Jones v. Buchakijian

On February 23, 1976, plaintiff filed this action in trespass to recover for personal injuries suffered in an accident which occurred March 23, 1975. Having failed to agree on the conditions upon which plaintiff would submit to a physical examination, defendants, Leon Buchakijian and Joanne Buchakijian, have filed the present motion for an order “directing Carolyn S. Jones to submit to physical examination by William H. Simon, M.D., the physical condition of said plaintiff being in controversy in this action.” No petition and no facts are verified in support of the motion.

Pa. R.C.P. 4010(a) permits discovery by physical examination of a party. That rule reads: “The court, on the motion of a party, may order a party to submit to a physical . . . examination by a physician when his physical . . . condition is in controversy in the action.” (Emphasis supplied.) The use of the precatory term “may” is a clear indication that an order for physical examination is not one of right, but within the sound discretion *453of the Court. See also Stevenson v. Kaczmarczyk, 59 Schuyl. 173 (1961). On a contested motion where no facts are verified by the moving party, the Court is inclined to exercise its discretion in favor of the non-moving party. Where the moving party has failed in this burden of proof in appealing to the Court’s discretion, the equities favor the non-moving party:1 McFadden v. American Oil Co., 215 Pa. Superior Ct. 44, 257 A. 2d 283 (1969); Karns et al. v. Tony Vitale Fireworks Corp., 436 Pa. 181, 259 A. 2d 687 (1969).

Apparently, plaintiff is not against submitting to a physical examination. Her only objection is that the motion for physical examination is so broad that it permits no limitations. In this respect, I am inclined to agree with 4 Goodrich-Amram, §4010-11, p. 199, that the court should not exercise its discretion to order a party to submit to a physical examination at the instance of an adverse party unless the motion verifies the following: (1) name of moving party, (2) type of examination *454requested, (3) name of party to be examined, (4) place of examination, (5) date of examination, (6) time of examination, (7) name of physician who will conduct examination, (8) scope of the examination, and (9) names of persons to be present at the examination. See also Dorward v. Bowman (No. 1), 34 Northamp. 101 (1956).

Accordingly, it is ordered and decreed that the moving party will file an amended motion in conformity with the requirements of this opinion within 20 days from date hereof. This motion so filed shall serve as this court’s order unless within ten days of its filing, plaintiff specifically objects. In the latter case, this court will make a final decision on the objection by return mail.