Appeal From Order Entered October 16, 1987, Court of Common Pleas, Civil Division, Bradford County, No. 85-1006.
James A. Pruyne, Towanda, for appellant.
Robert J. Landy, Sayre, for appellees.
Cavanaugh, Olszewski and Popovich, JJ. Popovich, J., files dissenting opinion.
[ 376 Pa. Super. Page 373]
Michael J. Langan was seriously injured in an automobile accident. In the late summer of 1984, Dr. Nathaniel H. Mayer, a physiatrist at Moss Rehabilitation Hospital in Philadelphia, Pennsylvania, who had been Michael's treating physician, recommended that it would be in Michael's best interest for community mobility to have a van suitably equipped for his use to enable him to leave his home and travel to his therapy sessions and recreational sources. In September, 1984, acting on this recommendation, the plaintiffs below, who are the appellees herein, purchased a van at a cost of $17,494.41. Subsequently, the van was converted at a cost of $4,969.00 by the addition of a semi-automatic lift and other equipment so that Michael could get his wheelchair in and out of the van. Michael Langan is unable to drive the van.
At the time of the accident, Harleysville Insurance Company was the insurer on a policy issued to John F. Langan and Mary Irene Langan, who were appointed guardians of Michael J. Langan. The insurance company refused to pay for the van or the conversion and a civil action was commenced
[ 376 Pa. Super. Page 374]
against it by John F. Langan and Mary Irene Langan as guardians of Michael J. Langan, an incompetent.*fn1 The appellees moved for summary judgment. This was granted on October 16, 1987 in favor of the appellees and against Harleysville Insurance Co., which has appealed to this court.
With respect to a motion for summary judgment, Pa.R.C.P. 1035(b) provides that such judgment may be entered if the pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Helinek v. Helinek, 337 Pa. Super. 497, 487 A.2d 369 (1985); Loyal Christian Benefit Association v. Bender, 342 Pa. Super. 614, 493 A.2d 760 (1985). However, summary judgment may only be entered in those cases which are clear and free from doubt. Weiss v. Keystone Mack Sales, Inc., 310 Pa. Super. 425, 456 A.2d 1009 (1983); Rossi v. Pennsylvania State University, 340 Pa. Super. 39, 489 A.2d 828 (1985); Consumer Party of Pennsylvania v. Commonwealth, 510 Pa. 158, 507 A.2d 323 (1986).
In the instant case, the parties entered into a stipulation of facts upon which the court entered summary judgment. While there is no dispute as to the facts presented, the plaintiffs below have not carried their burden of proving that they are entitled to judgment as a matter of law. The applicable provisions of the Pennsylvania No-Fault Motor Vehicle Insurance Act, which Act has been repealed, upon which the cause of action is based, stated in part at 40 Pa.S. § 1009.103:
Medical and vocational rehabilitation services means services necessary to reduce disability and to restore the physical, psychological, social and vocational functioning of a victim. Such services may include, but are not limited to, medical care, diagnostic and ...