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JOSEPH WEISSMAN v. CITY PHILADELPHIA AND MARTIN WIDELITZ (08/01/86)

decided: August 1, 1986.

JOSEPH WEISSMAN, APPELLANT
v.
CITY OF PHILADELPHIA AND MARTIN WIDELITZ, M.D., APPELLEES



Appeal from the Orders of the Court of Common Pleas of Philadelphia County, in case of Joseph Weissman v. City of Philadelphia and Martin Widelitz, M.D., No. 5012 April Term, 1985.

COUNSEL

Lawrence W. Richman, for appellant.

Claudia M. Tesoro, with her, Ralph J. Luongo, Assistant City Solicitor, Barbara R. Axelrod, Divisional Deputy in Charge of Appeals, Armando A. Pandola, Jr., Chief Deputy in Charge of Claims, and Handsel B. Minyard, City Solicitor, for appellees.

Judge MacPhail, and Senior Judges Rogers and Barbieri, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 99 Pa. Commw. Page 404]

Joseph Weissman (Appellant) appeals here from an order of the Court of Common Pleas of Philadelphia County which granted the motions of the City of Philadelphia (City) and Martin Widelitz, M.D. (Doctor) for judgment on the pleadings and/or summary judgment. Appellant also appeals from that court's denial of his motion for reconsideration.*fn1

Appellant filed a complaint alleging that he received injuries from treatment at the City's Health Center # 10. Appellant alleged that the City and the Doctor, as an employee of the City, were negligent in failing to properly diagnose a rectal tumor. The complaint further alleged, in the alternative, that the City and the Doctor were jointly liable or that the Doctor was liable on his own, as an independent contractor, for willfully dispensing medication to Appellant in a parking lot across the street from the Health Center. The medication was

[ 99 Pa. Commw. Page 405]

    delivered without a prescription in an unmarked envelope that did not contain directions for use.

In its Answer and New Matter, the City raised, inter alia, the defense of immunity under the applicable provisions of the Judicial Code commonly referred to as the Political Subdivision Tort Claims Act (Act), 42 Pa. C.S. §§ 8541-8564.

The trial court noted that the Act bars medical malpractice actions against local governments and their employees, and specifically found that the Doctor acted within the scope of his employment with the City and not as an independent contractor. The court concluded that both the City and the Doctor were immune from liability, and granted "the motion" of the City and the Doctor.*fn2

Section 8541 of the Act, 42 Pa. C.S. § 8541, provides, subject to exceptions, that a local agency shall not be liable for damages on account of an injury to a person if the injury was caused by any act of the agency or its employees. The Legislature waived immunity as a bar to actions for negligent acts where damages would be recoverable at common ...


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