No. 2937 Philadelphia 1981, Appeal from the Order of October 28, 1981, Court of Common Pleas, Philadelphia County, Trial Division, Law at No. 156 March Term, 1981.
Michael F. Eichert, Philadelphia, for appellants.
John Patrick Kelley, Philadelphia, for appellee.
Hester, Cirillo and Johnson, JJ.
[ 312 Pa. Super. Page 83]
Appellant Felice Silvestri was injured when, while working on a building under construction, he fell through a hole in a concrete floor manufactured by Appellee Strescon. Appellant was employed by Strescon as a carpenter at the time of the accident.
Appellants sued Strescon for damages arising from the accident, alleging Strescon's negligence in failing to, inter
[ 312 Pa. Super. Page 84]
alia, warn Appellant Felice Silvestri of the abnormally dangerous condition of the opening in the floor and in negligently directing and supervising the design, fabrication, manufacture and installation of the concrete floor.*fn1
Appellee Strescon moved for summary judgment, alleging that the Pennsylvania Workmen's Compensation Act (the Act)*fn2 was Appellant's sole and exclusive remedy.
Appellants on appeal allege that an action for personal injuries, by an employee against his employer, should not be barred where the injuries resulted from an accident at the employer's work place and where the claim is based on the employer's defective design or manufacture of a product sold to the public at large and in use by the employee at the time of the accident.
This theory of liability is generally known as the "dual capacity doctrine" which states that an employer, normally shielded from tort liability by the exclusive remedy principle of workmen's compensation, 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 an employer. 2A A. Larson, The Law of Workmen's Compensation § 72.80 at 14-112 (1976). See also Budzichowski v. Bell Tel. Co., 299 Pa. Super. 392, 445 A.2d 811 (1982).
The Pennsylvania supreme court has held that a hospital employee, who becomes ill while on the job, and who is directed by her supervisor to go to the emergency room to seek medical attention, is not barred by the exclusivity provision of the Act from pursuing an action for injuries received in the emergency room due to defective equipment employed therein. Tatrai v. Presbyterian University Hospital, 497 Pa. ...