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filed: May 14, 1982.


NO. 2299 PHILADELPHIA, 1980, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Civil Division at No. 2347 November Term, 1976.


George F. Schoener, Jr., Philadelphia, for appellants.

John J. Leonard, Philadelphia, for Bell Telephone, Chisum, and Devine, appellees.

William F. Sutton, Philadelphia, for Dyson, appellee.

William V. Coleman, Philadelphia, for Pisavo, participating party.

Jay J. Lambert, Philadelphia, for Caminitz, participating party.

Spaeth, Beck and Lipez, JJ.

Author: Beck

[ 299 Pa. Super. Page 394]

This appeal arises from a September 12, 1980 order granting appellees' motion for summary judgment. Appellant-husband, Harry Budzichowski, fell December 9, 1974 when he was attacked by a dog while on the job as a telephone installer. He reported to appellees Melvin J. Chisum, M.D. ("Chisum") and Peter J. Devine, M.D. ("Devine") who were employed by appellee Bell Telephone Company of Pennsylvania ("Bell") in its medical dispensary. Appellee doctors diagnosed appellant's injury as "hip strain" and possible "inguinal strain." The doctors gave appellant muscle relaxers, and he reported back to work.

In August, 1975, appellant consulted an orthopedic surgeon, who was not affiliated with Bell. That surgeon took x-rays and informed appellant that they revealed "aseptic necrosis" in the right femoral head. Plaintiff underwent a bone graft on his right femur.

Appellants, Henry and Julia Budzichowski, filed a complaint in trespass to recover personal injuries incurred by Harry Budzichowski when defendant doctors negligently diagnosed injuries resulting from a work-related incident. They named the two doctors and Bell Telephone as defendants.*fn1

The three defendants filed a motion for summary judgment alleging that: 1) Chisum and Devine are full-time employees of Bell and are immune from personal liability

[ 299 Pa. Super. Page 395]

    under Section 205 of the Pennsylvania Workmen's Compensation Act ("Act"),*fn2 and 2) Bell is immune from liability under Section 303 of the Act, 77 P.S. § 481(a), since it is an employer.

The lower court granted summary judgment in a September 12, 1980 order. On October 1, 1980, Harry and Julia Budzichowski appealed from that order.

Appellants first claim that appellees Chisum and Devine were not immune from liability as fellow employees under Section 205 of the Act when they committed malpractice.*fn3 That provision provides:

If disability or death is compensable under this act a person shall not be liable to anyone at common law or otherwise on account of such disability or death for any act or omission occurring while such person was in the same employ as the person disabled or killed, except for intentional wrong.

(Emphasis added.)

This court in Babich v. Pavich, 270 Pa. Super. 140, 144, 411 A.2d 218, 220-221 (1979) discussed the considerations in resolving the question of whether a full-time plant physician was "in the same employ" under the Act:

[ 299 Pa. Super. Page 396]

"In ascertaining whether a person is an employee or an independent contractor, the basic inquiry is whether such person is subject to the alleged employer's control or right to control with respect to his physical conduct in the performance of the services for which he was engaged . . . ." Green v. Independent Oil Co., 414 Pa. 477, 483, 201 A.2d 207, 210 (1964) (footnote omitted). An employer-employee relationship may be found even though "a particular occupation may involve such technical skill that the employer is wholly incapable of supervising the details of performance." Potash v. Bonaccurso, 179 Pa. Super. 582, 588, 117 A.2d 803, 806 (1955).

The Pennsylvania appellate courts have not previously decided whether a full-time salaried plant physician is "in the same employ" as a plant employee for purposes of section 205. Appellate courts in other jurisdictions facing this issue have held that the defendant plant physician is immune from civil liability because he is "in the same employ" as plaintiff under the Workmen's Compensation Act.

Appellants argue that since Bell could not control in any meaningful way the work of these doctors, they would fall under the rubric of "professional independent contractors" and would not be protected against a malpractice suit by the Act. The Babich court specifically held that physicians in the same situation were not independent contractors:

Although the record does indicate that Bethlehem does not control the manner and method of treating patients, this fact alone is not controlling in determining whether appellee is an employee or independent contractor. The following facts point to the conclusion that appellee is an employee rather than an independent contractor: he worked for Bethlehem on a full-time basis; Bethlehem paid him a fixed salary and did not allow him to engage in private practice; his fringe benefits were the same as those received by Bethlehem's supervisory employees; and Bethlehem controlled the hours and number of days that appellee worked.

[ 299 Pa. Super. Page 397]

The Pennsylvania Supreme Court answered that question in Workmen's Compensation Appeal Board v. Ira Berger & Sons, 470 Pa. 239, 368 A.2d 282 (1977) by holding that where a subsequent injury is caused by negligent treatment, it is compensable under the Act. It quoted Hurchick v. Falls Twp. Bd. of Supervisors, 32 Pa.D. & C.2d 729, 734-36, affirmed per curiam on the opinion of the court below, 203 Pa. Super. 1, 198 A.2d 356 (1964):

" Where claimant in good faith seeks medical treatment for his injury, and the medical treatment itself either aggravated the existing injury or causes new or additional injury, the law regards the latter as having been caused by the original accident."

Berger & Sons, 470 Pa. at 243, 368 A.2d at 284 (emphasis in original).

Appellants claim that Bell was acting, when the negligence was committed, not as employer, but rather in its "dual capacity" as provider of health care. Appellants cite Dean Larson's treatise on workmen's compensation law:

Under this doctrine, an employer normally shielded from tort liability by the exclusive remedy principle may become liable in tort to his own employee if he occupies, in addition to his capacity as employer, a second capacity that confers on him obligations independent of those imposed on him as employer.

2A Larson, Workmen's Compensation Law, Section 72.80, p. 14-112 (1976). Judge Hoffman applied the above doctrine in Tatrai v. Presbyterian University Hospital, 284 Pa. Super. 300, 425 A.2d 823 (1981), petition for allowance of appeal granted. In that case, an operating room technician became sick while at work and was directed by her supervisor to seek treatment in the hospital's emergency room. In addition, she was billed for those services. Ill or injured hospital

[ 299 Pa. Super. Page 399]

    employees were ordinarily treated, as a matter of policy, in the free Employee Health Service. Judge Hoffman, in his dissent, distinguished this situation from cases in which an employee injures herself while at work and is treated in the company health care clinic where the attending physicians aggravate the initial injury:

In those circumstances, the injured employee cannot bring a common law action against his employer. That result is proper because the only duties owed are those of employer to employee, and there is no reciprocal expectation on the part of the parties that the employer would provide the medical services to the employee absent the employment relationship. See D'Angona v. County of Los Angeles, 27 Cal.3d 661, 668 n.6, 613 P.2d 238, 243 n.6, 166 Cal.Rptr. 177, 182 n.6 (1980); Garcia v. Iserson, 33 N.Y.2d 421, 423, 309 N.E.2d 420, 421-422, 353 N.Y.S.2d 955, 957 (1974). In this case, however, the employer holds itself out to the public as a provider of medical services. Consequently, the parties now occupy different roles and the employer assumes new duties, which I believe, are enforceable in an action at law.

Id., 284 Pa. Super. at 307-308, 425 A.2d at 827 (footnote deleted). We agree with Judge Hoffman's assessment of the "dual capacity" argument. In the instant case, appellant-husband could not have entertained any such expectation that Bell would provide medical services to him were he not employed there. This case is thus distinguishable from the facts in Tatrai. Here the liability of Bell for the negligence of Chisum and Devine is circumscribed by the Act.

Appellants contend finally that there was no "agreement" by Bell to accept liability under the Act. Appellees did allege in their motion for summary judgment, however, the exclusiveness of remedy under the Act. We note that 302(a) of the Act, 77 P.S. § 461, stated a conclusive presumption that the parties "have agreed to be bound [by the Act], unless there be, at the time of the making, renewal, or extension of such contract, an express agreement in writing

[ 299 Pa. Super. Page 400]

    from either party to the other, that the provisions of . . . this act are not intended to apply . . . ." In addition, appellants did not raise the issue in their pleadings and accordingly waived it. "Plaintiff's failure to plead that the act had been duly rejected was tantamount to pleading that the parties had accepted the act as a part of the employment contract." Hyzy v. Pittsburgh Coal Co., 384 Pa. 316, 319, 121 A.2d 85, 87 (1956) citing Capozzoli v. Stone & Webster Eng. Co., 352 Pa. 183, 42 A.2d 524 (1945).

Appellants' exclusive remedy is that provided under the Act. We affirm the lower court order.

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