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December 12, 1960

Carolyn D. MOORE, Administratrix of the Estate of Phillip P. Morello, Deceased
PHILADELPHIA ELECTRIC COMPANY and Jay Aster, Individually and t/a Wingate Construction Company v. Russell W. MORELLO and Anthony Morello, Individually and as partners t/a Russell W. Morello, Excavating and Paving Contractor

The opinion of the court was delivered by: LORD

This matter arises out of an occurrence on September 25, 1957, in which plaintiff's decedent was electrocuted. Suit was instituted against the Philadelphia Electric Company (hereafter 'Philadelphia Electric') and Jay Aster, individually and t/a Wingate Construction Company (hereafter 'Aster'), as defendants. Both parties filed third-party actions against Russell W. Morello and Anthony Morello, individually and t/a Russell W. Morrello Excavating and Paving Contractor (hereafter 'the Morellos').

It is asserted that Aster was a general contractor under a contract with the government for excavating and construction work and that the third-party defendants, the Morellos, were subcontractors of Aster for a portion of the work. It is further contended by Aster that the deceased was an employee of the third-party defendants, the Morellos.

 This matter is presently before this Court on Aster's motion for summary judgment on the ground that Aster was the statutory employer of the deceased at the time of the accident, and therefore immune from common-law liability.

 The applicable section of the Workmen's Compensation Act, says Aster, is

 Tit. 77 P.S. § 52 (Employers' liability to employee of employee or contractor permitted to enter upon premises) '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. 1915, June 2, P.L. 736, art. II, § 203; 1937, June 4, P.L. 1552, § 1; 1939, June 21, P.L. 520, § 1.'

 It is a fact taken for granted by the parties that this action is subject to the jurisdiction of this court by virtue of diversity of citizenship in that: the plaintiff Administratrix is a resident and citizen of Trenton, New Jersey; the defendant Philadelphia Electric is a Pennsylvania public utility corporation with its principal place of business in Philadelphia, Pennsylvania; and the amount in controversy exceeds $ 10,000. The laws and decisions of Pennsylvania therefore are controlling.

 It is settled law in Pennsylvania that the employee of a subcontractor cannot maintain a negligence action against his statutory employer. Swartz v. Conradis, 1929, 298 Pa. 343, 148 A. 529; Giordano v. Clement Martin, Inc., 1943, 347 Pa. 61, 31 A.2d 504; Girardi v. Lipsett, inc., 3 Cir., 1960, 275 F.2d 492, 493; Winters v. Herdt, 1960, 400 Pa. 452, 162 A.2d 392.

 Defendant Philadelphia Electric, however, resists the motion of Aster on the grounds that:

 (1) 'This is not the sort of clear case, where there is no issue of fact for development, in which summary judgment may be granted on the pleadings.' In particular, it asserts that the motion and its supporting affidavits are not self-sustaining, and do not clearly present all the elements necessary to sustain Aster's position, and suggests 'Cf. Boettger v. Babcock & Wilcox Company, 242 F.2d 455 (3rd Cir. 1957).' The insufficiency, it argues, is as to

 (a) Whether the accident which gave rise to the injury took place on the premises occupied or under control of the statutory employer, and

 (b) That there was no showing that it was in connection with performance by the employee of the employer's regular business on the premises, saying 'Cf. Lee v. McMinn Industries, Inc., 167 Pa. Superior Ct. 501, (76 A.2d 493) (1950).'

 (2) Even if the record as presently constituted sufficiently describes the matter as being within the confines of the statutory employer situation, however, defendant Philadelphia Electric says Aster's motion should be denied for a further reason. Defendant designates that reason as the doctrine of Maio v. Fahs, 1940, 339 Pa. 180, 14 A.2d 105. That is -- Philadelphia Electric argues -- defendant Aster should be retained on the record to determine its liability, if any, so that the question of contribution can be property determined. It adds

 '* * * and this is so notwithstanding the shallow consideration given the problem by the Court in Giordano v. Clement Martin, Inc., 347 Pa. 61 (31 A.2d 504) (1943).'

 It develops that argument as follows:

 'Under the Workmen's Compensation Act the statutory employer owes the primary obligation of paying compensation to the injured workmen. See, 77 P.S. §§ 52, 462; Byrne v. Hitner's Sons Co., 290 Pa. 225 (138 A. 826, 58 A.L.R. 865) (1927). The Act permits the statutory employer to enter into an agreement with the intermediate employer to provide for the payments by the intermediate employer. This is by contract and without it the intermediate employer is not liable. 77 Pa. § 462 (sic)

 'In the instant case the third-party defendant, Morello, is paying the compensation to deceased's widow, this comes about by reason of the contract between Jay Aster and Morello. If morello is found to have contributed to the occurrence then the defendant, Philadelphia Electric Company, would be entitled to contribution from it at least to the extent of the compensation payable under the Act. But what is the status of the parties if Morello is found to be free of negligence and defendant, Jay Aster, is found to have contributed to the injuries and death of decedent? It is perfectly obvious that under the Act defendant, as the person primarily liable, would be required to contribute at least to the extent of the compensation payable. Certainly third-party defendant, Morello, has no higher rights than Jay Aster because it paid the compensation, not by direction of the Act, but because it voluntarily assumed by contract to pay Aster's liability under the Compensation Act.

 'A determination of how much plaintiff is entitled to receive, if anything, and a determination of what contribution defendant, Philadelphia Electric Company, is entitled to if it is found liable, depends upon a determination by the jury of whether Jay Aster or Morello were negligent and responsible for the occurrence. It is not sufficient that Morello is on the record because it may exonerated. This conclusion is a necessary application of the doctrine of Maio v. Fahs, 339 Pa. 180 (14 A.2d ...

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