No. 78 E.D. Appeal Docket 1982, Appeal from the Order Entered May 14, 1982, by the Superior Court of Pennsylvania, No. 2299 Philadelphia 1980, Affirming the Order Entered September 12, 1980 in the Court of Common Pleas of Philadelphia, Civil Division, at No. 2347 November Term 1976, 299 Pa. Superior Ct. 392,
Roberts, C.j., and Nix, Flaherty, Hutchinson and Zappala, JJ. McDermott, J., did not participate in the consideration or decision of this case.
Harry and Julia Budzichowski brought this trespass action against appellees seeking damages for injuries allegedly caused by negligent medical treatment Mr. Budzichowski received at Bell's Medical Dispensary. Appellees filed a motion for summary judgment, claiming immunity under the Pennsylvania Workmen's Compensation Act. Common Pleas granted the motion and Superior Court affirmed. We granted appellants' petition for allocatur.
Two issues are involved in this appeal. First, is a physician who works in a plant medical dispensary a "person in the same employ as the person disabled" and thus immune from liability under Section 205 of the Pennsylvania Workmen's Compensation Act ("Act").*fn1
Second, was Bell operating in a "dual capacity" as both a communications company and a provider of medical care when appellant, Harry Budzichowski, was treated, so that Bell is subject to liability despite the exclusive remedy provisions of Section 303 of the Act, as amended, 77 P.S. § 481(a).*fn2 Common Pleas and Superior Court held that Drs.
Chisum and Devine were "persons in the same employ" as appellant and thus they were immune from suit, and that Bell was not operating in a "dual capacity" and thus appellants' exclusive remedy was under the Workmen's Compensation Act. We agree and affirm.
On December 9, 1974, appellant Harry Budzichowski, employed full-time as a telephone installer by Bell of Pennsylvania ("Bell") was injured when he fell attempting to ward off a dog. At the time of the injury, appellant was, "in the normal course of his employment", installing a telephone at a private residence. He reported to the Bell Medical Dispensary for treatment. Drs. Chisum and Devine examined appellant and diagnosed his condition as possible "inguinal strain" (strain to the groin and lower abdomen) and "hip strain." They gave appellant muscle relaxers and told him to report back to work.
Appellant continued to experience pain in his right hip area. In August, 1975, he consulted an orthopedic surgeon not affiliated with Bell, who diagnosed appellant's condition as "aseptic necrosis" (deterioration of the bone) in the head of his right femur. He ultimately underwent a bone graft operation on his right femur to alleviate the condition.
Appellants' complaint in trespass seeks damages for personal injuries allegedly incurred when Drs. Chisum and Devine negligently diagnosed and treated Harry Budzichowski's injuries. Bell is also named as a defendant.*fn3 Appellees' motion for summary judgment alleges that Chisum and Devine are full-time employees of Bell in the same employ as appellant and thus are immune from personal
liability, and that appellants' exclusive remedy is under the Workmen's Compensation Act.
Appellants first claim is that Drs. Chisum and Devine are not immune from liability as fellow employees under Section 205 of the Act for their commission of alleged ...