J-A16040-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

GERALD COHEN IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

MICHAEL G. DRYDEN AND WILLIG, 

WILLIAMS & DAVIDSON

Appellees No. 3128 EDA 2014

Appeal from the Judgment Entered October 7, 2014

In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): February Term, 2012, No. 336

BEFORE: LAZARUS, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.: FILED JULY 22, 2015

Gerald Cohen appeals from the judgment entered in his favor in the 

Court of Common Pleas of Philadelphia County in the amount of $100,000 

pursuant to a high/low agreement entered into by the parties. Upon careful 

review, we affirm.

Cohen was an employee of the St. Mary Medical Center (“St. Mary”) 

and was injured on July 10, 2005 while transporting a patient. For the first 

four months following his injury, Cohen received treatment at the Triad, a 

medical care facility available only to St. Mary’s employees. In November 

2005, Cohen began occupational therapy with Chester Ganczarz, an 

occupational therapist and employee of St. Mary. On March 2, 2006, Cohen 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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suffered injuries to his neck and shoulder, allegedly as a result of therapy 

provided by Ganczarz. 

In April 2006, Cohen hired Michael G. Dryden and his law firm, Willig, 

Williams, and Davidson, to represent him in a workers’ compensation claim. 

Dryden filed a claim on Cohen’s behalf, which included both the original July 

2005 injury and the subsequent March 2006 treatment-related injury. In 

April 2007, Cohen and St. Mary entered into a stipulation stating that Cohen 

had sustained a work-related injury on July 10, 2005 and another workrelated injury on March 2, 2006. As a result, Cohen received workers’ 

compensation benefits for both injuries. In 2008, Dryden negotiated a 

compromise and release of Cohen’s workers’ compensation claim against St. 

Mary, which conclusively resolved any and all outstanding claims related to 

the two work-related injuries. A workers’ compensation judge approved the 

release on July 25, 2008.

During this time period, Cohen, represented by different counsel, also 

filed a medical malpractice claim against St. Mary and Ganczarz for his 

March 2006 injury. However, after the release was approved in the workers’ 

compensation claim, St. Mary and Ganczarz moved for and was granted 

summary judgment. On appeal, this Court affirmed on the grounds that, 

because the workers’ compensation judge found that Cohen’s March 2, 2006 

injuries were work-related, Cohen was collaterally estopped from claiming 

otherwise. In addition, this Court held that the compromise and release 
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agreement released St. Mary and Ganczarz from all liability with regard to 

the March 2, 2006 injuries.

In the matter now before the Court, Cohen claims that Dryden and his 

law firm committed legal malpractice in the workers’ compensation matter 

that prevented him from recovering on his medical malpractice claim against 

St. Mary and Ganczarz. Prior to trial, the parties agreed to stipulated 

damages, in the form of a high/low agreement, as follows: if the Court 

found against Dryden on the issues presented, Cohen would receive 

damages of $500,000; if the court found in favor of Dryden on either of the 

issues, it would enter a finding in favor of Cohen for $100,000.

On September 4, 2014, the Honorable Jacqueline F. Allen held that 

Cohen could not have recovered in his medical malpractice claim under the 

dual capacity doctrine and awarded Cohen $100,000 pursuant to the 

high/low agreement. Cohen’s post-trial motions were denied and he filed a 

timely notice of appeal to this Court, as well as a court-ordered statement of 

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). 

On appeal, Cohen argues that he was entitled to recover on his 

medical malpractice claim against St. Mary and Ganczarz under the dual 

capacity doctrine for the injuries he sustained on March 2, 2006, and thus 

should be awarded $500,000 in damages by agreement of the parties. Brief 

of Appellant, at 7. Specifically, Cohen claims that the Workers’ 
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Compensation Act (“WCA”)1 provides an exclusive remedy only for injuries 

sustained in the course of employment and that the Pennsylvania 

Constitution prohibits any limitations on recovery for injuries not sustained 

in the course of employment.

Cohen first claims that St. Mary was acting in a dual capacity as both 

his employer and his medical provider. Cohen claims that when his alleged 

medical malpractice injury was inflicted on March 2, 2006, he was not acting 

within the course of his employment, but rather was being treated by St. 

Mary for a job-related injury he sustained months earlier. Because he was 

voluntarily receiving treatment at St. Mary, on his own time, Cohen argues 

that this subsequent injury should not have been included in the workers’ 

compensation compromise and release agreement. Instead, this injury 

should have been compensable via a medical malpractice claim. For the 

following reasons, we disagree.

The comprehensive system of substantive, procedural, and remedial 

laws comprising the workers’ compensation system is the exclusive forum 

for redress of injuries2in any way related to the work place. Alston v. St. 

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1 77 Pa.C.S.A. §§ 1-2708.

2 The injuries covered under the WCA are defined, in relevant part, as 

follows:

§ 411. “Injury,” “personal injury,” and “injury arising in 

the course of his employment” defined

(1) The terms “injury” and “personal injury,” as used in this 

act, shall be construed to mean an injury to an 

(Footnote Continued Next Page)
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Paul Ins. Cos., 612 A.2d 421, 424 (Pa. 1992). The exclusivity clause3of 

the WCA bars an employee from bringing a common law cause of action 

(Footnote Continued) _______________________

employe[e], regardless of his previous physical condition, 

except as provided under subsection (f), arising in the

course of his employment and related thereto, and such 

disease or infection as naturally results from the injury or 

is aggravated, reactivated or accelerated by the injury; 

and wherever death is mentioned as a cause for 

compensation under this act, it shall mean only death 

resulting from such injury and its resultant effects, and 

occurring within three hundred weeks after the injury. The 

term “injury arising in the course of his employment,” as 

used in this article, shall not include an injury caused by an

act of a third person intended to injure the employe[e] 

because of reasons personal to him, and not directed 

against him as an employe[e] or because of his 

employment; nor shall it include injuries sustained while 

the employe[e] is operating a motor vehicle provided by 

the employer if the employe[e] is not otherwise in the 

course of employment at the time of injury; but shall 

include all other injuries sustained while the employe[e] is 

actually engaged in the furtherance of the business or 

affairs of the employer, whether upon the employer’s 

premises or elsewhere, and shall include all injuries caused 

by the condition of the premises or by the operation of the 

employer’s business or affairs thereon, sustained by the 

employe[e], who, though not so engaged, is injured upon 

the premises occupied by or under the control of the 

employer, or upon which the employer’s business or affairs 

are being carried on, the employe[e]’s presence thereon 

being required by the nature of his employment.

77 Pa.C.S.A. § 411(1).

3 The WCA’s exclusivity clause provides, in relevant part:

§ 481. Exclusiveness of remedy; actions by and against 

third party; contract indemnifying third party

(Footnote Continued Next Page)
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against an employer if recovery is possible under the WCA. Lord Corp. v. 

Pollard, 695 A.2d 767 (Pa. 1997).

[T]he exclusivity clause of the [WCA] reflects the historical quid 

pro quo between an employer and employee whereby the 

employer assumes liability without fault for a work-related 

injury, but is relieved of the possibility of a larger damage 

verdict in a common law action. The employee benefits from the 

expeditious payment of compensation, but forgoes recovery of 

some elements of damages. An employer’s liability and the 

liability of its compensation carrier are exclusively governed by 

the [WCA].

Alston, 612 A.2d at 424. 

In Pennsylvania, the general rule has long been that injuries sustained 

during the course of treatment for work-related injuries are also classified as 

work-related and are compensable under and subject to the immunity from 

suit afforded to employers under the Act. In Workmen's Comp. Appeal 

Bd. v. Ira Berger & Sons, 368 A.2d 282 (Pa. 1977), the claimant suffered 

a compensable work injury and entered into a compensation agreement with 

his employer to receive total disability benefits. The claimant subsequently 

(Footnote Continued) _______________________

(a) The liability of an employer under this act shall be 

exclusive and in place of any and all other liability to such 

[employees], his legal representative, husband or wife, 

parents, dependents, next of kin or anyone otherwise 

entitled to damages in any action at law or otherwise on 

account of any injury or death as defined in section 

301(c)(1) and (2) or occupational disease as defined in 

section 108.

77 Pa.C.S.A. § 481(a).
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suffered total disability as a result of improper treatment by a chiropractor 

for the original work-related injury. The Workers’ Compensation Appeal 

Board denied the employer’s request to terminate benefits and held that the 

“continuation of the disability was a direct result of the intial [work-related] 

injury.” Id. at 283. The Commonwealth Court reversed the Board. 

However, on allowance of appeal, the Supreme Court reversed again, 

holding that, “as long as the subsequent disability is a result of negligent 

treatment for the initial injury, the disability is compensable under the 

Workmen’s Compensation Act.” Id. at 285.

Cohen argues that the exclusivity clause of the WCA should not bar his 

malpractice action with respect to the injuries sustained during treatment 

with Ganczarz because St. Mary was acting in a “dual capacity” as medical 

provider, and not as his employer, at the time the injury occurred. Under 

the dual capacity doctrine, an employer normally shielded from tort liability 

by the WCA’s exclusive remedy provisions may become liable in tort to its 

own employee if it occupies, in addition to its capacity as employer, a second 

capacity that confers upon it obligations independent of those imposed upon 

it as employer. Taynton v. Dersham, 516 A.2d 1241, 1245 (Pa. Super. 

1986), citing Budzichowski v. Bell Telephone Co. of Pennsylvania, 469 

A.2d 111 (Pa. 1983). The doctrine 

is premised on the fact that an employee retains his right to sue 

a third-party tortfeasor regardless of the existence of the 

workers’ compensation remedy. A third-party tortfeasor’s 

relationship to an injured worker is the same as that between 

any two parties to a common law suit. Thus[,] an employer who 
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causes injury to an employee through acts taken in a capacity 

outside the employment relationship is likened to a third party. 

The dual capacity doctrine does not abrogate the exclusivity 

provision. Instead, the doctrine construes the employer in his 

second capacity to be “someone other than the employer” for 

the purposes of the act. The duty of care owed by the employer 

in his second capacity is viewed as a duty external to the 

employer-employee relationship. The purpose of workers’ 

compensation is to compensate only for losses resulting from 

risks which are inherent in the employment. When, however, 

the risks arise from a separate and distinct relationship, such as 

manufacturer-consumer, the employer-employee relationship 

becomes coincidental. Under this theory, for example, an 

employer who is not subject to suit for negligence in his role as 

an employer may be liable for injuries arising from a separate 

and distinct relationship, such as manufacturer-consumer.

Id. (citation omitted). 

Although Pennsylvania courts have discussed the dual capacity 

doctrine on numerous occasions, the Commonwealth has never explicitly 

adopted it.4 Cohen relies on our Supreme Court’s decision in Tatrai v. 

Presbyterian Univ. Hosp., 439 A.2d 1162 (Pa. 1982). There, the 

appellant was employed as an operating room technician by appellee, 

Presbyterian University Hospital. On May 27, 1975, during work hours, 

____________________________________________

4 There is some confusion as to whether the Supreme Court has adopted the 

dual capacity doctrine. In Soto v. Nabisco, Inc., 32 A.3d 787 (Pa. Super. 

2011), this Court stated that “[t]he Pennsylvania Supreme Court has applied 

the ‘dual capacity’ doctrine in only one case,” that being Tatrai v. 

Presbyterian Univ. Hosp., 439 A.2d 1162 (Pa. 1982). However, the 

Supreme Court itself appears to be unsure whether the doctrine was actually 

adopted by the Tatrai Court. See Budzichowski v. Bell Telephone Co. 

of Pa., 469 A.2d 111 (Pa. 1983) (“Assuming, arguendo, that Tatrai does 

adopt the ‘dual capacity’ doctrine and that it is applicable to this case . . .”). 

The Tatrai decision does not mention the doctrine by name. 
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Tatrai became ill and was told by her supervisor to go to the hospital’s 

emergency room to seek treatment. While there, Tatrai was placed on an xray table. While the table was being rotated to an upright position, the foot 

stand either became loose or broke away, causing Tatrai to fall and sustain 

injuries. Tatrai subsequently commenced an action against the hospital, 

alleging negligence and a breach of warranty of the safety of the hospital’s 

equipment and services. The trial court, finding that the medical treatment 

was provided to Tatrai as an employee in the normal course of her 

employment, entered a verdict for the hospital based on the exclusivity 

clause of the WCA. This Court affirmed.

On allowance of appeal, the Supreme Court reversed. In doing so, the 

Court concluded that the onset of Tatrai’s illness was “an event totally 

extraneous to the employment scheme” and that “the purpose of going to 

the emergency room was to ameliorate the disability, not to continue the 

performance of the employer’s affairs.” Id. at 1165. In light of that, the 

Court concluded that the injury did not “aris[e] in the course of 

employment” as defined under the WCA. Moreover, the Court found that 

Tatrai’s presence on the hospital’s premises at the time of her injury was not 

“required under the terms of [her] employment,” nor did it “facilitate[] the 

orderly and expeditious disposition of the employer’s affairs.” Id. Rather, 

the concern was Tatrai’s health and her presence upon the premises at the 

time of injury was “only a fortuitous circumstance.” Id. at 1166. As such, 

there was 
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no reason to distinguish [Tatrai] from any other member of the 

public injured during the course of treatment. The risk of injury 

which [Tatrai] suffered was a risk to which any member of the 

general public receiving like treatment would have been 

subjected. The occurrence of the injury was not made more 

likely by the fact of her employment.

Id.

The case at bar is clearly distinguishable from Tatrai. Here, unlike 

Tatrai, Cohen suffered a compensable work injury during the course of his 

employment by St. Mary. The only treatment sought by Cohen was for the 

work-related injury, which was not present before the initial accident. But 

for the work-related injury, Cohen would not have sought treatment from 

Ganczarz, and would not have suffered the second, treatment-related injury. 

Accordingly, the second injury is derivative of the initial work-related injury 

and the exclusivity provision of the WCA is a bar to legal action by Cohen. 

Pollard, supra; Ira Berger, supra. 

Cohen next claims that the trial court’s ruling was unconstitutional 

because Article III, Section 18 of the Pennsylvania Constitution prohibits any 

limitations on recovery for injuries not sustained in the course of 

employment. Cohen argues that, because his subsequent March 2, 2006 

injury did not arise in the course of his employment, “[h]is remedy for that 

malpractice cannot be constitutionally restricted.” Brief of Appellant, at 15.

Pursuant to Pa.R.C.P. 227.1, grounds for post-trial relief must be set 

forth in a post-trial motion. If not, those grounds are waived. Pa.R.C.P. 

227.1; Empire Trucking Co. v. Reading Anthracite Coal Co., 71 A.3d 

923 (Pa. Super. 2013). This waiver rule applies even if the issue raised for 
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the first time on appeal is a constitutional question. Coulter v. Ramsden, 

94 A.3d 1080, 1090 (Pa. Super. 2014). Here, Cohen failed to raise this 

issue before trial, during trial, or in his post-trial motion. Accordingly, the 

issue is waived on appeal. 

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/22/2015