Emery v. Leavesly McCollum

• Decision Date: 17 February 1999
• Parties: Stephen H. EMERY and Star Emery, Appellants, v. LEAVESLY McCOLLUM and John Rich Co., Inc. and Bechtel Construction, Inc., and Insulated Services Inc., Appellees. Stephen H. Emery and Star Emery, Appellants, v. Pyro Power, Inc. and Gilberton Power Company, Appellees.
• Court: Pennsylvania Superior Court

725 A.2d 807

1999 PA Super 26

Stephen H. EMERY and Star Emery, Appellants, v. LEAVESLY McCOLLUM and John Rich Co., Inc. and Bechtel Construction, Inc., and Insulated Services Inc., Appellees.

Stephen H. Emery and Star Emery, Appellants, v. Pyro Power, Inc. and Gilberton Power Company, Appellees.

Superior Court of Pennsylvania.

Argued September 9, 1998.

Filed February 17, 1999.

Lawerence A. Goldberg, West Chester, for appellants.

Edward E. Knauss, IV, Harrisburg, for appellees.

Before CAVANAUGH, DEL SOLE, JOHNSON, HUDOCK, EAKIN, STEVENS, MUSMANNO, ORIE MELVIN and LALLY-GREEN, JJ.

LALLY-GREEN, J.:

¶ 1 Appellants, Stephen H. Emery and Star Emery, appeal from an order granting summary judgment in favor of Appellees, Bechtel Construction, Inc. ("Bechtel") and Gilberton Power Company ("Gilberton"). We affirm.

¶ 2 The Emerys filed negligence actions against Bechtel and Gilberton, among others.¹ The trial court granted summary judgment in favor of Bechtel on the ground that Bechtel was Stephen Emery's statutory employer. The court held that Gilberton was not liable for the acts or omissions of its general contractor, Bechtel, and granted summary judgment in favor of Gilberton on that basis.

¶ 3 The injury underlying these lawsuits occurred when Stephen Emery, a forklift operator employed by Leavesly-McCollum, was working overtime at a construction site owned by Gilberton. It was dark when Emery completed his work. He ascended a staircase in order to shut off the air compressors at the site. Upon entering the first floor, Emery fell through an opening in the floor and landed on top of the storage tank below. He suffered permanent disabling lower back injuries. ¶ 4 Gilberton, a general partnership, was formed to finance, construct and operate a cogeneration plant and drying facility in West Mahanoy Township, Schuylkill County. Gilberton entered into a contract with Bechtel for construction of the facility. Bechtel contracted with Pyro Power, Inc. ("Pyro Power") for certain work. Pyro Power in turn contracted with Leavesly-McCollum, Emery's employer, to insulate the inside of the boilers at the facility. Gilberton is the owner of the facility and Bechtel is the general contractor.

¶ 5 On appeal, the Emerys raise four issues:

1. Whether a general contractor is liable for injuries suffered by the employee of a sub-subcontractor where the general contractor did not have actual control over the work; and when there was no contractual relationship between the general contractor and the sub-subcontractor?

2. Whether a general contractor is liable for injuries suffered by the employee of a sub-subcontractor when the sub-subcontractor provided workers' compensation benefits?

3. Whether the owner of a construction site is liable for injuries suffered by the employee of a subcontractor when the owner retains control of the job site, is obligated to inspect and supervise all work performed on site, promulgate a safety program for the project and ensure compliance with safety procedures and employs a site manager to supervise and inspect the work, to ensure all contractors comply with safety procedures and to correct hazardous conditions on site.

4. Whether an employer is liable for injuries suffered by the employee of a subcontractor when the employee was working overtime on the job site after dark; the job site was not equipped with artificial lighting; and the employee fell through a floor opening which was unlit, railless and uncovered in contravention of OSHA regulations and the employer's safety program?

¶ 6 In reviewing the grant of summary judgment:

we must view the record in the light most favorable to the non-moving party and determine whether the moving party has established that there exists no genuine issue of material fact and that it is therefore entitled to judgment as a matter of law. Skipworth v. Lead Industries Assoc., 547 Pa. 224, 230, 690 A.2d 169, 171 (1997). The non-moving party is entitled to all reasonable inferences. Any doubts as to the existence of a factual dispute must be resolved in the non-moving party's favor and summary judgment is appropriate only in the clearest of cases. Kingston Coal Co. v. Felton Mining Co., Inc., 456 Pa.Super. 270, 690 A.2d 284, 287 (1997).

Roman Mosaic & Tile v. Aetna Cas. & Sur., 704 A.2d 665, 668 (Pa.Super.1997).

¶ 7 The Emerys first contend that Bechtel is not a statutory employer and, thus, is not immune from liability for negligence. This argument is premised on the definition of statutory employer found in § 203 of the Workers' Compensation Act.² A general contractor can only be deemed a statutory employer where the following elements are demonstrated:

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, 153 A. 424, 426 (1930). The Emerys do not challenge the first, fourth, and fifth elements of this test but argue that Bechtel does not meet either the second or the third element.

¶ 8 The Emerys first argue that Bechtel cannot be a statutory employer because it fails the second McDonald element, i.e. Bechtel did not have actual control over the work at the construction site. An employer will satisfy this element of the McDonald test either if he occupies the premises or if he is in control of the premises. Dougherty v. Conduit & Foundation Corp., 449 Pa.Super. 405, 674 A.2d 262, 266 (1996). Although actual control must be demonstrated, id., the statutory employer's control of the premises need not be exclusive of the owner's possession of the premises. Colloi v. Philadelphia Elec. Co., 332 Pa.Super. 284, 481 A.2d 616, 623 (1984). Moreover, the fact that the subcontractor used its own supervisors to directly oversee the subcontractor's employees does not mean the general contractor did not retain actual control over the project and premises in general. Pastore v. Anjo Construction Co., 396 Pa.Super. 58, 578 A.2d 21, 26 (1990).

¶ 9 The record shows that Bechtel, as general contractor, occupied the property for the purpose of constructing the cogeneration plant and had actual control over the premises. Bechtel had an on-site project superintendent who coordinated the work of the various subcontractors. The deposition testimony of the project superintendent clearly set forth that, while each subcontractor was responsible in its limited area, Bechtel was responsible for overseeing the entire project.³ Thus, Bechtel met the second McDonald element.

¶ 10 The Emerys next contend that Bechtel cannot be a statutory employer because it fails the third McDonald element, i.e., no contractual relationship existed between Bechtel and Leavesly-McCollum, Emery's employer. Our Supreme Court first addressed the issue of whether a contractual relationship with the general contractor was necessary to trigger statutory employer status in Qualp v. James Stewart Co., 266 Pa. 502, 109 A. 780 (1920). In that case, James Stewart Co. ("Stewart Co.") contracted with Hibbs to perform certain work. Hibbs in turn subcontracted the work to Wolfarth & Greenfield. Qualp, an employee of Wolfarth & Greenfield, died from an injury received during the course of his employment. His widow claimed workers' compensation benefits from Stewart Co., which were allowed. Stewart Co. appealed, arguing it was not Qualp's statutory employer because it did not have a direct contractual relationship with Wolfarth & Greenfield. The Court held that an immediate contractual relationship with the original contractor was not necessary for the original contractor to be considered the statutory employer and, thus, responsible for workers' compensation benefits. Id. at 508, 109 A. at 781.

¶ 11 This Court relied on Qualp as recently as 1997 in Lascio v. Belcher Roofing Corp., 704 A.2d 642 (Pa.Super.1997). In Lascio, the general contractor, Barclay-White, contracted with McKeon for certain work. McKeon then subcontracted the labor portion of that contract to Glass and Metal Erectors, Inc. Samuel Lascio, an employee of Glass and Metal Erectors, was injured while working on the project. After a jury found Barclay-White negligent and returned total verdicts of over $1,000,000, the trial court granted judgment n.o.v., holding that Barclay-White was a statutory employer. This Court affirmed the grant of judgment n.o.v., confirming the principle that an immediate contractual relationship is not required for statutory employer immunity. Lascio, 704 A.2d at 644.

¶ 12 This Court has concluded that no statutory employee status exists where no vertical contractual privity exists. See, e.g., Travaglia v. C.H. Schwertner & Son, Inc., 391 Pa.Super. 61, 570 A.2d 513 (1989); Grant v. Riverside Corp., 364 Pa.Super. 593, 528 A.2d 962 (1987). In Travaglia, the owner ("PECO") contracted with United Engineers & Constructors ("United") to furnish various "general contractor" services at various facilities, including PECO's Eddystone power station. PECO then entered into a contract with Schwertner to design and build concrete storage silos at Eddystone. Schwertner subcontracted certain of that work to Providence Steel Company ("Providence"). Travaglia was employed by Providence. After Travaglia was injured, he sued Schwertner, United and Providence for negligence. The trial court granted summary judgment in favor of United, holding that United was Travaglia's statutory employer. This Court reversed, holding that United could not be Travaglia's statutory employer because United was not in the vertical "chain" of contracts from PECO, i.e., there was no vertical privity. Travaglia, 570 A.2d at 515.

¶ 13 The Travaglia court relied on Grant where a similar factual scenario existed. There, Turner Construction Company, the...