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KENNETH GERARD v. PENN VALLEY CONSTRUCTORS (06/21/85)

filed: June 21, 1985.

KENNETH GERARD
v.
PENN VALLEY CONSTRUCTORS, INC. AND LEVITTOWN GLASS COMPANY, INC. APPEAL OF LEVITTOWN GLASS COMPANY, INC.



Appeal from the Order of the Court of Common Pleas of Bucks County, Civil Action, at No. 81-00081-11-2

COUNSEL

Frederick C. Fletcher, II, Philadelphia, for appellant.

Richard A. Weisbord, Philadelphia, for Gerard, appellee.

Peter A. Glascott, Doylestown, for Penn Valley, appellee.

Olszewski, Montgomery and Lederer,*fn* JJ.

Author: Montgomery

[ 343 Pa. Super. Page 426]

The instant appeal arises from an order of the lower court granting in part, and denying in part, a motion for summary judgment submitted by the Appellant, Levittown Glass Company, Inc. (hereinafter often referred to herein as the "Subcontractor"), which is an Additional Defendant in the case. We find that the lower court erred in denying, in part, the summary judgment sought by the Appellant.

The record shows that the Plaintiff, Kenneth Gerard, was a Pennsylvania resident who was injured when he apparently fell from a scaffold while in the course of his employment at a construction site in New Jersey. At the time, the Plaintiff was an employee of the Appellant Subcontractor, a Pennsylvania corporation. Penn Valley Constructors, Inc. (hereinafter often referred to as the "General Contractor"), the original Defendant in this case, was the general contractor on the job site, and had employed the Appellant as a subcontractor. The General Contractor was also a Pennsylvania corporation.

[ 343 Pa. Super. Page 427]

The Plaintiff brought suit for damages against the General Contractor in this action filed in Bucks County, Pennsylvania. Thereafter, the Defendant General Contractor joined the Subcontractor as an Additional Defendant, claiming that the latter was liable for negligence in failing to provide the Plaintiff with a safe place to work, and also that it was liable in assumpsit, based upon the terms of a construction contract between the General Contractor and the Subcontractor. The Appellant Additional Defendant filed a motion for summary judgment, contesting both the trespass and assumpsit claims against it.

The lower court analyzed the legal principles relevant to the resolution of the Appellant's motion for summary judgment, and in doing so, reached the finding that New Jersey law should be applied in the instant case rather than Pennsylvania law. That finding will be more fully discussed later in this Opinion. The lower court concluded that the Appellant could not be held liable in this case on a trespass theory, but determined that liability could be assessed against the Appellant on the assumpsit claim. Therefore, the court granted the motion for summary judgment as to the trespass claim, but rejected the claim for similar relief as to the assumpsit claim against the Subcontractor.

The lower court's findings as to the trespass claim against the Appellant deserve only brief comment. Statutory immunity is provided in both Pennsylvania and New Jersey to employers for all trespass claims which may arise out of situations in which their employees are injured, including third party claims like those raised by the Defendant in the instant case. See Act of December 5, 1974, P.L. 782, No. 263, Section 6, 77 P.S. ยง 481; Hefferin v. Stempkowski, 247 Pa. Super. 366, 372 A.2d 869 (1977); N.J.S.A. 34:15-1, 34:15-8, 34:15-40; Ruvolo v. United States Steel Corporation, 139 N.J.Super. 578, 354 A.2d 685 (1976). Under the law of both states, the employer may waive his immunity from claims by third-party ...


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