Leporace v. Mechanick

17 Pa. D. & C.5th 20
CourtPennsylvania Court of Common Pleas, Montgomery County
DecidedMay 26, 2010
Docketno. 06-08098
StatusPublished

This text of 17 Pa. D. & C.5th 20 (Leporace v. Mechanick) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Montgomery County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Leporace v. Mechanick, 17 Pa. D. & C.5th 20 (Pa. Super. Ct. 2010).

Opinion

DANIELE, J,

— Plaintiffs appeal from this court’s order dated January 17, 2007 and entered upon the docket on January 18,2007. This order sustained defendant’s preliminary objections to plaintiffs’ amended [22]*22complaint with respect to plaintiffs’ claim for defamation and punitive damages.1

PROCEDURAL AND FACTUAL HISTORY

Plaintiffs filed a writ of summons on April 5, 2006. Following the filing of preliminary objections to the complaint, plaintiffs filed an amended complaint on July 21, 2006. The amended complaint alleges causes of action for defamation, loss of consortium, and tortious interference with contractual relations.

On August 9, 2006, defendant filed preliminary objections to plaintiffs’ amended complaint. Plaintiff filed a response to the preliminary objections. We held argument on January 17, 2007.

We entered an order on January 18,2007 that sustained defendant’s objections to the claim for defamation and request for punitive damages and overruled the objection to the claim for tortious interference with contractual relations.

Judge Wendy Demchick-Alloy entered an order on March 4, 2010 that granted defendant’s motion for summary judgment related to the claim for tortious interference with contractual relations.

On March 19, 2010, plaintiffs filed a notice of appeal related to the order entered on March 4, 2010. On March 30, 2010, plaintiffs filed an amended notice of appeal to [23]*23include an appeal from our order entered on January 18, 2007. Following the entry of an order to file a concise statement, plaintiffs filed their concise statement on April 6, 2010.

This action arises in connection with an independent psychiatric examination conducted by defendant on March 7, 2005.

In March of 1995, Mr. Leporace purchased a disability insurance policy from New York Life Insurance Company (“New York Life”).2 The policy contains the following the pertinent definitions:

(1) “Total Disability” means the Insured can not do the substantial and material duties of his or her regular job. The cause of the total disability must be an injury or a sickness.
(2) “Regular Job” the occupation, or occupations if more than one, in which the insured is engaged when a disability starts.

On the application for the disability policy, Mr. Leporace listed his occupation as “president, supervisor, owner” of AET Environmental, Inc. The policy permits New York Life to examine its insured, by physicians which it approves, while a claim continues. Mr. Leporace became disabled on May 22, 1997. Thereafter, he was diagnosed with bipolar disorder.

[24]*24Mr. Leporace applied for disability benefits on June 25, 1997. New York Life paid benefits to Mr. Leporace from July 21, 1997 through May 31, 2005.

New York Life arranged for two independent medical examinations (“IMEs”) to occur in 1999. Drs. Grosso and Heilbrun conducted these examinations. Plaintiffs’ counsel, as well as a court reporter, attended both of these IMEs. Following these IMEs, New York Life continued to pay policy benefits to Mr. Leporace.

In addition to Dr. Mechanick’s examination of Mr. Leporace on March 7, 2005, psychologist Steven Samuel performed a neuropsychological examination of Mr. Leporace on March 2, 2005. During both of these examinations, plaintiffs’ counsel as well as two court reporters were present.

Dr. Samuel prepared a report dated March 9, 2005, which he sent to New York Life. The report contained the following relevant statements:

(1) “I indicated to Mr. Baratta (plaintiffs’ counsel) that having him, and the stenographer, present, during the neuropsychological testing administration, represented a non-standardized administration of the tests; therefore, i would not agree to this condition.”
(2) “The presence of any third party during a neuropsychological testing evaluation poses a serious risk to the conduct of a valid evaluation.”

Following his examination of Mr. Leporace, Dr. Mechanick prepared a report for New York Life dated April 7,2005. Among the information Dr. Mechanick used in preparing the report were the records of Mr. Leporace’s treating medical providers as well as the reports of the [25]*25IMEs that had been conducted in 1999.

Dr. Mechanick’s April 7 report includes the following relevant statements:

(1) “Mr. Leporace’s history and clinical course have a number of features that are not typical of bipolar disorder.” (Report of April 7, 2005, p. 18).
(2) “His presentation during my examination and that of Drs. Grosso and Heilbrun has been exaggerated and not typical for a bipolar or other depressive disorder.” Id. at page 20.
(3) “Mr. Leporace has repeatedly been uncooperative with his psychiatric and psychological IME’s.” Id. at 21.

Dr. Mechanick concluded that Mr. Leporace’s psychiatric diagnoses are depression not otherwise specified and malingering. He opines that Mr. Leporace’s current psychiatric symptoms do not currently limit his capacity to function in any occupation. Id. at 22.

Dr. Samuel provided a report to New York Life dated April 21, 2005 based on his March 2, 2005 examination. In summary, Dr. Samuel indicates that, as he was not permitted to administer additional testing under conditions which he stipulated, he was unable to conclude whether Mr. Leporace is malingering. (April 21, 2005 report, pp. 5- 6) The report concludes with a request to complete the evaluation of Mr. Leporace.

Following receipt of Dr. Samuel’s April 21,2005 report, Dr. Mechanick prepared a supplemental report for New York Life dated May 7, 2005. The report notes that Dr. Mechanick had reviewed the April 21 report and discussed [26]*26it with Dr. Samuel. Dr. Mechanick’s report includes the following statements:

(1) “Dr. Samuel’s evaluation of Mr. Leporace supports my conclusion that Mr. Leporace is malingering. Mr. Leporace’s performance on the MMPI-2 is consistent with malingering.”
(2) “Dr. Samuel noted that Mr. Leporace’s profiles on the nonverbal and verbal subtests of the validity indicator profile were invalid due to the large number of items he left unanswered. Based on my examination of Mr. Leporace it is my opinion that Mr. Leporace has the cognitive ability to complete such testing and that his choice to leave so many items unanswered indicates malingering.”
(3) “Mr. Leporace’s unwillingness to participate in neuropsychological testing under standard testing conditions and without his attorney being present is also suggestive of malingering.”

New York Life issued a letter to plaintiffs’ counsel dated May 31,2005. In the letter, New York Life indicates that based on its review of the record, including the IMEs conducted on March 2 and March 7,2005, it will no longer pay benefits past May 31, 2005.

DISCUSSION

The question presented by a demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Morley v. Gory, 814 A.2d 762

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Related

Morley v. Gory
814 A.2d 762 (Superior Court of Pennsylvania, 2002)
Elia v. Erie Insurance Exchange
634 A.2d 657 (Superior Court of Pennsylvania, 1993)

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Bluebook (online)
17 Pa. D. & C.5th 20, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leporace-v-mechanick-pactcomplmontgo-2010.