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HomeMy WebLinkAbout2010-7376HARRY M. SUSI and : IN THE COURT OF COMMON PLEAS OF SUSAN M. SUSI, his wife: CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. KEYSTONE : CIVIL ACTION - LAW INDEPENDENCE LP and PROLOGIS, Defendants V. THE BRICKMAN GROUP LTD. LLC, Additional Defendant u QUALITY PACKAGING SPECIALISTS INTERNATIONAL, LLC, Additional Defendant : NO. 2010-7376 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF ADDITIONAL DEFENDANT QUALITY PACKAGING SPECIALISTS TO JOINDER COMPLAINT OF ADDITIONAL DEFENDANT BRICKMAN; PRELIMINARY OBJECTIONS OF BRICKMAN TO PRELIMINARY OBJECTIONS OF QUALITY PACKAGING SPECIALISTS BEFORE OLER, EBERT and MASLAND, JJ. OPINION and ORDER OF COURT OLER, J., August 15, 2011. For disposition in this negligence case involving an alleged slip and fall are (a) preliminary objections to a joinder complaint and (b) preliminary objections to the preliminary objections. More specifically, (a) a party joined on the theory that it had been engaged by the original defendants to maintain the premises where the fall allegedly occurred has joined the allegedly injured plaintiff's employer on the theory that the employer was contractually bound to provide indemnification for claims arising out of such injuries, (b) the employer has filed preliminary objections to the complaint on the basis of, inter alia, the statutory immunity afforded to an employer under the Workers' Compensation Act, and (c) the party that filed the joinder complaint has filed preliminary objections to the preliminary objections on procedural grounds (untimeliness and improper use of preliminary objection to raise affirmative defense). For the reasons stated in this opinion, the preliminary objections to the preliminary objections will be denied, the preliminary objection based upon statutory immunity to the joinder complaint will be granted, and the joinder complaint will be dismissed. STATEMENT OF FACTS The facts which may be gleaned from the various pleadings pertinent to a disposition of the preliminary objections to the joinder complaint at issue may be summarized as follows:' On December 16, 2008, Plaintiff Harry M. Susi (the injured plaintiff) slipped on ice, fell, and sustained injuries in the course of his employment with a company known as Quality Packaging Specialists International (Quality Packaging Specialists),2 in an employee parking lot rented by Quality Packaging Specialists from Defendant Keystone Independence LP (Keystone),3 which delegated its management responsibilities for the lot to Defendant Prologis (Prologis);4 Defendants Keystone and Prologis engaged Additional Defendant The Brickman Group (Brickman) to keep the lot free of snow.5 The accident was caused by a negligent maintenance of the premises.6 ' In reciting these facts, the court is not, of course, doing more than assuming their truthfulness for purposes of a consideration of the preliminary objections at issue. 2 Defendant's Complaint of The Brickman Group, LTD, LLC Against Quality Packing Specialists International, LLC, Quality Packing Specialists, Inc.; and Quality Packing Specialists International, LLC d/b/a Quality Packaging Specialists, Inc., filed March 29, 2011, ¶I (hereinafter The Brickman Group's Joinder Complaint). s Plaintiff's Complaint, ¶4, attached to The Brickman Group's Joinder Complaint, Ex. A, filed March 29, 2011 (hereinafter Plaintiff's Complaint). 4 Plaintiff's Complaint, ¶33. 'The Brickman Group's Joinder Complaint, ¶3. 6 See Plaintiff's Complaint, Counts I -III. 2 It would appear that, but for an indemnity clause in the lease wherein Quality Packaging Specialists leased the lot from Defendant Keystone, Quality Packaging Specialists would be immune from suit herein pursuant to the statutory immunity afforded to employers by the Workers' Compensation Act .7 This indemnity clause in the lease provided as follows: Except for the negligence of Landlord [Keystone] its agents, employees or contractors, and to the extent permitted by law, Tenant [Quality Packaging Specialists] agrees to indemnify, defend and hold harmless Landlord, and Landlord's agents, employees and contractors, from and against any and all losses, liabilities, damages, costs and expenses (including attorneys' fees) resulting from claims by third parties for injuries to any person and damages to or theft or misappropriation or loss of property occurring in or about the Project and arising from the use and occupancy of the Premises or from any activity, work, or thing done, permitted or suffered by Tenant in or about the Premises or due to any other act or omission of Tenant, its subtenants, assignees, invitees, employees, contractors and agents. The furnishing of Insurance required hereunder shall not be deemed to limit Tenant's obligations under Paragraph 18.8 Based upon a purported third -party -beneficiary status under this clause of the lease between Defendant Keystone as lessor and the injured plaintiff's employer, Quality Packaging Specialists, as lessee, and on a theory that the plaintiff's alleged injuries were the result of his employer's misconduct in failing to inspect the premises and to notify "the original defendants and/or The Brickman Group Ltd., LLC and/or business invitees of any alleged dangerous conditions on the premises," Additional Defendant Brickman has joined the employer, contending that Quality Packaging Specialists is "alone liable to the plaintiff[] and/or liable over to The Brickman Group, Ltd., LLC for any alleged injuries or losses which the plaintiff[] may have sustained ...."9 In response to the preliminary objections filed by Quality Packaging Specialists to the joinder complaint, which was based in part upon the statutory immunity from suit afforded by the Workers' Compensation Act to employers of employees injured on the job, Brickman has filed preliminary objections to the preliminary objections, maintaining that they should be stricken inasmuch as (a) they were filed eleven days beyond the 20 - Act of Dec. 5, 1974, as amended, P.L. 782, 77 P. S. §481. 'The Brickman Group's Joinder Complaint, ¶15. 9 The Brickman Group's Joinder Complaint, ¶27. 3 day time period provided for in Pennsylvania Rule of Civil Procedure 102610 and (b) they have prematurely raised in a preliminary objection an affirmative defense in the form of immunity from suit." DISCUSSION Statutory immunity under the Workers' Compensation Act. The statutory immunity provision of the Workers' Compensation Act reads as follows: (a) The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employe[], his legal representative, husband or wife, parents, dependents, next of kin or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined in section 301(c)(1) and (2) [of the act] or occupational disease as defined in section 108 [of the act]. (b) In the event injury or death to an employe is caused by a third party, then such employe, his legal representative, husband or wife, parents, dependents, next of kin and anyone otherwise entitled to receive damages by reason thereof, may bring their action at law against such third party, but the employer, his insurance carrier, their servants and agents, employes, representatives acting on their behalf or at their request shall not be liable to a third party for damages, contribution, or indemnity in any action at law, or otherwise, unless liability for such damages, contribution or indemnity shall be expressly provided for in a written contract entered into by the party alleged to be liable prior to the date of the occurrence which gave rise to the action. 12 This tradeoff, whereby an employer assumes limited liability for on-the-job injuries to employees regardless of negligence on the employer's part in return for immunity from the expense of litigation and potentially greater liability that could result from a negligence action in court is obviously grounded upon public policy considerations which the legislature deemed important. Hogey v. Morello Excavating Co., 28 Pa. D. & C.3d 451, 457, 1984 WL 540, *4 (Pa. Com. Pl., Montgomery Cnty., 1984). Accordingly, courts should be reluctant to find impediments to the operation of 10 Preliminary Objections of the Brickman Group, LTD, LLC, Additional Defendant, to Strike Preliminary Objections of Quality Packing Specialists International, LLC; Quality Packing Specialists, Inc.; and Quality Packing Specialists International, LLC d/b/a Quality Packing Specialists, Inc., to Defendant's Complaint, filed on March 13, 2011, ¶¶10-20. 11 Supplemental Preliminary Objections of the Brickman Group, LTD, LLC, Additional Defendant, to Strike Preliminary Objections of Quality Packing Specialists International, LCC; Quality Packing Specialists, Inc.; and Quality Packing Specialists International, LLC d/b/a Quality Packing Specialists, Inc., to Defendant's Complaint, filed on May 20, 2011,¶¶5-9; see Pa. R.C.P. 1030 (New Matter). 12 77 P.S. §481 (emphasis added). 11 the policy. See Integrated Project Services v. HMS Interiors, Inc., 2007 Super 24, ¶28, 931 A.2d 724, 738. With respect to indemnity provisions in general, it has been said that "[a] contract will not be construed to indemnify a party for his or her own negligence unless the contractual language and surrounding circumstances clearly indicate an intention of the parties to do so." Potts v. Dow Chemical Co., 272 Pa. Super. 323, 326, 415 A.2d 1220, 1221 (1967), citing Westinghouse Elec. Co. v. Murphy, Inc., 425 Pa. 166, 172, 228 A.2d 656, 660 (1967). With specific reference to a contractual provision that purportedly waives an employer's statutory immunity under the Workers' Compensation Act, it is well settled that "[t]he parties must specifically utilize language which indicates that the employer/alleged indemnitor intends to indemnify the third party against claims by employees of the alleged indemnitor; this must clearly appear from the terms of the agreement." Snare v. Ebensburg Power Co., 431 Pa. Super. 515, 522, 637 A.2d 296, 299 (1993); See Bester v. Essex Crane Rental Corp., 422 Pa. Super. 178, 182, 619 A.2d 304, 307 (1991). In Integrated Project Services v. HMS Interiors, the Pennsylvania Superior Court stated the following: In order to avoid the ambiguities which grow out of general language, contracting parties must specifically use language which demonstrates that a named employer agrees to indemnify a named third party from liability for acts of that third party's own negligence which result in harm to the employees of the named employer. Absent this level of specificity in the language employed in the contract of indemnification, the Workmen's Compensation Act precludes any liability on the part of the employer. 2007 PA Super 246, ¶28, 933 A.2d 724, 738 (emphasis supplied). In the present case, the indemnification clause in the lease between the injured plaintiff's employer as lessee and Defendant Keystone as lessor did not purport to indemnify Keystone, its contractors, or anyone else for third -party injuries arising out of the purported indemnitee's own negligence. To the extent that the joinder complaint of Brickman premises liability of the employer upon such a theory of indemnification, either of Brickman itself as a purported third party beneficiary under the lease, or of either of 5 the allegedly negligent original defendants, the claim is untenable as a matter of ordinary contract construction. To the extent that the joinder complaint of Brickman against the employer depends upon a reading of the indemnification clause which would construe (a) the "[1]andlord's agents, employees and contractors" as including an unnamed contractor engaged by the landlord and its agent and (b) "third parties" as including the employer's own staff of employees, for purposes of a deemed waiver of statutory immunity under the Workers' Compensation Act, the construction would not be compatible with the rule discussed above that waivers of statutory immunity under the act must be clearly expressive of such a purpose on the part of the indemnitor. 13 Timeliness of preliminary objections; pleading of affirmative defenses. Under Pennsylvania Rule of Civil Procedure 1026(a), "every pleading subsequent to the complaint shall be filed within twenty days after service of the preceding pleading." However, "[t]he word `shall' in Rule 1026 has always been interpreted flexibly, thus permitting exception to the rule where justice so requires. Thus, the twenty day filing rule is said to be permissive rather than mandatory." Francisco v. Ford Motor Co., 397 Pa. Super. 430, 434, 580 A.2d 374, 376 (1990). In this case, the court will exercise its discretion to excuse the slightly late filing of the additional defendant's preliminary objections to the joinder complaint. Under Pennsylvania Rule of Civil Procedure 1030, it is provided as a general rule that "all affirmative defenses including but not limited to ... immunity from suit ... shall be pleaded in a responsive pleading under the heading `New Matter."' However, when an affirmative defense is clear on the face of the pleadings, it may be addressed by the court at the preliminary objection stage. See Staley v. Commonwealth, 33 Pa. Commw. 22, 24 n.1, 380 A.2d 515, 516 n.1 (1977). Based upon the foregoing discussion of the merits of the additional defendant's statutory immunity argument in the present case, and in the 13 It is, perhaps, worthy of note that neither of the original defendants in this case has sought to join the injured plaintiff's employer as an additional defendant on the basis of this clause. interest of judicial economy, the court will not strike the preliminary objection to the joinder complaint on the basis of Rule 1030. For the reasons stated above, the following order will be entered: 14 ORDER OF COURT AND NOW, this 15th day of August, 2011, upon consideration of (a) the preliminary objections filed by Additional Defendant Quality Packaging Specialists to the joinder complaint filed by Additional Defendant Brickman and (b) the preliminary objections filed by Additional Defendant Brickman to the preliminary objections of Additional Defendant Quality Packaging Specialists, it is ordered and directed as follows: 1. The preliminary objections to preliminary objections are denied; and 2. The preliminary objections to the joinder complaint on the basis of statutory immunity are granted, and the joinder complaint filed by Additional Defendant Brickman against Additional Defendant Quality Packaging Specialists is dismissed. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Anthony Stefanon, Esq. 1847 Center Street Camp Hill, PA 17011-1703 Attorney for Plaintiffs 14 Because of the court's disposition of the preliminary objections on the basis indicated, a discussion of the additional defendant's other preliminary objections to the joinder complaint is unnecessary. 7 Jeffrey M. Pollock, Esq. 1515 Market Street Suite 1802 Philadelphia, PA 19102 Attorney for Defendants Keystone Independence LP and Prologis Christopher M. Tretta, Esq. Two Penn Center Plaza Suite 610 1500 John F. Kennedy Boulevard Philadelphia, PA 19102 Attorney for Additional Defendant The Brickman Group, Ltd., LLC Richard A. Godshall, Esq. 1818 Market Street Suite 2600 Philadelphia, Pa 19103 Attorney for Additional Defendants, quality Packaging Specialists International, LLC, Quality Packaging Specialists, Inc., and Quality Packaging Specialists International, LLC d/b/a Quality Packaging Specialists, Inc. 3 HARRY M. SUSI and : IN THE COURT OF COMMON PLEAS OF SUSAN M. SUSI, his wife: CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. KEYSTONE : CIVIL ACTION - LAW INDEPENDENCE LP and PROLOGIS, Defendants V. THE BRICKMAN GROUP LTD. LLC, Additional Defendant u QUALITY PACKAGING SPECIALISTS INTERNATIONAL, LLC, Additional Defendant : NO. 2010-7376 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF ADDITIONAL DEFENDANT QUALITY PACKAGING SPECIALISTS TO JOINDER COMPLAINT OF ADDITIONAL DEFENDANT BRICKMAN; PRELIMINARY OBJECTIONS OF BRICKMAN TO PRELIMINARY OBJECTIONS OF QUALITY PACKAGING SPECIALISTS BEFORE OLER, EBERT and MASLAND, JJ. ORDER OF COURT AND NOW, this 15th day of August, 2011, upon consideration of (a) the preliminary objections filed by Additional Defendant Quality Packaging Specialists to the joinder complaint filed by Additional Defendant Brickman and (b) the preliminary objections filed by Additional Defendant Brickman to the preliminary objections of Additional Defendant Quality Packaging Specialists, it is ordered and directed as follows: 1. The preliminary objections to preliminary objections are denied; and 2. The preliminary objections to the joinder complaint on the basis of statutory immunity are granted, and the joinder complaint filed by Additional Defendant Brickman against Additional Defendant Quality Packaging Specialists is dismissed. BY THE COURT, J. Wesley Oler, Jr., J. Anthony Stefanon, Esq. 1847 Center Street Camp Hill, PA 17011-1703 Attorney for Plaintiffs Jeffrey M. Pollock, Esq. 1515 Market Street Suite 1802 Philadelphia, PA 19102 Attorney for Defendants Keystone Independence LP and Prologis Christopher M. Tretta, Esq. Two Penn Center Plaza Suite 610 1500 John F. Kennedy Boulevard Philadelphia, PA 19102 Attorney for Additional Defendant The Brickman Group, Ltd., LLC Richard A. Godshall, Esq. 1818 Market Street Suite 2600 Philadelphia, Pa 19103 Attorney for Additional Defendants, quality Packaging Specialists International, LLC, Quality Packaging Specialists, Inc., and Quality Packaging Specialists International, LLC d/b/a Quality Packaging Specialists, Inc.