*2 CAVANAUGH, POPOVICH, Before OLSZEWSKI JJ.
CAVANAUGH, Judge: in Langan injured Michael was an seriously J. automobile 1984, In Dr. Nathaniel H. accident. the late summer of Hospital a at Moss Rehabilitation Mayer, physiatrist treating had Michael’s Philadelphia, Pennsylvania, who been it in Michael’s recommended that would be best physician, suitably to have a van community mobility interest for him to leave his home and equipped his use to enable In his sessions and recreational sources. therapy travel to recommendation, the acting plain- on this September, herein, below, purchased a van appellees tiffs who are the $17,494.41. the van was convert- Subsequently, at a cost of $4,969.00 ed the addition of a semi-automatic at cost lift could equipment and other so that Michael Langan wheelchair and out of the van. Michael unable to drive the van. accident,
At Insurance Harleysville the time of the Com- was the insurer on a issued to F. pany policy Langan John Langan, Irene who were Mary appointed guardians Langan. Michael J. The insurance refused to company for the or the conversion and a civil action was com-
menced against it by John F. Langan and Mary Irene Langan as guardians of Michael J. Langan, an incompe- tent.1 The appellees moved for summary judgment. This granted was on October favor of the appellees and against Harleysville Co., Insurance which appealed has to this court.
With respect to a motion for summary judgment, Pa.R.
1035(b)provides
C.P.
that such judgment may be
if
entered
the pleadings, depositions, answers to interrogatories, ad-
missions and affidavits show that there is no genuine issue
as to any
fact,
material
and the moving party is entitled to
judgment as a matter of law.
Helinek,
Helinek v.
Pa.Super.
487 A.2d
(1985);
Loyal Christian Bene-
Bender,
Association v.
In the instant entered parties stipulation into a of upon facts which the court summary entered judgment. While there is no as dispute presented, to the facts plaintiffs proving below have not carried their burden of that they are entitled to as a matter judgment of law. The applicable provisions of the No-Fault Pennsylvania Motor Act, Vehicle Insurance repealed, which Act has been upon based, which the cause of action is stated in part at 40 Pa.S. 1009.103: §
Medical and vocational rehabilitation services means necessary disability services to reduce and to restore the functioning social and vocational physical, psychological, include, may of a Such services but are not victim. to, care, diagnostic proce- limited medical and evaluation dures, other physical occupational therapy, necessary and entry judgment 1. Prior to the of in the court below the insurance having the van converted. carrier did the cost of speech audiology, optometric therapies, pathology services, nursing supervision reg- care under the of a nurse, services, medical social vocational rehabili- istered services, licenses and training occupational tation and tools, transportation where to secure necessary (Em- medical and vocational rehabilitation services. added.) phasis
The Act that medical and vocational rehabilita- provided in appropriate are covered circumstances and tion services on to state that medical services include “trans- may went to secure medical and vocational portation necessary where The court determined that rehabilitation services.” below encompassed, meaning transportation, the Act within the purchased by Langans. the converted van which was determining The for of the van was the necessity basis from Nathaniel H. M.D. to Insur- Mayer, Harleysville letter he Michael’s Company injuries.2 ance which described “In findings, The letter went on to state: view the above in a car is ability Michael’s to be transferred to and to sit conditions pathological not feasible ... Because of the case, option community involved Michael’s best with a mobility equipped suitably is to around via van an prescribing appropriate wheelchair lift ... We will be time, I expect for Michael at another but that he wheelchair and, therefore, I think will function at that wheelchair level mobility for him is the best suitably equipped that him get in the to enable out of the community device body 2. The stated with reference to Michael’s condition: the letter *4 writing you attempt necessity I am to to to detail medical for the Langan family purchasing a van. Michael is now more than 18 injury. spastic hemiplegia He a left months since his head has right extremity, he has had musculoskeletal trauma to the lower right impairments particularly are in the area of the knee. These prognostically expected orthope- severe and are not to remit. Our might dic consultant has indicated to us that Michael be a candidate right mobility for a fusion of the knee in the future if it would serve purposes. findings, ability In view of the above Michael’s to be in If transferred to and to sit a car is not feasible. he should future, undergo knee fusion in the this would make it even more car, extremity difficult for him to sit in a since his entire lower will straightened. be home to get to his therapies, get to his recreational sources.”
There is no that doubt the Act contemplates the furnish- ing of transportation required where to obtain medical and vocational rehabilitation services. It is not clear that it includes the purchase a van that must be converted to include a chair lift and definitely we cannot say, on the us, basis of the record before that such purchase a is all, required this case. First of Dr. letter Mayer’s states that the belief van is the “best mobility device in the community to him get enable to out of the house to to his therapies, get to his recreational sources.” It is doubt- ful that “recreational sources” fall within the ambit of “medical and Further, vocational rehabilitation services.” the record is devoid of any evidence as to how often Michael requires medical or rehabilitation services and they where are rendered. There is no indication as to whether suitable transportation could rented or provided more economical- be on a ly having provided basis of a van when needed for transportation. also note that Michael is to operate
We unable the van so Further, operator required. that an there is no indication on the record that the van is used for Michael’s solely In opinion, benefit. our the No-Fault Act did not intend that other than the could anyone injured party take advan- tage provided to the insurer. A transportation be requiring purchase further the insurer to problem means of is that this could include a continu- transportation the termination of ing obligation replace upon to vehicle life. its useful deal- no cases this Commonwealth appellate
There are provide transportation. of a vehicle ing purchase with Automobile Insurance Farm Mutual Zangrilli State In Pleas, Alleghe- (Court of Common Company, 131 P.L.J. trial, court, found following non-jury a County, ny 1983) expenses responsible that the insurer was and ice electrical melt van and a snow properly equipped as these were necessi- paraplegic at the home of a system
377 training program. opinion in his The ties rehabilitation us as factual enlighten does not to the basis for the court’s finding of but the verdict was entered necessity, non-jury trial and evidence was submitted to presumably after sub- the verdict. stantiate had neighboring Jersey difficulty
Our
state of New
if the cost of a modified
used
determining
paraple
van
included as
gic
part
expenses
could be
of medical
under its
judgment
No-Fault Act. The lower court entered summary
against
appeal,
the insurer
for the cost of the van. On
the
Court,
Division,
Superior
Appellate
part
reversed that
requiring
court’s order
the insurer
the
of
basic cost
intended,
legislature
as it did not
van
believe the
the cost
of
to be included as medical
transportation
expenses.
basic
Stewart v. Allstate Insurance
Company,
N.J.Super.
350,
(1985).
Supreme
The
opinion
Supreme
Court of New Jersey should
compared
be
with that of the
In
Supreme Court
Utah.
Camp
Association,
v. Deseret
Mutual Benefits
Supreme
Utah,
(1979),
Court
main purpose of the van was to provide transportation the injured student so that he could continue his education.
Although these cases are not directly on point, involving as they do different statutes or definitions in an insurance policy, they provide nevertheless insight into the problems confronting courts where an insurer is called upon not merely to the costs of transportation of an injured person to obtain medical care as the arises, need but the purchase actual of the means of transportation. Where the insurer is called upon to purchase vehicle, a the person for the whom vehicle is purchased to be has the burden of proving that such a vehicle is the most economical only and feasible method of transporting injured person “to secure medical and vocational rehabilitation services” and that the vehicle will be used solely this purpose. cases,
Obviously, most the statute does not contem- plate the purchase of a vehicle and it would only be most unusual case where such purchase would be neces- sary. us, In the case before the appellees did not meet their of proof burden and the court erred in entering summary judgment. reversed,
Judgment prejudice without to appellees to submit evidence that the question the most eco- and only transport nomical feasible method of to obtain medical vocational rehabilitation services. POPOVICH, J., files dissenting opinion.
POPOVICH, Judge, dissenting: that, I cannot in the determination under join Majority’s of the No-Fault Motor applicable provision Vehicle Insurance Act after the institution of the instant repealed lawsuit, the insurer to incur the obligate the law does not subsequent of a van and its purchase cost of its insured’s to secure medical vocational “necessary conversion (repealed). 1009.103 services”. Pa.S. rehabilitation § a to gives reading I that the too narrow Majority find it offers that the insured’s use of the van 1009.103when § “get to to his recreational sources” being discounts its encompassed within “medical and vocational rehabilita- approved tion services” under the No-Fault Act for the expenditure of monies an insurer by for its insured with regard to an almost paraplegic condition. dispute
There is no that the physician insured’s recounted patient’s how his “impairments prognostical- are severe and not to ly expected ... remit.” This reduced the insured’s function and mobility purchase necessitated the of suitably equipped van “to him get enable out of the home to his therapies____” Act,
Under the No-Fault as conceded by Majori- even ty, transportation aimed rehabilitating claimant, at services, means of medical and vocational is an approved *7 expenditure called for under the law.
I fail to discern claimant, how the orthopedically-impaired whose condition is likely degenerate to point to the where a fusion of his knee is falls likely, perimeters outside the of the No-Fault Act (which because there is a possibility record) unsubstantiated of using his the van for “recreational sources”. if case,
Even such were the I pose the following: Would not the ability form, form, to in participate any some of activity part recreational be and parcel complete of a reha- I program? Further, bilitation would think so. to interact with others or merely experience the joy accomplishing a context, task in sports e.g., peers, with one’s cannot be minimized for it therapeutic has its (psychological- benefits ly) aiding in the optimum progress recovery and/or injured Therefore, I party. find that the Majority has strayed afield concluding that the insured failed to estab- lish the alternative, non-existence of less-expensive means traversing the streets and highways community type obtain the of therapy maximum, for his necessary potential recovery. To so hold does a disservice to the insured and all of situated, those I similarly at least as read question. statute in
Certainly, the insured’s need for the conventional forms of therapy and his accessibility to those avenues of treat- ment come within the perimeters of “medical and vocational rehabilitative services”. The Majority would in- deny sured this admitted “coverage” because of the Majority’s speculation as to the use of the van for purposes other than prescribed those for the insured’s therapy. The record simply does not support such a syllogism.
On this same I take subject, issue with the Majority when implies it that it is the obligation of the insured to establish the non-existence of alternate sources of transportation and that the van would be used exclusively his use.
My reading the state and law on the subject discloses that imposition of no obligation such upon the I insured. find once the insured has established a “medically neces sary” reason for purchase and adaptation of a van for needs, his rehabilitative which I find he bar, had done at then the burden of proving otherwise would fall on the shoulders of the insurer. This did not occur here with regard the insurer. Accordingly, giving it a liberal common interpretation, sense I find that the statute would and does afford an insured the right to reimbursement for purchase adaptation of a van for his rehabilitative Zangrilli State Farm Mutual Automobile needs. See Co., Insurance (1983); see also Stewart v. P.L.J. 468 Co., Allstate Insurance N.J. A.2d 1131 (1986)1 . *8 inability operate
1. Would not the insured’s the van on his own be even more of an indication of his need for vehicular assistance type who could motor on own at issue here. One would his/her transportation, compared appear public as to be a candidate for to the almost intractable insured here. specialized his need for a vehicle to aid The insured has established obviously crippling injury. from an His him in his efforts to recover injury scope prognosis and a for in the of the doctor concurred future, movement, forecast in the for the insured. With a restricted injured mobility, to aid the in the road of limited (partial/total) all means against by guardians. recovery has been insured injured, opportunity from the this This writer would not withdraw my reading on the matter are not to the of the law and cases contrary. use of the make petitioner may that the possibility The pure specula- than rehabilitation for other purposes grant present in a review place has no tion and summary judgment. motion Majority rationale of the by the Being unpersuaded below, I affirm the the court would the actions of reversing court order of the below. A.2d 79 Pennsylvania
COMMONWEALTH HENDRICKS, Appellant. Bruce Pennsylvania. Superior Court of 1, 1988. Feb. Submitted July Filed 1988. Aug. 1988. Reargument Denied