O'Boyle v. J.C.A. Corp.
| Decision Date | 10 March 1988 |
| Parties | Harry O'BOYLE and Joyce O'Boyle, Appellants, v. J.C.A. CORPORATION, Anastasi Brick Corporation, Bernard Schwartz & Associates, Amquip Corporation, J. Hagerty, a/k/a James Hagerty, Winslow Mechanical Contractors, Inc. and P. D'Andrea, Inc., and Leonard J. Rusciani Associations, Leonard J. Rusciani, P.E., and L.F. Driscoll Company. Harry O'BOYLE and Joyce O'Boyle, Appellants, v. L.F. DRISCOLL COMPANY, Anastasi Brothers Corporation, Malcolm E. Eisenberg, Individually and T/A River's Edge Limited Partnership, Alesker and Reiff, Architects, P.C., Irving Shapiro, William A. Alesker and Donald A. Reiff, Appellees. |
| Court | Pennsylvania Superior Court |
David S. Shrager, Philadelphia, for appellants.
Charles W. Craven, Philadelphia, for L.F. Driscoll, appellee.
Before WIEAND, KELLY and HESTER, JJ.
Harry O'Boyle was employed as foreman by Robert G. Hoffer Company, the structural concrete subcontractor on the River's Edge project in Philadelphia. He was injured when a masonry wall, which had been built by another subcontractor, collapsed and caused him to fall. O'Boyle filed common-law tort actions against various parties involved in the project, and these actions were consolidated for trial. Prior to trial, however, one of the defendants, L.F. Driscoll Company (Driscoll), moved for the entry of summary judgment on grounds that it was a statutory employer and, therefore, immune from common-law tort liability by virtue of Section 203 of the Workmen's Compensation Law of June 2, 1915, as amended, 77 P.S. § 52. 1 The trial court agreed and dismissed Driscoll from the action. O'Boyle appealed.
On review of an order granting summary judgment, an appellate court needs to determine only whether there is a genuine issue of triable fact. Bowman v. Sears, Roebuck and Co., 245 Pa.Super. 530, 369 A.2d 754 (1976). The granting of the summary judgment can be sustained only if the pleadings, depositions, answers to interrogatories and admissions plus any affidavits show that there is no genuine issue as to a material fact and that the moving party is entitled to a judgment as a matter of law. Jeffries v. McCague, 242 Pa.Super. 76, 363 A.2d 1167 (1976).
Doverspike v. Chambers, 357 Pa.Super. 539, 542-543, 516 A.2d 392, 394 (1986).
A statutory employer's immunity from tort liability was explained by this Court in Cranshaw Construction, Inc. v. Ghrist, 290 Pa.Super. 286, 434 A.2d 756 (1981), as follows:
Id. at 291, 434 A.2d at 758, quoting Barbieri, Pennsylvania Workmen's Compensation & Occupational Disease, Vol. 1, § 4.09(3) (1975).
Section 203 of the Workmen's Compensation Act sets forth the requirements for statutory employer status as follows:
An employer who permits the entry upon premises occupied by him or under his control of a laborer or an assistant hired by an employe or contractor, for the performance upon such premises of a part of the employer's regular business entrusted to such employe or contractor, shall be liable to such laborer or assistant in the same manner and to the same extent as to his own employe.
Act of June 2, 1915, P.L. 736, art. II, § 203, as amended by the Act of June 21, 1939, P.L. 520, § 1 et seq., 77 P.S. § 52. The Supreme Court has construed this section as imposing five elements which must be established before statutory employer immunity exists. These elements are as follows:
(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, 295, 153 A. 424, 426 (1930). See also: Grant v. Riverside Corp., 364 Pa.Super. 593, 528 A.2d 962 (1987); Zizza v. Dresher Mechanical Contractors, Inc., 358 Pa.Super. 600, 518 A.2d 302 (1986); Bartley v. Concrete Masonry Corp., 322 Pa.Super. 207, 469 A.2d 256 (1983); Cranshaw Construction, Inc. v. Ghrist, supra; Pape v. Smith, 227 Pa.Super. 80, 323 A.2d 856 (1974).
In the instant case, the only element in dispute is whether the structural concrete work was a part of Driscoll's regular business which it entrusted to Hoffer, the subcontractor who was O'Boyle's employer. This element, as a general rule, is satisfied "wherever the subcontracted work [is] an obligation assumed by a principal contractor under his contract with the owner." Jamison v. Westinghouse Electric Corp., 375 F.2d 465, 468 (3d Cir.1967); Werner v. Big Sky Shop, 630 F.Supp. 444, 447 (E.D.Pa.1985). See also: Qualp v. James Stewart Co., 266 Pa. 502, 109 A. 780 (1920); Stipanovich v. Westinghouse Electric Corp., 210 Pa.Super. 98, 231 A.2d 894 (1967). Thus, Driscoll was a statutory employer if it had contracted with the owner to do work which included the structural concrete work and thereafter subcontracted that work to the subcontractor who was O'Boyle's employer.
O'Boyle argues that by the terms of the contract between the owner and Driscoll, the latter was not denominated a general contractor but merely a construction manager. However, the Supreme Court, in Capozzoli v. Stone & Webster Engineering Corp., 352 Pa. 183, 42 A.2d 524 (1945), declared that the nomenclature used by the parties is not controlling. Instead, to determine whether a statutory employer relationship existed, it is necessary to examine and construe the agreement between the parties. Id. at 186-187, 42 A.2d at 525. In the instant case, therefore, it is essential that we examine the written contract between Driscoll and the owner to determine whether it obligated Driscoll to construct the project. 2
An examination of the contract between the owner and Driscoll makes it clear that Driscoll's obligation was to complete construction of the entire project. The work which is the subject of the contract is defined as "the completed construction performed by the Construction Manager with his own forces or required by a Trade Contractor's contract and includes all labor necessary to produce such construction required of the Construction Manager or a Trade Contractor, and all the materials and equipment incorporated or to be incorporated in such construction." General Conditions for Owner-Construction Manager Agreement, Article 1, Section 1.1.3. The trial court observed further as follows:
The contract between Driscoll and River's Edge is essentially a form document entitled "Standard Form of Agreement Between Owner and Construction Manager" drafted by The Associated General Contractors of America. Article 1 of the contract between River's...
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