v. Moore, 152 Pa.Cmwlth. 540, 620 A.2d 76 (1993). It is not the function of the Court ruling on a motion for summary judgment to weigh evidence and to determine the truth of the matter. Keenheel v. Pennsylvania Securities Commission, 143 Pa.Cmwlth. 494, 579 A.2d 1358 (1990).

The court must examine whether the plaintiff is precluded from recovering non-economic loss. 75 Pa.C.S.A. §1705(d) sets forth that a person who elects the limited tort alternative is eligible to seek economic losses sustained during an automobile accident, but is precluded from recovery for any non-economic loss unless that person sustains a serious injury. Serious injury is defined as “A personal injury resulting in death, serious impairment of bodily function or permanent serious disfigurement.” 75 Pa.C.S.A. §1702.

The defendant contends the record establishes that the plaintiff did not suffer serious injury and is precluded from recovering for non-economic loss pursuant to 75 pa.C.S.A. §1705(d). In support of that argument, the defendants cited Washington v. Baxter, 553 Pa. 434, 719 A.2d 733 (1998). In Washington, the appellant had made a limited tort election. As the result of an automobile accident, the appellant suffered several injuries, which included a cervical strain, cuts and contusions and a mild sprain of his right foot. He was prescribed an analgesic and was discharged from the hospital. The appellant was unable to report to work at his full-time job for four or five days and was unable to return to his part time job for one or two months. Approximately five months after the accident, the appellant began treating with a doctor who diagnosed the appellant with subtalar joint arthritis, which was treated with a cortisone injection. The doctor also noted that the appellant had limited range of motion in the right foot, but did not express whether that limitation was minimal or severe. The appellant testified that he was able to return to his normal duties at work. The only limitation the appellant experienced was that he could no longer use a push lawn mower and he needed to use a riding mower.

Based on those facts, trial court granted defendant/ appellee’s motion for summary judgment. The decision was affirmed on appeal by the Pennsylvania Superior Court. The appellant subsequently filed a petition for allowance of appeal, which was granted by the Pennsylvania Supreme Court. The Washington court noted that the statute does not indicate whether the judge or the jury should decide if the appellant’s injuries were serious. Id. 533 Pa. at 444, 719 A.2d at 738. However, a review of the legislative history and persuasive case law precedent from Michigan indicated that a ruling of whether a serious injury has been sustained is not to be made routinely by a trial judge and the court must apply the traditional summary judgment standards to that determination. Id. 553 Pa. at 446, 719 A.2d at 740. Thus, that issue should be reserved for a jury, unless reasonable minds could not differ on whether a serious injury was sustained. Id. The court set forth a two part inquiry to determine whether a serious impairment has occurred: 1) what body function was impaired; and 2) was the impairment serious. The focus is not on the injury itself, but how the injury affects a particular body function. Then, in determining whether an impairment is serious, the courts should consider several factors: the extent of the impairment, the particular body function impaired, the length of time of the impairment, the treatment required and any other relevant factor. Id.

The Washington court determined that reasonable minds could not differ on the conclusion that the appellant’s injuries were not serious because the injuries he was treated for by the emergency room doctor were mild and he only missed four or five shifts at work for both his full-time and part-time jobs. Id. 553 Pa. at 449, 719 A.2d at 741. Therefore, the court ruled that the appellant’s injuries did not impair his job performance and had little or no impact on his personal activities. Id. As a result, the Washington court held that summary judgment was appropriate because the appellant failed to establish that he suffered serious injuries from the automobile accident. Id.

In Robinson v. Upole, 750 A.2d 339 (Pa.Super. 2000), the court determined that it was the duty of a jury to decide whether the plaintiff suffered serious injuries arising from a motor vehicle accident. As a result of the accident, the plaintiff suffered chronic pain syndrome, fibromyalgia and a sleep impairment. The plaintiff was able to return to work with certain limitations; however, she had to severely reduce her recreational activities and hire a housekeeper due to her pain. The trial court granted the defendant’s motion for judgment N.O.V. because it ruled as a matter of law that the plaintiff did not suffer serious injuries. The plaintiff subsequently appealed that decision.

The Robinson court explained that it was necessary for the plaintiff to establish that she suffered serious injuries to permit recovery for non-economic loss under 75 Pa.C.S.A. § 1705(a). Id. Pa. Super. 104, 750 A.2d at 341. The court instructed that Washington established that it was the duty of the jury to decide if the plaintiff suffered serious injuries, unless reasonable minds could not differ on that question. Id. Pa. Super. 104, 750 A.2d at 342. The focus of this inquiry is not on the injuries, but on the effect the injury has on bodily function. Id. (citing Washington, supra.). The Robinson court emphasized that the plaintiff was limited in her work and recreational activities resulting from her injuries and had difficulty sleeping. Thus, the court held that reasonable minds could differ as to whether the plaintiff suffered serious injuries and it was necessary to present that issue to a jury. Id. Pa. Super 104, 750 A.2d at 343.

Moreover, in McGee v. Muldowney, 750 A.2d 912 (Pa. Super. 2000), the Superior Court reviewed whether a plaintiff who suffered from back and neck pain following a motor vehicle accident met the serious injury requirement under 75 Pa.C.S.A. § 1705(a). The plaintiff was initially treated in the emergency room and diagnosed with cervical strain and sprain and was given a prescription for Tylenol. He did not seek treatment for 10 days after the accident. When he went to be examined by his doctore he was diagnosed with acute cervical, thoracic and lumbosacral strain and sprain and was treated with several months of physical therapy. He was also evaluated by an orthopedic physician and an orthopedic surgeon. The plaintiff contended that the injuries prevented him from continuing his job as a plumber and required him to undertake the trade of an electrician.

The Superior Court upheld the granting of defendant’s motion for summary judgment on the basis that plaintiff did not establish that he suffered a serious injury under 75 Pa.C.S.A. §1705(a). Id. at 915. The court concluded that in the absence of objective medical evidence as to the degree of any impairment and extent of any pain suffered, the plaintiff was unable to establish that his injuries resulted in such substantial interference with any bodily function as to permit a conclusion that the injuries have resulted in a serious impact on his life for an extended period of time. Id.

In the case sub judice, plaintiff contends that as a result of the accident she has suffered serious injuries to her forehead, neck and back. After the accident, plaintiff was treated at Jameson Hospital for the injury to her forehead and a cervical spine x-ray was performed which was negative for a cervical fracture. The hospital records indicate that she had a 3 cm superficial abrasion to her forehead that was closed with the skin glue, Dermabond. Furthermore, plaintiff did not make an appointment to see her primary care doctor until approximately six weeks after the accident at which time the doctor notes that plaintiff does not mention that she is suffering from back or neck pain and has no signs of acute distress. At the time of the accident plaintiff was on social security disability and therefore did not miss any work. Plaintiff testified at the deposition that she was taking courses at the local community college and did not miss, any classes as a result of the accident. Moreover, plaintiff was unable at her deposition to identify any limitations in her activities due to her injuries. Plaintiff indicated that after the accident she had trouble walking; however, she later testified that she currently swims and walks on a treadmill at the local YMCA. Plaintiff indicated that at the time of the accident she was enrolled in a Pilates exercise class and she was able to continue participating in the class with only limited restrictions. Furthermore, in the three years following the accident plaintiff has taken classes in yoga 1 and yoga 2 at a local community college. The record reflects that plaintiff denied any back or neck pain after the accident. The x-ray taken in the emergency room at Jameson Hospital was negative for cervical fractures and noted degenerative changes. Plaintiff started treating with her chiropractor approximately five weeks after the accident and during her first visit described the pain in her neck and back as “dull” and “moderate.” Dr. Hosaflook ordered a CT scan four months after the accident and found that the plaintiff had an old healed fracture of the spinoius process of L5. which occurred sometime prior to the April 17,2009 motor vehicle accident. Plaintiff testified that she had treated with Dr. Hosaflook for neck and back issues approximately five years prior to the accident.

As part of her response to defendant’s motion for summary judgment, plaintiff filed the medical report of David E. Hosaflook, D.C.

Plaintiff had presented herself to Dr. Hosaflook on May 21,2009 for injuries suffered from the April 17,2009 auto accident. The critical portions of Dr. Hosaflook’s report are as follows:

Ms. Dengler reports since her auto accident that she still has lower back pain and is unable to do everything she wants to do, due to her pain level. She reported if she cleans the house that her pain level increases and that if she stands or walks for any length of time her pain gets so bad she has to sit down.
Ms. Dengler has a loss of body impairment as to which she cannot perform all of her daily activities, like cleaning or walking any distance without increasing pain to her lower back. Furthermore, the patient cannot relate any real trauma to her lower back other than the auto accident as Dr. waltrip noted.
The CT and MRI both revealed an old fracture. The CT was done four months post the auto accident thus allowing any fractures to heal in that time frame.
Ms. Dengler did receive treatment at the Mount Jackson Chiropractic Center, P.C. in the past but that was almost five years prior to the accident. After the auto accident of April 17,2009, Ms. Dengler presented herself with complaints of cervical and lower back, thus showing the auto accident was the sole cause of her complaints.
Her diagnosis is Acute subluxation of the cervical, thoracic and lumbar spine, using the following chiropractic codes, 739.1, 739.2, 739.2.

Based upon the foregoing expert report of Dr. Hosaflook, the court concludes that reasonable minds could differ on whether plaintiff suffered a “serious injury” within the meaning of 75 Pa.C.S.A. §1702. According to Dr. Hosaflook, she reports that if she cleans the house her pain level increases and that if she stands or walks “any length of time” her pain gets so bad that she has to sit down. Dr. Hosaflook concluded that she has a loss of body impairment “as to which she cannot perform all of her daily activities, like cleaning or walking any distance without increasing pain to her lower back”. Dr. Hosaflook concludes that the “auto accident was the sole cause of her complaints”. It is not the function of the Court on a motion for summary judgment to assess the credibility of the reported complaints of the plaintiff to Dr. Hosaflook or the credibility of the medical report itself. In Washington v. Baxter, Supra, summary judgment was upheld because the record reflected that the injuries had little or no impact on the plaintiff’s personal activities. In Robinson v. Upoli, Supra, the Superior Court reversed the trial court’s grant of motion for judgment N.O.V. because of evidence that showed plaintiff was limited in her work and recreational activities and had difficulty sleeping, thus concluding that reasonable minds could differ as to whether plaintiff suffered a serious injury. In McGee v. Muldowney, the Superior Court upheld a defendant’s motion for summary judgment because of a lack of objective medical evidence as to the degree of any impairment and extent of any pain suffered, thus concluding that plaintiff was unable to establish that his injuries resulted in a substantial interference with any bodily function as to commit a conclusion that the injuries resulted in a serious impact on his life for any extended period.

Here, plaintiff has produced a medical report referencing complaints of being unable to clean her house without increasing pain and being unable to stand or walk for any period of time without having to sit down. The medical report further relates these complaints to the auto accident that is the subject of this suit. Plaintiff has therefore presented medical evidence as to the degree of her impairment and extent of pain and her relationship of her complaints and injuries to the auto accident. Therefore, it is necessary to present the issue of whether plaintiff suffered a serious injury to the jury.

Although the court will deny the motion for summary judgment on the basis of plaintiff’s complaint of neck and back pain limiting her daily activities, the court will nevertheless address the plaintiff’s claim of disfigurement. The court here finds that plaintiff has failed to demonstrate that she suffered permanent disfigurement as a result of the 3 cm abrasion on her forehead. In Walsh v. Phillips, 38 Pa.D.&C.4th 178 (1997), the court was asked to determine whether a facial scar met the permanent serious disfigurement requirement under 75 Pa.C.S.A. §1705. The plaintiff in Walsh suffered lacerations to his right eyelid, temple and forehead, requiring sutures and surgery. According to plaintiff’s plastic surgeon, the laceration to the right temple area was approximately 7cm; the forehead 3.5cm; and the right upper eyelid 2.5cm. After closely examining the plaintiff’s face, the court found that there was no evidence that plaintiff suffered permanent serious disfigurement as intended by the legislature when enacting 75 Pa.C.S.A. §1705. The court noted in a case such as this, the appearance of the plaintiff furnishes the best evidence of permanent and serious disfigurement. After carefully examining the plaintiff, the court found that the scars were barely discemable. Thus, because the plaintiff failed to produce sufficient evidence to establish he suffered permanent serious injury in the form of permanent serious disfigurement, the court granted defendants’ motion for summary judgment and dismissed the case.

In the case sub judice, the court reviewed recent photographs of the plaintiff taken nearly 20 months after the accident illustrating the scar on her forehead. The pictures produced by plaintiff shows a barely visible pale line on her forehead. The court notes that a healed 3 cm scar is visible on plaintiff’s forehead, but the court finds that this injury is not significant enough to meet the permanent serious disfigurement exception under 75 Pa.C.S.A. §1705. The scar is barely discemable and can easily be covered by wearing her hair down over her forehead. The medical records from Jameson Hospital indicated that plaintiff had a 3 cm abrasion on her forehead after the accident and it was repaired in the emergency room with the skin glue Dermabond. Plaintiff did not require stitches or any further treatment for her wound. Accordingly, the court finds that plaintiff has not proved, as a matter of law, that she suffered a permanent serious disfigurement.

For the reasons set forth in this opinion, defendant’s motion for summary judgment will be denied by separate order.

ORDER OF COURT

And now, October 3, 2012, for the reasons set forth in the accompanying opinion of even date herewith, it is ordered and decreed that the defendant’s motion for summary judgment is denied.