Appeal from the Order of the Court of Common Pleas of Philadelphia County, Civil at No. 4325 September Term, 1986.
Mark C. Labrum, Philadelphia, for appellant.
Harold F. Kaufman, Philadelphia, for appellee.
Rowley, Wieand and Montemuro, JJ. Wieand, J., files a concurring and dissenting opinion.
[ 375 Pa. Super. Page 321]
Appellant, State Farm Mutual Insurance Company, appeals from an order denying its petition to compel appellee, Philip Allen, to submit to a medical examination pursuant to the provisions of the Motor Vehicle Financial Responsibility Law.*fn1
The pertinent facts leading up to this appeal are as follows. While insured by appellant, appellee was involved in an automobile accident in which he sustained various injuries, including an acute lumbo sacral strain and sprain and acute lumbo sacral radiculopathy. On September 23, 1986, appellant filed a petition seeking to compel appellee to submit to a medical examination pursuant to Section 1796 of the Vehicle Financial Responsibility Law. 75 Pa.C.S.A. § 1796. Appellee filed preliminary objections to this petition on October 1, 1986. However, the trial court was unaware that such preliminary objections had been filed. As a result, the petition was treated as an uncontested motion and the trial court granted the petition by order dated October 17, 1986. Because the trial court's order made no mention of the disposition of appellee's preliminary objections, appellee contacted the trial judge's administrative staff and inquired about the status of his preliminary objections. Upon investigation, the trial court recognized that it had inadvertently overlooked appellee's preliminary objections. The court then vacated its October 17, 1986 order and addressed on the merits the petition and answer thereto, which had been filed on October 30, 1986. Upon consideration of both the petition and answer the court denied appellant's petition for a medical examination. In denying the petition the court concluded that appellant had failed to demonstrate the requisite "good cause" for compelling such an examination. In addition, the court found
[ 375 Pa. Super. Page 322]
that appellant's petition was "replete with lies and falsehoods" and awarded appellee attorney's fees and costs incurred in presenting the petition. This timely appeal followed. We affirm in part and reverse in part.
An action to compel an insured to submit to an independent medical examination may be commenced under the Pennsylvania Motor Vehicle Financial Responsibility Law under the following circumstances:
(a) General rule. -- Whenever the mental or physical condition of a person is material to any claim for medical income loss or catastrophic loss benefits, a court of competent jurisdiction or the administrator of the Catastrophic Loss Trust Fund for catastrophic loss claims may order the person to submit to a mental or physical examination by a physician. The order may only be made upon motion for good cause shown. The order shall give the person to be examined adequate notice of the time and date of the examination and shall state the manner, conditions and scope of the examination and the physician by whom it is to be performed. If a person fails to comply with an order to be examined, the court or the administrator may order that the person be denied benefits until compliance.
75 Pa.C.S.A. § 1796 (emphasis supplied).
Appellant claims that the trial court erred in finding that it had failed to satisfy its burden of showing "good cause" for requiring appellee to submit to a medical examination. The standard for determining whether "good cause" exists for requiring an insured to submit to an independent medical examination under the Motor Vehicle Financial Responsibility Law was recently set forth by a panel of this court in State Farm Mutual Automobile Insurance Company v. Zachary, 370 Pa. Super. 386, 536 A.2d 800 (1987).*fn2 In Zachary,
[ 375 Pa. Super. Page 323]
we stated that in order to demonstrate "good cause", "it is mandatory that the averments contained within the petition to compel a medical examination must rise to a level of specificity so as to ensure that the claimant will not be forced to submit to unnecessary examinations sought in bad faith." Id., 370 Pa. Superior Ct. at 389-90, 536 A.2d at 801. We also adopted the analysis employed by the Allegheny Court of Common Pleas in Nationwide Insurance Co. v. Fandray, 12 Pa.D. & C.3d 65, 128 P.L.J. 63 (1979), ...