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Home My WebLink About90-3357 CriminalJAMES MATTHEW HOCKER, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : CIVIL ACTION - LAW P.C.M. CONSTRUCTION, INC., : DAYS INN AIRPORT, HARRISBURG : AIRPORT PARTNERSHIP, HEINZ : MATHIS and WINFORD-LINDSAY : ASSOCIATES, INC., : Defendants : NO. 3357 CIVIL 1990 IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BEFORE SHEELY, P.J., HOFFER and OLER, JJ. ORDER OF COURT AND NOW, this /~- day of January, 1995, after careful consideration of the Motion for Summary Judgment of Defendant P.C.M. Construction, Inc., as well as the briefs and oral argument presented in the matter, and for the reasons stated in the accompanying Opinion, the motion is DENIED. BY THE COURT, J. Wesley Ole~7, Jr., J% Marcus A. McKnight, Esq. 60 West Pomfret Street Carlisle, PA 17013 Attorney for Plaintiff Heinz Mathis 422 Allegheny Street Hollidaysburg, PA 16648 Timothy I. Mark, Esq. 3631 North Front Street Harrisburg, PA 17110 Attorney for Defendant P.C.M. Construction, Inc. Randy K. Hareza, Esq. 2400 Fifth Avenue Place 120 Fifth Avenue Pittsburgh, PA 15222 Attorney for Defendant Winford-Lindsay Associates, Inc. David A. Fitzsimons, Esq. 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Attorney for Defendant Harrisburg Airport Partnership JAMES MATTHEW HOCKER, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : CIVIL ACTION - LAW : P.C.M. CONSTRUCTION, INC., : DAYS INN AIRPORT, HARRISBURG : AIRPORT PARTNERSHIP, HEINZ : MATHIS and WINFORD-LINDSAY : ASSOCIATES, INC., : Defendants : NO. 3357 CIVIL 1990 IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BEFORE SHEELY, P.J., HOFFER and OLER, JJ. OPINION and ORDER OF COURT Oler, J. The present case arises out of a construction site accident. An employee of a subcontractor has commenced a negligence action against various parties alleged to be responsible for providing basic safety procedures for work performed on the job site. Defendant P.C.M. Construction, Inc. (the alleged general contractor), has filed a motion for summary judgment, contending that it is immune from this suit because it occupies the status of a statutory employer of Plaintiff pursuant to Section 203 of the Pennsylvania Workmen's Compensation Act.~ STATEMENT OF FACTS Defendant Harrisburg Airport Partnership (HAP) is a Pennsylvania partnership with its principal offices situate at 422 Allegheny Street, Hollidaysburg, Pennsylvania.2 Defendant P.C.M. ~ Act of June 2, 1915, P.L. 736, S203, as amended, 77 P.S. §52. 2 Plaintiff's Complaint, paragraph 3; Answer with New Matter of Defendant, P.C.M. Construction, Inc., to Plaintiff's Complaint (hereinafter Defendant's Answer with New Matter), paragraph 3. NO. 3357 CIVIL 1990 Construction, Inc. (PCM), is a construction contracting firm with its principal place of business situate at 422 Allegheny Street, Hollidaysburg, Pennsylvania.3 According to Defendant PCM, HAP was the owner of a parcel of land located in Lower Swatara Township, Dauphin County, Pennsylvania, and on March 11, 1988, HAP entered into an agreement with PCM to construct a 135-room hotel on the property.4 Subsequently, PCM subcontracted with R&R Plaster and Drywall Company, Inc. (R&R), by virtue of a written document,s to perform "gypsum wallboard and suspended ceiling work for the construction of the hotel.''6 The accident giving rise to the present action occurred on September 27, 1988, at the site of the Days Inn Airport at 1815 Eisenhower Boulevard, Middletown, Pennsylvania, while Plaintiff was working in the course of his employment7 "as a drywall and metal stud mechanic with R&R.''8 Plaintiff alleges that while "working on the fourth (4th) floor of the Days Inn Airport, setting outside 3 Plaintiff's Complaint, paragraph 2; Defendant's Answer with New Matter, paragraph 2. Defendant's Answer with New Matter, paragraph 7. Defendant's Answer with New Matter, paragraph 10. Defendant's Answer with New Matter, paragraph 34. Plaintiff's Complaint, paragraph 11; Defendant's Answer with New Matter, paragraph 11. 8 Plaintiff's Complaint, paragraph 10; Defendant's Answer with New Matter, paragraph 10. 2 NO. 3357 CIVIL 1990 metal studs ..., he fell from the fourth (4th) floor, approximately twenty (20) feet onto the roof of the first (lst) floor."9 Plaintiff further alleges that as a result of the fall he sustained serious injuries and underwent numerous operations.~° A disagreement exists between the parties as to whether Defendants HAP and PCM are so closely connected as to be properly regarded as the same business entity. STATEMENT OF LAW Summary judgment. Pennsylvania Rule of Civil Procedure 1035(b) provides that summary judgment "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 judgment as a matter of law." In this regard, "[t]he moving party has the burden of proving the non-existence of any genuine issue of fact." Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 204, 412 A.2d 466, 468-469 (1979). "A fact is 'material' if its determination could affect the outcome of the case, and a dispute concerning a material fact is 'genuine' where the evidence is such that a reasonable jury could return a verdict for the non-moving party." Barlow v. Greenridge Oil Co., 744 F. Supp. 108, 110 (W.D. Pa. 1990), citing Anderson v. Liberty Lobby, 9 Plaintiff's Complaint, paragraph 12. ~0 Plaintiff's Complaint, paragraphs 13-15. 3 NO. 3357 CIVIL 1990 Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Additionally, "[t]he record must be examined in the light most favorable to the non-moving party." Schacter v. Albert, 212 Pa. Super. 58, 62, 239 A.2d 841, 843 (1986). "All doubts as to the existence of a genuine issue of a material fact must be resolved against the moving party." Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 204, 412 A.2d 466, 469 (1979). A court should grant summary judgment "only in the clearest of cases, where the right is clear and free from doubt." Id. Ownership as a material fact. With respect to creation of the status of statutory employer, the Pennsylvania Supreme Court has stated the following: To create the relation of statutory employer under section 203 of [the Pennsylvania Workmen's Compensation Act], all of the following elements essential to a statutory employer's liability must be present: (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. (5) An employee of such subcontractor. McDonald v. Levinson Steel Co., 302 Pa. 287, 294-95, 153 A.2d 424, 426 (1930) (emphasis added). "Applying the test set forth in McDonald ... [an] owner of the premises upon which the accident occurred cannot be an employer who is under contract with an owner." Zolk v. Mobil Oil Corp., 510 F. Supp. 814, 816 (E.D. Pa. 1981). 4 NO. 3357 CIVIL 1990 In order for the first criterion of the McDonald test for statutory employer status to be met, the trier of fact must find a relationship of owner and general contractor. Caldarelli v. Workmen's Compensation Appeal Bd., 115 Pa. Commw. 611, 616, 542 A.2d 181, 183, appeal denied, 520 Pa. 592, 551 A.2d 218 (1988). The distinction between an owner of property and a general contractor is significant because "an independent contractor's employe is not ordinarily considered to become an 'employe' of the owner of the property for [Pennsylvania Workmen's] Compensation Act purposes." Zizzo v. Dresher Mechanical Contractors, Inc., 358 Pa. Super. 600, 606, 518 A.2d 302, 305, appeal denied, 516 Pa. 643, 533 A.2d 714 (1987). "Under McDonald, the 'owner' of the premises and the 'employer' who hires the subcontractor must be two different entities for the 'employer' to be accorded immunity as a statutory employer." Barlow v. Greenridge Oil Co., 744 F. Supp. 108, 110 (W.D. Pa. 1990). This is so because "[a] property owner is not a statutory employer within the meaning of [the Pennsylvania] Workmen's Compensation Act." Id. APPLICATION OF LAW TO FACTS An application of the law recited above to the facts of the instant case leads to a conclusion that Defendant's motion for summary judgment should be denied. A factual dispute exists herein as to whether PCM is effectively the same entity as the owner of the property, HAP. If PCM is found to be the equivalent of HAP, 5 NO. 3357 CIVIL 1990 the initial prerequisite for statutory immunity status would be lacking and PCM would not be entitled to statutory employer immunity. For this reason, the following Order will be entered: ORDER OF COURT AND NOW, this day of January, 1995, after careful consideration of the Motion for Summary Judgment of Defendant P.C.M. Construction, Inc., as well as the briefs and oral argument presented in the matter, and for the reasons stated in the accompanying Opinion, the motion is DENIED. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Marcus A. McKnight, Esq. 60 West Pomfret Street Carlisle, PA 17013 Attorney for Plaintiff Heinz Mathis 422 Allegheny Street Hollidaysburg, PA 16648 Timothy I. Mark, Esq. 3631 North Front Street Harrisburg, PA 17110 Attorney for Defendant P.C.M. Construction, Inc. Randy K. Hareza, Esq. 2400 Fifth Avenue Place 120 Fifth Avenue Pittsburgh, PA 15222 Attorney for Defendant Winford-Lindsay Associates, Inc. NO. 3357 CIVIL 1990 David A. Fitzsimons, Esq. 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Attorney for Defendant Harrisburg Airport Partnership : rc 7