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DAVID WEISER v. BETHLEHEM STEEL CORPORATION V. FABRICATED STEEL ERECTION COMPANY. (TWO CASES) APPEAL BETHLEHEM STEEL CORPORATION. (THREE CASES) DAVID WEISER V. BETHLEHEM STEEL CORPORATION V. FABRICATED STEEL ERECTION COMPANY (05/05/86)

filed: May 5, 1986.

DAVID WEISER
v.
BETHLEHEM STEEL CORPORATION V. FABRICATED STEEL ERECTION COMPANY. (TWO CASES) APPEAL OF BETHLEHEM STEEL CORPORATION. (THREE CASES) DAVID WEISER V. BETHLEHEM STEEL CORPORATION V. FABRICATED STEEL ERECTION COMPANY, ADDITIONAL DEFENDANT



Appeal from the Order of July 26, 1984 in the Court of Common Pleas of Philadelphia County, Civil Division, at No. 2180 September 1975. Appeal from the Order of March 19, 1985 in the Court of Common Pleas of Philadelphia County, Civil Division, at No. 2180 September 1975. Appeal from the Judgment entered July 9, 1985 in the Court of Common Pleas of Philadelphia County, Civil Division, at No. 2180 September 1975.

COUNSEL

John H. McKeon, Jr., Philadelphia, for appellant.

Bernard Edelson, Philadelphia, for Weiser, appellee.

J. Davy Yockey, Philadelphia, for Fabricated, appellee.

Wickersham, Beck, and Hoffman, JJ.

Author: Hoffman

[ 353 Pa. Super. Page 13]

This is an appeal from the judgment of the lower court finding in favor of appellee, David Weiser, an employee of appellee, Fabricated Steel Erection Company (Fabricated Steel), in the amount of $162,559. Appellant, Bethlehem Steel Corporation (Bethlehem Steel), contends that the lower court erred in finding that it was negligent and, thus, liable to Weiser.*fn1 We agree and, therefore, vacate the judgment for Weiser, reverse the lower court's order denying Bethlehem Steel's motion for judgment n.o.v., and enter judgment for Bethlehem Steel.

On July 12, 1974, David Weiser was injured when he fell down a temporary elevator shaft from the twelfth floor of a high-rise office building under construction in Philadelphia, Pennsylvania. The general contractor for the project was Aberthaw Construction Company (Aberthaw). Aberthaw had subcontracted to Bethlehem Steel the job of erecting the structural steel frame of the building, a job that was performed in two-story sections. In connection with its duties, Bethlehem Steel was required to maintain two floors of temporary planking below its operations, both to protect its own workers from falling and to protect other workers

[ 353 Pa. Super. Page 14]

    from its operations (e.g., falling objects).*fn2 Planks were placed on the floor at the base of Bethlehem Steel's operations and on the second floor below that one. As the erection of each two-story tier was completed, Bethlehem Steel removed the lowest floor of planking and placed it on the highest completed floor, which then became the base for erecting the next two stories of steel. On the morning of Weiser's accident, Bethlehem Steel completed removal of the wooden planks on the twelfth floor and transferred them to a higher floor. Once the planking had been removed, it was the job of another subcontractor, appellee, Fabricated Steel, to cover the open floor with permanent metal decking. Weiser was an employee of Fabricated Steel, and his job was to spread the metal decking on the floor and weld it to the structural steel.

At the time of the accident, a temporary personnel elevator had been installed only as high as the tenth floor of the building. As higher floors were completed, the elevator was to be extended upwards, and, accordingly, metal decking was not spread over the elevator shaft on the eleventh and twelfth floors. While Weiser was welding decking on the twelfth floor, near the area where the elevator was to be installed, he slipped and fell down the elevator shaft. He landed on top of the elevator car, which was at the first floor, and sustained injuries to his back and left foot.

On September 17, 1975, Weiser filed a complaint in trespass against Bethlehem Steel alleging that it had acted negligently in removing the planking over the elevator shaft on the twelfth floor. Bethlehem Steel then filed a cross-complaint joining Weiser's employer, Fabricated Steel, as an additional defendant in order to seek contribution and indemnity.*fn3 Following a lengthy non-jury trial, the lower

[ 353 Pa. Super. Page 15]

    court entered an order on August 1, 1984, finding that Bethlehem Steel had negligently removed the planking over the elevator shaft area and awarding Weiser $110,000.*fn4 Post-trial motions for a new trial and judgment n.o.v. were timely filed and denied, and, on July ...


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