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filed: December 8, 1989.


Appeal from the Order Entered March 3, 1988 in the Court of Common Pleas of Delaware County, Civil No. 84-07974.


Joseph Lurie, Philadelphia, for appellants.

Andrew J. Gallogly, Philadelphia, for St. Paul, appellee.

Paul A. Barrett, Scranton, for Vocational Rehabilitation, appellee.

Cirillo, President Judge, and Brosky, Rowley, McEwen,*fn* Olszewski, Tamilia, Popovich, Johnson and Melinson, JJ. Rowley, J., files a dissenting statement and joins dissenting statement by Johnson, J. Concurring and dissenting opinion by Brosky, J. Dissenting statement by Johnson, J. Melinson, J. joins dissenting statement by Rowley and Johnson, JJ.

Author: Cirillo

[ 389 Pa. Super. Page 397]

This is an appeal from an order of the Court of Common Pleas of Delaware County granting summary judgment in favor of St. Paul Insurance Companies, Vocational Rehabilitation Services, Inc., and John T. Williams, M.D. We affirm.

On April 24, 1981, while working on a ladder as a carpenter, appellant, Calvin Alston, fell and sustained numerous injuries including avulsion fractures of both wrists, a compression fracture of his spine, and aggravation of degenerative changes in his neck and back. Alston's workmen's compensation carrier, St. Paul Insurance Companies (St.

[ 389 Pa. Super. Page 398]

Paul), assigned Alston's file to Robert Dunham, a claims examiner, and began paying benefits.

Shortly thereafter, St. Paul contracted with appellee, Vocational Rehabilitation Services, Inc. (Vocational Services), to obtain Alston's medical records, to monitor his recovery, and to report to St. Paul. In late February, 1982, Vocational Services assigned Alston's file to Janet Rohrer, a "rehabilitation nurse," and employee of Vocational Services.

In February, March, and early April, 1982, J. Brendan Wynne, D.O., met with Alston and evaluated his medical condition. During this time, Dr. Wynne treated Alston for aggravation of his pre-existing degenerative condition and possible traumatic pericarditis. Dr. Wynne indicated to Ms. Rohrer that he was unable to calculate a firm date upon which Alston could return to work. Ms. Rohrer reported Dr. Wynne's findings to St. Paul, after which the company representatives allegedly held an in-house conference and apparently decided to institute a more aggressive approach toward Alston.

On May 14, 1982, Ms. Rohrer met with Mr. and Mrs. Alston to discuss Alston's medical treatment and prognosis. At that time, Ms. Rohrer indicated that she intended to schedule an appointment with appellee, John T. Williams, M.D., whom she allegedly described as a "miracle worker." According to the Alstons, Ms. Rohrer indicated that Dr. Williams would treat and cure Mr. Alston, although the appointment was ostensibly for the purpose of obtaining an independent medical examination.

On August 31, 1982, Alston appeared for Dr. Williams' examination. Alston claims that at no time prior to that examination was he informed that an independent medical examination would occur, or that Dr. Williams had the ability to sign a physician's affidavit of recovery, or that he was entitled to have his own physician accompany him to the examination. Allegedly without the benefit of Alston's prior medical records, x-rays, or contact with his prior treating physicians, Dr. Williams conducted a twenty minute examination, and at the conclusion of that exam, told

[ 389 Pa. Super. Page 399]

Alston that he was ready to return to work. Immediately after Alston's departure, Dr. Williams notified Ms. Rohrer that he would sign an affidavit of recovery, which he did in fact execute later that same day.

Having secured the affidavit of recovery, a representative of St. Paul allegedly approached Alston in the hopes of negotiating a lump sum settlement of his workmen's compensation benefits. Alston rejected the offer as insufficient, and shortly thereafter St. Paul filed a petition to terminate Alston's benefits. Alston's benefits were discontinued for nineteen months, until proceedings before a referee denied St. Paul's petition to terminate, and reinstated the benefits. The referee also imposed attorney's fees upon St. Paul. St. Paul appealed the referee's decision to the Workmen's Compensation Appeal Board, who affirmed the underlying decision, but reversed the award of attorney's fees on its own finding of "reasonable contest." No appeal was taken from this decision.

On July 6, 1984, Alston commenced this civil tort action through a complaint seeking both compensatory and punitive damages from St. Paul, Vocational Services, and Dr. Williams. The gravamen of Alston's action is the allegation that the named defendants engaged in a course of tortious conduct through which they conspired to fraudulently deny Alston's benefits due under the Pennsylvania Workmen's Compensation Act. This conspiracy, Alston averred, was advanced by the parties' negligent and intentional misrepresentation of facts to Alston.

A motion for summary judgment was filed on behalf of all three appellees. In that motion, the appellees argued that our decision in Rosipal v. Montgomery Ward, 360 Pa. Super. 570, 521 A.2d 49 (1987), alloc. granted 516 Pa. 635, 533 A.2d 93 (1987), appeal dismissed 517 Pa. 460, 538 A.2d 495 (1988), holding that an employee's tort action against her employer was barred by the exclusivity provision of the Workmen's Compensation Act, precluded Alston's action. On March 3, 1988, the Honorable Frank T. Hazel entered an order granting summary judgment in

[ 389 Pa. Super. Page 400]

    favor of St. Paul, Vocational Services, and Dr. Williams. This appeal followed.

Alston advances the following two issues for our review: (1) whether the trial court properly concluded that the Workmen's Compensation Act provides statutory immunity from a civil lawsuit to workmen's compensation insurance carriers who inflict injuries outside the scope of employment, by malicious and fraudulent conduct and by abuse of the legal process to terminate workmen's compensation benefits; and (2) whether the trial court properly granted statutory immunity under the Workmen's Compensation Act to appellees Williams and Vocational Services, neither of whom are employers or insurance carriers.

Pennsylvania Rule of Civil Procedure 1035(b) provides, in pertinent part, that on a motion for summary judgment:

The judgment sought shall be rendered 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); Dume v. Elkcom Co., 368 Pa. Super. 280, 533 A.2d 1063 (1987). When reviewing a trial court's imposition of ...

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