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HomeMy WebLinkAbout99-07390?F t 1i 4T•{ 1999 73 N 2. 1J ^ ?? 73 KEITH E. JOHNSON and HOLLY M. JOHNSON, his wife, Plaintiffs V. CCI; ENGINEERED PRODUCTS, INC. and ROTONDO WEIRICH, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, CIVIL ACTION -- LAW NO. 99-7382 ORDER AND NOW, this day of , 200_, upon consideration of Defendant CCI's Motion for Summary Judgment, and the briefs of the parties thereon, it is herebv ORDERED and DECREED that said Motion is GRANTED, and Plaintiffs' claims against CCI are hereby DISMISSED, with prejudice. BY THE COURT: J. Distribution List: Keith E. and Holly Johnson 7298 Ulmerton Road Apartment 108 Largo, FL 33771-4827 Corey J. Adamson, Esquire Thomas, Thomas and Hafer, LLP 305 N. Front St. POB 999 Harrisburg, PA 17108 10 Hugh P. O'Neill, III, Esquire Attorney I.D. No. 69986 Corey J. Adamson, Esquire Attorney I.D. No. 204508 THOMAS, THOMAS & HAFER, LLP 305 North Front Street Post Office Box 999 Harrisburg, Pennsylvania 17108 (717) 237-7100 E-Mail: honeill@tthlaw.com cadamson@tthlaw.com Attorneys for Defendant: CCI KEITH E. JOHNSON and HOLLY M. JOHNSON, his wife, Plaintiffs V. CCI; ENGINEERED PRODUCTS, INC. and ROTONDO WEIRICH, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION --LAW NO. 99-7382 DEFENDANT CCI' S MOTION FOR SUMMARY JUDGMENT AND NOW, Defendant CCI ("CCI") by its attorneys, Thomas, Thomas & Hafer, LLP, files this Motion for Summary Judgment, and avers as follows: 1. Plaintiffs, Keith E. Johnson and Holly M. Johnson ("Plaintiffs") commenced the within action by filing a Praecipe for Writ of Summons against Defendants on or about December 8, 1999. 2. Plaintiffs filed their Complaint on January 24, 2000, alleging negligence on the part of Defendants, including Defendant, CCI. 3. This case arises out of a slip and fall accident which occurred on December 9, 1997, at the Houtzdale Prison construction project. 4. Plaintiffs' Complaint alleges that Plaintiff, Keith E. Johnson, was injured while working on the Houtzdale Prison job site for Glenco Construction Services', when he slipped on a piece of plastic that was covered by snow, twisting his knee and causing him to fall and break his ankle. Complaint ¶¶6-7; 13. CCI WAS PLAINTIFF KEITH E. JOHNSON'S STATUTORY EMPLOYER AT THE TIME OF THE ACCIDENT AND IS IMMUNE FROM SUIT 5. Plaintiffs aver that Plaintiff Keith E. Johnson was an employee of Glenco Construction Services at the time of the accident. Complaint ¶6. 6. Plaintiffs allege, and CCI admits, that CCI was a general contractor on the Houtzdale Prison project. Complaint ¶8; CCI's Answer with New Matter ¶8. 7. Plaintiffs further allege that CCI "through its agents, servants, workers or employees" was responsible for the placement of the plastic on which Plaintiff Keith E. Johnson allegedly slipped. Complaint ¶19-17. 8. At the time of the accident, CCI was the general contractor for the construction of a prison, the Houtzdale Prison project. 9. At the time of the accident, Defendants Engineered Products, Inc. and Rotondo Weirich, Inc., were subcontractors on the Houtzdale Prison project. 10. At the time of the accident, CCI had subcontracted with Engineered Products for the steel erection. 11. At the time of the accident, CCI had subcontracted with Rotondo for the pre-cast concrete cells which formed the structure of the building. 2 12. At the time of the accident, Engineered Products and Rotondo had subcontracted work to Glenco, including erection of steel beams and crane work.. 13. The pleadings in this matter are closed, and discovery has been completed. SUMMARY JUDGMENT STANDARD 14. A proper grant of summary judgment depends upon an evidentiary record that either (1) shows that the material facts are undisputed, or (2) contains insufficient evidence and facts to make out a prima facie cause of action or defense, and therefore, there is no issue to be submitted to a jury. Pa.R.C.P. 1035.2; McCarthy v. Dan Lepore & Sons, Inc., 724 A.2d 938, 940 (Pa. Super. 1998). 15. When a motion for summary judgment is based upon insufficient evidence of facts, the adverse party must come forward with evidence essential to preserve their cause of action. Id. 16. If a nonmoving party fails to come forward with sufficient evidence to establish or contest a material issue to the case, the moving party is entitled to judgment as a matter of law. Id. 17. The nonmoving party must adduce sufficient evidence on the issues essential to its case and on which it bears the burden of proof such that a jury could return a verdict favorable to the nonmoving party. Id. 18. In other words, once a motion for summary judgment is made and properly supported, the nonmoving party may not simply rest upon the mere allegations in her pleadings. Samarin v. GAF, 571 A.2d 398, 402 (Pa. Super. 1989). ' Glenco Construction Services was formerly an Additional Defendant in this matter, and was dismissed from this matter via stipulation of the parties filed May 21, 2001. 3 19. The purpose of Rule 1035(d) "is to assure the motion for summary judgment may pierce the pleading and to require opposing party to disclose the facts of his defense." Id. (citing Rowland v. Kravco Inc., 513 A.2d 1029, 1034 (Pa. Super. 1986)). 20. Thus, once the motion for summary judgment has been properly supported, the burden is upon the nonmovant to disclose evidence that is the basis for his or her argument resisting summary judgment. Samarin, supra, at 402. 21. Importantly, bold unsupported assertions of conclusory accusations cannot generate issues of material fact. McCain v. Penn Bank, 549 A.2d 1311, 1313-14 (Pa. Super. 1988). PLAINTIFF KEITH JOHNSON'S CLAIMS AGAINST DEFENDANT CCI ARE PRECLUDED BY THE STATUTORY EMPLOYER DOCTRINE 22. The owner of the Houtzdale Prison is the Department of General Services, Bureau of Construction, of the Commonwealth of Pennsylvania. 23. Via stipulation of the parties, filed on June 28, 2000, COI's Answer with New Matter was amended to include under the heading "Additional New Matter to Plaintiff' a paragraph numbered "42," reading "Plaintiffs' claims may be barred or limited by workers' compensation immunity." 24. CCI now files this Motion for Summary Judgment, avering that under the facts and circumstances of this case, CCI was Plaintiff Keith E. Johnson's statutory employer at the time of his alleged fall, and as a consequence, is immune from suit pursuant to Section 203 of the Workers' Compensation Act, 77 P.S. 52. 25. The issue of whether an employer is a "statutory employer" for purposes of the Workers' Compensation Act is properly the subject of a motion for summary judgment, as "whether the facts as they are determined to exist constitute an employment relationship is strictly a question of law." Wilkinson v. K-Mart, 603 A.2d 659, 660-61 (Pa. Commw. 1992). 4 26. A statutory employer is not a contractual or common law employer, but instead is an employer pursuant to the Workers' Compensation Act. O'Donnell v. R.M. Shoemaker & Co., 816 A.2d 1159, 1162 (Pa. Super. 2003). 27. As the Pennsylvania Superior Court explained: Although not apparent from its express terms, the language from Section [52] [of the Workers' Compensation Act] stating that the statutory employer shall be liable to such laborer or assistant in the same manner and to the same extent as to his own employee confers upon the statutory employer immunity from the suit. By placing the statutory employer in the same position as the contractual or common-law employer of the injured worker, Section 52 entitles the statutory employer to the same immunity from suit that would be enjoyed by the contractual or common-law employer. Id. at 1162-63. 28. Importantly, Courts have found that an entity can be considered a statutory employer despite language in a contract stating that the employee is an independent contractor since "courts will not be controlled by the nomenclature the parties apply to their relationship." Kenney v. Jeanes Hosp , 769 A.2d 492, 496 (Pa. Super. 2001) (noting that the mere labeling of someone as an independent contractor in an agreement does not determine his legal status, and that instead, the court must make an independent evaluation of the terms of the contract and all of the surrounding circumstances). 29. Our appellate courts have long utilized the "McDonald test" for determining whether a general contractor is a statutory employer, consisting of five elements: (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 employer's regular business entrusted to such subcontractor; and (5) an employee of such subcontractor. Kelly v. Thackray Crane Rental, -Inc., 874 A.2d 649, 655 (Pa. Super. 2005), citing McDonald v. Levinson Steel Co., 153 A. 424, 426 (Pa. 1930). 30. An employer will satisfy the control element of the test if either he occupies the premises or if he is in control of the premises. Douahert 7 v Conduit & Foundation Corte , 674 A.2d 262, 266 (Pa. Super. 1996). 31. At the time of the incident, as CCI was the general contractor for the Houtzdale prison project and working under contract with the owner, Commonwealth of Pennsylvania, it was occupying the work premises and was in control of the same. 32. The work that Plaintiffs contractual employer, Glenco, was performing work on the Houtzdale prison project was part of CCI's regular business, which had been subcontracted to Engineered Products and Rotondo, who in turned subcontracted it to Glenco. 33. Therefore, based on the facts and circumstances of this case, CCI was Plaintiff Keith E. Johnson's statutory employer at the time of the incident and is, as a consequence, immune from suit pursuant to Section 203 of the Workers' Compensation Act, 77 P.S. §52. LOSS OF CONSORTIUM IS A DERIVATIVE CLAIM AND WHERE THE UNDERLYING CLAIM IS DISMISSED, THE LOSS OF CONSORTIUM CLAIM MUST ALSO BE DISMISSED 34. Any action for loss of consortium is derivative, depending for its viability upon the substantive merit of the injured party's claims. See Boa is v. McCord, 511 A.2d 204 (1986). 35. Because Plaintiff Holly Johnson's loss of consortium claims is dependent upon the merits of her husband's (Plaintiff Keith Johnson) personal injury claim, and because her husband's personal injury claim must be dismissed, Plaintiff Holly Johnson's loss of consortium claim must also be dismissed. 6 WHEREFORE, Defendant CCI respectfully requests Your Honorable Court grant its Motion for Summary Judgment, and dismiss Plaintiffs' claims against it, with prejudice. Respectfully submitted, "Thomas, Thomas & Hafer, LLP by Date: /a-q-el qIP9h P• squire I. o. 6 Core . Adamson, Esquire 1. o.204508 5 N. Front Street POB 999 Harrisburg, PA 17108-0999 7 CERTIFICATE OF SERVICE AND NOW, this -?- day of , 2007, I, Corey J. Adamson, Esquire, for the firm of THOMAS, THOMAS & HAFER, LLP, attorneys for Defendant CCI, hereby certify that I have this day served the within Motion for Summary Judgment by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: Keith E. and Holly M. Johnson (via Certified Mail) 7298 Ulmerton Road Apartment 108 Largo, FL 33771-4827 •.7 _m J.3 f _..t 4 ? .. rr 1? ?..1 t r ,' ...-... ??. ? I?3 ne t 's .. . L? T-f r t,7 ??