J-A08007-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

ERIE INSURANCE EXCHANGE,                   :      IN THE SUPERIOR COURT
                                           :                OF
                   Appellant               :           PENNSYLVANIA
                                           :
                      v.                   :
                                           :
MICHAEL MOORE,                             :
                                           :
                   Appellant               :       No. 2628 EDA 2017

                 Appeal from the Order Entered July 14, 2017
                In the Court of Common Pleas of Bucks County
                     Civil Division at No(s): 2016-04852-0

BEFORE:     PANELLA, J., LAZARUS, J., and STRASSBURGER, J.*

DISSENTING MEMORANDUM BY STRASSBURGER, J.: FILED OCTOBER 09,

2018

       I disagree that the order appealed from is interlocutory. Because the

July 14, 2017 order disposed of all claims and parties, it is a final order

appealable as of right pursuant to Pa.R.A.P. 341. Therefore, I respectfully

dissent.

       As explained by the Majority, this case involves an order that directed

Moore to submit to an independent medical examination (IME) pursuant to 75

Pa.C.S. § 1796 (authorizing a court of competent jurisdiction to order a

claimant to submit to an IME for good cause shown; the order shall provide

adequate notice of the time and date and “state the manner, conditions[,] and

scope of the examination and the physician by whom it is to be performed”).




*Retired Senior Judge assigned to the Superior Court.
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      This Court examined section 1796 in Keystone Ins. Co. v. Caputo,

529 A.2d 1134 (Pa. Super. 1987). In that case, an insurer filed a petition for

an IME authorized by section 1796, the trial court granted the petition, and

the Caputos appealed.      This Court concluded that the order directing the

Caputos to submit to a medical examination was a final appealable order

because it disposed of all claims and all parties. See id. at 1135. This Court

reasoned that the trial court had exercised its jurisdiction pursuant to section

1796 for no other reason than to consider the insurer’s petition to compel the

IME; once that issue was decided, there was no other issue before the court.

Id. Furthermore, the issue of whether there would be any future litigation

between the parties was speculative; if such litigation occurred, it would be in

the form of a separate action. Id. (citing State Farm Mutual Auto. Ins. Co.

v. Morris, 432 A.2d 1089, 1091 (Pa. Super. 1981)).

      In the instant case, Erie originally instituted the action via a section 1796

petition to compel an IME. The trial court entered an order compelling Moore

to submit to the IME. Moore asked for reconsideration, which was denied, and

once again the trial court entered an order compelling Moore to submit to the

IME. After neither party appealed, the trial court’s order became final because

there was no other issue pending before the court.1 Caputo, 529 A.2d at

1135; Morris, 432 A.2d at 1091.



1
  The holdings in Morris and Caputo negate Erie’s argument that the sole
claim in the case remained pending until Moore submitted to the exam. See

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      Erie then filed an inartfully-worded motion seeking a new IME date. Erie

should have styled the motion as a new section 1796 petition for an IME.

Ideally, because such a petition followed a matter that had been resolved with

finality, Erie should have filed it under a new docket number. Nevertheless,

despite such defects, it should have been clear to all involved that the

substance of what Erie was seeking was a new order pursuant to subsection

1796(a) ordering Moore to submit to an IME at a new date and time.

Therefore, the trial court should have construed it as a new petition. See

Pa.R.C.P. 126 (“The court at every stage of any such action or proceeding may

disregard any error or defect of procedure which does not affect the

substantial rights of the parties.”). Based upon Caputo and Morris, supra,

the July 14, 2017 order compelling Moore to undergo an IME by Dr. Manzione

within 70 days is a final order, because it once again disposed of all claims




Erie’s Brief at 10. Because the trial court is operating under the narrow
confines of section 1796, it is the order compelling the exam that resolves the
action. See Caputo, 529 A.2d at 1135 (quoting Morris, 432 A.2d at 1091
(“It was a separate petition which invoked the jurisdiction of the court … for
no other reason than to consider and decide if the insured should be required
to submit to a physical examination. After the court rendered its decision, the
court action came to an end.”). Further, if the insured fails to submit to a
court-ordered IME, section 1796 authorizes the insurance company to invoke
the court’s jurisdiction to obtain an order permitting the insurance company
to deny benefits until compliance. 75 Pa.C.S. § 1796(a) (“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.”). Nothing in the
statute suggests that the action remains pending until compliance occurs, and
Caputo and Morris dictate otherwise.


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and parties. That being the case, I would not quash this appeal, and I would

decide the case on its merits.




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