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CECILIA MCGINN v. JOSEPH M. VALLOTI (03/16/87)

filed: March 16, 1987.

CECILIA MCGINN, APPELLANT,
v.
JOSEPH M. VALLOTI, M.D.



Appeal from the judgment entered May 9, 1986 in the Court of Common Pleas of Delaware County, Civil Division, at No. 82-3875.

COUNSEL

Avram G. Adler, Philadelphia, for appellant.

R. Bruce Morrison, Norristown, for appellee.

Cirillo, President Judge, and Rowley and Beck, JJ.

Author: Beck

[ 363 Pa. Super. Page 90]

The issue is whether the Workmen's Compensation Act immunizes a physician employed by a company from liability to a co-employee who states a cause of action for intentional fraudulent misrepresentation. We find the company physician may be liable and therefore reverse the trial court's grant of summary judgment in favor of the physician.

In April 1980, plaintiff-appellant, Cecilia McGinn, injured her wrist while on the job as an assembly worker at Scott Paper Company (Scott Paper). From April through July of that year, she was treated by defendant-appellee, Dr. Joseph M. Valloti, at his office on the premises of Scott Paper. During that time Dr. Valloti prescribed medication, provided a brace, and on several occasions recommended that McGinn take time off from work to rest her wrist. McGinn claims that because she saw no improvement in her condition she asked Dr. Valloti about consulting a doctor outside the plant. Valloti informed her that she could not consult an outside doctor without his permission. He stated if she did she would be fired. She asserts that he knew that she had a right to outside medical consultation under the Workmen's Compensation Act. She concludes that if she had seen another doctor, her wrist would not have deteriorated, because she would have received proper treatment.

In July 1980, while Valloti was on vacation, McGinn, continuing to complain about her wrist, reported to the Scott Paper dispensary. At the company dispensary Nurse Toogood advised her to see her family doctor. She saw him immediately and within days she was seen by several specialists. She has undergone several operations and has had rehabilitation therapy for her hand. She claims she has lost the use of her hand.

McGinn brought suit against Valloti for damages caused by his alleged intentional fraudulent misrepresentation in

[ 363 Pa. Super. Page 91]

    advising her that she would be fired if she exercised her right to see a doctor outside the plant as provided in the Workmen's Compensation Act.

The trial court, finding Valotti immune from liability, granted his motion for summary judgment on the basis of Section 205 of the Workmen's Compensation Act ("Act").*fn1 McGinn appeals the grant of summary judgment.

A motion for summary judgment may properly be granted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Pa.R.C.P. 1035(b). In reviewing the trial court's grant of summary judgment, we must examine the record in the light most favorable to the nonmoving party. We do not decide issues of fact, but determine only whether there is an issue of fact to be tried. Any ...


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