Menginie v. Savine

• Citation: 170 Pa.Super. 582,88 A.2d 106
• Decision Date: 22 April 1952
• Docket Number: 7827
• Parties: MENGINIE v. GALLIGAN BROS. et al. Appeal of MENGINIE.
• Court: Pennsylvania Superior Court

88 A.2d 106

170 Pa.Super. 582

MENGINIE v. GALLIGAN BROS. et al.

Appeal of MENGINIE.

No. 7827

Superior Court of Pennsylvania

April 22, 1952

Argued March 17, 1952.

Appeals, Nos. 57 and 62, Oct. T., 1952, from judgments of Court of Common Pleas No. 4 of Philadelphia County, June T. 1951, Nos. 1739 and 2003, in cases of Alfonso J. Menginie v Dominick Savine and Employers Liability Assurance Corporation, and Same v. Galligan Brothers and Pennsylvania Manufacturers Association Casualty Insurance Company.

Appeal to court of common pleas by defendant Savine, subcontractor and his insurance carrier from award; and appeal by claimant from disallowance of claim against general contractor, Galligan Brothers.

Judgments in favor of claimant and against defendant Savine and his insurance carrier, and in favor of general contractor, Galligan Brothers, and its insurance carrier, opinion by Guerin, J. Defendant Savine, and his insurance carrier, and claimant, respectively, appealed.

George H. Detweiler, with him Rita Elizabeth Prescott, David Fulmer Keely, Robert A. Detweiler and Charles W. Sweeney, for defendant Savine and insurance carrier, appellants.

Paul H. Ferguson, for defendant Galligan Brothers and insurance carrier, appellees.

Alexander F. Barbieri, submitted a brief for claimant.

Rhodes P. J., Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.

OPINION

DITHRICH, J.

Claimant has been thwarted in his efforts to obtain payment of workmen's compensation for permanent injuries and total disability resulting from his becoming impaled on the spikes of an iron fence in a fall in the course of his employment. Claims arising under similar circumstances on and after January 2, 1952, the effective date of amendatory Act No. 481, will not be subject to such improvident delay. The amendment to the Workmen's Compensation Act provides that "the referee or the board shall forthwith order payments to be immediately made by the defendants or the carriers in said case. After the referee or the board renders a final decision, payments made by the defendant or carrier not liable in the case shall be awarded or assessed against the defendant or carrier liable in the case, as costs in the proceedings, in favor of the defendant or carrier not liable in the case."

Delay in payment of the admittedly just compensation which has been awarded this claimant has been due to the refusal of the insurance carrier for a subcontractor to abide by the decision of the Workmen's Compensation Board, affirmed by the court below, that its insured and not the general contractor is the responsible employer. The essential facts, briefly and succinctly stated by the learned judge of the court below, are as follows:

"Galligan Brothers contracted to do certain work on a church building. They gave a sub-contract for excavation work to Savine, who furnished Galligan Brothers with a certificate of workmen's compensation insurance coverage. Savine engaged Donald Pietropola to do pointing work, for which the latter billed Savine in the sum of $ 150., which was paid. Savine added ten per cent. to this charge and billed Galligan Brothers for $ 165., which was paid. The latter added ten per cent. and billed the pastor of the church for $ 181.50, and this likewise was paid.

"Savine did not require Pietropola to carry workmen's compensation insurance, nor did he have any agreement with him with respect to liability for compensable injuries to his employees. No notices had been posted by either Galligan Brothers or Savine which would eliminate them from the terms of the workmen's compensation laws.

"One week prior to August 14, 1948, claimant had assisted Pietropola in erecting a scaffold for the doing of the pointing work. On August 14, 1948, while assisting in the removal of the scaffolding, claimant fell and sustained serious injuries as a result of which he is totally disabled.

"The foregoing facts were found by the referee and affirmed by the board."

The court continued: "The referee concluded as a matter of law that since Savine did not require Pietropola to carry workmen's compensation insurance, and since he had no agreement with him with regard to liability for compensable injuries to his employees, Savine was liable to claimant." The conclusion is based on sufficient competent evidence and the weight to be given the evidence is for the compensation authorities. Harris v. Sachse, 160 Pa.Super. 607, 52 A.2d 375.

Savine has appealed from the entry of judgment against him, and Menginie, the claimant, in what as stated by his counsel "represents a solely protective measure" and by the court below "an excess of caution," has appealed from the dismissal of his claim against Galligan Brothers. By stipulation of counsel, approved by the court below, the appeals were "considered together for the purpose of argument and decision" and were disposed of in one opinion. We will follow the same course.

Stripped of all nonessentials, the question is whether or not the general contractor was relieved of liability for injury to the employe under the provisions of § 302(b) of The Workmen's Compensation Act of June 2, 1915, P. L. 736, as amended, 77 PS § 462, which provides in part 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...