*2 OLSZEWSKI, HOFFMAN, Before BECK and JJ. BECK, Judge: Corporation Foods appellant issue is whether

The Gen- appellee entitled to indemnification (“Hershey”) is (“GESCO”) terms under the Company Electric Service eral contract. an electrical services for the seeking

Hershey brought this action of an accident it incurred as the result damages amount of employee. death of a GESCO its which caused the plant summary judgment, granted motion trial court GESCO’s un- not entitled to indemnification holding Her- also denied this trial court der the facts of case. filed summary judgment, cross-motion shey’s below, we the reasons set forth timely appeal. For affirm. contract, pursuant into a entered in plant certain electrical work perform would

which GESCO *3 5.20 enti- by Hershey. contract included Section owned “Indemnification,” provides: which tled and hold harmless indemnify [Her- shall [GESCO] 5.20.1 and all agents and and from shey] employees their claims, including attorneys’ expenses and damages, losses the resulting out of or arising fees claim, ex- Work, such loss or provided any damage, (a) sickness, or bodily injury, disease is attributable pense death, tangible of injury property or to to or destruction itself) (other including loss use or[sic] than the Work the (b) therefrom, or in part and caused whole [GESCO], anyone ... act or omission of any negligent of or directly indirectly employed by any anyone or them liable, whether any may regardless acts of them be of whose aby party not it is caused in indemnified hereunder. part or of against [Hershey] any claims or any 5.20.2 all [GESCO], agents employees any employee or their of them directly indirectly by any or anyone employed liable, the may for whose acts of them anyone or 5.20 shall Paragraph obligation by any on the amount any way not be limited limitation payable by or or damages, compensation benefits type or acts, compensation ... under workmen’s dis- [GESCO] ability employee benefit acts or other benefit acts. Paragraph 5.20.3 The under this obligations [GESCO] liability [Hershey], agents 5.20 shall not extend to the his preparation or out of or employees arising approval maps, drawings, opinions, reports, surveys, Change Or- ders, specifications,- giving or or of or the designs by [Hershey], failure to directions or instructions give such or failure to agents employees provided giving give primary injury damage. is the cause of the or' performed by The “Work” to be GESCO under the contract work as re- throughout plant was defined as “electrical engineering departments.” Standard Form quired contract, Agreement No. Section drafted provision. the indemnification including 6, 1978, GESCO, April On Robert W. Roland, Sr., fatally injured Hershey’s while at work plant. employed by journeyman Roland was GESCO as electrician, assigned wiring and was to install electrical con- along ceilings duits of the mezzanine level of 40, in Building No. accordance with the contract between the parties. approximately away The work location was 28 feet require from Elevator No. 37. Roland’s work did not that he use the elevator. pallet freight

Elevator No. 37 is a elevator that is automati- when a load is on a cally placed conveyor directly activated car, beam, interrupting front of the elevator a photoelectric causing conveyor horizontally to move the load into *4 vertically, the car. The elevator then moves deposit- elevator ing pre-programmed its load at a floor above or below the The evidence in the record that mezzanine level. established no on or around the elevator signs pallet system there were explaining Although its use and automatic activation. the emergency elevator was devices which could equipped movement, system stop deactivate the and the car’s these in any way. employees devices were not labelled GESCO’s of as pallet system, were not instructed the use the elevator they it was not that would need to use it. expected of day on the with Arthur Poorman the Roland worked indicated he began, lunch hour Roland accident. When to Poorman went the cafeteria nap was to take a and going to the the When Poorman returned plant. the basement of level, walking pallet toward the mezzanine he saw Roland to a pallet conveyor candy sat on eat elevator. Roland the conveyor pallet the bar. Poorman then heard the noise of motor, being backwards and turned to observe Roland carried car. elevator conveyor into the elevator As the pallet was automatically upward, Roland struck began moving at top back a cross bar located of head died. elevator shaft and Hershey claiming that against

Roland’s estate filed suit of theories of Hershey’s caused his death. One negligence danger to warn of the recovery Hershey’s alleged was failure against a jury of returned verdict pallet elevator. $561,018.95, apportioned 90% of amount and Hershey to and 10% to Roland. The negligence settlement, eventually reached a structured seeking indemnification brought this lawsuit the terms of the 1977 contract. GESCO’s motion for under was action for summary judgment granted, and a was dismissed as matter law. our scope appeal We first note review this summary judgment. grant summary judgment proper A pleadings, depositions, interrogatories, where the answers affidavits support on file the court’s admissions record genuine issue of fact exists and the conclusion no material a moving party judgment is entitled to as matter law. entry will overturn trial court’s Pa.R.Civ.P. 1035. We judgment only if there has been an abuse of discre summary Pennbank, Pa.Super. tion an error of law. McCain (1988). 313, 549 A.2d 1311 Because the relevant facts were dispute, ripe judgment. not in the case was for summary are with the of contract presented following questions We agree indemnify Hershey Did GESCO interpretation: partly negligent; even where Did GESCO the Work- immunity waive its suit *5 Act; men’s Did Roland’s Compensation injury and death Work”; out “performance arise of the of the Is obligation indemnify Hershey superseded by GESCO’s to jury’s finding Hershey that failed to warn of the dangers the pallet elevator. find that contract to unambiguously

We GESCO did indem nify Hershey partly negligent, even where immunity that did waive its to clearly suit However, Compensation under the Workmen’s Act. ambiguous the contract between the parties regard whether Roland’s death arose out of the of the electrical work. We must therefore construe the contract drafter, Hershey, and affirm the trial court’s decision to dismiss indemnification claim. Because issue, parties’ of our decision on this we do not reach the final argument regarding the contract’s “failure to instruct” exclus ion.1 Pennsylvania long courts have held “that a con indemnity against personal injuries

tract of should not be indemnify against construed to negligence the indemni tee, unless it expressed unequivocal Perry is so terms.” (1907). Payne, 217 Pa. 66 A. 553 “No inference from general import words of can establish such indemnification.” (1991). Co., Ruzzi v. Butler 527 Pa. Petroleum action, In the tort underlying jury Hershey, found indemnitee, negligent. duty be 90% order for a circumstances, indemnification to these exist under expressly agree must have contracted for it. We with the trial parties agreed the contract that would not be entitled damages giving to indemnification where the arose out of "the of or the give by [Hershey].” failure to directions or instructions Section 5.20.3. jury's finding negligence underlying GESCO asserts that the Hershey's dangers action failure to tort was based on warn of the pallet system, give elevator and that this "failure to directions or supersedes obligation. instructions” GESCO’s indemnification It is not type clear from the contract that this of "failure to warn” was Nevertheless, duty indemnify. intended to be excluded from the grounds need not reach we decide this issue because on other Hershey is not entitled to indemnification. to con- did intend holding court’s and GESCO such tract for indemnification. *6 Her indemnify to requires contract GESCO explicitly any by “in or in part a loss caused whole

shey against directly indirectly ... act or or anyone omission negligent ..., not it is regardless whether or by employed [GESCO] Section in a hereunder.” part by party caused indemnified case, and GES- jury Hershey In this both 5.20.1. found in negligent have been employee—the decedent—to CO’s parties unambigu causing the accident. The contract of where indemnitee for indemnification even ously provides Co., 404 negligent. Woodburn v. Consolidation Coal was See (1991) (where express A.2d 1273 there is Pa.Super. 590 indemnify bound contractually indemnitor is to agreement, v. negligent); who less than Deskiewicz indemnitee 100% 374, 561 33 Corp., Pa.Super. Zenith Radio 385 A.2d (same to contract found to language provide City partly negligent); indemnitee who was DiPietro (1985) (it 344 is not Philadelphia, Pa.Super. a contrary public party for to contract for indemnifi policy torts, of its own but contract must be clear cation unequivocal). it properly by cannot be sued argues GESCO in this is indemnification action because essentially party GESCO as a third defendant “joining” underlying by employee. tort claim the estate of GESCO’s Brief at 8-9. GESCO asserts that it is immune Appellee’s a claim under of the Workmen’s from such Section 303 Com Act,2 pensation provides pertinent part: which is injury employe In the event or death to an caused legal such party, employe, representative, third then kin, wife, or next parents, husband dependents, damages reason anyone otherwise entitled receive thereof, may third bring their action at law such opinion. Although trial court not in its 2. The did issue address agree cation, holding not with the court's is entitled to indemnifi- immunity argument we believe that a discussion of GESCO’s warranted. to a third shall not be liable party, employer but the contribution, indemnity damages, or party for law, otherwise, liability such dam- at or unless action for contribution, provided indemnity expressly shall ages, party alleged contract entered into in a written which gave the date of the occurrence prior to be liable rise to the action. 481(b). §

77 Pa.S.A. Act, Compensation As set forth the Workmen’s indemnify Hershey held liable to unless may not be See, e.g., indemnification. Re contracted such expressly Co., 183, 537 A.2d 881 Light Pa.Super. Duquesne mas v. (1988) (indemnification in contract not include ex clause did immunity and no indemnification press waiver Section *7 v. Penn required); third defendant was Gerard by party (1985) Inc., 425, 495 A.2d 210 Pa.Super. Const. 343 Valley to be obtained policy insurance (general language regarding immunity). of 303 express contractor is not waiver Section above, that expressly provided the contract As discussed circumstances. indemnify Hershey must under certain GESCO obligation that “the indemnification agreed The also parties way by any limitation on the shall not be limited or benefits compensation pay of type damages, amount and acts, compensation or for under workmen’s [GESCO] able other benefit acts.” The disability benefit acts or a waiver of clearly indemnification clause constitutes contract’s 303(b), provided by otherwise Section statutory immunity the therefore, Hershey would be entitled to indemnification contract if all other conditions set forth the by GESCO v. Szymanski-Gallagher met the facts of this case. were (1991) Co., 323, 409 597 A.2d 1225 Realty Pa.Super. Chestnut 303(b) clear indem immunity unnecessary; waiver of (express in to hold liable to obligation employer nification sufficient injuries employee); Hall v. Good demnify party third (1983) (where Co., 465, 1029, 1036 Pa.Super. man 310 third by employer indemnify express agreement there is joined by employee despite in action party, employer may 303(b)). Section the intend now becomes whether question the facts obligation apply

ed for 5.20.1 of contract provides in this case. Section claims, damages, all Hershey “against shall indemnify or fees out expenses including attorneys’ arising losses ...” “Work” the Work performance from as of “electrical performance defined the contract 1, ...” Form throughout Standard plant work Section Agreement. record Roland was not

It is clear when the accident oc process performing electrical work Deskieivicz, injured was while supra, (employee curred. Cf Woodburn, contract); actually performing work described (same). Instead, he was his lunch break and was supra on bar. sitting pallet conveyor eating candy on the while a merely break Hershey argues that Roland’s lunch or from the personal “minor deviation for comfort leisure” employment, and that should therefore hold that course See, the accident arose “out of the of Work.” Bd., 108 Pa. e.g., Lang Compensation Appeal Workmen’s (1987) (where 381, 529 Cmwlth A.2d 1161 there was no aban business, activity donment of the was within course employer’s Nat’l D’Agata Compensa Inc. v. Workmen’s employment); (coffee Bd., tion 84 Pa.Cmwlth. Appeal employment); is within Compen break course of Workmen’s Plum, Borough sation Bd. v. Appeal Pa.Cmwlth. A.2d 637 for lunch to relieve (employee’s break *8 himself was within course employment).

These cases involved claims for benefits the Work- The Compensation provides coverage men’s Act. Act broad to an of his “injury arising course 411(1). contrast, § 77 contract employment.” Pa.S.A. language, “arising uses the out of or from the performance the work.” factual situations which have employ- included within the Act’s been definition “course See, Salvage are broad diverse. e.g., ment” Kovalchick Bd., Compensation Co. v. Workmen’s 102 Pa.Cmwlth Appeal 562, (employees’ stop 519 A.2d 543 drinks on the course of Work employment); held to be within way home Corp., Bd. v. United States Steel Compensation Appeal men’s (1977) (automobile 329, accident 376 A.2d 271 31 Pa.Cmwlth. seizure which occurred by employee’s epileptic caused scheduled work prior employee’s lot employer’s parking employment). time to be within course of held However, on this issue are by Hershey the cases cited contract does not use inapposite. Hershey-GESCO Act—“in the course Compensation of the language Workmen’s that are injuries the kinds of employment”—to describe Instead, duty indemnify. included within GESCO’s loss, in order to expressly requires contract Work,” indemnifiable, of the “arise out of the Moreover, this as electrical work. specifically which is defined benefits, but compensation over workmen’s dispute is not of a interpretation written question proper rather a about terms, in a contract’s ambiguity there is contract. Where strongly against must be construed most language doubtful Pribonic, drafter, case, Hershey. See Rusiski v. this (1986); 383, Breyer, In re Estate 511 Pa. 515 A.2d 507 Mellon, (1977); Raiken v. 399 Pa.Su Pa. (1990). per. clearly not include Roland’s

Because the contract does Work,” “performance within the definition conduct ambiguous respect the contract and because issue, Hershey. construed There to this it must be fore, to indemnification from GESCO Hershey is not entitled hold, we need not reach the in this case. Because we so the exclusion for appeal, involving fourth issue raised instructions or give caused failure losses directions.3

Order affirmed.

OLSZEWSKI, statement. dissenting J. files a 1, supra. 3. See note

OLSZEWSKI, dissenting: Judge, I I find that the contract respectfully dissent. work,” performance out of or “arising duties. Ro- minor deviation from his Roland’s encompasses him to be close required in this case land’s work and caused which malfunctioned elevator proximity part as taking That Roland was break his death. not, in my during the the work lunch hour the contrac- to take Roland’s actions outside opinion, sufficient Therefore, I find that would tual definition “the. work.” obligation applies this case. Pennsylvania, Appellant, COMMONWEALTH of QUILES, Appellee. George R.

Superior Pennsylvania. Court

Argued May 4, 1993. Filed Jan.