No. 2122 Philadelphia, 1980, Appeal from Order of the Court of Common Pleas, Civil Division, of Chester County, Misc. No. 155-P of 1980.
Joseph Mellace, Philadelphia, for appellant.
Hugh M. Emory, Paoli, for appellee.
Spaeth, Johnson and Wieand, JJ.
[ 289 Pa. Super. Page 139]
When a court orders a person to submit to a physical examination under Section 401 of the Pennsylvania No-fault Motor Vehicle Insurance Act of July 19, 1974, P.L. 489, 40 P.S. § 1009.401, is the person to be examined entitled to be compensated for costs of transportation and the fees of an attorney who accompanies him to the examination? This is the issue raised in the instant appeal. Before we can meet that issue, however, we must first determine whether an order directing a person to submit to a physical examination under this section of the No-fault Insurance Act is a final, appealable order.
State Farm Mutual Automobile Insurance Co. had issued a policy of motor vehicle insurance to William C. Morris, Jr., who sustained an injury to his left knee as a result of an automobile accident on April 27, 1979. Morris applied for and received medical and wage loss benefits from the insurance company. A dispute subsequently arose concerning his recovery and ability to return to work, and the insurer petitioned the Court of Common Pleas of Chester County for
[ 289 Pa. Super. Page 140]
an order directing him to submit to a physical examination. After Morris had filed an answer to the petition, the insurance company moved for judgment on the pleadings. The motion was briefed and submitted to the trial court which, on September 4, 1980, entered an order directing the insured to appear for examination in the offices of a named physician at the Franklin Medical Building, 829 Spruce Street, Philadelphia. The order also contained the following provision: "The Respondent's request for transportation expenses, wage loss resulting from his attending the examination, and reasonable attorney's fees is denied." It is this provision which has been placed in issue by the instant appeal to this Court.
This Court has jurisdiction only to hear appeals from final orders of the courts of common pleas unless otherwise permitted by statute. 42 Pa.C.S.A. §§ 742, 5105. An order is considered final if it terminates litigation or disposes of the entire case. Adoption of G. M., 484 Pa. 24, 27, 398 A.2d 642, 644 (1979); T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 337, 372 A.2d 721, 724 (1977).
As a general rule, orders requiring a party to submit to mental or physical examinations under Pa.R.C.P. No. 4010 are interlocutory and not appealable, because they do not preclude the party from further action. Cf. Myers v. Travelers Insurance Co., 353 Pa. 523, 46 A.2d 224 (1946) (order making absolute a rule upon plaintiff to show cause why proceedings should not be stayed until he submits to a physical examination is a final order). Such orders, however, are ancillary to pending actions. Rule 4010, by its terms, is applicable only when the mental or physical condition of a party or a person in the custody or under the legal control of a party is in controversy.
A petition for a physical examination under Section 401 of the No-fault Motor Vehicle Insurance Act may be filed even though no legal ...