*1 minimum, аppellate one to, at a bare be entitled should review.1
Decided court, case, pro granted relief based nunc tunc thе trial 1. In the instant Although appeal. sought timely Appellant upon the fact public counsel and the Appellant told both his trial reveals that record Appellant appeal, is evidence that to file an there no after trial defender was, be, The record even would filed. appeal an was ever told that judgment twenty after his Appellant months waited also reveals seeking pro tunc relief. I do not nunc became final before of sentence more, telling appeal, an without merely to file counsel believe that laith, good basis reasonable Appellant had a establish that sufficient to rights appellate when protecting his counsel was conclude that twenty appeal for request an up on his Appellant to follow failed judgment sentence. months after *2 J., Nigro, a dissenting filed opinion J., Saylor, which joined. Perez, Harold & Honesdale, for Fine, Louis S.
Louis S. Angela Leonard. Lawyers Montrose, Amicus-PA trial Kelly, M.
Laurence Assn. Komarnicki, Philadelphia, for PennDOT. M.
Victoria David, Philadelphia, Cor- J. Keppel, B. Edward Arthur Company. & nell Mañero, Kent, Philadelphia, for M.
John Arme Structures, Inc. *3 German, for Kiewitt Eastern Co. Philadelphia,
Jeffrey FLAHERTY, C.J., ZAPPALA, GAPPY, Before NEWMAN, SAYLOR, CASTILLE, NIGRO, JJ.
OPINION FLAHERTY, Justice. Chief from an of Common-
This allоwance order appeal is an an of the Court of Common which affirmed order wealth Court County denying compul- a motion vacate of Delaware Pleas personal injury in a action. sory and directed verdicts nonsuits compensation injuries for that Harold Leon- sought The action ard, as an iron worker at employed while appellant, sustained this bridge Appellees, construction site. defendants a action, Transportation Pennsylvania Department of are the (PennDOT) who cоntractors and subcontractors and various bridge. for construction of responsible were into a contract with Kiewit In PennDOT entered (collectively, Corporation Kiew- Company Eastern and Perini it/Perini) 476 Delaware improvement for of Interstate contractor, Kiewit/Perini, agreed to de- County. general as along bridges existing and rebuild various molish structures highway. entered subcontract with High Structures, Steel) (High Inc. to fabricate and erect steel turn, bridges. In Steel subcontracted with (Cornell) Company Cornell аnd erection all of the steel. addition, In PennDOT contracted with Construction Methods Coordination, (CMC) Inc. for certain supplemental inspec- tion safety monitoring services. working Leonard,
While Bridge, the Chester Road an employee Cornell, approximately fell forty to the feet ground. Leonard sustained injuries to his right back and elbow. no safety There was net below the work area. Al- though belt, Leonard was wearing safety was belt not any safety connected to device. safety There was nо static however, in place. was, line There an inspector’s handrail on girder fell, the steel from which Leonard but had he to it. attached himself
A negligence PennDOT, action against Kiewit/Perini, High Steel, Cornell, and CMC ensued. Leonard averred that his injuries dangerous resulted conditions at were attributable 'to inadequate equipment and procedures. It was asserted' that each duty defendant had a workplace, safe and that negligently each breach- trial, ed duty. At compulsory nonsuits or directed vеr- granted dicts were favor of all defendants.
In granting compulsory verdicts, nonsuits and directed the trial court reasoned that sovereign protected immunity Cornell, liability; PennDOT from employer, Leonard’s was responsible for work-related under the Work- Compensation Act, men’s § 1 et seq. *4 P.S. and therefore not subject claims; to negligence that CMC was contractually obligated to supplemental safety inspections wherever directed, PennDOT but that PennDOT not had to asked CMC inspect and, the structural steel work area bridge, of the hence, duty Further, had CMC no there. regard with to Steel, High the court reasoned that such Kiewit/Perini parties had no steel, involvement erection of the that they site, had no personnel assigned to the and that they exercised no control or over Leonard his working conditions because requirements, had work, including compliance such held, It was there- contractually delegated to Cornell. been as to duty had no fore, High Steel that Kiewit/Perini safety of the work site. affirmed, applying the Court Commonwealth appeal,
On indepen- an engages that one who principle well established negligence vicariously liable contractor is not dent Mfg. 410 Pa. Cement Coplay Hader v. that contractor. (1963). It because an 150-54, is 277-79 subject to the one not control contractor is independent party liable basis to hold the latter hiring him that there no Id.; Corp., States Steel his Brletich United for acts. (no (1971) 530-32, for A.2d whose work is not independent an contractor negligent acts of control). Thus, inаsmuch as subject to at the work site and presence no or involvement Steel had in which work was the manner maintained no control over Cornell, responsible they were deemed performed by Cornell’s failure maintain any injuries caused to Leonard a safe work site. questions limited to the granted appeal allowance of
We who was not general contractor or subcontractor whether may in “control” of nevertheless be “present” at the work site duty or law so as to havе a pursuant work site to contract safe, and whether such contractor the site make may duty to a subordinate delegate such a subcontractor Hence, focuses on our review Commonwealth subcontractor. had no Court’s rationale Leonard, they had no actual involvement duty steel, they presence no or control with had erection site, they had no control over the manner respect to work job, had contractual- performed Leonard his in which control ovеr the work safety responsibility ly delegated all site to Court is in accord with of Commonwealth
The decision is not liable law that established As we a subcontractor. resulting entrusted *5 106 Peterson,
stated in 533, 539, 126 386 Pa. Duffy A.2d (1956), [Restatement,
Comment d under Section 384 Torts] states: possessor “A of may put land a number of persons severally charge of particular portions the erecting of the work of creating any structure or upon other condition the land. Again, a general contractor employed to do the whole the of mаy, authority work the by his employer, particu- sublet of lar parts case, the work to subcontractors. In such a rule stated in this applies subject Section the particular contractor or subcontractor to liability such only haivn for as is done by particular work entrusted to him.” added). (Emphasis Bros., Inc., See also McKenzie v. Cost 303, 307-08, (1979) (noting Pennsyl- (Second) adopted Torts, 384).1 vania has § Restatement Thus, Cornell, as the subcontractor entrusted with the work of steel, erecting normally would only party for liable injuries occurring in that pursuit. contends, however,
Leonard and Kiewit/Perini regulatory Steel had contractual duties to a safe workplace employees subcontractors, and that such duties could through not be avoided contractual provisions delegating an responsibility independent subcontractor, i.e., Specifically, it is asserted that High Steel were obligated compliance secure with various Occupational Safety (OSHA) regu- Health Administration lations governing work safety, particularly deаling those lines and nets. (safety § See C.F.R. 1926.104 lines); nets). § 29 C.F.R. (safety 1926.105 Whether there any were in fact violations of regulations OSHA and whether proximately Leonard’s were caused thereby are mat- ters that are disputed parties. (Second) Torts,
1. The § Restatement 384 states: One who on possessor behalf of the of land erects a structure or any subject creates other condition liability, land is same enjoys liability, though the same freedom from he were land, possessor physical upon harm caused to others dangerous outside of the land character of the structure or charge. other condition while the is in his on both place responsibility
To
1926.10(a), which pro
§
Steel,
on 29 C.F.R.
relies
Leonard
*6
contracting
any
or subcontractor
“no contractor
vides that
any
or mechan
require
shall
laborer
of
contract work
part
the
in
to work
the contract
performance
in
of
employed
ic
the
are ... haz
working conditions which
surroundings or under
Leonard
ardous,
dangerous
safety....”
to his
or
or
health
states,
1926.16(c),
§
which
“[T]he
further
29
cites
C.F.R.
the
responsibility
under
prime contractor assumes
entire
with
responsibility
assumes
contract and
subcontractor
respect
of the work. With
subcon
respect
portion
to his
work,
or
contractor
subcontractor
prime
any
tracted
joint
have
responsibility.”
shall be deemed to
subcontractors
added).
(Emphasis
holding
provisions
In
that these
do
liability
injuries
contractor for
to subcontractors’
establish
of a
the provi
Court concluded that
employees, Commоnwealth
liability among
assignment
sions
not deal with the
of
do
Rather,
regulations
the court
that
es
contractors.
held
subject
provi
parties
tablish which
are
OSHA enforcement
by
expressly
agree.
regulations cited
Leonard
sions. We
The
of
of
scope
state that
concern the
enforcement
OSHA
1926.16(d)
§
In
requirements.
particular, 29 C.F.R.
states:
exists,
joint responsibility
prime
both
“Where
subcontractors,
tier,
regardless
or
his subcontractor
subject to
provisions
shall
considered
be
enforcement
added).
(Emрhasis
require
fact that
the Act.”
The
OSHA
not, however,
project
to the
does
mean
applicable
ments were
at the
or
presence
that
had a
by
control
the work done
Absent those ele
over
ments, liability
not attach.2
does
by
proposition
are
Several lower court decisions
cited
Leonard for
2.
that
OSHA violations
a contractor bears
caused
during
E.g.,
of a
that occur
the course
subcontractor's work.
Donald-
474,
Transportation,
Department
son v.
141 Pa.Cmwlth.
[Cornell] conduct and carry on its work in such *7 manner as injury to avoid or damage to-persons or property including strictly its own work and be responsible dam- age persons or property by so by failure to do or negligence, [Cornell’s] and shall assume as to its work all obligations hereunder imposed [High under the Steel] provisions of the indemnify General Contract and shall [High against hold harmless obligations such Steel] in the same that [High manner is obligated indemnify Steel] [Kiewit/Perini] [PennDOT].
Thus, Cornell, under its subcontract for
of
erection
steel, assumed all of the
responsibilities
contractors’
safety
compliance
respect
portion
with
to its
of the work. Having
fully delegated
steel,
to Cornell the task
erecting
higher
contractors
longer
tier no
in
had control over the
manner in which that work was done. The contract with
provides
Cornell
no basis to conclude that control over Cor
work
nell’s
methods was being retained. The mere fact that
presence
based on the
or control
contractor
relative to the work
example,
For
Donaldson
site.
supplied
contractor
defective
scaffolding
materials
the work site and
these caused
to a
however,
Egan,
employee.
Woodburn
subcontractor’s
In
the extent
presence
of the contractor’s
or
at the
control
work site is not clear. To
extent, however,
may
interpreted
recogniz-
that the decisions
ing liability
being
presence
any
by
without
there
or control
the contrac-
tor, such decisions are in error.
responsibility on
initially placed
contracts
nondelegable;
responsibility
not make
doеs
High Steel
at
presence
give
presumed
nor
it
them
does
performed
the subcontractor
manner in which
over the
control
that one could
would mean
To hold otherwise
its work.
successfully
but not
work
performance
subcontract
normally accompanies
safety responsibility
delegate
rests on the
best
safety responsibility
Logically,
work.
work,
is most familiar
doing
party
for that
subcontractor
As we stated
particular hazards.
and its
with the work
151,
Justice *8 joins. Justice SAYLOR Justice, Dissenting.
NIGRO, the majority, I believe that Commonwealth the Unlike High erred when determined Court it because Harold Leonard’s not liable for Steel were of the and control responsibilities safety they delegated their contracts, Kiew- respective In their work site by all abide voluntarily agreed it/Perini state, safety regulations in order federal, and local applicable the in construe- safety employees involved the of the assure Thus, tion of my view, Interstate 476. in both Kiewit/Perini a nondelegable duty Steel assumed to maintain a safe work employees site, the working on the including Mr. Leonard. I Accordingly, must respectfully dissent from majority. the
Nondelegable duties often
employer
arise where an
has
certain duties that are considered
important
so
to the commu-
nity that
employer
the
cannot discharge
by
these duties
simply delegating performance to another. See Restatement
(Second)
(1965);
§§
of Torts
411-39
Keetоn,
al.,
PageW.
et
Prosser and
(5th
on the
§
Keeton
Law of Torts
at 511-12
ed.1984).1
may
These duties
also be created when a statute or
regulation imposes
administrative
duty upon
a
an employer to
provide specific safeguards
for the
of others.
See
(Second)
(1965).
Restatement
§
of Torts
Maintaining
employee safety
workplace
at the
public
is a strong
policy at
both
651(b)
the state and federal
level.
§
See 29 U.S.C.
(Congress’ declaration that
purpose
of OSHA is “to assure
so
possible
far as
every working man and woman in the
conditions”);
Nation safe
working
and healthful
§
43 P.S.
25-
duty"
1. The
"nondelegable
term
is
a
somewhat of misnomer because an
employer may
another,
properly delegate "nondelegable duties" to
but
employer
person
if
performance
remains liable
to whom the
is
delegated
(Second)
negligently.
acts
Agency §§
Restatement
(1958);
Assoc.,
Building
Pennsylva-
General
Contractors
Inc.
nia,
375, 395-96,
458 U.S.
(1982).
102 S.Ct.
Ill law, shall Pennsylvania establishments 2(a) “[a]ll (pursuant and conduct- constructed, arranged, operated, equipped, so protection adequate and as to ed reasonable employed limb, health, persons of all life, safety, and morals Farm, therein”); County Mushroom v. Butler Commonwealth (the (1982) the 5 enactment A.2d demon- Safety “unequivocally Act Pennsylvania Health employees concern the legislative strates environment”). employment their PennDOT into between Contract entered In the Prime abide 14, 1988, agreed to on June N.T., in 1987. publicized as Specifications, by PennDOT’s included Specifications R. 10/17/95, P 1 at 878a. The Exhibit following duties: OF CONTRACTOR 105.5 RESPONSIBILITY (a) contract and see direct control Keep General. performed satisfacto- supervised and properly work is ap- Supervise personally efficiently. rily and on representative to be superintendent or competent point at all times. project (b) be done without For work to Work Othеrs. investigate the work and Department, supervision of completion. anticipate its execution HEALTH— AND SAFETY 107.08 OCCUPATIONAL Federal, State, and applicable all Comply at times laws, policies governing safety provisions, and local (Pub- health, Safety including Construction Act the Federal XVII, 91-54), Register, Chapter Part Law Federal lic Regulations, Occupational Federal Safe- of Title 29 Code of ... other needed Regulations any Take ty and Health health, directed, protect life, proceed action or personnel employed occupational general ivelfare project. exposed
When, opinion, employees are Engineer’s in the extraordinary which could or do constitute conditions hazard, devices, modify equipment, such job procedures *10 protection to against insure the hazard or to risk reduce the to employees engaged project work. N.T.,
PennDOT 1987 Specifications added), (emphasis 10/17/95, 2, Exhibit P at R. provisions 879-82a. These from the Prime Contract incorporated were also into the Subcon- Steel, tract between and High High and Steel Kiewit/Perini agreed uphold provisions to performance its N.T., 10/17/95, 4, Subcontract. P Exhibit at R. 883-90a. Accordingly, both High and Steel to contracted Kiewit/Perini comply regulations, with OSHA including Sections 1926.104 OSHA, and 1926.105 of which mandate an employer protection fall for employees working above the ground by installing safety either a static a safety line or net. 1926.104, §§ See 29 C.F.R. 1926.105.
Based on both unambiguous the clear and terms of the Prime Contract and Subcontrаct important as well as the federal and state interests of maintaining employee safety, I would High find that and each Steel had Kiewit/Perini nondelegable duty to ensure safe work site for all of the employees on the work site. See v. McChesney, Steuart 45, 49, 659, (1982) (if 444 A.2d a written contract is unequivocal, and it clear should be according enforced to (Second) plain meaning words); of its Restatement of Torts (1965).2 §§ 411-39 I simply cannot agree majority with the jurisdictions throughout country 2. Federal and state split have on аgreement whether uphold regulations a contractor’s to OSHA should determining be considered in duty agree the contractor’s of care. I reasoning jurisdictions with the of those that have found while regulations independent OSHA do not create an liability, basis regulations may determining be duty considered in a contractor’s to a employee voluntarily subcontractor’s when a has contracted uphold regulations. e.g., OSHA v. See Teal E.I. DuPont de Nemours Co., 799, (6th Cir.1984); Bradlees, Inc., and Alloway 728 F.2d 803-04 v. 221, 240, 960, (1999); 157 N.J. Arrington Arrington Construction, (1989); Brothеrs 116 Idaho 781 P.2d Kelley 323, 331-32, Wright v. Harvard S. Construction 90 Wash.2d (1978). Thus, 582 P.2d High and Steel Kiewit/Perini comply regulations, contracted to with OSHA I Appellants believe that regulations should be entitled to introduce those as evidence of Kiew High duty Steel's and il/Perini's care whether or not duty. breached that permitted High should Steel that Kiewit/Perini they also re- injuries because liability Appellants’ evade working at regulations while uphold quired Cornell High liable Steel Holding site.3 both Kiewit/Perini by applicable duties to abide independent their based employee maximize safety regulations would state federal underlying those policies vital thereby, advance the safety, and regulations.4 majority that disagree with the
I also because Appellants immune were Steel physically work and were not control Cornell’s they did injured. was the time Mr. Leonard work site at present on the had control view, clearly In my contracts, in respective work as result their Cornell’s over *11 “[kjeep to direct obligation they which both undertook is properly the work contract and see control of the satisfactorily efficiently;” and performed and is supervised in Donaldson reached a similar conclusion 3. The Commonwealth Court 474, (1991), Dep't of Transp., A.2d 269 a case 141 Pa. Commw. 596 v. Donaldson, the comparable the instant case. In were which the facts was to a subcontractor’s claimed that it not liable general contractor agreed in had its subcontract employees because the subcontractor provide The regulations a safe work site. comply with OSHA argument, declaring rejected that a subcon Court this Commonwealth duty general duty of the contractor. "is not a substitute tractor’s Rather, duty along duty general the subcontractor's Id. applicable performed under the contract.” to all work contractor 484, Although majority in 274. the instant 269 A.3d at at 596 A.2d otherwise, did not Court Donaldson case finds the Commonwealth general finding was liable to the subcontrac that the limit its general employee contractor also based on the fact that tor’s part by providing the defective which control over the site exerted some Instead, employee’s injury. court determined that the caused the employee on the subcontractor’s general contractor could be liable to first, duty to independent liability: its own contractual bases two site; secondly, it provide the fact that furnished a safe work 493, part. at 278 -79. Id. at 596 A.2d defective be able to avoid Although 4. I do not believe that contractors should employees, would note that to a subcontractor's may always protect purchasing insurance or themselves contractors contracts, thereby making including in their indemnification clauses e.g., v. financially responsible. Woodburn Consolidat- party See another (1991); Co., Egan 1249, Pa.Super. 590 A.2d ed Coal 290, 295-97, Pa.Super. v. Atlantic Richfield (1989). to “comply at all applicable times” with safety regulations. Additionally, contractors, I do not believe such as Kiew Steel, and High should be excused from obli it/Perini their gation to ensure a work simply site is safe because physically choose to remain absent from the site.5 Therefore, as I believe that both owed a nondelegable duty Steel a safe work site for Leonard, Mr. I would reverse the order of the Commonwealth Court and remand this trial case court for a jury to decide whether and High per- negligently Kiewit/Périni duty. formed that joins
Justice dissenting SAYLOR opinion.
Supreme Pennsylvania. Court of
Argued 2000. Dec. May 22,
Decided 2001. *12 5. majority The control test used essentially encourages contrac- shrug safety responsibilities by tors to off their abdicating their control view, staying to another and my absent worksite. more, In contrac- less, encouraged tors should be to become not involved in the well-being employees laboring they hope the site from which Moreover, profit. I inequitable believe it is to allow contractors to contracts, reap the benefits of specifically federal in which have agreed safety responsibilities, to undertake these having any without accountability whatsoever when responsibilities are ful- Messina, Jr., filled. See Washington’s John L. Safety Regula- Industrial Workers, tions: The Trend Puget Towards Greater Protection 17 U. (1994). Sound L.Rev.