Kean K. McDonald, Philadelphia, for appellant.
Max Meshon, Philadelphia, for Margaret Hebner, appellee.
Charles W. Craven, Philadelphia, for Falcon Steel Co., appellee.
Hester, Hoffman and Catania,*fn* JJ.
[ 276 Pa. Super. Page 343]
Appellant Turner Construction Company brings this appeal from an Order of the lower court sustaining appellee Hebner's preliminary objections to Turner's Answer and New Matter. The pivotal question is whether, in a trespass action, an employer may waive the defense of the Workmen's Compensation Act by failing to timely plead. We agree with the court below that in the circumstances herein the defense was waived and will therefore affirm.
On July 3, 1972, appellee's decedent Clifford Oliver Hebner was killed while in the employ of DIC Concrete Corporation (DIC) at a construction site in Philadelphia. Suit was instituted by his widow on May 7, 1973 in the Court of Common Pleas, Philadelphia County, against Turner as "a contractor" and appellee Falcon Steel as "a sub-contractor" responsible for Hebner's death. It was alleged that the deceased was in the employ of DIC at the time of the accident, but there was no allegation that DIC itself was a sub-contractor or that any of the other defendants were general contractors over DIC.
Counsel for Turner entered an appearance and three years passed during which the parties exchanged interrogatories and took depositions. On May 25, 1976, Turner attempted to join DIC and another sub-contractor as additional defendants. On motion, the trial court struck Turner's complaint against the additional defendants because of untimeliness. See Pa.R.C.P. 2253.
[ 276 Pa. Super. Page 344]
Thereafter, on January 7, 1977, Turner filed an Answer and New Matter alleging for the first time that it was the statutory employer of the decedent and thus the Workmen's Compensation Act provided a bar to the suit in trespass. Appellee Hebner then filed preliminary objections in the form of a motion to strike off the Answer and New Matter averring that the pleading was untimely, did not conform to rules of court, and that appellee would be prejudiced if the late filing were allowed. The court sustained the preliminary objections and denied Turner's motion for reconsideration. This Court allowed an interlocutory appeal by Turner by order dated August 1, 1977. See, Pa.R.App.P. 1301 et seq.
The Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, § 101 et seq., as amended, (77 P.S. § 1 et seq.) is, of course, remedial legislation designed to afford a workman a measure of protection against injuries and relief in cases of accident apart from the common law of trespass and negligence. "By virtue of the . . . Act, an employee's common law right to damages for injuries suffered in the course of his employment as a result of his employer's negligence is completely surrendered in exchange for the exclusive statutory right of the employee to compensation for all such injuries, regardless of negligence, and the employer's liability as a tortfeasor under the law of negligence for injuries to his employee is abrogated." Socha v. Metz, 385 Pa. 632, 637, 123 A.2d 837, 839-40 (1956); Swartz v. Conradis, 298 Pa. 343, 148 A. 529 (1929); Atkins v. Urban Redevelopment Auth., 263 Pa. Super. 37, 396 A.2d 1364 (1979); 77 P.S. § 481; Skinner, Pa. Workmen's Comp. Law, p. 15. The "statutory employer" provision, § 302(b) (77 P.S. § 462) extends liability under the Act to any "employer who permits the entry upon premises occupied by him or under his control of a laborer or an assistant hired by an employee or contractor, for the performance . . . of a part of such employer's regular business entrusted to that employee . . ." See, Stipanovich v. Westinghouse Electric Corp., 210 Pa. Super. 98, 231 A.2d 894 (1967). In its Answer and
[ 276 Pa. Super. Page 345]
New Matter, appellant Turner averred that it was a statutory employer of the deceased within § 302(b) and that its liability should be ...