No. 02037 Philadelphia 1982, APPEAL FROM THE ORDER JULY 9, 1982 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, CIVIL NO. 5949 APRIL 1979
Lawrence Singer, Philadelphia, for appellants.
Charles W. Craven, Philadelphia, for Philadelphia Elec. Co., appellee.
John J. O'Brien, Philadelphia, for appellee Joseph Scholl.
Cavanaugh, Cirillo and Watkins, JJ. Cavanaugh, J., files a concurring opinion.
[ 332 Pa. Super. Page 289]
In this personal injury action, appellants Angelo Colloi and his wife Caterina Colloi appeal from a judgment entered in the Philadelphia County Court of Common Pleas after the court directed a verdict in favor of defendants/appellees Philadelphia Electric Company (PECO) and Joseph Scholl, Inc. (Scholl). We affirm the judgment with respect to Scholl, but reverse and remand for a new trial with respect to PECO.
The incident leading to this lawsuit occurred on September 11, 1978. On that date PECO, pursuant to a running contract for plumbing work with Scholl, called upon Scholl to repair an underground leak in the water sprinkler system at PECO's substation at Ninth and Lombard Streets in Philadelphia. Scholl, in turn, called upon a subcontractor, Herald Contractors, to perform the excavation work and repair the leak. Herald dispatched a foreman, George Kull, and a laborer, appellant Angelo Colloi, to the substation to do the work. Kull and Colloi were met on location by Charles McDevitt, a PECO employee, and Edward Koerper, vice president of Scholl, Inc. Kull, Koerper, and McDevitt reviewed blueprints of the substation water lines, and then McDevitt showed the others where the water leak was inside one of the buildings comprising the substation. They then proceeded outside, and Koerper marked a spot on the sidewalk in front of the building where the excavation was to begin.
Colloi began breaking up the sidewalk with a jackhammer at the spot indicated. Koerper and McDevitt left the site of the excavation, but returned at various times to watch the progress of the work. Approximately five feet below the surface of the sidewalk, Colloi found a broken water pipe partly "saddled" in a concrete structure. In order to repair the pipe, the workmen had to slip a metal clamp around it at the leak. Kull instructed Colloi to break up the concrete so that the clamp could be applied. Colloi broke through the concrete with a jackhammer, whereupon he struck an electrical conduit carrying a current of 13,200 volts. The resulting shock caused Colloi to suffer severe injuries, including
[ 332 Pa. Super. Page 290]
second-degree burns over one-third of his body and impotence, with concomitant traumatic neurosis.
Colloi, joined by his wife, sued the Philadelphia Electric Company for his injuries, and PECO brought in Scholl as an additional defendant. The case went to trial by jury. After the plaintiffs had presented their case, PECO introduced into evidence the contract between itself and Scholl, and with that the defendants rested and moved for a directed verdict. The court granted the motion, and it is from an en banc court's refusal to disturb the directed verdict that the Collois appeal.*fn1
In an appeal from a directed verdict, the Appellate Court must consider the evidence and all reasonable inferences in the light most favorable to the appellant. Litwinko v. Gray, 267 Pa. Super. 541, 407 A.2d 42 (1979). If a jury could have reasonably concluded on the basis of that evidence and those inferences that liability should rest with the appellee, then the decision to direct a verdict was in error. See Cox v. Equitable Gas Co., 227 Pa. Super. 153, 324 A.2d 516 (1974). If there is any room for doubt, the trial court should not direct a verdict. Stephens v. Carrara, 265 Pa. Super. 102, 401 A.2d 821 (1979).
Lattanze v. Silverstrini, 302 Pa. Super. 217, 220, 448 A.2d 605, 606 (1982).
Bearing these principles in mind, we turn to appellants' contentions that the evidence was sufficient to go to the jury on several theories of liability. We first address appellants' case against appellee PECO.
In holding PECO non-liable as a matter of law, the trial court relied on the undisputed fact that Colloi's employer, Herald Contractors, stood in the relationship of independent contractor to PECO. The court applied the following rule pertaining to independent contractors:
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An independent contractor is in possession of the necessary area occupied by the work contemplated under the contract and his responsibility replaces that of the owner who is, during the performance of the work by the contractor, out of possession and without control over the work or the premises . . . .
Brletich v. United States Steel Corp., 445 Pa. 525, 531-32, 285 A.2d 133, 136 (1971). Rationale for the independent contractor doctrine was stated in Silveus v. Grossman, 307 Pa. 272, 278, 161 A. 362, 364 (1932):
The very phrase "independent contractor" implies that the contractor is independent in the manner of doing the work contracted for. How can the other party control the contractor who is engaged to do the work and who presumably knows more about doing it than the man who by contract authorized him to do it? Responsibility goes with authority.
However, appellant contends that notwithstanding the independent contractor doctrine, PECO had a duty in this case to warn the independent contractor and its employees of the existence and location of its underground high-tension power line.
A landowner owes a duty to warn an unknowing independent contractor of existing dangerous conditions on the landowner's premises where such conditions are known or discoverable to the owner. Grace v. Henry Disston & Sons, Inc., 369 Pa. 265, 85 A.2d 118 (1952); Restatement (Second) of Torts § 343 (1965); see also Skalos v. Higgins, 303 Pa. Super. 107, 449 A.2d 601 (1982). Such a duty to warn is owed irrespective of whether the independent contractor exercises full control over the work and ...