Grant v. Riverside Corp.

• Citation: 528 A.2d 962,364 Pa.Super. 593
• Parties: Linda T. GRANT, Administratrix of the Estate of James Michael Grant, Deceased v. RIVERSIDE CORPORATION, Appellant. 00532 Pitts. 1986
• Decision Date: 31 July 1987
• Court: Superior Court of Pennsylvania

Page 962

528 A.2d 962

364 Pa.Super. 593

Linda T. GRANT, Administratrix of the Estate of James Michael Grant, Deceased v. RIVERSIDE CORPORATION, Appellant.

00532 Pitts. 1986

Superior Court of Pennsylvania.

Argued Jan. 22, 1987.

Filed May 21, 1987.

Reargument Denied July 31, 1987.

Richard L. Rosenzweig, Pittsburgh, for appellant.

Allan H. Cohen, Pittsburgh, for appellee.

Before BROSKY, DEL SOLE and CERCONE, JJ.

BROSKY, Judge.

This is an appeal from the denial of post-trial relief below, following a jury trial in which a verdict of $2,138,548.00 was entered in appellee's favor. Appellant raises seven contentions:

(1) does the Pennsylvania Workmen's Compensation Act permit the injured employee of a subcontractor to sue another subcontractor working on the same job site for tort damages?;

(2) was appellee's expert witness permitted to testify to matters beyond his competence?;

(3) was it error for the trial court to refuse to charge the jury that assumption of the risk is a defense in products liability actions?;

(4) did appellee's counsel make an improper "adverse inference" argument, concerning appellant's decision not to call a witness, in his closing?;

(5) did appellee argue a theory of liability not present in the complaint?;

(6) did appellee fail to sustain her burden of proof?; and

(7) was the damage award the product of passion and sympathy?

After careful consideration of the record below and the briefs presented to this Court, we fail to find any error in the trial court's resolution of the above-enumerated contentions, and accordingly affirm.

This suit arises from an accident which occurred on June 15, 1981, during the construction of the One Oxford Centre building in Pittsburgh. The general contractor on the project was Turner Construction Company (hereinafter "Turner"). Turner hired both Riverside Corporation ("Riverside") and ("Reiling") as subcontractors on the project. ¹ It was the function of Riverside, pursuant to the agreement, to install a double-well material hoist, which is, in essence, an elevator that is used to carry materials up and down during construction. Reiling, on the other hand, was to provide miscellaneous metal work, as well as skilled ironworkers, for the project. Decedent was an ironworker for Reiling.

The material hoist tower erected by Riverside was approximately seven feet away from the outside framework of the building. In order to construct platforms between the edge of the hoist car and the side of the building, certain diagonal and horizontal braces had to be removed from the side of the hoist car facing the seven foot gap. To do this, ironworkers in the hoist car had to remove the nut attached to the bolt which kept the braces in place.

On the date of the accident, decedent was attempting to remove the braces in order to create access for the building of a platform to the twelfth floor. However, after removing the nut, the bolt holding the braces in place would not come off. Attempting to loosen them, decedent pushed on the braces, which unexpectedly sprang off the bolt in a direction going away from the decedent. Decedent lost his balance, and fell out of the car into the seven-foot gap, landing on the seventh floor. He was pronounced dead at the local hospital.

Appellee, decedent's widow, filed suit against Riverside on theories of products liability and negligence with respect to the design and manufacture of the hoist car. Following an eight day jury trial and a verdict in appellee's favor, post-trial motions were filed and denied. This timely appeal followed.

The trial court issued an extensive opinion which we feel adequately addresses six of the seven contentions on appeal. As such, we shall only be addressing Issue I: does the Pennsylvania Workmen's Compensation Act preclude the employee of a subcontractor from bringing a tort action against another subcontractor on the same job site?

Initially, we must state that this would appear to be a case of first impression in Pennsylvania. While this trial court cited as conclusive authority the holding in McKenzie v. Cost Brothers, Inc., 487 Pa. 303, 409 A.2d 362 (1979), for the proposition that such suits are not barred, appellant is correct in pointing out that the McKenzie decision does not interpret, or even mention, the Workmen's Compensation Act, or if the Act was raised as a defense by the appellant. Rather, McKenzie limits its analysis to a discussion of the duties of care owed by a possessor of land to warn invitees of known or discoverable dangerous conditions. ² Hence, we deem it necessary to scrutinize the Act itself, and to determine if the language of the Act is in accord with the result reached in McKenzie.

Section 303 of the Act ³ is our starting point, as it is Section 303 that sets forth the extent to which the Act is intended to be the exclusive means of recovery for employment-related injuries:

§ 481. Exclusiveness of remedy; actions by and against third party; contract indemnifying third party.

(a) The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employes, 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) or occupational disease as defined in section 108.

(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, contributions 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. (Emphasis supplied).

Clearly, then, our determination of the Act's applicability to subcontractors shall turn upon the resolution of a key question: is a subcontractor an "employee" or "representative" of the general contractor, and thereby entitled to immunity on an equal footing with the direct employer of the aggrieved party, or a mere "third party" subject to common law tort liability?

The Act itself does not define "third party", thereby "opening the door", as it were, to appellant's contention that the legislature intended the exclusivity protections of the Act to encompass all contractors and subcontractors present at the same job site. According to appellant, the statutory scheme of the Act suggests that subcontractors in the position of Riverside and Reiling should be immune from common law liability for injuries to each other's employees on one of two theories: either (1) as "employees" or "representatives" of the general contractor, and, as such, "fellow employees" in a "common employment" pool; or (2) as subcontractors entrusted with part of the regular business of the general contractor, and, as such, afforded protection via the general contractor's status as the "statutory employer" of both subcontractors' employees. In support appellant directs this Court's attention to the compensation acts of several other jurisdictions, maintaining that they bear sufficient similarity to various provisions in the Pennsylvania Act so as to permit immunity to be extended to appellant under one or both theories. We disagree with appellant's analysis.

With respect to appellant's initial suggestion that we view Riverside and Reiling as "fellow employees", we note that the suggested construction of the term "employee" is directly contrary to express legislative intent. "Employee" is defined, in Section 104, ⁴ as:

"[A]ll natural persons who perform services for another for a valuable consideration, exclusive of persons whose employment is casual in character and not in the regular course of the business of the employer, and exclusive of persons to whom articles or materials are given out to be made up, cleaned, washed, altered, ornamented, finished or repaired, or adapted for sale in the worker's own home, or on other premises, not under the control or management of the employer. Every executive officer of a corporation elected or appointed in accordance with the charter and by-laws of the corporation, except elected officers of the Commonwealth or any of its political subdivisions, shall be an employe of the corporation except as hereinafter provided in sections 302(c), 305 and 321." (Emphasis supplied).

By contrast, the term "employer" is defined, at Section 103, ⁵ to include:

"... natural persons, partnerships, joint-stock companies, corporations for profit, corporations not for profit, municipal corporations, the Commonwealth, and all governmental agencies created by it." (Emphasis supplied).

Clearly, the definition of "employee" has been limited by the legislature to natural persons only. Where the words of a statute are clear and free from ambiguity, the letter of the statute is not to be disregarded under the pretext of pursuing its spirit. 1 Pa.C.S. § 1921(b). Furthermore, the general statutory maxim, expressio unius est exclusio alterius would appear applicable: that which is not included should be understood as excluded. Certainly, had the legislature wished to accord corporations such as Riverside and Reiling the potential status of "employees", it was free to include in its definition of "employee", as in its definition of "employer", business entities such as corporations. We cannot but deem the omission to be of some significance.

Moreover, the compensation acts of other jurisdictions which hold subcontractors...