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filed: September 4, 1981.


No. 545 Pittsburgh, 1980, Appeal from the Order of the Court of Common Pleas of Westmoreland County, Civil Division, at No. 11736 of 1978


Ronald J. Bergman, Greensburg, for appellant.

Robert F. Schultz, Pittsburgh, for Ghrist, appellee.

Robert J. Behling, Pittsburgh, for Wolk, appellee.

Brosky, DiSalle and Shertz, JJ. DiSalle, J., files a concurring statement. Shertz, J., files a dissenting opinion.

Author: Brosky

[ 290 Pa. Super. Page 288]

This is a trespass action which appellee, Ghrist, commenced to recover damages he suffered when a concrete wall fell upon him. The accident occurred at a construction site where appellee was employed by a subcontractor. Appellant, Cranshaw Construction, Inc., one of the named defendants in the case below, was the general contractor. Appellant argued in a motion for summary judgment that, as the general contractor, it had the status of "statutory employer" conferred by the Pennsylvania Workmen's Compensation Act.*fn1 The lower court found that appellant was Mr. Ghrist's statutory employer but concluded that it did not enjoy the immunity from suit which appellant contends

[ 290 Pa. Super. Page 289]

    follows from that status and therefore denied the motion. We find that Cranshaw is immune and therefore reversed the order.

Section 203*fn2 of the Workmen's Compensation Act establishes the requisites of statutory employer status in negligence actions. It provides:

An employer who permits the entry upon premises occupied by him or under his control of the 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.

In Nineteen North, Inc. v. Workmen's Compensation Appeal Board, 48 Pa. Commw. 208, 409 A.2d 503 (1979), the Commonwealth Court explained that,

In construing Section 203 of the Act, our Supreme Court has provided us with five requirements necessary to bring an employer within the Act's definition of a "statutory employer":

"(1) An employer who is under contract with an owner or one in the position of an owner . . .

(2) Premises occupied by or under the control of such employer . . .

(3) A subcontract made by such employer . . .

(4) Part of the employer's regular business entrusted to such subcontractor . . .

(5) An employee of such subcontractor."

[Citing McDonald v. Levinson Steel Co., 302 Pa. 287, 295, 153 A. 424, 426 (1930)]. See Pape v. Smith, 227 Pa. Super. 80, 323 A.2d 856 (1974).

Appellant contends that it was appellee's statutory employer. It argues that it is entitled to the immunity of a statutory employer and that therefore its motion for summary judgment should have been granted.

[ 290 Pa. Super. Page 290]

Because this case is before us on appeal from the denial of a motion for summary judgment, we must view the evidence in light of Pennsylvania Rule of Civil Procedure 1035(b). The Rule provides that summary judgment should be granted if:

The pleadings, depositions and interrogatories contain the following evidence. A vice-president of National Development Corporation, the owner of the property on which the accident occurred, stated in an affidavit that appellant had entered into a construction contract with the owner for the erection of buildings on that property.

The officer also stated in his affidavit that on the date of the accident the appellant occupied and was in possession of the premises and was in control of the construction project. In a deposition, a former employee of the subcontractor stated that an employee of appellant, the general contractor, was "more or less" the "boss of the job site." The witness said that the employee of the appellant was "completely the general of the whole thing."

A copy of the subcontract agreement between appellant and Mar Ray, Inc., the subcontractor, was attached to the affidavit of the president of Mar Ray, Inc.

In his complaint, appellee alleged that appellant was the general contractor employed to construct a building on the premises where the accident occurred. Appellant later introduced a copy of its contract with the owner of the premises showing it to be the general contractor for the construction of many buildings, including one on the premises in question. The subcontract with Mar Ray, Inc. indicated that Mar Ray was to perform the carpentry work on the property on which the accident occurred.

[ 290 Pa. Super. Page 291]

We believe that there is no genuine question that, under these circumstances, the subcontractor was entrusted with part of the employer's regular business (that being the construction of the buildings).

Appellee's complaint states that he was an employee of Mar Ray, Inc. As we have seen, Mar Ray, Inc. was the subcontractor.

Given the above described evidence and the lack of other evidence favorable to appellee, we find no error in the lower court's finding that there is no genuine issue as to whether appellant was appellee's statutory employer. See Pape v. Smith, supra.

The effect of this section was explained in Barbieri, Pennsylvania Workmen's Compensation & Occupational Disease (1975) as follows:

Thus, in negligence cases, the general contractor has the full immunity from suit by the employee of a subcontractor which an immediate employer would have. He is the statutory employer and is the injured employe's employer for negligence immunity purposes and is secondarily liable for compensation even though the immediate employer or some other intermediate subcontractor . . . is insured and responds fully on the injured employe's claim. The reason for this difference cannot be found in the language of the statute, but the rationale must be that, since the general contractor remains statutorily liable, although only in a reserve status, in return for this he has the statutory employer's immunity from statutory employe negligence suits in all events.

Barbieri, supra, vol. 1, § 4.09(3) (footnotes deleted) (citing cases). See Capozzoli v. Stone & Webster Engineering Corporation, 352 Pa. 183, 42 A.2d 524 (1945).

Section 203 was last amended in 1939. Section 302*fn3 of the Act, which is under Art. III, formerly entitled, "Elective

[ 290 Pa. Super. Page 292]

Compensation," was amended in 1974. Appellee argues that the amendments to this section also effectively amended § 203 which is part of Art. II, "Damages by Action at Law."

We are concerned in the present case with subsections (a) and (b) of Section 302. Subsection (a) is found at 77 P.S. § 461, "coverage of employees of subcontractor"; subsection (b) is found at 77 P.S. § 462, "coverage of laborer or assistant hired by employe or contractor."

Prior to the 1974 amendments, the statute stated that it was to be conclusively presumed that the employer or contractor had agreed to pay compensation. However, the statute did contain what is termed "elective compensation" language. That is, an employer or contractor could, if he complied with the terms of the statute, opt not to pay compensation as called for in the Act.

The present statute includes no elective compensation language. Instead, it provides that contractors and employers are to pay compensation as mandated by the Act, unless the subcontractor (§ 461) or hiring employer (§ 462), primarily liable has secured its payment. The employer referred to in Section 462 is defined in the same way as in the former statute and as in Section 203 of the Act.

[ 290 Pa. Super. Page 293]

Under the former statute, an employer who did not pay compensation was nonetheless accorded the immunity that stems from statutory employer status. As Barbieri, supra, explained:

Id. at p. 32 § 409 (citing Menginie v. Savine, 170 Pa. Super. 582, 88 A.2d 106 (1952) where the question was whether the general contractor is liable to pay compensation to the employee of a second subcontractor with whom the general had no contract.)

In Capozzoli, supra, our Supreme Court held that, under the former statute, an agreement by a subcontractor to provide workmen's compensation for its employees does not operate to remove the statutory employer from the scope of Art. II of the Workmen's Compensation Act, even though it may operate to relieve such employer from payment of compensation by placing that responsibility upon the subcontractor.

Since Section 203 was not changed by the amendment, we see no reason to construe the alteration of Section 302 as an indirect amendment of the former section. Our research has disclosed no evidence of legislative intent to alter the result in cases like Capozzoli, in which compensation was paid by a party other than the statutory employer.

Furthermore, rules of statutory construction require that every statute be construed, if possible, to give effect to all of its provisions. See 1 Pa. C.S. § 1921(a); Hospital Association of ...

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