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JAMES M. WILTROUT AND EMMA WILTROUT v. CIRCLE MOBILE HOME SALES (12/04/81)

filed: December 4, 1981.

JAMES M. WILTROUT AND EMMA WILTROUT, INDIVIDUALLY,
v.
CIRCLE MOBILE HOME SALES, INC., T/D/B/A LINCOLN MOBILE HOME SALES AND FRANK RIZZO, INDIVIDUALLY AND WINIFRED RIZZO, INDIVIDUALLY, AND FRANK AND WINIFRED RIZZO, T/D/B/A LINCOLN MOBILE HOME COMPANY, AND THE BELL TELEPHONE COMPANY OF PENNSYLVANIA, JOINTLY AND SEVERALLY. APPEAL OF BELL TELEPHONE COMPANY



NO. 386 PITTSBURGH, 1980, Appeal from the Order & Judgment of the Court of Common Pleas, Civil Division, of Westmoreland County, at No. 1665 of 1977.

COUNSEL

James F. Manley, Pittsburgh, for appellant.

Patrick H. Mahady, Greensburg, for Wiltrout, appellees.

Rabe F. Marsh, Greensburg, for Circle, appellees.

Hester, Brosky and Van der Voort, JJ. Hester, J., concurs in the result.

Author: Van Der Voort

[ 293 Pa. Super. Page 133]

Plaintiffs-appellees filed this present action in trespass against the owners of a piece of land (referred to hereinafter as the Rizzo appellants, or the Rizzo group), and against Bell Telephone Company of Pennsylvania. The trial culminated in verdicts for the husband-appellee for $150,000 and for the wife-appellee for $20,000, and a verdict in favor of the Rizzo group. Motions for new trial and for judgment n.o.v. were refused by the lower court and Bell Telephone has filed this appeal.

James M. Wiltrout, husband-appellee (hereinafter referred to as appellee), was employed at the time of the accident by Penn Line Service, Inc. That company had a contract with Bell Telephone Company to perform work on the Bell Telephone systems, involving the placing, removing, or rearranging of telephone facilities.

On the morning of the accident, June 6, 1975, appellee and his foreman, a Mr. Snyder, had gone to the Bell Telephone office and been given their assignment for the day. Appellee had climbed a telephone pole across the street from the Rizzo premises and removed wire from the pole. He and Snyder then came on the Rizzo premises in an area where Bell Telephone had a right-of-way, tested the telephone pole there by probing with a screwdriver, hitting it with a hammer, and shaking the pole. Appellee then climbed the pole and was engaged in removing the wires when the pole snapped off at its bottom, causing appellee to fall to the ground, injuring him.

After the accident it was discovered that the pole was rotted at its core about 12 to 18 inches below the ground level, although, even in the area below the surface, the exterior wood seemed hard and strong. The pole had been in position about 18 years; the defect in the interior could have been detected by a boring test not usually done until a pole was in place for about 20 years.

Bell Telephone's first contention on appeal is that it was a "Statutory Employer" of appellee, liable to pay workmen's

[ 293 Pa. Super. Page 134]

    compensation benefits, if required, along with his actual employer Penn Line Service, and therefore immune from ...


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