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JENNIE BABICH v. RUDOLPH W. PAVICH (09/26/79)

filed: September 26, 1979.

JENNIE BABICH, ADMINISTRATRIX OF THE ESTATE OF JOHN J. BABICK, A/K/A JOHN J. BABICH, DECEASED, AND JENNIE BABICH, ADMINISTRATRIX OF THE ESTATE OF JOHN J. BABICK, A/K/A JOHN J. BABICH, DECEASED, AS TRUSTEE AD LITEM FOR THE NEXT OF KIN OF JOHN J. BABICK, A/K/A JOHN J. BABICH, DECEASED, APPELLANTS,
v.
RUDOLPH W. PAVICH, M. D., LAURA SCHROCK, M. D., AND CONEMAUGH GENERAL MEMORIAL HOSPITAL



No. 1459 April Term, 1978 Appeal from the Order of the Court of Common Pleas of Cambria County, Civil Division at No. 228 June Term, 1973 -- In Trespass.

COUNSEL

Neil R. Rosen, Pittsburgh, for appellants.

Robert G. Rose, Johnstown, for appellee Pavich, M. D.

James Francis O'Malley, Johnstown, did not file a brief on behalf of appellee Schrock, M. D.

Robert J. Pfaff, Altoona, did not file a brief on behalf of appellee Conemaugh General Memorial Hospital.

Cercone, President Judge, and Wieand and Hoffman, JJ.

Author: Hoffman

[ 270 Pa. Super. Page 142]

Appellant contends that the lower court erred in concluding that appellee Rudolph W. Pavich, M. D., was "in the same employ" as appellant's decedent and thus insulated from civil liability under section 205 of the Pennsylvania Workmen's Compensation Act.*fn1 We disagree and, accordingly, affirm the order of the lower court.

On January 31, 1972, appellant's decedent was injured in the course of his employment with Bethlehem Steel Corporation (hereinafter Bethlehem), at its Johnstown, Pennsylvania plant. The decedent was treated at the plant medical dispensary by appellee Rudolph W. Pavich, M. D. (hereinafter appellee). After decedent's death, appellant instituted wrongful death and survival actions alleging, inter alia,*fn2 that appellee was negligent. On December 1, 1975, appellee filed a motion for summary judgment, stating that he was a full-time employee of Bethlehem and that, pursuant to section 205 of the Workmen's Compensation Act, he was not liable to appellant for injuries received by appellant's decedent as a result of his negligence. The lower court granted the motion for summary judgment.

Depositions of appellee and two supervisory employees of Bethlehem disclosed the following: Bethlehem requires its employees to use the plant dispensary if they are injured in the course of their employment. Employees are not charged for treatment. At the time appellant's decedent was injured, appellee worked full-time at Bethlehem's Johnstown plant dispensary and was a member of the industrial relations department. The company paid him a fixed salary and did not allow him to engage in private practice. He was required to work eight hours a day, five days a week. His

[ 270 Pa. Super. Page 143]

    fringe benefits were the same as those of other supervisory personnel of Bethlehem. Appellee was the plant medical director, and the dispensary was under his control and supervision. He did not have authority to hire or fire personnel in the dispensary. Appellee was required to attend two supervisory meetings each week and one monthly meeting. Appellee's immediate supervisor, the head of the industrial relations department, did not supervise or control the manner and method of treating individual patients. ...


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