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HAMLER v. WALDRON (ET AL. (12/20/71)

decided: December 20, 1971.

HAMLER
v.
WALDRON (ET AL., APPELLANT)



Appeal from judgment of Court of Common Pleas, Civil Division, of Allegheny County, April T., 1967, No. 3592, in case of Robert J. Hamler v. James F. Waldron and William H. Lagar, and Ray Austin, trading as Austin Contracting Company.

COUNSEL

Cosmos J. Reale, with him Murovich & Reale, for appellant.

John J. Repcheck, with him Mercer & Buckley, for Hamler, appellee.

William W. Guthrie, with him Wayman, Irvin, Trushel & McAuley, for Waldron, appellee.

Bell, C. J., Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Pomeroy. Mr. Justice Jones took no part in the consideration or decision of this case.

Author: Pomeroy

[ 445 Pa. Page 263]

The issue raised by this appeal is whether the appellant, William H. Lagar, an excavating subcontractor, or the appellee, James F. Waldron, the general contractor in the construction of a residential building, is responsible for personal injuries sustained by Robert J. Hamler, the plaintiff, while working on the construction project.

As general contractor for the project, Waldron engaged Lagar as excavating subcontractor and Ray Austin, trading as Austin Contracting Company, as a carpentry subcontractor. Hamler was an employee of Austin, and was injured by the collapse of a foundation wall which was inadequately shored. The excavation work was performed by an employee of Lagar.

Hamler sued Waldron, the general contractor, and Lagar, the excavating contractor.*fn1 The lower court, in

[ 445 Pa. Page 264]

    a non-jury trial, found in favor of plaintiff and against Lagar. A finding was made that Waldron, the general contractor, was a statutory employer as defined by the Workmen's Compensation Act, Act of June 2, 1915, P. L. 736, as amended, 77 P.S. ยง 1, and a verdict was therefore returned in its favor. Exceptions filed by Lagar were dismissed, and judgment was entered on the verdict. This appeal followed.

There is no dispute that plaintiff was in fact injured in the course of his employment, without fault on his part, and that the cause of the injury was the failure to provide shoring for the excavation where an overhang of earth existed.*fn2 The issue here is solely which of the two original defendants is liable. It is appellant's contention that he merely furnished a highlift truck and operators to Waldron, and exercised no control over the excavation; that the lift operator became the servant of the general contractor, and that any negligence in failing to provide proper shoring was that of the general contractor. Appellant relies upon Ramondo v. Ramondo, 169 Pa. ...


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