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THOMAS v. BILLANTE

April 30, 1974

Thomas
v.
BILLANTE, Plaintiff, v. D.D. DAVIS CONSTRUCTION COMPANY, INC., Original Defendant and Third-Party Plaintiff, v. KEYSTONE LUMBER COMPANY et al., Third-Party Defendants


McCune, District Judge.


The opinion of the court was delivered by: MCCUNE

McCUNE, District Judge.

We have before us cross motions for summary judgment made by the plaintiff and original defendant which raise the issue whether the original defendant, D. D. Davis ("Davis"), is entitled to invoke the Pennsylvania Workmen's Compensation Act statutory employer defense in this negligence action brought by the plaintiff.

 The defendant's motion, if granted, would result in a dismissal of the complaint against it. The plaintiff's motion, if granted, would preclude Davis from relying on the statutory employer defense and the case would proceed to trial on the issue of Davis' alleged negligence.

 The plaintiff, Billante, was injured when a scaffolding plank on which he was standing broke and he fell 10 feet to the ground. The accident occurred in downtown Pittsburgh during the construction of a building owned by the United Methodist Church Union.

 The United Methodist Church Union had let the general construction contract to D.D. Davis Company. During the course of the construction Davis encountered difficulty in hanging or installing stainless steel covers (or skins) on columns that were a part of the exterior of the building. Davis then entered into a contract with Mainstream Corporation under which Mainstream was to complete the installation of the skins. According to the terms of the contract, Davis was obligated to supply all tools, materials and equipment and Mainstream was to supply the labor and supervision for this work. Billante contends this was a cost-plus contract. Davis disagrees and argues it was merely a contract to supply labor and supervision at an established hourly rate. *fn1" Billante had been employed by Davis and was one of the employees hanging the skins. When Davis made the contract with Mainstream, it was agreed that Billante would be laid off by Davis and immediately hired by Mainstream to do the same work. While working for Mainstream hanging the skins the scaffolding plank broke and Billante was injured.

 Billante contends that Davis was negligent in supplying a plank which was defective. In defense, Davis counters that it was Billante's statutory employer under § 203 of the Workmen's Compensation Act, 77 P.S. § 52, and, therefore, cannot be sued for its negligence in a common law action. *fn2"

 Section 203 provides:

 
"§ 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.

 "Contractor" is defined in § 105 of the Act as follows:

 
"§ 25. 'Contractor ' defined
 
The term "contractor," as used in article two, section two hundred and three, and article three, section three hundred and two (b), shall not include a contractor engaged in an independent business, other than that of supplying laborers or assistants, in which he serves persons other than the employer in whose service the accident occurs, but shall include a sub-contractor to whom a principal contractor has sub-let any part of the work which such principal contractor has undertaken. 1915, June 2, P.L. 736, art. I, § 105; 1937, June 4, P.L. 1552, § 1; 1939, June 21, P.L. 520, § 1.

 Billante argues that Mainstream was an independent contractor, not a sub-contractor, and thus Davis was not his statutory employer and is not protected by § 203. The fact that Davis and Mainstream entered into a cost-plus contract for the performance of specialized repair work, Billante argues, indicates that Davis had not reserved control over the means of accomplishing the work and Mainstream, therefore, was an independent contractor.

 To decide the plaintiff's motion we need not rule on whether or not Mainstream was an independent contractor because even if it was that fact alone would not ...


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