Bester v. Essex Crane Rental Corp.

• Decision Date: 08 January 1993
• Citation: 422 Pa.Super. 178,619 A.2d 304
• Parties: Raymond E. BESTER and Judith Bester, His Wife, v. ESSEX CRANE RENTAL CORPORATION v. RUSSELL CONSTRUCTION COMPANY.
• Court: Pennsylvania Superior Court

Page 304

619 A.2d 304

422 Pa.Super. 178

Raymond E. BESTER and Judith Bester, His Wife, v. ESSEX CRANE RENTAL CORPORATION v. RUSSELL CONSTRUCTION COMPANY.

Superior Court of Pennsylvania.

Argued Sept. 9, 1992.

Filed Jan. 8, 1993.

Gretchen J. Fitzer, Pittsburgh, for Essex Crane, appellant.

Anthony Sanchez, Pittsburgh, for Russell Const., appellee.

Before ROWLEY, President Judge, and CAVANAUGH, McEWEN, DEL SOLE, BECK, TAMILIA, KELLY, POPOVICH and FORD ELLIOTT, JJ.

CAVANAUGH, Judge:

The issue presented in this case is did the employer-contractor, Russell Construction Company, agree to indemnify the lessor-supplier of a crane, Essex Crane, for damages in a claim by an employee of the contractor for injuries allegedly caused by an employee of the lessor-supplier, Essex Crane? We agree with the trial court that the indemnity provision herein is insufficient to impose indemnity liability on Russell Construction and affirm.

Essex Crane Rental Corporation appeals from an order entered by the Court of Common Pleas of Allegheny County in this personal injury action. Original defendant/appellant, Essex Crane, sought to obtain joinder of appellee, Russell Construction Company, as an additional defendant. Appellee, Russell Construction, filed preliminary objections to the joinder contending that appellant's joinder request was untimely and that the attempted joinder was in any event impermissible. The trial court sustained the preliminary objections and dismissed appellant's joinder complaint.

The complaint was served on the original defendant, Essex Crane, on October 1, 1990. On February 1, 1991, the ex parte motion to join Russell Construction as an additional defendant late was granted by the Honorable R. Stanton Wettick, Jr. Russell Construction filed preliminary objections to the complaint challenging the joinder on the basis of untimeliness, underPa.R.C.P. 2252, 2253, and on the basis that the complaint did not state a cause of action under an indemnification theory. In ruling on the preliminary objections on April 24, 1991, Judge Wettick granted Russell Construction's motion to dismiss on the basis that it had been joined beyond the sixty-day period after Essex Crane had been served with the complaint and that cause had not been shown by Essex Crane for the late joinder, as required by Pa.R.C.P. 2253, and granted the demurrer because the complaint did not allege an express contract to indemnify for injuries caused to employees of Russell Construction.

Where an ex parte motion to join a third-party defendant out of time has been granted, the late-joined party may challenge the late joinder through preliminary objections. Prime Properties Development Corp. v. Binns, 397 Pa.Super. 492, 580 A.2d 405 (1990). Therefore, Judge Wettick did not err in considering the merits of the preliminary objections to the late joinder although he had already granted the ex parte motion to join on February 1, 1991.

We have examined the arguments presented by each of the parties relating the joinder issue. The appellant argues that it was an abuse of discretion of Judge Wettick to fail to find cause for the late joinder where the delay was relatively short (some four months after service of the original complaint), where no showing of prejudice was made by Russell Construction, and where there existed the need to investigate the terms of the lease agreement between the parties. Appellee, on the other hand, contends that there was no abuse of discretion in disallowing the late joinder because Essex Crane did not show why it was unable to timely procure the lease agreement between the parties since it was a business record and it formed the basis of their business relationship. We have concluded that a decision by this court on the propriety of the ruling on the question of late joinder, albeit a close one, is not necessary because we determine that that Judge Wettick correctly ruled in favor of Russell Construction on its demurrer.

Our scope of review over a trial court's decision to sustain a demurrer was stated in Creeger Brick and Building Supply Inc. v. Mid-State Bank and Trust Co., 385 Pa.Super. 30, 32-33, 560 A.2d 151, 152 (1989):

A preliminary objection in the nature of a demurrer admits every well-pleaded fact and all inferences reasonably deducible therefrom. McGaha v. Matter, 365 Pa.Super. 6, 8, 528 A.2d 988, 989 (1987); Pike County Hotels, Corp. v. Kiefer, 262 Pa.Super. 126, 133, 396 A.2d 677, 681 (1978). It tests the legal sufficiency of the challenged complaint and will be sustained only in cases where the pleader has clearly failed to state a claim for which relief may be granted. Mudd v. Hoffman Homes For Youths, Inc., 374 Pa.Super. 522, 524, 543 A.2d 1092, 1093 (1988). If there is any doubt as to whether a claim for relief has been stated, the trial court should resolve it in favor of overruling the demurrer. Mull v. Kerstetter, 373 Pa.Super. 228, 229-230, 540 A.2d 951, 951 (1988).

Appellee, Russell Construction, entered into an agreement with appellant, Essex Crane, to lease a crane for the construction of the midfield terminal at the Greater Pittsburgh International Airport. Raymond Bester was an employee of Russell Construction at the construction site. On April 11, 1990, John Henderson, an employee of Essex Crane, arrived at the construction site with a crawler or tracked crane owned by Essex Crane and leased to Russell Construction under a lease signed on April 5, 1990. Bester was asked to assist Henderson in the removal of a track pin from the crane. Bester held a steel bar against the track pin while Henderson hit it with a sledge hammer in an attempt to dislodge the pin. Bester claims that Henderson's second swing missed the bar and struck Bester's right hand causing severe injuries. Subsequently, Bester and his wife, instituted the underlying action against appellant alleging that appellant was negligent in supplying an unfit and careless mechanic whose actions caused injury to Bester.

Essex Crane sought to join Russell Construction on the basis of a clause in the lease relating to indemnification:

The Lessee [Russell] shall defend, indemnify and hold forever harmless Lessor [Essex] against all loss, negligence, damage, expense, penalty, legal fees and costs, arising from any action on account of personal injury or damage to property occasioned by the operation, maintenance, handling, storage, erection, dismantling or transportation of any Equipment while in your possession. Lessor shall not be liable in any event for any loss, delay or damage of any kind of character resulting from defects in or inefficiency of the Equipment hereby leased or accidental breakage thereof....

The Lessee will include the interest of ESSEX CRANE RENTAL CORP. as an additional named insured under their General Liability, Excess Liability, and Automobile Insurance Policies as respect to this equipment during the term of the rental with minimum liability limits of $1,000,000 per occurrence and provide a certificate of insurance to Lessor.

Essex Crane argues that this hold-harmless clause adequately grants it indemnity-immunity from negligence of both Russell Construction and itself. Since the injured party, Bester, was an employee of Russell Construction, under the terms of the Workmen's Compensation Act, any indemnity in favor of Essex Crane would have to be expressly provided for in a written contract. 77 P.S. § 481(b). ¹ Under this section a third party may not seek contribution or indemnity from the employer, even though the employer's own negligence may have been the primary cause of the employee's injury, see Tsarnas v. Jones & Laughlin Steel Corporation, 488 Pa. 513, 518, 412 A.2d 1094, 1096 (1980), absent an express provision for indemnity in a written contract.

Case law has established that the indemnity provision in the Workmen's Compensation Act must be construed strictly, and general indemnity language such as "any or all" or "any nature whatsoever" is insufficient. Pittsburgh Steel Co. v. Patterson-Emerson-Comstock, Inc., 404 Pa. 53, 171 A.2d 185 (1961). In Pittsburgh Steel Co., an employee of a contractor was injured by a crane operated by an employee of Pittsburgh Steel. The injured worker sued Pittsburgh Steel, which then joined his employer as an additional defendant. The case was settled by Pittsburgh Steel and subsequently dismissed with prejudice. Pittsburgh Steel then brought a separate action against both the employer and the statutory employer of the injured worker for indemnification. The contractual provision upon which Pittsburgh Steel premised its claim against the employers for indemnification was as follows:

"INSURANCE CLAUSE: Contractor [Patterson] will indemnify, save harmless and defend buyer [the present plaintiff-appellant] from all liability for loss, damage or injury to person or property in any manner arising out of or incident to performance of this order and will furnish buyer with proper evidence that contractor is insured against such liability. Contractor will indemnify, save harmless and defend buyer from any and all claims, demands or suits made or brought against buyer on account of any of the terms or provision of any applicable workmen's compensation law and will furnish buyer with the proper evidence that contractor is insured against all liability made under such law."

Id. at 55, 171 A.2d at 186.

The supreme court held that this language was insufficient to cause the statutory employer to give up its immunity from suit for injuries suffered by one of its own statutory employees and caused by the indemnitee's own negligence. The statutory employer was not liable to the indemnitee under the Workmen's Compensation Act.

A court will not materially rewrite the contract of the parties and insert terms which are not there in the absence of an explicit expression to waive the protection afforded by the Workmen's Compensation Act. Potts v. Dow Chemical Company, 272...