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JOHN FINKLEA v. HABIB TONSEY (08/12/83)

filed: August 12, 1983.

JOHN FINKLEA, APPELLANT,
v.
HABIB TONSEY, THE BUDD COMPANY



No. 275 Philadelphia 1982, Appeal from the Judgment of the Court of Common Pleas of Philadelphia County, Civil at No. 5899 January Term 1977.

COUNSEL

Richard A. Ash, Philadelphia, for appellant.

Charles W. Craven, Philadelphia, for appellees.

Spaeth, Wieand and Hoffman, JJ. Wieand, J., files a concurring opinion.

Author: Spaeth

[ 317 Pa. Super. Page 555]

This is an appeal from a judgment entered in a trespass action. The parties to the action are John Finklea, plaintiff below and appellant here, and The Budd Company and Dr. Habib Tonsey, defendants below and appellees here. Mr. Finklea was an employee of Budd, and Dr. Tonsey was Budd's medical director. On Dr. Tonsey's recommendation, Mr. Finklea was discharged from his employment on the ground that his use of drugs impaired his ability to perform his job on the assembly line in a safe manner. Mr. Finklea's claim is that in making this recommendation, Dr. Tonsey acted negligently and in the course of his employment as Budd's medical director. The trial judge granted Dr. Tonsey's and Budd's action for a compulsory non-suit, and a court en banc denied Mr. Finklea's motion to remove the non-suit, and entered judgment in favor of Dr. Tonsey, and Budd. We have concluded that even when viewed in the light most favorable to Mr. Finklea,*fn1 the evidence was

[ 317 Pa. Super. Page 556]

    insufficient to support a finding that Dr. Tonsey was negligent. We therefore affirm.

In reviewing the propriety of the order denying appellant's motion to remove the non-suit, we must view the evidence in the light most favorable to appellant, which means that we must resolve all conflicts in the evidence in appellant's favor, and must give him the benefit of all favorable inferences arising from the evidence. Scott v. Purcell, 490 Pa. 109, 415 A.2d 56 (1980) (collecting cases). So viewed, appellant's evidence discloses the following facts.

In July 1975 appellant began to work as a manual laborer for The Budd Company, which "employs a lot of fast-moving big presses and moving machinery . . . ." R. 2.96; 3.10. Sometime during this first period of employment -- the date is not clear from the record -- a urinalysis was conducted to determine whether appellant was taking any drugs. R. 2.147. The results of the tests were negative. R. 2.147.

After working some five weeks, appellant was laid off. R. 2.99. Several weeks later, appellant was called back to work, and another urinalysis was conducted. R. 2.100. This time the analysis disclosed the presence of Darvon in appellant's system. R. 2.151. Dr. Tonsey, as Budd's medical director, told appellant that the urinalysis test had revealed the presence of a drug in his system, and asked him to get a note from his doctor stating what kind of medication he was taking. R. 2.130; 2.157-58. Appellant conveyed this request to Dr. Edward Tobe, who had been treating him for physical and emotional problems at the Erie Medical Center from November 1974 through July 1975. R. 2.16-2.17; 2.30. Dr. Tobe gave appellant a note, which stated: "John Finklea has been under my care from 1974 [ ] on and is unable to return to work [ ]. Meds. taken: Elavil 50 mg. Valium 10 mg. Darvoset N 100 mg. one prescription of Biphetamine July, 1975." Dr. Tobe understood that appellant wanted a note stating what kind of medication he was then taking, -- i.e., in October 1975. R. 2.16-17; 2.30, 2.99. Nevertheless, appellant argues that the

[ 317 Pa. Super. Page 557]

    note described medication prescribed in July 1975, and that the record should be read as consistent with appellant's testimony that he was not then taking the medication described in the note. See R. 2.51; 2.59-61; 2.138. We shall consider this argument in some detail later. Appellant delivered Dr. Tobe's note to a ...


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