¶ 1 At issue in this case is whether an injured worker may recover in tort from an employee of the injured worker’s statutory employer or whether such recovery is limited to benefits under the Pennsylvania Workers’ Compensation Act (Act), 77 P.S. §§ 1-2626. In granting a motion for summary judgment in favor of Appellees R.M. Shoemaker & Company, Fluidics, Inc. (hereinafter Fluidics), and Jerome Penn, the trial court concluded that James and Linda O’Donnells’ sole remedy was limited to the Act. On appeal, the O’Donnells do not dispute that recovery for James O’Donnell’s injuries as to R.M. Shoemaker & Company and Fluidics is limited exclusively to the Act since such parties were Mr. O’Donnell’s statutory employers. See 77 P.S. § 52. However, the O’Donnells contend that the trial court erred in entering summary judgment as to Mr. Penn since he was not in the “same employ” as Mr. O’Donnell and Mr. Penn was not a statutory co-employee. We affirm.
¶ 2 “In our review of a case decided on summary judgment, a trial court’s order granting summary judgment will not be reversed unless it is established that the court committed an error of law or clearly abused its discretion.” Bowe v. Allied Signal, Inc.,
¶ 3 In the case sub judice, the material facts and procedural history are not in dispute and are as follows: James O’Donnell was employed by Len Parker Associates, Inc.
¶ 4 On November 28, 1997, Mr. O’Donnell, James Parramore, and Mr. Penn, an employee of Fluidics, were carrying a twenty-one foot, three hundred pound steel pipe when the pipe was prematurely dropped. The pipe pinned Mr. Parramore against one of the walls, thereby causing a life-threatening situation. Mr. O’Donnell quickly lifted the pipe off of Mr. Parra-more, sustaining, inter alia, a herniated disc.
¶ 5 On November 5, 1999, the O’Don-nells filed a complaint alleging that Mr. Penn was negligent in dropping the pipe. Accordingly, the O’Donnells sought damages from Mr. Penn, Fluidics, and R.H. Shoemaker & Company.
¶ 6 The O’Donnells contend that Mr. O’Donnell and Mr. Penn were not in the same employ under Section 72 of the Act since Mr. O’Donnell was an employee of Len Parker Associates, Inc. and Mr. Penn was an employee of Fluidics. Intertwined in this contention is the O’Donnells’ claim that Section 52 of the Act does not require a finding that Mr. O’Donnell was in the same employ as Mr. Penn merely because Fluidics was Mr. O’Donnell’s statutory employer.
Where an employee’s injury is com-pensable under the Act, the compensation provided by the [workers’ compensation] statute is the employee’s exclusive remedy against his or her employer. Thus, an injured employee cannot maintain a tort action against his or her employer if the injury is compensable under the provisions of the Act. Where an employee’s injury is compensable, the exclusivity provision of the Act immunizes fellow employees from liability for their negligence.
Albright v. Fagan,
If disability or death is compensable under this Act, a person shall not be liable to anyone at common law or otherwise on account of such disability or death for any act or omission occurring while such person was in the same employ as the person disabled or killed except for intentional wrong.
77 P.S. § 72.
What emerges from a careful analysis of.. .Section 72 of the Act is the inescapable ... conclusion that a co-employee who is injured in the course of employment cannot hold another co-employee hable for injuries occasioned by his or her act or omission (negligence); rather such co-émployee can only be held liable for injuries resulting from intentional acts.3
Gardner v. Erie Insurance Co.,
¶ 7 Section 52 of the Act, which discusses an employer’s liability to an employee’s employee, provides:
An employer who permits the entry upon premises occupied by him or under his control of a laborer or an assistant hired by an employee or contractor, for the performance upon such premises of a part of the employer’s regular business entrusted to such employees or contractor, shall be liable to such laborer or assistant in the same manner and to the same extent as to his own employee.
77 P.S. § 52.
¶ 8 A statutory employer is a master who is not a contractual or common-law one, but is made one by the Act. McDonald v. Levinson Steel Co.,
¶ 9 Based on the language of Section 52, the O’Donnells do not dispute that Fluid-ics, who employed Jerome Penn, and R.M. Shoemaker & Co., who was the general contractor, were Mr. O’Donnell’s statutory employers, and, therefore, immune from a tort action. At issue is whether Mr. Penn was immune from a tort action under the Act.
¶ 10 We agree with the trial court’s conclusion that Mr. Penn was a co-employee of Mr. O’Donnell’s for purposes of the Act’s exclusivity provisions. The clear intent of the Act is to provide the sole and exclusive means of recovery for injuries occurring within the scope of employment. 77 P.S. § 1. The Act makes it clear that an employer is liable under the Act for the negligence of its employees. 77 P.S. § 51. That being so, Fluidics would be hable for the negligence of its employees, including Mr. Penn. It is unreasonable to conclude that Fluidics would be immune from tort liability as to Mr. O’Donnell, but that Fluidies’s employees, for whom Fluidics is responsible, are not so immune. Stated another way, as master of Mr. Penn, Fluidics would be held liable for Mr. Penn’s negligent conduct under the concept of respondeat superior. 77 P.S. § 1. Since Mr. O’Donnell cannot maintain a tort action against his statutory employer, Fluidics, it is unreasonable to conclude that he can maintain such an action against the statutory employer’s employee, Mr. Penn.
¶ 11 Moreover, we conclude that, based on the Act as a whole, it is illogical to segregate two employees on the construction site at issue merely because one was paid by Len Parker Associates, Inc. and the other was paid by Fluidics. Once each passed the perimeter and arrived at work, whoever may have sent them to their place of employment becomes immaterial, since each was equally subordinate to the on-the-job control of the general contractor. It is clear that Mr. O’Donnell and Mr. Penn worked side-by-side toward the same endeavor. The “intent behind the doctrine of statutory employer is to hold a general contractor secondarily liable for injuries to the employees of a subcontractor, where the subcontractor primarily liable has failed to secure benefits with insurance or self-insurance.” Dougherty v. Conduit & Foundation, Corp.,
¶ 12 Affirmed.
Notes
. Mr. O’Donnell filed a claim under the Act. Following a hearing on the matter, the Bureau of Workers' -Compensation concluded that Len Parker Associates, Inc. was Mr. O'Donnell’s employer at the time of the injuries at issue.
. Linda O’Donnell sought relief for loss of consortium.
. There is no doubt that the acts at issue in the case sub judice were not intentional. Also, Mr. O’Donnell's injuries were sustained during the course of his employment. Abbott v. Anchor Glass Container, Corp.,
. Although we are not bound by the Supreme Court’s plurality decisions, we find Peck to be
. The O’Donnells contend that the trial court's use of the term "statutory co-employee” is improper since the Act provides for no such relationship. Regardless of the term used to describe the situation in this case, we conclude that the trial court's analysis is supported by the Act.