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JOHN S. ZIZZA v. DRESHER MECHANICAL CONTRACTORS (11/28/86)

filed: November 28, 1986.

JOHN S. ZIZZA, JR., APPELLANT,
v.
DRESHER MECHANICAL CONTRACTORS, INC. AND THE PHILADELPHIA ELECTRIC COMPANY AND PLYMOUTH TRANSPORT, INC.; JOHN S. ZIZZA, JR. V. DRESHER MECHANICAL CONTRACTORS, INC. AND THE PHILADELPHIA ELECTRIC COMPANY AND PLYMOUTH TRANSPORT, INC. APPEAL OF PLYMOUTH TRANSPORT, INC.



Appeal from the Order entered November 2, 1984, Court of Common Pleas, Montgomery County, Civil Division at No. 83-03133.

COUNSEL

Robert J. Greenberg, Broomall, for appellant (at 3222) and for appellee (at 3277).

Thomas K. Ellixson, Morton, for appellant (at 3277) and for appellee (at 3222).

Andrew L. Braunfeld, Norristown, for Dresher, appellee.

Kevin Connors, Philadelphia, for Philadelphia Elec., appellee.

Cirillo, President Judge, and Wickersham, Brosky, McEwen,*fn* Olszewski, Montemuro, Beck, Kelly and Johnson, JJ. Beck, J., files a concurring opinion.

Author: Johnson

[ 358 Pa. Super. Page 602]

We are asked to determine whether the owner of a construction site and the contractor on that site qualify as statutory employers of a subcontractor's employee, and are thus immune from an action at law for damages under the Pennsylvania Workmen's Compensation Act (the Act). Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 1, et seq. We find that the owner does not qualify as a statutory employer, but that the contractor does qualify as a statutory employer within the meaning of the Act.

This case comes to us on appeal from orders granting motions for summary judgment. Pennsylvania Rule of Civil Procedure 1035 provides that on a motion for summary judgment:

The judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Pa.R.C.P. 1035(b).

The facts viewed in this way are as follows. John Zizza Jr. commenced the instant suit to recover damages from the Philadelphia Electric Company (PECO), Dresher Mechanical Contractors, Inc. (Dresher), and Plymouth Transport, Inc. (Plymouth), for injuries he suffered when a trench that he was digging collapsed and injured his right leg. The injury occurred on the premises of the Cromby Generating Station (station) in Phoenixville, Pennsylvania. At the time of the injury PECO was the owner of the station and its premises. PECO had entered into a contract with Dresher for the provision of mechanical and excavation work at the station, which included installation of underground piping to carry

[ 358 Pa. Super. Page 603]

    run-off water from a coal pile to a waste treatment building. Dresher entered into a subcontract with Heller and Karpowich, Inc., for whom Zizza worked at the time of the injury, to provide backfill and excavation work incident to the laying of the run-off piping. At the time Zizza was injured, Plymouth was operating heavy trucks at the site.

The court below granted motions for summary judgment in favor of PECO and Dresher on the basis that each qualified as a statutory employer under the Workmen's Compensation Act, and was therefore immune from suit. Plymouth and Zizza appeal from the orders granting the motions for summary judgment and entering judgment in favor of PECO and Dresher.

We are thus asked to determine whether Dresher and PECO are Zizza's statutory employers within the meaning of the Act.

We address first the question of whether Dresher, the general contractor, qualifies as a statutory employer. The Workmen's Compensation Act, Section 203, establishes the requirements for statutory employer ...


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