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NANCY F. GREGORY v. DR. EMIL MARTYAK (11/16/79)

decided: November 16, 1979.

NANCY F. GREGORY, EXECUTRIX OF THE ESTATE OF HOWARD C. GREGORY, DECEASED, AND NANCY F. GREGORY, IN HER OWN RIGHT, PETITIONER
v.
DR. EMIL MARTYAK, MARIE R. KAPISH AND DR. JOHN P. SLOVAK, RESPONDENTS



Appeal from the Order of the Administrator of Arbitration Panels for Health Care in case of Nancy F. Gregory, Executrix of the Estate of Howard C. Gregory, Deceased, and Nancy F. Gregory, in her own right v. Dr. Emil Martyak and Marie R. Kapish and Dr. John P. Slovak, No. M77-180.

COUNSEL

Edward F. Silva, with him Jack E. Feinberg, for appellant.

Barbara A. Brown, Assistant Attorney General, with her Peter J. Curry, Assistant Attorney General, John L. Sweezy, Chief Attorney of Unit, Theodore A. Adler, Chief Counsel, and Gerald Gornish, Acting Attorney General, for appellees.

Judges Wilkinson, Jr., Blatt and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 47 Pa. Commw. Page 343]

Nancy F. Gregory (Petitioner) appeals to this Court from a decision of the Administrator for Arbitration Panels for Health Care (Administrator) sustaining the preliminary objection in the form of a demurrer of Marie R. Kapish (Respondent) and dismissing those portions of Petitioner's complaint which alleged a cause of action against Respondent.*fn1 The only issue Petitioner raises is whether it was error for the Administrator to conclude that Respondent

[ 47 Pa. Commw. Page 344]

    was entitled to official immunity from liability.*fn2 For the reasons which follow, we reverse the Administrator's decision and remand this case for proceedings not inconsistent with this opinion.

On November 10, 1976, Howard C. Gregory (Decedent) was working on a pig farm in Weatherly, Pennsylvania when a crate slipped onto his hand crushing and cutting his right index finger. Decedent was taken to Hazleton General Hospital where he received emergency treatment from Dr. Emil Martyak and Respondent. As part of the treatment, Respondent, under the direction of Dr. Martyak, administered to Decedent a tetanus booster injection. Decedent then came under the care of his family physician, Dr. John P. Slovak. On November 17, 1976, Decedent was admitted to Hazleton General Hospital suffering from tetanus. He died two days later while enroute to Hahnemann Hospital.

Petitioner filed a complaint pursuant to the Probate, Estates and Fiduciaries Code, Act of June 30, 1972, P.L. 508, as amended, 20 Pa. C.S.A. § 3371 et seq. and the Act of April 26, 1855, P.L. 309, as amended, 12 P.S. § 1602 et seq.,*fn3 against Respondent, Dr. Martyak, and Dr. Slovak with the Administrator. Respondent

[ 47 Pa. Commw. Page 345]

    demurred to the complaint stating that no cause of action would lie against her because she was a Commonwealth employee acting within the scope of her employment. In considering the demurrer, the Administrator found that Respondent was a registered nurse employed by the Commonwealth ("a 'low employee' of the government as opposed to a 'high public official'") and that she was entitled to conditional immunity from tort liability for ordinary negligence when acting within the scope of her employment. He also found that Petitioner failed to ...


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