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J. A09033/00
2000 PA Super 104
TAMARA S. ROBINSON,
:
IN THE SUPERIOR COURT OF
Appellant
:
PENNSYLVANIA
:
v.
:
:
RICHARD ORION UPOLE, JR.,
:
Appellee
:
No. 2952 EDA 1999
Appeal from ORDER ENTERED September 22, 1999, in the
Court of Common Pleas of CHESTER County, CIVIL,
No. 96-05102.
TAMARA S. ROBINSON,
:
IN THE SUPERIOR COURT OF
Appellee
:
PENNSYLVANIA
:
v.
:
:
RICHARD ORION UPOLE, JR.,
:
Appellant
:
No. 3112 EDA 1999
Appeal from JUDGMENT ENTERED September 22, 1999, in the
Court of Common Pleas of CHESTER County, CIVIL,
No. 96-05102.
BEFORE: McEWEN, P.J.; JOHNSON and OLSZEWSKI, JJ.
OPINION BY OLSZEWSKI, J.:
Filed: April 3, 2000
¶ 1
These related appeals are from the final judgment granting judgment
n.o.v. in favor of defendant on non-economic damages and entering
judgment in favor of plaintiff on economic damages. The case arose from a
car accident after which Tamara S. Robinson [Robinson] claimed injuries
allegedly caused by Richard Orion Upole [Upole]. The trial court reported
the relevant facts as follows:

J. A09033/00
On June 2, 1999[,]1 a jury awarded a verdict for Plaintiff
Tamara S. Robinson and against Richard Orion Upole, Jr.
The Plaintiff was awarded $3,100 Dollars for economic
damages and $125,000 Dollars for non-economic
damages even though Plaintiff had "limited tort"
coverage. On June 11, 1999[,] Defendant Upole filed a
Motion for Post Trial Relief requesting a direct entry of
judgment in favor of the defendant by way of a judgment
n.o.v. or a new trial, and in the alternative, a remittitur.
Defendant asserts that Plaintiff had not suffered serious
injury because Plaintiff testified that although she has
some pain, there is nothing she can not do.
This case stems from a motor vehicle accident [that]
occurred on June 13, 1994. The Defendant had
stipulated to liability for the accident and the trial was
limited to the issue of damages. . . .
Trial Court Opinion, 9/22/1999, at 12. Robinson introduced evidence that
she suffers from chronic pain syndrome, fibromyalgia, and a sleep
impairment resulting from the accident. See Deposition of Dr. Ronald E.
Krauser, 3/2/1999, at 30. She presented expert testimony that the
symptoms would likely be permanent. See id. at 40. Her physician
imposed restrictions on Robinson's lifting and climbing activities, but could
not document that he told Robinson of these restrictions. See id. at 34, 76
77. Robinson claims that because of her pain she has "severely reduced if
not eliminated" physical recreational activities, has had to hire a
housekeeper, and "no longer has a social life." Robinson's Brief, at 10.
¶ 2
The court granted Upole's motion for judgment n.o.v. because it found
as a matter of law that Robinson did not produce sufficient evidence of a

1 The record reflects that the jury actually reached its verdict on June 3,
1999. See N.T., 6/3/99, at 281.
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J. A09033/00
"serious injury" in order to recover non-economic damages under the limited
tort election provision of the Motor Vehicle Financial Responsibility Law
(MVFRL). See 75 Pa.C.S.A. § 1705. Robinson's timely appeal followed.
Upole cross-appealed, claiming that the evidence was insufficient to support
the verdict of $3,100 for economic damages.
¶ 3
Our standard of review in this case is well settled. "We will reverse a
trial court's grant or denial of a judgment notwithstanding the verdict only
when we find an abuse of discretion or an error of law that controlled the
outcome of the case." Mitchell v. Moore, 729 A.2d 1200, 1203 (Pa.Super.
1999), appeal denied 2000 WL 122206 (Pa. Feb. 1, 2000). Further, "[t]he
standard of review for an appellate court is the same as that for a trial
court." Ferry v. Fisher, 709 A.2d 399, 402 (Pa.Super. 1998).
"There are two bases upon which a judgment n.o.v. can
be entered: one, the movant is entitled to judgment as a
matter of law and/or two, the evidence is such that no
two reasonable minds could disagree that the outcome
should have been rendered in favor of the movant. With
the first, the court reviews the record and concludes that
even with all factual inferences decided adverse to the
movant the law nonetheless requires a verdict in his
favor, whereas with the second the court reviews the
evidentiary record and concludes that the evidence was
such that a verdict for the movant was beyond
peradventure."
Rohm & Haas Co. v. Continental Cas. Co., 732 A.2d 1236, 1247
(Pa.Super. 1999) (quoting Moure v. Raeuchle, 604 A.2d 1003, 1007 (Pa.
1992)).
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J. A09033/00
¶ 4
In 1990, the legislature amended the MVFRL to allow insured motorists
the opportunity of choosing a "limited tort" option in exchange for
presumably lower insurance rates. Under this option, an insured that is
injured by another driver "may seek recovery for all medical and other out-
of-pocket expenses, but not for pain and suffering or other non-monetary
damages unless the injuries suffered fall within the definition of `serious
injury' as set forth in the policy." 75 Pa.C.S.A. § 1705(a). In other words,
"[u]nless the injury sustained is a serious injury, each person who is bound
by the limited tort option shall be precluded from an action for any non-
economic loss, except that [in circumstances inapplicable to the present
matter]." Id. § 1705(d). The MVFRL defines "serious injury" as "[a]
personal injury resulting in death, serious impairment of body function or
permanent serious disfigurement." Id. § 1702. The crux of this case is
whether Robinson proved she had suffered a "serious impairment of body
function" and whether the court had the power to make the determination
that, as a matter of law, she did not.
¶ 5
In Washington v. Baxter, 719 A.2d 733 (Pa. 1998), our Supreme
Court overruled our decision in Dodson v. Elvey, 665 A.2d 1223 (Pa.Super.
1995) (en banc), rev'd, 720 A.2d 1050 (Pa. 1998) (per curiam), and held
that the question of whether a plaintiff suffered a "serious injury" is a
question of fact for the jury. See Washington, 719 A.2d at 740. The
Supreme Court
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J. A09033/00
concluded that the legislature's intent behind enactment
of the limited tort option was to require that the threshold
determination of whether a serious injury has been
sustained not be made routinely by a trial court judge.
Rather, it is to be decided by the jury unless reasonable
minds could not differ on the question.
Hames v. Philadelphia Housing Auth., 737 A.2d 825, 828 (Pa. Cmwlth
1999). Robinson's first argument is that by entering judgment n.o.v., the
court "substitute[d] its view of the evidence for the verdict when the record
provide[d] sufficient evidence supportive of the jury verdict." Robinson's
brief, at 5. We agree and reinstate the jury's verdict.
¶ 6
The legislature did not define "serious impairment of body function" for
juries to use in considering if a plaintiff who had chosen the "limited tort
option" can recover non-economic damages. In Washington, however, the
Court adopted the following definition as stated by the Michigan Supreme
Court:
"The `serious impairment of body function' threshold
contains two inquiries:
a) What body function, if any, was impaired because
of injuries 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."
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J. A09033/00
Washington, 719 A.2d at 740 (quoting DiFranco v. Pickard, 398 N.W.2d
896, 901 (Mich. 1986) (omission in original)).2
¶ 7
While the Court in Washington found that the trial court improperly
made a threshold inquiry of whether the plaintiff's injuries were "serious," it
upheld the trial court's granting of summary judgment to the defendant
because "[e]ven when this evidence is taken in the light most favorable to
Appellant as the non-moving party, we find that reasonable minds could not
differ on the conclusion that Appellant's injury was not serious."
Washington, 719 A.2d at 741. In Washington, the evidence showed that
the plaintiff missed a few days of work, he "might need to utilize orthotic
heel lifts" in the future, the treatment for his injuries was not extensive, and,
most importantly, "the injury seems to have had little or no impact on
Appellant's performance of his job functions and engagement in personal
activities." See id. at 741.
¶ 8
Since Washington, we have reversed grants of summary judgment in
several cases because we determined that reasonable minds could differ as
to whether Robinson suffered "serious injury." Upole attempts to distinguish
these cases by noting that in these cases there was "objective evidence of

2 The Michigan legislature has overruled DiFranco, and now directs the trial
court to make an initial determination whether there is a serious impairment
of body function when there is no material dispute as to the nature and
extent of the plaintiff's injuries. See Mich. Comp Laws § 500.3135(2)
(1999); see also Paisley v. Waterford Roof Truss, Ltd., 968 F. Supp.
1189, 1195 n.11 (E.D. Mich. 1997) (recognizing the abrogation of
DiFranco).
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J. A09033/00
far more serious injuries." Upole's Brief, at 32 (citing Hellings v. Bowman,
1999 WL 1260863, at *2 (Pa.Super. Dec. 29, 1999) (noting that plaintiff
suffered "a herniated disk, degenerative disc disease and facet arthrosis");
Kelly v. Ziolko, 734 A.2d 893, 900 (Pa.Super. 1999) (finding that the
plaintiff suffered, among other things, a herniated disc that caused "pinching
sensations in his legs."); Furman v. Shapiro, 721 A.2d 1125, 1127
(Pa.Super. 1998) ("Appellant was diagnosed with several back conditions
which included a bulging disc, a condition confirmed by an MRI test.")). In
relying on the objective manifestations of the injuries, however, Upole
ignores the Supreme Court's clear dictate in Washington that "[t]he focus
of these inquiries is not on the injuries themselves." Washington, 719 A.2d
at 740 (emphasis added). Rather, the inquiry must be the effect of the
injury on a body function. See id. In Washington, for example, the Court
conceded that "although some type of arthritis or coalition is affecting one of
the joints in Appellant's right foot" there was no major impact on his life.
See id. By contrast, in Hellings, the plaintiff's herniated disc caused him to
suffer numbness in his knee, sharp pain in his hip, and spasms in his back.
See Hellings, 1999 WL 1260863, at *2. The injuries prevented him from
riding in his wife's car, engaging in various physical activities, and fully
interacting with his children. See id. We found these averments were
sufficient to allow jury to determine whether his injuries were "serious."
See id. at *3. Similarly, in Kelly, the plaintiff's herniated disc caused back
- 7 -

J. A09033/00
pain when he engaged in physical activity or sat for long periods of time,
prevented him from running, and made playing with his child difficult. See
Kelly, 734 A.2d at 89990. In Furman, the plaintiff's bulging disc caused
her to reduce her work schedule because she could not stay in one position
for long periods, and prevented her from walking for more than one block at
a time and bathing her daughter. See Furman, 721 A.2d at 1127.
¶ 9
The effects of Robinson's injuries on her body function are strikingly
similar those incurred in the latter cases cited and inapposite to those in
Washington. In all of those cases, as here, the plaintiff was able to resume
working albeit with limitations. In the present matter, among other things,
Robinson has alleged that she can no longer do many physical activities
including housework and recreation without pain and cannot sleep. We
conclude that reasonable minds could differ as to whether Robinson suffered
a "serious injury" for purposes of the MVFRL, and we reverse the judgment
for that reason.
¶ 10 In his cross-appeal, Upole claims that the weight of the evidence was
insufficient to support the jury's verdict award of $3,100 in economic
damages. "In considering the sufficiency of the evidence to sustain the
verdict, we view the evidence in the light most favorable to the verdict
winner, granting that party the benefit of all reasonable inferences, and
determine only whether the evidence introduced at trial was sufficient to
sustain the verdict." Taylor v. Celotex Corp, 574 A.2d 1084, 1088
- 8 -

J. A09033/00
(Pa.Super. 1989). Upole claims that Robinson failed to document her lost
time and wages from work to justify the jury's award. The parties stipulated
that the amount of wage loss was $92.30 per day. See N.T., 6/3/1999, at
262.3 Contrary to Upole's assertion, Gordon v. Trovato, 338 A.2d 653
(Pa.Super. 1975) does not require a witness apart from the plaintiff to
testify to the extent of lost wages; it merely provides that a witness must
introduce some evidence other than conjecture to prove damages. See id.
at 657.4 Here, Robinson testified that she missed fifty days from work
because of the injury. It is within the province of the jury to judge the
credibility of witnesses. See Cree v. Horn, 539 A.2d 446, 449 (Pa.Super.
1988). Apparently, they believed her on this account.
¶ 11 Order reversed. We remand for reinstatement of the jury verdict
dated June 3, 1999, recalculation of any delay damages due, and entry of
judgment on the proper amount found due to Robinson. Jurisdiction
relinquished.

3 The record does not contain this stipulation; it was, however, conveyed to
the jury in the judge's charge. Because Upole did not object to this charge,
any dispute he has with the calculation of her wage loss per day is deemed
waived. See 42 Pa.R.C.P. 227.1(b).
4 In Gordon, the plaintiff could not establish his hourly wage or the amount
of days that he worked. See Gordon, 338 A.2d at 65556.
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