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PAPE v. SMITH (04/03/74)

decided: April 3, 1974.

PAPE, APPELLANT,
v.
SMITH



Appeal from order of Court of Common Pleas of Lawrence County, No. 397 of 1971, in case of Thomas Pape v. Ralph Smith, t/d/b/a Smith Paving & Construction Company.

COUNSEL

George P. Micacchione, with him Alfred V. Papa, for appellant.

P. Raymond Bartholomew, with him Donald R. McKay, and Cusick, Madden, Joyce and McKay, for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent.) Opinion by Cercone, J.

Author: Cercone

[ 227 Pa. Super. Page 81]

This is plaintiff's appeal from the lower court's order granting defendant's motion for summary judgment

[ 227 Pa. Super. Page 82]

    and dismissing plaintiff's complaint. Plaintiff brought this action against defendant Smith in trespass to recover for injuries suffered when he was trapped in the cave-in of a sewer line excavation in which he was working.

The issue to be resolved is whether defendant is a statutory employer of plaintiff under Section 203 of Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P. L. 736, Art. II, § 203 as amended, 77 P.S. § 52, and therefore immune from common law liability to the plaintiff.

The factual setting as developed by deposition and affidavit is as follows: The defendant, Ralph Smith, a general contractor, was awarded the job of constructing and installing sewer lines for Taylor Township in Lawrence County. Smith subcontracted the construction and installation work to D. J. Hannon, Inc. Plaintiff was employed as an apprentice plumber by Hannon and while engaged in laying the sewer lines in this Taylor Township job was injured when a portion of the trench where he was working collapsed. Having received workmen's compensation benefits through his immediate employer, Hannon, the plaintiff now seeks to recover additional damages in trespass against Smith, the general or primary contractor.

Section 203 of the Workmen's Compensation Act sets forth the following language: "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."

[ 227 Pa. Super. Page 83]

To enjoy immunity against a common law action a general contractor must meet a number of requirements so as to be within the Act's definition of a "statutory employer". Five elements have been enumerated by the Pennsylvania Supreme Court in McDonald v. Levinson Steel Co., 302 Pa. 287, 294-95 (1930), and each must be present to ...


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