Jоhn S. ZIZZA, Jr., Appellant, v. DRESHER MECHANICAL CONTRACTORS, INC. and The Philadelphia Electric Company and Plymouth Transport, Inc. John S. ZIZZA, Jr. v. DRESHER MECHANICAL CONTRACTORS, INC. and the Philadelphia Electric Company and Plymouth Transport, Inc.
Superior Court of Pennsylvania
Filed Nov. 28, 1986
518 A.2d 302
Appeal of PLYMOUTH TRANSPORT, INC. Argued June 30, 1986.
Thomas K. Ellixson, Morton, for appellant (at 3277) and for appellee (at 3222).
Andrew L. Braunfeld, Norristown, for Dresher, appellee.
Kevin Connors, Philadelphia, for Philadelphia Elec., appellee.
JOHNSON, Judge:
We are asked to determine whether the owner of a construction site and the contractor on that site qualify as statutory employers of a subcontractor‘s employee, and are thus immune from an action at law for damages under the
This case comes to us on appeal from orders granting motions 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.
The facts viewed in this way are as follows. John Zizza Jr. commenced the instant suit to recover damages from the Philadelphia Electric Company (PECO), Dresher Mechanical Contractors, Inс. (Dresher), and Plymouth Transport, Inc. (Plymouth), for injuries he suffered when a trench that he was digging collapsed and injured his right leg. The injury occurred on the premises of the Cromby Generating Station (station) in Phoenixville, Pennsylvania. At the time of the injury PECO was the owner of the station and its premises. PECO had enterеd into a contract with Dresher for the provision of mechanical and excavation work at the station, which included installation of underground piping to carry
The court below granted motions for summary judgment in favor of PECO and Dresher on thе basis that each qualified as a statutory employer under the
We are thus asked to determine whether Dresher and PECO are Zizza‘s statutory emрloyers within the meaning of the Act.
We address first the question of whether Dresher, the general contractor, qualifies as a statutory employer. The
An employer who permits thе entry upon premises occupied by him or under his control of a laborer or an assistant hired by an employe or contractor, for the performance upon such premises of a part of the employer‘s regular business entrusted to such employe or cоntractor, shall be liable to such laborer or assistant in the same manner and to the same extent as to his own employe.
(1) An employer who is under contract with an owner or one in the position of an owner. (2) Premises occupied by or under the control of such employer. (3) A subcontract made by such employer. (4) Part of the employеr‘s
regular business entrusted to such subcontractor. (5) An employee of such subcontractor.
Id., 302 Pa. at 295, 153 A. at 426. This Court continues to follow these criteria in evaluating a claim of statutory employer status. Cranshaw Construction Inc. v. Ghrist, 290 Pa.Super. 286, 434 A.2d 756 (1981).
We believe that there is no genuine issue that Dresher, the employer, was under contraсt to PECO, the owner, to perform certain excavation work. This contract is appended as Exhibit C to PECO‘s motion for summary judgment. Affidavits attached to Dresher‘s motion for summary judgment establish that the Cromby site was occupied by Dresher in fulfillment of its contract. Exhibit D to PECO‘s motion for summary judgment contains Dresher‘s subcontract with Heller & Karpowich, Inc. The subcontract awards Heller & Karpowich the order to provide backfill and excavation work at the Cromby site. Such work was part of Dresher‘s regular business as delineated in its general contract with PECO. Zizza was an employee of the subcontractor, Heller & Karpowich. Viewing the pleadings, answers to interrogatories, affidavits, etc. as we are required under
Appellant Zizza seems to argue in his brief that Dresher must establish both control аnd occupancy of the Cromby site in order to qualify as a statutory employer of Zizza. Such is not the case.
We disagree, however, with the lower court‘s ruling on PECO‘s motion for summary judgment. PECO was the owner of the Cromby site, where the injury occurred. PECO was not the general contractor or a subcontractor. As, we stated in Cranshaw, supra, section 203 is the section of the
Both PECO and Zizza contend that section 302 of the Act applies to this case. Each urges a different application of the section, but nonetheless asks this Court to apply section 302. We believe that section 302 has no applicability to the facts of this case. Section 302, as amended in 1974, provides in part that:
A contractor who subcontracts all or any part of a contract and his insurer shall be liable for the paymеnt of compensation to the employes of the subcontractor unless the subcontractor primarily liable for the payment of such compensation has secured its payment as provided for in this act.
We interpreted section 203 in Ashman v. Sharon Steel Corp., 302 Pa.Super. 305, 448 A.2d 1054 (1982). In that case a truck driver, Ashman, and his wife, brought suit in trespass against Sharon Steel Corporation for injuriеs Ashman sustained while working on the property of Sharon Steel. The trial court found that Sharon Steel was not protected from a common-law negligence action. This Court affirmed that finding. In so doing we stated:
The rule of law applied in Ashman is equally applicable in the case now before us. Ashman was decided after the 1974 amendments of the
In accordance with the view expressed in Ashman, Alexander Barbieri, in Pennsylvania Workmen‘s Compensation and Occupational Disease states that “The statutory employer status does not include an owner or entrepreneur.” Barbieri, supra, at § 4.09(3) (1975). Barbieri discusses the situation in which an employee of independent contractor is injured. In such a situation the independent contractor was working under contract with the owner. Barbieri states that if:
the contractor is performing work for the owner or entrepreneur that is not “part of the . . . regular business” of the owner, then the statutory employment status does not arise and the injured emplоye of the contractor may look only to the contractor, the immediate employer, for compensation, and the owner or entrepreneur will have no immunity defense to a suit for negligence by the injured man.
Barbieri, supra (footnote omitted).
In the case now before us it has not been contеnded that the excavation of ditches is part of PECO‘s regular
As the fourth part of its argument before this Court Appellee, PECO, contеnds that the trial court erred in granting summary judgment in favor of Dresher inasmuch as Dresher had entered into a written contract of indemnification with PECO prior to the date of the plaintiff‘s injury. We recognize that, pursuant to
The Motion for Summary Judgment filed by Dresher sought only “judgment in its favor on the cause of action pleaded by plaintiff John S. Zizza, Jr.” It is clear that the only issue addressed by the trial court in ruling on the separate motions for summary judgmеnt was whether defendants PECO and Dresher were statutory employers under the Act and, as such, immune from suit by the plaintiff.
In its Answer to Dresher‘s Motion for Summary Judgment, PECO adequately preserved its claim of indemnification against Dresher. However, the trial court did not discuss this issue, nor include it in its order granting summary judgment. As the issue of indemnification was not addressed by the trial court, we treat the order in favor of Dresher as running only to its liability to the plaintiff, Zizza, consistent with Dresher‘s claim for pretrial relief. We decline to address the issue of Dresher‘s alleged indemnification of PECO on this appeal.
The order granting summary judgment in favor of Dresher and against plaintiff Zizza is affirmed. The order granting summary judgment in favor of appellee PECO is reversed. The case is remanded for further proceedings consistent with this opinion. Jurisdiction is relinquished.
BECK, J., files a concurring opinion.
I agree with the majority‘s conclusion that PECO is not a statutory employer and that Dresher is a statutory employer. As to PECO I would reverse and remand.
Unlike the majority, however, I would not affirm the summary judgment as to Dresher in toto. I would remand for amendment of the summary judgment in order to preserve PECO‘s cross claim for indemnification.
The majority declines to address the issue of indemnification because “[t]he issue of indemnification was not addressed by the trial court . . .” (Maj. op. at 607). While the majority‘s statement is accurate, the question of indemnification is implicitly before us. The trial court could not address the issue, because оnce it granted summary judgment to both PECO and Dresher the indemnification issue was moot.
I would find that despite the granting of summary judgment in favor of Dresher, Dresher is not completely immune from suit in the instant case. In its response to Zizza‘s complaint, PECO filed a cross-claim for indemnity against Dresher, citing a рrovision of its contract with Dresher.1 See Answer and New Matter of [PECO] to Zizza‘s Complaint in Trespass at ¶¶ 9-11. Under the Act, third party cross-claims against a statutory employer are disallowed except as provided for in
In the event injury or death to an employee is caused by a third party, then such employee . . . may bring [an] action at law against such third party, but the employer . . . shall not be liable to a third party for damages, contributions or indemnity in any action at law, or other-
wise, unless liability for such damages, contributions or indemnity shall be expressly provided for in a written сontract entered into by the party alleged to be liable prior to the date of the occurrence wich gave rise to the action.
(Emphasis added). In the instant case, PECO‘s contract with Dresher expressly provides that Dresher shall indemnify PECO for any loss or damages resulting frоm injury to Dresher‘s employees arising out of the performance of the contract, thus giving rise to PECO‘s cross-claim.
The better view is for the Superior Court to recognize that its reversal of the trial court‘s order granting summary judgment in favor of PECO revives the cross-claim against Dresher and rеquires that the order granting Dresher‘s motion for summary judgment be modified accordingly. I therefore would remand to the trial court so that its order may be amended to reflect the fact that summary judgment should have been granted in favor of Dresher only with respect to Zizza‘s complaint and not with respect to PECO‘s cross-claim for indemnification.
Notes
The Contractor shall indemnify and hold harmless Owner and its Agent, the Construction Managers, and all officers, agents and employees from any loss, damage, liability or еxpense, on account of damage to persons, including Contractor‘s employees, arising or in any manner growing out of the performance of any work or the supplying of any material under this Contract, regardless of whether or not it is cause in part by the act or оmission, whether negligent or not, of a party indemnified hereunder, and shall defend at its own expense any suits or other proceedings brought against Owner and its Agent, the Construction Managers, and all officers, agents and employees, or any of them, on account thereof, and pay all expenses and satisfy all judgments, which may be incurred by or rendered against them or any of them in connection therewith.