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TROPIANO v. TRAVELERS INSURANCE CO. (04/12/73)

decided: April 12, 1973.

TROPIANO, APPELLANT,
v.
THE TRAVELERS INSURANCE CO.



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1966, No. 3623, in case of Domenic A. Tropiano v. The Travelers Insurance Company, The Travelers Indemnity Company, Harvey W. Weldon, M.D., The Presbyterian Hospital in Philadelphia, Nazareth Hospital, and Joseph J. Toland, 3rd, M.D.

COUNSEL

George T. Guarnieri, for appellant.

Joseph J. Murphy, with him Murphy, Murphy & Murphy, for appellees.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, and Cercone, JJ. (Packel, J., absent.) Opinion by Watkins, J. in Support of Affirmance. Wright, P. J., and Jacobs, J., join in this opinion. Opinion by Cercone, J. in Support of Reversal. Hoffman and Spaulding, JJ., join in this opinion.

Author: Per Curiam

[ 227 Pa. Super. Page 488]

The six judges who heard this appeal being equally divided, the order is affirmed.

Disposition

Order affirmed.

Opinion by Watkins, J. in Support of Affirmance:

The Pennsylvania Supreme Court has finally determined that the insurance carrier is included within the term "employer" as it is used in Section 303 of The Pennsylvania Workmen's Compensation Act and, therefore, shares the employer's immunity from common law liability. See, Jadosh v. Goeringer, 442 Pa. 451, 275 A.2d 58 (1971); DeJesus v. Liberty Mutual Insurance Company, 439 Pa. 180, 268 A.2d 924 (1970); Brown v. Travelers Insurance Company, 434 Pa. 507, 254 A.2d 27 (1969).

The pleadings in this case do not, in fact, allege anything that would constitute Harvey W. Weldon, M.D. an employe of the Travelers Insurance Company or Travelers Indemnity Company. The allegations of negligence against defendant, Travelers Insurance Company and Travelers Indemnity Company do not state a cause of action, as the conduct of the aforesaid was completely within the authority granted them under the Act of August 24, 1953, P. L. 1382, § 1, as amended, 77 P.S. § 531, whereby the employer or its insurer are bound to furnish medical and surgical treatment for work connected injuries to employees for a period of twelve (12) months and thereafter on petition by claimant to the Workmen's Compensation Board.

Also, the choice of the treating physician is within the discretion of the employer who has the right to direct the physician or physicians to render such services. In this ...


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