No. 1091 April Term, 1979, Appeal from the Order of the Court of Common Pleas of Allegheny County, Civil Division, at No. G.D. 77-8845
Matthew R. Wimer and Chester S. Fossee, Pittsburgh, for appellant.
James F. Manley, Pittsburgh, for appellees.
Cercone, President Judge, and Wickersham, Hester, Brosky, Wieand, Beck and Johnson, JJ. Hester, J., files a concurring and dissenting opinion.
[ 322 Pa. Super. Page 209]
John P. Bartley commenced this action to recover damages for injuries suffered by his decedent, Charles J. Bartley. Charles J. Bartley, an employee of appellee Carolin Masonry was injured while working as a laborer on a job site in Plum Borough, Allegheny County. Appellee Massaro Company was the general contractor.
The original defendants in this action were appellant Concrete Masonry Corporation and F.J. Meyerl, Inc., which companies were performing work at the site. These companies, charged by Bartley with having negligently caused Charles Bartley's death, joined Massaro Company and Carolin Masonry as additional defendants.
Motions for summary judgment were filed by Massaro and Carolin Masonry and granted by the trial court. It is from the order granting the motions that this appeal is taken.
The trial court found that Massaro was decedent's statutory employer under the Workmen's Compensation Act, and concluded that, pursuant to Section 303 of the Act,*fn1 neither Massaro nor Carolin Masonry could be joined as additional defendants in this suit.
Appellant urges us to find that Massaro was not the decedent's statutory employer and that, in any event, the statutory employer and the employer can be joined as additional defendants.
We have concluded that Massaro was indeed the decedent's statutory employer, and is therefore immune from suit by him. We hold also that as such it is immune from joinder as an additional defendant. Carolin Masonry is
[ 322 Pa. Super. Page 210]
immune from joinder as an additional defendant because of its employer status. We, therefore, affirm the order.
We discuss first appellant's contention that Massaro ought not to be accorded statutory employer status. Its argument is that certain amendments to 302(b) of the Act,*fn2 effectively amended Section 203*fn3 which defines statutory employer immunity in the following manner:
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.
This statute has long been interpreted as requiring that five criteria be met if statutory employer status is to attach. In McDonald v. Levinson Steel Company, 302 Pa. 287, 295, 153 A. 424 (1930), these criteria were established and explained as follows:
(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.
Appellant does not contest that Massaro meets these guidelines. Instead, it urges us to find that in view of amendments to Section 302(b) of the Act, these criteria alone no longer entitle a general contractor ...