Appeal from order of Court of Common Pleas of Delaware County, No. 13311 of 1964, in case of Francisco Ventura v. Skylark Motel, Inc. et al.
George S. Saulnier, with him Class, Saulnier, Dunn & Abel, for appellant.
Michael T. McDonnell, Jr., with him McDonnell & McDonnell, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen.
Francisco Ventura instituted this action in trespass to recover damages for personal injuries suffered while working in a trench which collapsed and caved in. These are the record facts which are pertinent to the question dispositive of this appeal.
One Township Line Corporation, the owner of certain land, engaged Van Cor, Inc., as prime contractor to construct a motel thereon. Van Cor, Inc., then engaged Wolfson & Schnoll, Inc., as subcontractor to install all the plumbing, including any excavations required. Wolfson & Schnoll, Inc., in turn subcontracted the excavation work to Walton & Co., Inc., by which Ventura was employed. The accident occurred during the progress of this work.
Wolfson & Schnoll, Inc., which was named as one of the original defendants in the action filed preliminary objections to the complaint in the nature of a demurrer. It contended that under the pleaded facts, it was Ventura's statutory employer within the meaning of the Workmen's Compensation Act, Act of June 21, 1939, P. L. 520, § 1, as amended, 77 P.S. 52, and since there was no averment that the Workmen's Compensation Act had been rejected by any of the parties, Ventura's exclusive remedy against it was under the act. The lower court ruled Wolfson & Schnoll, Inc., was not Ventura's statutory employer and dismissed the preliminary objections. Wolfson & Schnoll, Inc., then filed an answer, which included the following averments under "New Matter."
"3. By the employment agreement between Walton & Co. Inc. and the Plaintiff, the Plaintiff expressly or impliedly accepted the provisions of Article III of the Pennsylvania Workmen's Compensation Act in effect
at the time of his employment and at the time of his injury, and Plaintiff is in fact receiving such Workmen's Compensation by virtue of his said employment agreement.
"4. There is and was no express statement in writing either from Walton & Co., Inc. to Plaintiff or from Plaintiff to Walton & Co., Inc. or from Wolfson & Schnoll, Inc. to Plaintiff or from Plaintiff to Wolfson & Schnoll, Inc. that the Pennsylvania Workmen's Compensation Act was not intended to apply to Plaintiff, and no such written statement or proof of service has been filed with the Department of Labor and Industry of the Commonwealth of Pennsylvania.
"5. Neither Walton & Co., Inc. nor Wolfson & Schnoll, Inc. at any time herein pertinent posted in any place upon the premises here involved where Plaintiff's injury occurred a notice of intention not to pay Workmen's Compensation nor did either Wolfson & Schnoll, Inc. or Walton & Co., Inc. file with the Department of Labor and Industry of ...