*1 191 taken, judg- final as in cases of be may An (b) to refusing stay staying order either ments, from an arbitration, or pending proceeding suit or trial of a the direct refusing to directing or an order either to arbitration. proceed parties 131, 6, 1 3, No. 1971, P.L. § June
As amended
28,
202, No.
1978,
P.L.
April
As affected
(§ 509(a)(84)).
27, 1978.
June
53,
effective
2(a)[1086],
§
authority
blush,
provide statutory
appears
at first
However, since the
in this case.
interlocutory appeal
an
provide
not
26,
specifically
does
agreement
1972
October
the Arbitration Act
by
be governed
the arbitration
law
common
the dictates of
1927,
by
same is controlled
case,
175(b) is inapplica-
5
That
P.S.
being
§
arbitration.
Inc. v.
Agnes,
see P.
point,
on
directly
ble. For a case
448,
A.2d
Association, 439 Pa.
266
Home
Police
Philadelphia
Inc.,
Co.,
418
Airportels,
Inc. v.
(1970);
J. A. Robbins
696
Cf.
In
cited therein.
257,
(1965),
896
and cases
Pa.
210 A.2d
see
&
appeal,
Capezio
of this
quashing
support
further
84,
Meredith
455 Pa.
Corp.,
The Wynnewood
Inc. v.
Things,
(1974).
Appeal quashed. A.2d 353
431 Widziszewski, WIDZISZEWSKI and Bernardette Edward L. wife, Appellants his
v. CORPORATION, Corporation A and Charles MASHUDA Loughner.
A. Pennsylvania. Superior Court of Argued 1980. Nov.
Filed June 1981. *2 Salvatore F. Panepinto, Charleroi, for appellants. for Keller, Washington, appellees. C. Charles VOORT, JJ. VAN der HESTER, BROSKY and Before PER CURIAM: of the Court Common
This is an Order appeal granting appellees’ Washington County Pleas of and facts rele- history The judgment. procedural summary follows: the issue on are as vant to against appel- in trespass instituted an action Appellants automobile accident received an upon injuries lees based a. 26, 1976at 9:30 approximately on October which occurred driving northerly in a time m. At Long Borough Route 62141in the on Legislative direction was being vehicle Branch, County. Appellees’ Washington when a 50 drum gallon in the direction opposite operated *3 vehicle striking appellants’ from the truck antifreeze fell forth in appellants’ the set causing allegedly and provi- under the liability tort sought complaint. Appellants Act, claiming No-Fault 301(a)(5)(C) of the of Section sions customary their usual and perform were unable to they excess of 60 days. for a in period activities interrogatories submitted filed an answer and Appellees then filed a Appellees were answered. to which appellants, that judgment alleging for summary of the requirements Pennsylva- meet the threshold failed to support filed an affidavit in nia Act. Appellants No-Fault had motion, averring to the opposition of their of in excess period substantially for a incapacitated been the motion for granted The trial court (60) sixty days. followed. this judgment timely and summary the granting the court below erred Appellants contend of Section allege requirements motion. the They Motor Vehicle No-Fault 301(a)(5)(C) Pennsylvania Act had been met. Insurance No-Fault Motor Vehicle Pennsylvania 301 of the
Section follows: Insurance Act reads as
“Tort Liability” (a) Partial Liability Abolition—Tort is with abolished any to respect injury that takes in this place State with the provisions accordance of this act if such injury out the vehicle, arises maintenance or of a use motor except that:
(5) A person remains liable for damages non-eco- nomic detriment if the accident results in: (C) medically determinable or mental impair- ment which the victim prevents all or performing all material acts and duties which constitute and his usual customary daily activities and which continues for more sixty than consecutive days; 19, 1974, 176, Act of July P.L. No. 40 P.S. 1009.301. § to Pennsylvania Pursuant Rule of Civil Procedure a motion for summary judgment be granted only should if there no to genuine is issue as material fact any after reviewing the pleadings, interrogatories, any affidavits filed in support opposition the motion. The motion granted should be only when undisputed facts and admissions foreclose genuine issues of fact after any exam- ining the in the light record most favorable to the non-mov- ing party, including the benefit of all reasonable inferences Goodrich-Amram, be drawn. 1035(b)(3). Section
We must now ascertain whether appellants sustained allegation of medically which impairment determinable prevented them from performing their usual and customary activities for a period in excess 60 consecutive days. The reports medical as to appellant-wife show a casual connec *4 tion between the accident and definite injuries sustained. pertaining The bills to appellant-husband indicate a neuro surgical consultation, visits, office cervical spine X-rays, and physical for almost We therapy two months. note the answers to the interrogatories indicate the nature of the injuries by claimed appellant-husband as a result of the forehead; as: strain, accident “Hematoma of cervical cervi cal fibromyositis”. We agree cannot with the trial court that “medically determinable” means the reports medical
195 inability perform bills have to indicate an usual and activities. It is sufficient that medical treatment customary was received for an related to the accident. The injury in the words determina- legislative purpose using “medically prevent provision ble” was to abuse of this individuals by attention, who suffered no no injury, required medical desired to use their own self-serving but statements concern- activities, ing inability perform their usual and customary to defeat the intent of the Act to abolish tort liability. records, Appellant-wife, according suffering to the was still injuries from two and one-half the accident. years following Appellant-husband had for almost two therapy months thereafter.
We now direct our attention to the by affidavit filed opposition to the motion for summary judg- ment. Appellants contend therein that were of such severity incapacitated for a period in excess of substantially sixty days. Webster defines the word as “disabled”. The incapacitated court below noted the absence in the affidavit of the word “consecutive”. However, reading our 301 Section discloses that it is sufficient to indicate a disability in excess of sixty (60) although the days specific statutory language was not used in the definition, affidavit. A disabled person, by could not his or her perform usual and activities. customary
An examination record reveals a issue genuine of fact.
Our decision today, based the current upon state of the record does not preclude the appellees making appro- priate motions at the of appellants-plaintiffs conclusion case to, fact, if appellants are unable meet the threshold requirements Section at that time. the order of the trial court
Accordingly, granting summa- ry judgment is reversed and the case remanded for trial. VOORT, J., der
VAN files a statement. dissenting *5 VOORT, Judge, dissenting: VAN der I In respectfully dissent. order to state a cause of action 301(a)(5)(C) under section No-Fault Pennsylvania Act, Motor Vehicle Insurance allege had to that the accident resulted in or medically determinable impairment mental which them prevented from performing or all all of the substantially material acts and duties which activities, constituted their usual and customary daily which inabilities continued sixty for more than consecutive days. The and affidavit complaint the case before us allege simply plaintiff that the male suffered restricted (in the complaint) (in and was “incapacitated” affidavit) more than sixty days; they consecutive do not allege in what way plaintiffs injured or either of prevented them were engaging all or all of daily their usual activities. In my judg- ment the averments relating patently are inadequate to qualify for claims under the statute. In these circumstances, I would affirm the lower court’s order dis- missing the case.
v. Donna KALSON. Superior Pennsylvania. Court of
Argued May 1981. Filed June 1981.