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JOSEPH R. DIMARCO v. LYNCH HOMES-CHESTER COUNTY (04/14/89)

filed: April 14, 1989.

JOSEPH R. DIMARCO, APPELLANT,
v.
LYNCH HOMES-CHESTER COUNTY, INC., LYNCH HOMES, INC., LEONARD C. GUINTA, D.O., LAWRENCE K. ALWINE, D.O. AND CHESTER COUNTY MEDICAL ASSOCIATES, APPELLEES



Appeal from the Order of the Court of Common Pleas of Philadelphia County, Civil at No. 1364 Nov. Term, 1987

COUNSEL

Edward T. Feierstein, Philadelphia, for appellant.

Kean K. McDonald, Philadelphia, for Lynch Homes, appellee.

James M. Penny, Jr., Philadelphia, for Guinta, appellees.

Wieand, Montemuro and Hoffman, JJ.

Author: Montemuro

[ 384 Pa. Super. Page 465]

Appellant, Joseph R. DiMarco, appeals from an order of the Court of Common Pleas of Philadelphia County, wherein the court dismissed his complaint following the filing of preliminary objections by appellees, Leonard C. Guinta, D.O., Lawrence K. Alwine, D.O., and Chester County Medical Associates. "A preliminary objection in the nature of a demurrer is not to be sustained and the complaint dismissed unless the law says with certainty that no recovery is possible . . . . Therefore, if any theory of law will support the claim raised by the petition, a dismissal is improper." Cianfrani v. Commonwealth State Employees' Retirement Board, 505 Pa. 294, 479 A.2d 468 (1984). Additionally, when reviewing a trial court's order sustaining preliminary objections in the nature of a demurrer, we must accept as true all material facts alleged in the complaint, as well as inferences reasonably deductible therefrom. Gentile v. West American Insurance Exchange, 367 Pa. Super. 99, 104-105, 532 A.2d 472, 475 (1987). We have carefully reviewed appellant's complaint and we find that it does present a viable claim, assuming that the facts as alleged in the complaint can be proven by appellant. Therefore, we reverse.

The issue which we confront in this case is one of first impression. A review of the complaint presents the following underlying facts. On June 18, 1985, Janet Viscichini, a phlebotomist, visited the Lynch Home in Kimberton, Pennsylvania, in order to draw a blood sample from one of the Lynch Home residents. The patient apparently became agitated during the procedure and struck or kicked Ms. Viscichini. As a result, Ms. Viscichini's skin was accidentally punctured with the needle that had been used to draw the patient's blood sample. After being advised that the patient seen by Ms. Viscichini was a carrier of diseases, including hepatitis, Ms. Viscichini visited appellees, Guinta and Alwine, (hereinafter "physicians") on June 18, 1985, for consultation and treatment. She was advised by her physicians that if she did not contract hepatitis within six weeks

[ 384 Pa. Super. Page 466]

    of June 18, 1985, she would not contract the disease. She was also advised by her physicians to refrain from sexual relations during this six week period.

Ms. Viscichini did not experience any physical symptoms of hepatitis and, eight weeks after the Lynch Home incident, Ms. Viscichini resumed sexual relations with the appellant. As the trial court noted in its opinion of July 15, 1988, Ms. Viscichini was separated from her husband and although she and the appellant did not reside together, they had been sexual partners before the July 15, 1985, incident. Further, the physicians who treated Ms. Viscichini knew both Ms. Viscichini and appellant personally and "were aware or had reason to know that [appellant] and Ms. Viscichini were intimate." Op. of Trial Court at 2; N.T., May 19, 1988, at 34.

Ms. Viscichini was diagnosed with Hepatitis B in September of 1985 and the appellant was subsequently diagnosed with this disease in December of 1985. Appellant instituted suit against Ms. Viscichini's physicians, as well as the Lynch Home. Appellant claimed, inter alia, that the physicians had been negligent in failing to advise Ms. Viscichini that having sexual relations within six months of June 18, 1985, could cause her sexual partner to contract hepatitis. Although recognizing that in some cases physicians have been held liable in negligence to non-patients, the trial court stated:

Certainly, a duty may be owed to a husband in such circumstances in the medical care of his wife, whether they live together or not. The duty owed to a husband can be based on the financial obligations and responsibility of the husband to pay for necessary physician services

[ 384 Pa. Super. Page 467]

    rendered to the wife. Such liability may be primary or secondary. A non-husband has ...


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