decedent receive $ 37.50 per week (Ibid.). As the affidavit of Aster states the matter --
'5. That by agreement for compensation for death benefits, Bureau of Workmen's Compensation No. 6,780,685, the survivors of plaintiff's decedent entered into a binding agreement for compensation with the insurer of the aforesaid Morello Company. Said benefits continue to be paid in the amount of $ 37.50 per week.'
Aster argues that the case which is urged by Philadelphia Electric, Maio v. Fahs, 1940, 339 Pa. 180, 14 A.2d 105, is not applicable. To the contrary, says Aster, he cannot be retained on the record for contribution since it has been demonstrated that workmen's compensation payments are being paid by the Morellos, who are the direct employers. Giordano v. Clement Martin, Inc., 1943, 347 Pa. 61, 31 A.2d 504.
This Court agrees with Aster. The Maio case did not concern the respective liabilities and immunities of contractors, subcontractors, direct employers or statutory employers. It was simply a wrongful death action against a stranger, the operator of a trailer truck which collided with the milk truck on which the plaintiff's decedent had been working as helper. The trailer truck operator brought in, as additional defendants, the driver of the milk truck (a coworker of plaintiff's decedent) and the milk company by whom both the driver and the deceased helper had been employed. Judgment was rendered on a jury verdict jointly against these three defendants.
The direct employer (additional defendant) had entered into an agreement for compensation for the death of its employee, plaintiff's decedent, under the Pennsylvania Workmen's Compensation Act.
On appeal, the milk company challenged the judgment against it, asserting that as to it the plaintiff's exclusive remedy was under the Workmen's Compensation Act. It was in that context that the court held that although plaintiff's remedy against the appellant milk company (direct employer, additional defendant) was limited to the statutory compensation agreement, appellant should be retained on the record -- since the circumstances of payment of the judgment might entitle the other joint defendants to limited contribution from the appellant. Maio v. Fahs, 1940, 339 Pa. 180, 14 A.2d 105.
In the instant case, however, it is the Morellos who are the direct employer, and it is the Morellos who have undertaken the compensation payments by statutory agreement. Aster, on the other hand, is the statutory employer and -- by virtue of the Morellos' agreement -- is not responsible for the compensation payments. The Maio holding, therefore, appears not to stand in the way of Aster's motion to dismiss.
On the other side, Aster argues a later Pennsylvania case as authority for its contentions, Giordano v. Clement Martin, Inc., 1943, 347 Pa. 61, 31 A.2d 504. In that case, the employee of a subcontractor brought a negligence action against a second subcontractor, and the general contractor was joined as an additional defendant. The lower court granted a non-suit as to both defendants.
On appeal, the Supreme Court affirmed the non-suit only with respect to the general contractor (the third-party defendant, statutory employer) despite the argument of the sub-contractor (the original defendant) that the general contractor (statutory employer) should be retained on the record to establish his obligation to pay contribution.
In rejecting this contention, the Supreme Court held that inasmuch as plaintiff's immediate employer was making those payments, the general contractor could not be retained on the record for contribution under the operation of the Workmen's Compensation Act. At page 65 of 347 Pa., at page 506 of 31 A.2d the Supreme Court summarizes the matter as follows:
'No evidence of negligence was presented against the general contractor, William S. Miller Company, and plaintiff admits that even if such negligence were established he could not recover from that defendant. Swartz v. Conradis, 298 Pa. 343, 148 A. 529. But Clement Martin, Inc. urges that its co-defendant should be retained on the record so that, if if should itself be held liable, it might be able to show that William S. Miller Company also was negligent and thereby entitle itself to contribution to the extent of the workmen's compensation for which William S. Miller Company would be liable to plaintiff under sections 203 and 302(b) of the Workmen's Compensation Act of June 2, 1915, P.L. 736. Maio v. Fahs, 339 Pa. 180, 14 A.2d 105. It appears, however, that plaintiff was paid compensation, not by William S. Miller Company, but by the insurance carrier of his immediate employer, Pittsburgh Ply-Rite Company, presumably because of an agreement between that Company and William S. Miller Company as provided in section 302(b) of the act, and under such circumstances the general contractor was relieved from the payment of the compensation for which it would otherwise have been liable: Byrne v. Henry A. Hitner's Sons Co., 290 Pa. 225, 138 A. 826, 58 A.L.R. 865; Swartz v. Conradis, 298 Pa. 343, 346, 347, 148 A. 529, 530, 531; Salkind v. Pennsylvania Threshermen & Farmers' Casualty Insurance Co., 335 Pa. 326, 330, 331, 6 A.2d 301, 303. No right of contribution, therefore, could arise in this case.'
It should be noted however, that even though the direct employer has assumed the workmen's compensation payments, this fact does not make the statutory employer defense unavailable to the general contractor. See Byrne v. Henry A. Hitner's Sons Co., 1927, 290 Pa. 225, 138 A. 826, 58 A.L.R. 865; Swartz v. Conradis, 1929, 298 Pa. 343, 148 A. 529.
In Swartz v. Conradis, supra, the Court said at page 347 of 298 Pa., at page 531 of 148 A.:
'* * * Appellant argues that defendant, by agreeing with the subcontractor that the latter carry compensation insurance, took himself out of the act and so paved the way for a common law liability. We thought this had been made clear in the Gallivan ( Gallivan v. Wark Co., 288 Pa. 443, 136 A. 223) and Byrne cases. It is there pointed out that the statutory employer's responsibility for compensation may be avoided by an agreement with the subcontractor, but such agreement is possible only if the Act is accepted. It cannot mean the statutory employer rejects the act altogether by such agreement, as both employers are then liable thereunder; the ultimate payor being the one as suggested in the Byrne case. Although the burden is prima facie shifted to the subcontractor, the statutory employer must respond if for any reason the subcontractor or his insurer is irresponsible.'
This case makes it clear beyond any further doubt that Maio v. Fahs, 1940, 339 Pa. 180, 14 A.2d 105, does not apply to a situation where it is the statutory employer who is being sued, and where it is shown that the statutory employer (1) has satisfied his workmen's compensation obligation; or (2) that the direct employer (here, the Morellos) has assumed the workmen's compensation obligation. Under these circumstances, the statutory employer should not remain on the record. Giordano v. Clement Martin, Inc., 1943, 347 Pa. 61, 31 A.2d 504.
Therefore, since it has been found that, one the record before this Court as to this issue, there is no genuine dispute as to any material fact; and since the remedies provided by the Pennsylvania Workmen's Compensation Act are exclusive as to the situations to which it applies; and since it has been found that by the operation of such Act the moving party is the statutory employer -- it follows that plaintiff cannot recover against defendant Aster, the moving party herein.
It is accordingly ordered that the within action be, and the same is hereby dismissed as to the defendant Jay Aster, individually and t/a Wingate Construction Co.
© 1992-2004 VersusLaw Inc.