author: SHEPPARD JR., /.,

text:
    Knipmeyer v. Bell Atlantic Corp.

      Roy Katriel and Pamela Zetterberg, for plaintiffs.

      Robert Clothier III, Robert Heim and Joseph O’Connor, for defendants.
    May 22, 2001
   SHEPPARD JR., /.,

This is a class action against Bell Atlantic Corporation and its local operating companies. The plaintiffs, Kevin and Joanne Knipmeyer, claim that the phone companies misrepresented the meaning of the term “nonpublished telephone number.” At issue are the defendants’ preliminary objections. Because the “filed rate doctrine” bars the Knipmeyers’ claims, the court sustains the objections and dismisses the complaint.

FACTS

The defendants — collectively, “Bell Atlantic” — are Bell Atlantic Corporation and its nine local operating companies: Bell Atlantic-Delaware, Bell Atlantic-Maryland, Bell Atlantic-New Jersey, Bell Atlantic-Pennsylvania, Bell Atlantic-Virginia, Bell Atlantic-Washington, D.C., Bell Atlantic-West Virginia, New York Telephone Co. and New England Telephone & Telegraph Co. The local operating companies serve 10 states and the District of Columbia. The Knipmeyers are Pennsylvania residents and customers of Bell Atlantic-Pennsylvania. They paid Bell Atlantic-Pennsylvania a premium for a nonpublished telephone number. A nonpublished telephone number is a number that is not listed in the telephone directory or in Bell Atlantic’s directory assistance service.

Bell Atlantic has a website through which a customer from any of the 10 states or the District of Columbia can order phone service from the local operating company serving the pertinent area. Among the pages on the website is a page for each state with the title “directory assistance.” On this page the customer selects one of three options for his directory listing: (1) “listed in phone book;” (2) “not listed in phone book, but listed in directory assistance;” or (3) “nonpublished: not listed anywhere.” Complaint, exhibit B.

Another page for each state has the title “nonpublished telephone number.” This page further describes nonlisted and nonpublished telephone number services:

“Nonlisted telephone number — Want a little privacy? With this service, you won’t be listed in the telephone directory, but you will be listed in directory assistance.
“Nonpublished telephone number — Want even more privacy? With this service, Bell Atlantic will omit your telephone number from both the published telephone directory and from directory assistance. . . .
“Additional information:
“A nonlisted or nonpublished telephone number does not include blocking. You must use per call blocking or order line blocking if you want to block your name and number from people you call.” Complaint, exhibit B.

Nonpublished telephone number service does not completely bar a number from disclosure. When billing an owner of a toll-free number for calls made to that number, Bell Atlantic lists in the bill all numbers— including nonpublished telephone numbers — that called the toll-free number. This seems to be an accepted and required practice that the Knipmeyers do not challenge. See Perfetti v Bell Atlantic-Pennsylyania, no. C-00003475 (Pa. Pub. Util. Comm’n Oct. 18, 2000). Instead, the Knipmeyers challenge the sufficiency of Bell Atlantic’s website descriptions of nonpublished telephone number service. The Knipmeyers argue that “nonpublished: not listed anywhere” falsely implies that Bell Atlantic does not disclose nonpublished telephone numbers to anybody including owners of toll-free numbers. The Knipmeyers’ two-count complaint requests damages for violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law and for civil conspiracy to violate the UTPCPL.

In its preliminary objections to the complaint, Bell Atlantic argues that the Knipmeyers’ claims must fail because (1) the filed rate doctrine bars the claims, (2) the Pennsylvania Public Utility Commission has primary subject matter jurisdiction over the claims, (3) the Knipmeyers fail to allege any false or deceptive statement, (4) the court does not have personal jurisdiction over the 10 out-of-state local operating companies, (5) the UTPCPL does not apply to out-of-state transactions by the out-of-state local operating companies and (6) the court does not have personal jurisdiction over the out-of-state class members.

DISCUSSION

This court sustains the objection on the basis of the filed rate doctrine and dismisses the complaint.

As a public utility, Bell Atlantic-Pennsylvania must file tariffs with the PUC showing all schedules of rates, rules, regulations, practices or contracts within the jurisdiction of the PUC. See 66 Pa.C.S §§102 and 1302. “Tariffs have the force of law and are binding on both the utility and the customer.” Pennsylvania Electric Co. v. Pennsylvania Public Utility Commission, 663 A.2d 281, 284 (Pa. Commw. 1995). Unless the PUC grants an exception, a public utility cannot charge any other rate than that set forth in the tariff. Bell Telephone Co. of Pennsylvania v. Pennsylvania Public Utility Commission, 53 Pa. Commw. 241, 244, 417 A.2d 827, 828-29 (1980); 66 Pa.C.S §1303 (“No public utility shall, directly or indirectly, by any device whatsoever, or in anywise [sic], demand or receive from any person, corporation, or municipal corporation a greater or less rate for any service rendered or to be rendered by such pub-lie utility than that specified in the tariffs of such public utility applicable thereto.”); 66 Pa.C.S §1304 (“No public utility shall, as to rates, make or grant any unreasonable preference or advantage to any person, corporation, or municipal corporation, or subject any person, corporation, or municipal corporation to any unreasonable prejudice or disadvantage.”). Any attempt to vary the terms of the tariff, even by agreement with the customer, is not effective. Bell Telephone Co., 53 Pa. Commw. at 244, 417 A.2d at 829.

Federal courts and other states’ courts have named this invariability of filed tariffs the “filed rate doctrine.” See e.g., American Telephone & Telegraph Co. v. Central Office Telephone Inc., 524 U.S. 214, 222 (1998); Porr v. NYNEX Corp., 660 N.Y.S.2d 440, 442 (App.Div. 1997). Under the filed rate doctrine, customers are charged with notice of filed tariffs, and utilities and customers must abide by the tariffs. Central Office Telephone, 524 U.S. at 222. Ignorance or misquotation of the tariff is no excuse for deviating from its terms. Id. “[Ejven if a carrier intentionally misrepresents its rate and a customer relies on the misrepresentation, the carrier cannot be held to the promised rate if it conflicts with the published tariff.” Id.

Courts have applied the doctrine to bar claims of breach of contract, breach of warranty, fraud, unjust enrichment and false advertising where the plaintiffs essentially sought different rates or services from those set forth in the tariff. Id. at 224-28 (holding that filed rate doctrine barred plaintiff’s claim for breach of contract and tortious interference where plaintiff claimed that AT&T failed to provide certain additional services promised in its sales brochures because the services pertained to subjects specifically addressed by AT&T’s FCC tariff, and the tariff did not provide for those additional services); Marcus v. AT&T Corp., 938 F. Supp. 1158, 1171 (S.D.N.Y. 1996) (holding that filed rate doctrine barred plaintiff’s claims for false advertising, fraud and breach of warranty where plaintiff argued that AT&T failed to disclose its billing practice of rounding the number of minutes of calls up to the next whole number because the relevant FCC tariff specifically disclosed and permitted the rounding up practice), aff’d, 138 F.3d 46, 56 (2d Cir. 1998); Porr, 660 N.Y.S.2d at 446 (following Marcus and dismissing claims based on same facts where tariff filed with New York agency addressed the practice).

Though the filed rate doctrine originated to bar claims based on rates approved by federal agencies, courts have applied it to bar claims based on rates approved by state agencies. See e.g., Porr, 660 N.Y.S.2d at 443 (applying filed rate doctrine to bar state law claims based on tariff approved by New York agency); Wegoland Ltd. v. NYNEX Corp., 27 F.3d 17 (2d Cir. 1994) (applying filed rate doctrine to bar RICO and fraud claims based on tariffs approved by New York and New England agencies); Sun City Taxpayers’ Ass’n v. Citizens Utils. Co., 847 F. Supp. 281, 289 (D.Conn. 1994), aff’d, 45 F.3d 58 (2d Cir. 1995) (applying filed rate doctrine to bar RICO claims based on rates approved by Arizona agency); Taffet v. Southern Co., 967 F.2d 1483, 1494 (11th Cir. 1992) (applying filed rate doctrine to bar claims based on tariff approved by Alabama and Georgia agencies); H.J. Inc. v. Northw. Bell Telephone Co., 954 F.2d 485, 492 (8th Cir. 1992) (applying filed rate doctrine to bar RICO claims based on tariffs approved by Minnesota agency).

This court knows of no published court decision applying the filed rate doctrine to bar claims based on rates approved by the Pennsylvania PUC. But, see Pennsylvania Power Co. v. Pennsylvania Public Utility Commission, 127 Pa. Commw. 97, 109, 561 A.2d 43, 49-50 (1989) (discussing federal filed rate doctrine). However, sections 1303 and 1304 of the Public Utility Code — which effectively establish a statutory filed tariff doctrine — and persuasive authority from other jurisdictions convince this court that the filed tariff doctrine bars claims where a plaintiff essentially seeks different rates or services from those set forth in a PUC. tariff. 66 Pa.C.S. §1303; Central Office Telephone, 524 U.S. at 222.

Bell Atlantic-Pennsylvania’s PUC tariff specifically defines nonpublished telephone number service:

“At the request of the customer, the numbers of initial dial tone lines may be omitted from the directory and from the directory assistance records of the telephone company, subject to [a $1.75 monthly rate and a $15 service charge]. These numbers are designated as ‘nonpublished telephone numbers.’ Unless the specific call number is given by the person calling, connection will not be established with a telephone having a ‘non-published telephone number.’ ” Bell Atlantic-Pennsylvania PUC Tariff No. 1, §5(A)(4)(c) (eff. May 11, 1997).

The Knipmeyers allege that Bell Atlantic implicitly misrepresented on their website that nonpublished telephone number service includes omission of the Knipmeyers’ number from bills sent to the owners of toll-free numbers. The tariff specifically defines the rights conferred on a customer who pays for nonpublished telephone number service: (1) omission of the customer’s telephone number from the telephone book and from directory assistance, and (2) inability of an outside caller to connect with the customer without knowing the customer’s phone number. Omission of the customer’s telephone number from bills sent to toll-free number owners is not one of those rights. The Knipmeyers essentially ask the court to expand their rights under nonpublished telephone number service beyond the rights specifically set forth in the tariff. The filed rate doctrine prohibits this court from expanding those rights and bars the Knipmeyers’ claims. Central Office Telephone, 524 U.S. at 225; Keogh v. Chicago Northw. Ry. Co., 260 U.S. 156, 163 (1922) (“The rights as defined by the tariff cannot be varied or enlarged by either contract or tort of the carrier.”).

The Knipmeyers’ description of their injury in the complaint reinforces this conclusion. In paragraph 44 of the complaint, the Knipmeyers allege that they were injured “by, inter alia, paying for a service that they did not receive.” To award damages for this injury, the court would have to calculate the difference in value between the nonpublished telephone number service that Bell Atlantic advertised and the nonpublished telephone number service that the Knipmeyers actually received. The end result of such an award would be an impermissible refund of a portion of Bell Atlantic-Pennsylvania’s filed rate for nonpublished telephone number service. See Marcus, 938 F. Supp. at 1170 (holding that filed tariff doctrine bars any remedy that requires a refund of a portion of the filed rate); Porr, 660 N.Y.S.2d at 446 (same).

CONCLUSION

The filed tariff doctrine bars the Knipmeyers’ claims. The court will enter a contemporaneous order sustaining the preliminary objection based on the filed tariff doctrine and dismissing the complaint.

ORDER

And now, May 22, 2001, upon consideration of the defendants’ preliminary objections to the complaint, the plaintiffs’ response and the transcript of the oral argument, and in accord with the court’s contemporaneously-filed opinion, it is hereby ordered that:

(1) the preliminary objection based on the filed tariff doctrine is sustained, and
(2) the complaint is dismissed.

      . The defendants have recently changed their names to Verizon Communications, Verizon Delaware, Verizon Maryland, etc. This opinion, however, refers to the defendants by their prior names.

      . The format, copyright dates and service prices of the directory assistance webpage are different from those of the nonpublished telephone number webpage. Thus the court cannot now determine whether the nonpublished telephone number webpage — which provides a clearer description of nonpublished telephone number service — was available during the same time as the directory assistance webpage.

      . The term “public utility” includes “[a]ny person or corporation now or hereafter owning or operating in this Commonwealth equipment or facilities for... [cjonveying or transmitting messages or communications [with certain exceptions not applicable here] by telephone or telegraph or domestic public land mobile radio service including, but not limited to, point-to-point microwave radio service for the public for compensation.” 66 Pa.C.S. §102.

      . See Watergate East Inc. v. District of Columbia Pub. Serv. Comm’n, 662 A.2d 881, 888-89 (D.C. 1995) (describing similar D.C. statute, D.C.Code §43-529, as “a codification of the filed rate doctrine”).

      . The defendants attached a copy of the tariff to their preliminary objections. Because publicly-filed tariffs have the force of law, the court has considered them on a demurrer even though the tariffs themselves are not part of the complaint.

      . In view of this determination, the court did not consider the remaining preliminary objections.


source: Caselaw Access Project

author: NEALON, J.,

license: Public Domain

text:
    Sekol v. Albrecht

      C.P. of Lackawanna County,
    no. 99-CV-1434.

      James J. Conaboy, for plaintiff.

      Thomas P. Comerford and Daniel E. Cummins, for defendant.
    March 23, 2001
   NEALON, J.,

Defendant, James P. Albrecht has filed a motion for summary judgment seeking to preclude plaintiff Kelly Sekol from recovering noneconomic damages as a “limited tort” elector who is unable to establish that she has suffered a “serious injury” under section 1705(d) of the Motor Vehicle Financial Responsibility Law. Since Sekol’s own submissions do not create an inference from which reasonable minds could differ as to the absence of a serious impairment of a body function, there is no genuine issue of material fact for the jury to resolve and Albrecht’s motion for summary judgment will therefore be granted.

FACTUAL BACKGROUND

On May 22, 1997, Sekol was involved in an automobile accident as she was exiting a supermarket parking lot onto South Washington Avenue in Scranton and was struck by a vehicle that was being operated by Albrecht. At the time of the accident, plaintiff was insured by an automobile insurance policy in which she had selected limited tort coverage. (See Kelly Sekol deposition dated 11/24/99, pp. 16-17.) As a limited tort claimant, Sekol may recover noneconomic damages only if she has suffered a “serious injury” as a result of the accident. Albrecht contends that based upon the records and information gathered during discovery, there is no genuine issue of fact that Sekol is incapable of proving the existence of a serious impairment of a body function which is attributable to the accident.

Immediately after the collision, Sekol was able to drive her vehicle from the accident site to her mother’s residence before proceeding to the Community Medical Center emergency room for treatment. (Id., pp. 53-54.) At the CMC, Sekol’s care consisted largely of an obstetrical evaluation in light of the fact that she was five months pregnant at the time. (Id., pp. 18-22.) Following her discharge from the emergency room, Sekol did not receive any further treatment until June 2, 1997, when she was examined by her family physician, Patrick D. Conaboy M.D. (See Dr. Conaboy report dated 11/9/98, p. 1.) In the interim, Sekol had been involved in an altercation with another woman on May 27, 1997, during which she was pushed against a building and bruised her back. (Id., Sekol depo., pp. 22-25.)

Sekol maintains that she sustained injuries to her right neck and shoulder area and low back as a result of the accident on May 22, 1997. (Id., pp. 25-26.) According to Dr. Conaboy’s report, his original diagnosis on June 2,1997, “was severe low back and right shoulder strain” for which he prescribed physical therapy and Tylenol no. 3. At the time of her second examination on September 8, 1997, Sekol “demonstrated decreased lateral range of motion in the neck” but her “[n] eurologic exam was intact” and Dr. Conaboy “recommended that she continue conservative treatment at that time with physical therapy for one more month and that she be seen immediately following delivery [of her child].” (Dr. Conaboy report, pp. 1-2.) Sekol’s child was subsequently bom on October 10, 1997. (See Sekol depo., p. 21.)

She returned to Dr. Conaboy on November 6, 1997, and except for the presence of “spasm in the right trapezius muscle and pain with compression of the C-spine,” her physical examination “was stable” and “demonstrated good grip strength bilaterally.” An MRI scan was performed on November 8, 1997, which “was essentially within normal limits except for a subtle herniation at C4-C5” with “no encroachment of the canal and no true herniation.” Consequently, Dr. Conaboy concluded that the MRI finding “was most probably of minimal clinical significance.” (See Dr. Conaboy report, p. 2.)

Sekol “did not return for follow-up on the injury until quite some time later” in July 1998 at which time she also reported that she had suffered “a fall injuring her coccygeal area” in July 1997. Although Sekol first complained of having “developed severe headaches and then aches/pains throughout a great deal of her body” at the time of her July 1998 visit, Dr. Conaboy has opined that “[i]t is difficult to say what part of this pain is a result of the MVA [motor vehicle accident].” Moreover, while Dr. Conaboy has indicated that “[i]t is certainly reasonable to say” that Sekol’s pain in 1997 was attributable to the accident, he has further concluded that as of November 9, 1998, “she [was] recovering quite well and no longer require[d] any physical therapy” or treatment other than the occasional use of nonsteroidal medication. (Id., p. 2.) Additionally, Sekol has never been referred to any type of a medical specialist for a consultation or evaluation. (See Sekol depo., p. 34.)

Albrecht submits that even if Sekol’s deposition testimony and Dr. Conaboy’s medical opinions are accepted as true, they are insufficient to satisfy the “serious injury” threshold. In response, Sekol posits that the “[m]edical evidence provided by [her] supports her ongoing problems and certainly substantiates a serious impairment of her bodily function.” (See plaintiff’s brief, p. 8.) The parties have files their respective memoranda of law, and following the completion of oral argument on March 12, 2001, this matter became ripe for disposition.

n. DISCUSSION

(A) Standard of Review

In 1990, the Pennsylvania legislature amended the MVFRL to enable a named insured to purchase full tort or limited tort coverage for a private passenger motor vehicle insurance policy. See 75 Pa.C.S. § 1705(a). If the consumer affirmatively elects limited tort coverage she is barred from recovering damages for noneconomic harm unless she sustains a “serious injury,” see Hobbs v. Ryce, 769 A.2d 469, 472 (Pa. Super. 2001), or is deemed to be a full tort plaintiff by virtue of one of the statutory exceptions to limited tort coverage in 75 Pa. C.S. § 1705(d). See Cordaro v. Hedderick, 45 D.&C.4th 353, 358-59 n.3 (Lacka. Cty. 2000); Rivera v. Barone, 99 Lacka. Jur. 130, 133 n.2 (1998). The MVFRL defines a serious injury as “[a] personal injury resulting in death, serious impairment of body function or permanent serious disfigurement.” 75 Pa.C.S. §1702.

In Washington v. Baxter, 553 Pa. 434, 719 A.2d 733 (1998), the Supreme Court of Pennsylvania adopted the Michigan approach for serious injury inquiries and held “that the traditional summary judgment standard was to be followed and that the threshold determination was not to be made routinely by a trial court judge. . . .” Id. at 446, 719 A.2d at 740. The Washington court specifically directed that “serious injury” determinations were “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 446-47, 719 A.2d at 740 (footnote omitted); Furman v. Shapiro, 721 A.2d 1125, 1126 (Pa. Super. 1998). As one jurist has aptly observed, “the assessment of seriousness requires an inherently subjective analysis and while the legislature intended that one who selects the limited tort option should recover for noneconomic damages in only narrow circumstances, it is a matter that should routinely be left to the jury.” Coughlin v. Miljack Inc., 45 D.&C.4th 504, 512 (Erie Cty. 2000). To withstand a motion for summary judgment, a non-moving party must adduce sufficient evidence on an issue essential to which she bears the burdens of proof such that a jury could return a verdict in favor of that party. Washington, supra at 441, 719 A.2d at 737. When considering a “serious injury” challenge in the context of a summary judgment motion, the record must be viewed in a light most favorable to the non-movant with all doubts as to the existence of a genuine issue of material fact being resolved against the moving party. Hames ex rel. Hames v. Philadelphia Housing Authority (Hames II), 737 A.2d 825, 828 n.4 (Pa. Commw. 1999); Furman, supra. Furthermore, even if the parties agree on the nature and extent of the injuries and there is no genuine dispute regarding the salient facts, summary judgment should not be granted if those facts support conflicting inferences. Washington, supra at 447 n.10, 719 A.2d at 740 n.10; Sanderson-Cruz v. USA, 88 F. Supp.2d 388, 394 (E.D. Pa. 2000); Rivera, 99 Lacka. Jur. at 136. Simply stated, “[t]he question to be answered is not whether [a claimant] has adduced sufficient evidence to show that [the claimant] suffered any injury; rather, the question is whether [the claimant] has shown that he has suffered a serious injury such that a body function has been seriously impaired.” Washington, supra at 449, 719 A.2d at 741 (emphasis in original); McGee v. Muldowney, 750 A.2d 912, 914 (Pa. Super. 2000).

(B) “Serious Injury” Criteria

Neither the MVFRL nor the relevant legislative history offer any guidance regarding the parameters of a “serious impairment of a body function.” See Robinson v. Uphole, 750 A.2d 339, 342 (Pa. Super. 2000); Hellings v. Bowman, 744 A.2d 274, 276 (Pa. Super. 1999). In Washington, the Supreme Court filled that definitional void expressly adopting the following standard from DiFranco v. Pickard, 427 Mich. 32, 398 N.W.2d 896 (1986):

“The ‘serious impairment of body function’ threshold contains two inquiries:
“(a) What body function, if any, was impaired because of injury sustained in a motor vehicle accident?

“(b) Was the impairment of the body function serious? The focus of these inquiries is not on the injuries themselves, but on how the injuries affected a particular body function. Generally, medical testimony will be needed to establish the existence, extent and permanency of the impairment.... In determining whether the impairment was serious, several factors should be considered: the extent of the impairment, the length of time the impairment lasted, the treatment required to correct the impairment, and any other relevant factors. An impairment need not be permanent to be serious.” Washington, supra at 447-48, 719 A.2d at 740; Hellings, supra.

When conducting a “serious injury” analysis, the focal point it is not the injury itself, but rather the nature and extent of the impairment resulting from the injury. Robinson, 750 A.2d at 343; Hames II, 737 A.2d at 828. As a consequence, a soft tissue injury may constitute a “serious impairment of a body function” if it has sufficiently interfered with a body function. Chanthavong v. Tran, 452 Pa. Super. 378, 392, 682 A.2d 334, 341 (1996); Murray v. McCann, 442 Pa. Super. 30, 38, 658 A.2d 404, 408 (1995); Krukovitz v. Cole, 97 Lacka. Jur. 18, 21 (1996). In addition, a plaintiff who is already suffering from an ailment or disability at the time of an accident may nevertheless sustain a serious injury under 75 Pa. C.S. §1705. See Sanderson-Cruz, 88 F. Supp.2d at 394 (“there is a genuine issue of material facts as to whether the accident caused Sanderson-Cruz to re-injure or cause her lower back condition to be aggravated or whether the accident did not in fact cause her any injury”); Cordaro, 45 D.&C.4th at 362-64 (a claimant who is vocationally disabled at the time of an accident due to impairment involving one part of the anatomy may suffer a “serious impairment of body function” by sustaining a distinct injury to another part of his body). Conversely, a plaintiff may suffer an objectively identifiable injury such as a broken bone or herniated disc, but not sustain a “serious injury” if it does not adequately impair a bodily function. See e.g., Sprankle v. Brown, 44 D.&C.4th 314 (Indiana Cty. 1999) (fractured ribs did not constitute serious injuries since the plaintiff was able to perform her usual daily activities without complication); Stefanou v. Pearce, 41 D.&C.4th 505 (Lehigh Cty. 1999) (plaintiff did not sustain a serious injury where her herniated disc was corrected by surgery and her ongoing symptoms were the result of a pre-existing degenerative disc disease).

In Washington, the Supreme Court declined to adopt the suggestion in Dodson v. Elvey, 445 Pa. Super. 479, 665 A.2d 1223 (1995), rev’d and remanded, 554 Pa. 245, 720 A.2d 1050 (1998), that a plaintiff cannot establish a serious injury in the absence of objective proof of impairment. See Homes II, 737 A.2d at 829 (remarking that the Washington court “did not adopt the language from Dodson that objective medical evidence is required to cross the serious injury threshold”); Murray, 442 Pa. Super. at 37, 658 A.2d at 407 (concluding that the trial court erred by charging “that serious bodily injury impairment could not be found in the absence of an injury that was objectively manifested” since the DiFranco standard does not “limit recovery of noneconomic damages to a plaintiff whose injuries can be seen or felt by a clinical test”). Last April, a three-judge panel of the Superior Court rejected a defendant’s contention that a serious injury cannot be proven unless the plaintiff introduces objective evidence of injury. See Robinson, 750 A.2d at 343 (“[i]n relying on the objective manifestations of the inquiries, however, [defendant] ignores the Supreme Court’s clear dictate in Washington that ‘the focus of these injuries is not on the injuries themselves’ . . . [but] [r]ather, the inquiry must be the effect of the injury on a body function”), (citation omitted) (emphasis in original) Not withstanding that fact, approximately two weeks later, the same panel of the Superior Court affirmed the entry of summary judgment against a limited tort plaintiff and reasoned:

“In summary, [plaintiff] has failed to present objective medical evidence as to the degree of any impairment and extent of any pain suffered during the five years preceding [his] answers to the motion for summary judgment. The subjective allegations presented by [plaintiff], in the absence of objective medical evidence, do not permit a finding that [plaintiff] suffered the requisite serious injury.” McGee, 750 A.2d at 915. (emphasis added)

Thus, there appears to be a minority school of appellate judicial thought that a limited tort claimant cannot survive a “serious injury” challenge without the benefit of objective proof of injury.

It is clear, however, that while the length of time that an impairment has lasted is relevant to a serious injury determination, an impairment need not be permanent in order to qualify as serious. Leonelli v. McMullen, 700 A.2d 525, 527-28 (Pa. Super. 1997); Murray, 442 Pa. Super. at 39 n.3, 658, A.2d at 408 n.3. Similarly, the fact that a plaintiff has returned to gainful employment will not necessarily foreclose the existence of a serious injury. Robinson, 750 A.2d at 343 (plaintiff was able to resume working albeit with limitations, but could no longer perform certain recreational activities); Kelly v. Ziolko, 734 A.2d 893, 900 (Pa. Super. 1999); Furman, 721 A.2d at 1127. Even a plaintiff’s discontinuance of medical treatment will not perforce negate the establishment of a serious injury in every case. See Kelly, supra (case remanded for jury trial even though plaintiff no longer received “treatment or prescription medication for his pain”); Furman, supra (serious injury issue must be decided by a jury even though plaintiff had terminated her treatment within one year of the accident); Leonelli, 700 A.2d at 529 (failure of plaintiff to seek medical treatment due to limited financial resources does not establish that his injuries were not serious).

In examining the extent and duration of Sekol’s alleged impairment, the reproduced record in this case reflects that at the time of the accident, she was employed as a full-time phlebotomist and only missed a few days of work as a result of her injuries. (Id., pp. 7-15.) Compare Baldwin v. Brown, 42 D.&C.4th 90 (Bradford Cty. 1999) (jury should decide serious injury issue since plaintiff’s chronic back pain forced her to leave her pre-injury job as a result of lifting restrictions imposed by her physician) and Atkinson v. Snyder, 41 D.&C.4th 1 (Bucks Cty. 1999) (plaintiff did not sustain a serious injury where he missed four weeks of work and only experienced subjective symptoms on a chronic basis). Since 1999, she has been employed full time as a nursing assistant where her job responsibilities include bathing, clothing and caring for elderly patients. Despite the fact that her employment as a nursing assistant involves considerable lifting, bending and squatting, Sekol has not missed any time from work because of her injuries. (Id., pp. 5-6, 32.) In terms of her subjective limitations, her only chronic complaints are that she cannot “go out and play ball” with her children as frequently as she did before the accident and that her headaches partially affect her ability to clean her home and care for her children. (Id., pp. 29-31.) See Tahos v. Marte, 42 D.&C.4th 76 (Lehigh Cty. 1999) (plaintiff’s arm and shoulder injuries did not constitute a serious impairment since they did not prevent him from working and only caused temporary disruption of his leisure activities). As to her medical treatment, Sekol was examined by her family physician on three occasions within six months of the accident, and other than a single additional visit with that physician in July 1998, she has not received any further medical treatment for her accident-related injuries.

The Pennsylvania appellate courts have affirmed the entry of summary judgment in cases in which the plaintiffs have experienced more significant impairments than those being claimed by Sekol. For example, in Washington, the plaintiff was unable to work at his first job for four or five days and did not return to his second job for almost two months. Washington, supra at 437-38, 448, 719 A.2d at 735, 74-1. In McGee, the claimant was referred to orthopedic specialists who treated him on six occasions during a 15-month period and prescribed several months of physical therapy. McGee, 750 A.2d at 914-15. Although the vocational disability and medical treatment in Washington and McGee were more extensive than that at issue in the case sub judice, in both cases the courts concluded as a matter of law that the plaintiffs’ impairments were insufficient to satisfy the “serious injury” threshold. Accord Coughlin, 45 D.&C.4th at 516-17 (summary judgment granted where plaintiff regained full employment within three months and her treatment was limited to osteopathic and chiropractic manipulations, physical therapy and pain medication).

Even if the record is viewed in a light most favorable to Sekol, it is devoid of any competent evidence of a serious impairment of a body function. Sekol’s own deposition testimony and the opinions proffered by her treating physician do not establish a triable issue of fact with respect to a serious impairment. Accordingly, Albrecht’s motion for summary judgment will be granted and Sekol will be preluded from seeking the recovery of noneconomic damages in this matter.

And now, March 23, 2001, upon consideration of the partial “motion of defendant, James P. Albrecht, for summary judgment,” the memoranda of law submitted by the parties and the oral argument of counsel on March 12, 2001, and based upon the reasoning set forth in the foregoing memorandum, it is hereby ordered and decreed that:

(1) The motion of defendant James P. Albrecht for partial summary judgment is granted; and
(2) Plaintiff Kelly Sekol is precluded from recovering damages for noneconomic loss in this case.

      . In her brief in opposition to the instant motion for summary judgment, Sekol originally argued that she should not be classified as a limited tort claimant under Burton v. Sinnot, 97 Lacka. Jur. 23 (1996), inasmuch as her insurer had neglected to provide her with a written cost comparison of the premium charges for full tort and limited tort coverages. However, in Donnelly v. Bauer, 553 Pa. 596, 720 A.2d 447 (1998), the Supreme Court of Pennsylvania held that an insurer’s failure to notify an insured of the premium differential between limited and full tort options did not entitle the insured to full tort coverage. Hence, at the time of oral argument, Sekol withdrew her argument predicated upon the notice requirements of 75 Pa.C.S. §1705(a).

      . The defense medical expert, Peter A. Feinstein M.D., stated in his report to defense counsel that the MRI was “read as some disc bulging at the C4-5 level but no evidence of nerve compression or herniated disc.” (See defendant’s summary judgment motion, exhibit B, p. 1.) The radiology report interpreting the MRI scan dated November 12,1997, has not been submitted for our review or consideration. Parenthetically, it should be noted that Dr. Feinstein also opined that Sekol’s injuries consisted of “a myofascial or bruise or contusion to the cervical spine and right shoulder region” which had completely resolved as of the date of his defense examination on July 7,2000. (Id., p. 5.)

      . Sekol has attached to her brief a copy of a phone message that her new family physician, Dr. Michael Rogan, reportedly received from Sekol in February 1999 requesting a prescription. The phone message script does not indicate or document that the medication was prescribed for a condition that is attributable to the accident. Thus, it is not competent evidence of ongoing medical treatment for her injuries in question. See Stefanou, supra.


author: OLER, J.,

text:
    In re Dyarman

      C.P. of Cumberland County,
    no. 01-0684 Civil Term.

      Robert L. O ’Brien, for petitioner.

      Robert J. Mulderig, for respondent in mental health proceeding.

      John A. Abom, for respondent in guardianship proceeding.
    BEFORE: HOFFER, P.J., BAYLEY AND OLER, JJ.

    February 12, 2001
   OLER, J.,

These cases, filed under the Mental Health Procedures Act and the guardianship provisions of the Probate, Estates and Fiduciaries Code, involve a woman named Cheryl I. Dyarman who has become a quadriplegic as the result of an irreversible and progressive illness known as demyelinating disease. The object of the petitions presented to the court was to subject Ms. Dyarman involuntarily to electroconvulsive (i.e., electroshock) treatments for depression.

The petitioner under the Mental Health Procedures Act was Robert L. O’Brien, Esq., solicitor for the Cumberland/Perry Mental Health and Mental Retardation Unit. Attorney O’Brien also represented the petitioner, under the Probate, Estates and Fiduciaries Code, Kathy Myers. The court appointed Robert J. Mulderig, Esq., to represent Ms. Dyarman in the mental health proceeding, and John A. Abom, Esq., to represent Ms. Dyarman in the guardianship proceeding.

A hearing on the petition under the Mental Health Procedures Act for involuntary treatment and on the petition under the Probate, Estates and Fiduciaries Code for appointment of an emergency guardian to authorize electroconvulsive therapy was held on Wednesday, January 24, 2001, and Monday, January 29, 2001, by the undersigned judge. Following the hearing, the court entered an order in the Mental Health Procedures Act case declining to commit Ms. Dyarman to a mental institution for involuntary treatment, and entered the following limited order in the guardianship case:

“And now, February 2, 2001, upon consideration of the petition for appointment of an emergency guardian for Cheryl I. Dyarman, an allegedly incompetent person, and following a hearing held on January 24, 2001 and January 29, 2001, and it appearing that the allegedly incapacitated person has been suffering for many years from a debilitating and progressive physical illness known as demyelinating disease, which has reached the state of [qjuadriplegia, that it is difficult for her to communicate as a result of the illness, and that she executed a living will in 1995 authorizing hospitalization, intravenous therapy (including administration of nutrients, fluids and medication by vein), antibiotics, and pain medications, but prohibiting artificial nutrition by means of tube in the veins, nose or stomach, cardiopulmonary resuscitation, intubation and mechanical breathing, kidney dialysis, and chemotherapy to fight cancer ..., and the court finding that her ability to fully communicate decisions related to her physical health and safety has been impaired by her illness and that irreparable harm may result from a failure to appoint an emergency guardian of her person with limited powers, Gloria A. Anderson is appointed emergency guardian of the person of Cheryl I. Dyarman, for a period of 72 hours, with a right to move for an extension of up to 30 days, for the limited purpose of authorizing hospitalization for treatment of physical illness or condition, intravenous therapy (including administration of nutrients, fluids and medication by vein), antibiotics and pain medications, but without power to authorize those procedures proscribed in Ms. Dyarman’s living will and without power to authorize ECT treatments, pending further order of court.
“The guardian is further requested to take such steps as she deems appropriate to see that Ms. Dyarman is as comfortable as possible and to facilitate visits from persons concerned for her welfare, such as members of the clergy, who might be able to alleviate her suffering.”

A motion for reconsideration, objecting to the court’s refusal to commit Ms. Dyarman to a mental institution for involuntary treatment and its refusal to authorize the guardian to subject her to electroconvulsive therapy, was filed on February 6, 2001. In response to the motion, a court en banc, comprised of President Judge George E. Hoffer, Judge Edgar B. Bayley, and the undersigned judge, was convened. Argument on the motion for reconsideration was heard by the court en banc on Wednesday, February 7, 2001.

Following the argument, the court en banc declined to modify the prior orders. On February 9, 2001, a petition for the application of extraordinary jurisdiction pursuant to 42 Pa.C.S. §726 was filed with the Pennsylvania Supreme Court by Mr. O’Brien. The petition basically requested the relief which had been sought in this court, and indicated that the guardian was not willing to exercise the limited protective powers on behalf of Ms. Dyarman that had been authorized, and that she had refused to seek an extension of those powers as permitted by the order and by law.

STATEMENT OF FACTS

Cheryl I. Dyarman is a 52-year-old woman who resides, and is cared for, at the Cumberland County Nursing Home. She was admitted to the nursing home in 1987.

From an early age, Ms. Dyarman has suffered from an irreversible, progressive illness from which she will not recover, known as demyelinating disease. In anticipation of the progress of the disease, she executed a living will in 1995, containing the terms recited in the order of court quoted above.

The illness has now progressed to the point that Ms. Dyarman is totally paralyzed with the exception of an ability to move her head somewhat from side to side and to speak, unclearly and with great difficulty. She can also cry or wail when acutely distressed.

She is totally unable to assist herself with respect to bodily functions and needs, including eating or drinking. She is totally dependent upon others for her physical care.

Ms. Dyarman’s husband left her. She has no children or close relatives. In the past, some relief from her suffering was provided by her mother, whom she loved very much, by a gentleman from the Gideon Bible Society who visited her, and by weekly hair treatments. Her mother died in April 2000, the gentleman from the Gideon Bible Society retired due to his own advancing age, and the weekly hair treatments no longer interest her.

Ms. Dyarman is severely depressed. At one point in the hearing, Mr. O’Brien requested silence so that those present could hear what Ms. Dyarman was wailing. She was wailing, with great difficulty, “I want to die.”

Mood elevators administered to her in the past have gradually ceased to be effective. For a number of months she has declined to accept such medication, and she has become increasingly resistant to efforts to convince her to swallow food. Her weight has decreased dramatically.

A psychiatrist from Franklin County who consults with the nursing home and who is familiar with Ms. Dyarman is of the view that electroshock therapy would be the treatment of choice at this point for her depression, since medication has lost its efficacy. Such treatment would be inpatient and would consist of a series of electroconvulsive sessions over a two-week period. The electric current would alter the chemistry of her brain, and might erase some of her memory. The treatment would in no way alter the relentless course of her physical illness.

The first day of hearing in these cases was held at the nursing home, in Ms. Dyarman’s room, by the undersigned judge. The court observed Ms. Dyarman, and her indescribably difficult circumstances, and was firmly of the view that she understood what was transpiring, that she did not want to undergo electroconvulsive therapy, that her despair was a rational response to an intolerable situation, and that her unwillingness to accept food presented to her mouth was borne of a natural reluctance to extend the duration of her physical deterioration.

The court did not believe that Ms. Dyarman was mentally ill in the sense that her depression was inspired by forces other than her actual condition or that it was more than the normal reaction of any sentient person to the condition she was in. The court felt that she had been brave for a long time.

Following the hearing on the second day, the court entered the orders related above, denying the request for commitment of Ms. Dyarman to a mental institution for involuntary treatment and appointing an emergency guardian in the person of Gloria A. Anderson to facilitate medical treatment, including intravenous medication and nutrients, in accordance with Ms. Dyarman’s living will, but not authorizing her subjection to electroconvulsive therapy in the absence of further order of court.

As noted, a court en banc, following argument, declined to modify these orders. Mr. O’Brien thereafter filed the petition for exercise of extraordinary jurisdiction by the Pennsylvania Supreme Court mentioned above, indicating the guardian’s refusal to exercise the powers which had been granted to her under the court’s order and her refusal to request an extension of those powers.

DISCUSSION

A fundamental principle in a case of this type was expressed more than a century ago by the United States Supreme Court in Union Pacific Railway Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734, 737 (1891).

“No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person

This principle, which embodies the right to refuse medical treatment, “has deep roots in our common law” and is recognized in Pennsylvania. In re Fiori, 543 Pa. 592, 600, 673 A.2d 905, 908 (1996). The right is not, of course, absolute.

Under the Mental Health Procedures Act, a person who is mentally ill to a degree describable as severely mentally disabled and who is in need of treatment may be subjected to involuntary examination and treatment at certain institutions. However, the burden of proof upon a petitioner in such a case is “clear and convincing evidence.” Act of July 9, 1976, P.L. 817, §304(f), as amended, 50 P.S. §7304(f) (2000 Supp.). Clear and convincing evidence is the highest burden in the civil law. In addition, the opinion of an expert, while entitled to consideration, is not binding upon the court as trier-of-fact, even if uncontradicted.

Under the Probate, Estates and Fiduciaries Code, a guardian of the person may be appointed for a person who is incapacitated within the meaning of the act. For purposes of a guardian of the person, an incapacitated person is “an adult whose ability to receive and evaluate information effectively and communicate decisions in any way is impaired to such a significant extent that he is partially or totally unable ... to meet essential requirements for his physical health and safety.” An emergency appointment for 72 hours, subject to an extension, is provided for in the Act.

However, several statutory factors militate in favor of an exercise of this authority by a court with a degree of restraint. First, one goal of the act is to permit “incapacitated persons to participate as fully as possible in all decisions which affect them . . . .” Act of April 16, 1992, P.L. 108, §7, 20 Pa.C.S. §5505 (2000 Supp.). Second, a guardianship of the person is to be “limited” in scope, as opposed to “plenary” in scope, in the absence of a finding that the person is “totally incapacitated.” Act of April 16, 1992, P.L. 108, §9, 20 Pa.C.S. §5512.2 (2000 Supp.). Third, electroconvulsive therapy is expressly excluded from the powers of a guardian of the person in the absence of a specific finding and order of the court to the contrary. Act of April 16,1992, PL. 108, §8(d), 20 Pa.C.S. §5521(d) (2000 Supp.).

Fourth, the right of individuals “to control decisions relating to their own medical care” has been recognized in sections of the Code providing for living wills. Act of April 16, 1992, P.L. 108, §5, 20 Pa.C.S. §5401-16. Finally, the burden of proof upon a petitioner in an incapacity case is “clear and convincing evidence,” the highest burden in civil law. Act of April 16, 1992, P.L. 108, §8(a), 20 Pa.C.S. §5511(a).

In the present case, the court did not feel that petitioners had shown by clear and convincing evidence that Cheryl I. Dyarman was subject to involuntary treatment under the Mental Health Procedures Act, nor to the appointment of a guardian of her person with the extraordinary power to authorize her subjection to electroconvulsive treatments with a view toward altering her mental attitude as it related to a hopeless and progressively debilitating physical illness that had reached the point of almost total paralysis. She had committed no crime which might be said to have warranted a forfeiture of her basic rights. A guardian of her person was therefore appointed with powers to carry out the wishes which she had expressed at a better time in her life.

While the court has no question as to the sincerity of the belief that the relief requested in the petitions herein would promote the welfare of Ms. Dyarman, it is also mindful of the observation of Benjamin Franklin more than two centuries ago:

“To bear other people’s afflictions, every one has courage and enough to spare.”

      . Because of the exigent circumstances of the filing, the court did not inquire into the technicality of whether the petitioner under the Mental Health Procedures Act was a “responsible party” qualified to seek the relief requested. See Act of July 9,1976, P.L. 817, §304(c)(l), as amended, 50 P.S. §7304(c)(l) (2000 Supp.).

      . Ms. Myers was an employee of the Cumberland County Nursing Home, where Ms. Dyarman has lived since 1987. The proposed guardian, Gloria A. Anderson, had been a friend of Ms. Dyarman’s mother and was Ms. Dyarman’s attomey-in-fact pursuant to a power of attorney.

      . Order of court, February 2,2001. (emphasis added)

      . Order of court, February 7,2001.

      . See Act of June 30,1972, P.L. 508, §2, as amended, 20 Pa.C.S. §5513 (2000 Supp.).

      . In this regard, it is interesting to note that another recent attempt to have Ms. Dyarman committed to a mental institution, by way of a petition for emergency involuntary treatment under section 302 of the Mental Health Procedures Act, failed when an examining physician at the Carlisle Hospital refused to approve the commitment.

      . See note 2 supra.

      . Mental illness is not specifically defined under the Mental Health Procedures Act. Oler, Pennsylvania Criminal Law: Defendant’s Mental State, §4.4 at 58 n.32 (Michie Co. 1986); but see 55 Pa. Code §5100.2.

      . The Mental Health Procedures Act defines severe mental disability in the following terms:
      “A person is severely mentally 'disabled when, as a result of mental illness, his capacity to exercise self-control, judgment and discretion in the conduct of his affairs and social relations or to care for his own personal needs is so lessened that he poses a clear and present danger ofharm to others or to himself.” Act of July 9,1976, P.L. 817, §301(a), as amended, 50P.S. §7301(a) (2000 Supp.).
      The existence of a clear and present danger of harm to others or oneself is generally dependent upon the occurrence within the immediately previous 30 days of certain acts by the subject: the infliction or attempted infliction of serious bodily harm upon another, conduct evidencing self-neglect reasonably likely to have serious consequences within 30 days, attempted suicide and the reasonable likelihood of repetition, or attempted or actual self-mutilation of a substantial nature and the reasonable likelihood of repetition. Act of July 9,1976, P.L. 817, §301(b), as amended, 50 P.S. §7301(b) (2000 Supp.).

      . Act of July 9,1976, P.L. 817, §301(a), as amended, 50 P.S. §7301(a) (2000 Supp.); id., §304(a), as amended, §7304(a) (2000 Supp.).

      . Act of July 9,1976, P.L. 817, §105, as amended, 50 P.S. §7105 (2000 Supp.).

      . Spaw v. Springer, 715 A.2d 1188 (Pa. Super. 1998).

      . See Morions v. Albert Einstein Hospital, 363 Pa. Super. 557, 561, 526 A.2d 1203, 1205 (1987).

      . Act of April 16,1992,P.L. 108, §9,20Pa.C.S. §5512.1 (2000 Supp.).

      . Act of April 16,1992, PL. 108, §6,20 Pa.C.S. §5501 (2000 Supp.).

      . Act of April 16,1992, P.L. 108, § 10,20 Pa.C.S. §5513 (2000 Supp.).

      . Cf. Commonwealth, Department of Public Welfare v. Kallinger, 134 Pa. Commw. 415, 580 A.2d 887 (1990) (state prisoner may be force-fed).

      . Ben Franklin’s Wit and Wisdom, at 22 (Peter Pauper Press).