Nineteen North, Inc. v. Workmen's Compensation Appeal Bd.

• Decision Date: 28 December 1979
• Citation: 48 Pa.Cmwlth. 208,409 A.2d 503
• Parties: NINETEEN NORTH, INC., et al., Petitioners, v. Commonwealth of Pennsylvania WORKMEN'S COMPENSATION APPEAL BOARD and Lorene Schenecker, Respondents.
• Court: Pennsylvania Commonwealth Court

Page 503

409 A.2d 503

48 Pa.Cmwlth. 208

NINETEEN NORTH, INC., et al., Petitioners, v. Commonwealth of Pennsylvania WORKMEN'S COMPENSATION APPEAL BOARD and Lorene Schenecker, Respondents.

Commonwealth Court of Pennsylvania.

Argued Nov. 13, 1979.

Decided Dec. 28, 1979.

Raymond F. Keisling, Will & Keisling, Pittsburgh, for petitioner.

Ronald P. Koerner, Allan H. Cohen, Pittsburgh, for Schenecker.

Before CRUMLISH, Jr., MENCER and CRAIG, JJ.

OPINION

CRUMLISH, Jr., Judge.

Lorene Schenecker, widow of Charles M. Schenecker, was awarded workmen's compensation benefits by a referee. The Workmen's Compensation Appeal Board affirmed and his employer, Nineteen North, Inc., appeals to us. We affirm the Board.

The issue is whether Nineteen North, Inc., a general contractor constructing an apartment complex, is liable as a statutory employer for the fatal injuries of Charles M. Schenecker, a project worker. He had been employed under an oral agreement to lay parquet flooring which he was doing for several months prior to a construction explosion accident. The employer contends that Schenecker was an independent contractor.

The referee concluded that Nineteen North was Schenecker's statutory employer under the provisions of Section 203 of The Pennsylvania Workmen's Compensation Act, ¹ 77 P.S. § 52, and ordered it to pay workmen's compensation benefits to the widow together with medical and funeral expenses. On appeal, the Board first set aside the award and ordered a remand to permit claimant to enlarge the record. Following additional depositions, the referee awarded benefits and was later affirmed by the Board.

We look to Section 203 for instruction:

"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."

This section throws the burden on the man who secured the original contract from the owner to the end that employees of any degree doing work thereunder might always be protected in compensation claims. Qualp v. James Stewart Co., 266 Pa. 502, 509, 109 A. 780, 782 (1920). More specifically, it affords workmen's compensation protection to injured employees of uninsured contractors by imposing secondary liability on the contractor who actually let the work. ² Jamison v. Westinghouse Electric Corp., 375 F.2d 465 (3rd Cir. 1967).

In construing Section 203 of the Act, our Supreme Court has provided us with five requirements necessary to bring an employer within the Act's definition of a "statutory employer":

"(1) An employer who is under contract with an owner or one in the position of an owner (herein, Nineteen North, Inc., was the general contractor of an apartment complex on a job site owned by the John Hancock Life Insurance Company).

"(2) Premises occupied by or under the control of such employer (herein the construction job site was under the control of the general contractor, Nineteen North, Inc.).

"(3) A subcontract made by such employer (herein Nineteen North, Inc., orally subcontracted work to the decedent).

"(4) Part of the employer's regular business entrusted to such subcontractor (herein decedent was laying parquet flooring for Nineteen North, Inc.).

"(5) An employee of such subcontractor."

McDonald v. Levinson Steel Co., 302 Pa. 287, 295, 153 A. 424, 426 (1930).

The parties here have conceded the existence of four of these five elements; at issue is whether decedent was an employee of a subcontractor.

In a workmen's compensation case where a widow/claimant files for benefits alleging that her husband was a statutory employee, she is given the burden of establishing the fact, Aurand v. Universal Carloading & Distributing Co., 131 Pa.Super. 502, 200 A. 285 (1938), and where the widow/claimant has prevailed below, review by this Court is limited to a determination of whether findings of fact are supported by substantial evidence or whether there was an error of law. Lanzarotta v. Workmen's Compensation Appeal Board, 42 Pa.Cmwlth. 284, 400 A.2d 697 (1979). Crucial to resolution of this claim is whether the referee's finding No. 8 that the decedent was an employee of the subcontractor Schenecker Builders, Inc., is supported by substantial evidence.

We are persuaded by the following relevant evidence:

1. Testimony of Charles J. Schenecker, son of decedent, that at the time of his father's accident...