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WERNER v. BIG SKY SHOP

August 28, 1985

JOHN A. WERNER, JR.
v.
THE BIG SKY SHOP , a Division of Clark Shoe Company and TURNER-BUSH, INC.



The opinion of the court was delivered by: SHAPIRO

 NORMA L. SHAPIRO, J.

 Before the court is a motion for summary judgment filed by defendant Turner-Bush, Inc. ("Turner-Bush") claiming immunity from suit by plaintiff John A. Werner, Jr. ("Werner") as a "statutory employer" under the Pennsylvania Workmen's Compensation Act of June 2, 1915, as amended in 1974, 77 P.S. §§ 1-1031 (the "Act"), and from liability on the cross-claim of co-defendant The Big Sky Shop ("Big Sky") for indemnity, under § 303 of the Act as amended, 77 P.S. § 481(b).

 The court finds that Turner-Bush is a "statutory employer" under the Act and is entitled to immunity from suit by plaintiff, and that defendant Big Sky is precluded from asserting either a cross-claim or third party claim against it. Therefore, Turner-Bush's motion for summary judgment on the claim of plaintiff is granted and Big Sky's cross-claim against defendant Turner-Bush is dismissed with prejudice.

 Werner was an employee of National Interiors, Inc. ("National"). National was a subcontractor of defendant Turner-Bush which in turn had a contract for construction work with defendant Big Sky, a lessee in Neshaminy Mall, Bensalem, Pennsylvania.

 On November 3, 1982, Werner was engaged in the installation of an oak floor at Big Sky. While using an electric circular hand saw, modified by a fellow employee of National so that it could be used as a table saw, Werner's left hand was severely injured. Werner received Workmen's Compensation benefits from National's insurance carrier.

 Werner also brought this action against Big Sky for failure to take adequate precautions in hiring Turner-Bush as an independent contractor and against Turner-Bush for negligence in supervising the work and failing to protect the workmen on site. Big Sky cross-claimed against Turner-Bush on the ground that Turner-Bush agreed to indemnify and hold Big Sky harmless from claims against it by written agreement dated June 6, 1983.

 Turner-Bush filed this motion for summary judgment on two grounds: 1) Turner-Bush is entitled to immunity from suit by Werner as a "statutory employer" under the Act. P.L. 736, as amended 77 P.S. §§ 1-1031; 2) Turner-Bush is not liable to Big Sky under an indemnity agreement postdating the injury in suit.

 WERNER v. TURNER-BUSH

 The issue is whether Turner-Bush is immune from suit by the injured plaintiff as a "statutory employer" under the Act.

 Section 203 of the Act, 77 P.S. § 52 provides:

 
An employer who permits the entry upon premises occupied by him or under his control of a laborer or assistant hired by an employee or contractor, for the performance on such premises of a part of the employer's regular business entrusted to such an employee or contractor, shall be liable to such laborer or assistant in the same manner and to the same extent as to his own employee.

 In effect, the "statutory employer" becomes the employer of one not actually its employee; a "statutory employer" is liable to pay workmen's compensation if not paid by the actual employer and is therefore immune from suit to the same extent as the actual employer.

 In McDonald v. Levinson Steel Company, 302 Pa. 287, 153 A. 424, 426 (1930), the Supreme Court of Pennsylvania set forth five requirements which the employer must meet to establish the status of "statutory employer":

 
To create the relation of statutory employer under Section 203 of the Act (77 P.S. § 52), all of the following elements essential to a statutory employer's liability must be presented;
 
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 intrusted to ...

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