Appeal from the Order entered May 10, 1985 in the Court of Common Pleas of Cumberland County, Civil Division, No. 82 Civil 1985
William G. Dade, Harrisburg, for appellant.
Randall G. Gale, Harrisburg, for appellees.
Cavanaugh, Tamilia and Cercone, JJ.
[ 353 Pa. Super. Page 140]
This is an appeal from an order granting appellee's, Aetna Casualty and Surety Co. (Aetna), preliminary objection in the nature of a demurrer and dismissing plaintiff/appellant's, Vernon Manning, complaint in assumpsit against Aetna.
On June 15, 1978, appellant was injured during the course of employment. Several months later his employer's workman's compensation carrier, appellee Aetna, requested that appellee physician, Jason J. Litton, examine appellant to evaluate his disability status in relation to the injuries he had sustained. A letter dated November 15, 1978, from Aetna to Dr. Litton, forms the basis of appellant's contract claim. It reads in pertinent part:
I [Aetna's claim representative] would like for you to evaluate Mr. Manning's present disability status in relation to the injuries he sustained as a result of the accident on the above date [June 15, 1978]. If there are any physical limitations which should be placed upon the claimant which would enable him to return to light duty work, I would appreciate if you could list these for us.*fn1
[ 353 Pa. Super. Page 141]
Dr. Litton conducted the requested examination and informed Aetna that Mr. Manning was definitely able to do any type of light work, but not climbing or overhead work. Dr. Litton proceeded to provide medical care, including surgery and physical therapy treatments, to Mr. Manning. Appellant alleges that Dr. Litton negligently performed the surgery and physical therapy thus causing him further injury, pain and suffering.
Appellant contends that Dr. Litton breached a contractual obligation to Aetna "to exercise ordinary skill and care and reasonable judgment in diagnosing, treating, surgically repairing and caring for plaintiff's injuries." He bases this contractual duty upon the previously cited letter as well as upon the Pennsylvania Workmen's Compensation Act, 77 Pa.S.A. § 1 et seq. (Act) In particular, appellant cites sections 531 and 651, 77 Pa.S.A., in support of his proposition. Appellant maintains his standing to bring this action in contract by claiming that he is a third party beneficiary of the contract between Aetna and Dr. Litton.*fn2
The trial court concluded that appellant had not asserted facts sufficient to support his conclusion that he was a third party beneficiary to the contract between Aetna and Dr. Litton and, therefore, granted appellee's demurrer. The issue to be decided by this court is whether the lower court was correct in reaching that conclusion. We find that the trial court correctly resolved this issue and, therefore, affirm its order.
"[T]he question of whether a contract was intended for the benefit of a third party is always one of construction. The intention of the parties in this respect is determined by the terms of the contract as a whole, construed in the light of circumstances under which it was ...