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BETTY J. BURGAN v. CITY PITTSBURGH ET AL. COMMONWEALTH PENNSYLVANIA (05/03/88)

decided: May 3, 1988.

BETTY J. BURGAN, ADMRX. OF THE ESTATE OF ANDREW F. BURGAN, DECEASED
v.
CITY OF PITTSBURGH ET AL. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT. THE KROGER COMPANY V. CITY OF PITTSBURGH ET AL. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT. THOMAS APITSCH AND PATRICIA APITSCH V. RAM CONSTRUCTION COMPANY ET AL. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT. CRAMER RECLAMATION, INC. V. RAM CONSTRUCTION COMPANY ET AL. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT. BETTY J. BURGAN, ADMINISTRATRIX OF THE ESTATE OF ANDREW F. BURGAN, DECEASED V. CITY OF PITTSBURGH ET AL. CONTROLLED BLASTING, INC., APPELLANT. THOMAS APITSCH AND PATRICIA APITSCH V. RAM CONSTRUCTION COMPANY ET AL. CONTROLLED BLASTING, INC., APPELLANT. THE KROGER COMPANY V. CITY OF PITTSBURGH ET AL. CONTROLLED BLASTING, INC., APPELLANT. CRAMER RECLAMATION, INC. V. RAM CONSTRUCTION COMPANY ET AL. CONTROLLED BLASTING, INC., APPELLANT. THE KROGER COMPANY V. CITY OF PITTSBURGH ET AL. RAM CONSTRUCTION COMPANY, APPELLANT



Appeals from the Order of the Court of Common Pleas of Allegheny County, in the cases of Betty J. Burgan, Administratrix of the Estate of Andrew F. Burgan, deceased v. City of Pittsburgh, Controlled Blasting, Inc., and A. M. Richardson & Associates, Inc. v. Commonwealth of Pennsylvania, No. G.D. 83-04583; Thomas Apitsch and Patricia Apitsch v. Ram Construction Company, Controlled Blasting, Inc. and A. M. Richardson & Associates, Inc. v. Commonwealth of Pennsylvania, Department of Transportation, No. G.D. 84-2479; Cramer Reclamation, Inc. v. Ram Construction Company, Controlled Blasting, Inc., and A. M. Richardson & Associates, Inc. v. Commonwealth of Pennsylvania, Department of Transportation and City of Pittsburgh, No. A.D. 85-704, and The Kroger Company v. City of Pittsburgh, Controlled Blasting, Inc., Commonwealth of Pennsylvania, Ram Construction Company and A. M. Richardson & Associates, Inc., No. G.D. 83-13357.

COUNSEL

Frank J. Micale, Deputy Attorney General, with him, Mark E. Garber, Chief, Tort Litigation Unit, and LeRoy S. Zimmerman, Attorney General, for appellant, Commonwealth of Pennsylvania, Department of Transportation.

Louis Anstandig, Egler, Anstandig, Garrett & Riley, for appellant/appellee, Ram Construction Company.

Robert B. Smith, Assistant City Solicitor, for appellee, City of Pittsburgh.

Robert F. McCabe, Lindsay, McGinnis, McCandless & McCabe, for appellee, A. M. Richardson & Associates, Inc.

John R. McGinley, Jr., Grogan, Graffam, McGinley & Lucchino, P.C., for appellee/appellant, Controlled Blasting, Inc.

Ira S. Lefton, with him, Eric Reif, Reed, Smith, Shaw & McClay, for The Kroger Company.

President Judge Crumlish, Jr., Judge Colins, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 115 Pa. Commw. Page 569]

These nine consolidated appeals arise out of four civil actions filed in the Allegheny County Court of Common Pleas following a rockslide alongside of Pennsylvania Route 51, also known as Saw Mill Run Boulevard, in Pittsburgh, Pennsylvania, (City) on February 16, 1983. The Pennsylvania Department of Transportation (PennDOT), Controlled Blasting, Inc. (CBI), and Ram Construction Company (Ram)*fn1 appeal from the decision

[ 115 Pa. Commw. Page 570]

    of the trial court denying their motions for post-trial relief and an order entering judgment in the four actions.

Prior to February 16, 1983, there had been instances of spontaneous rockslides from the hillside adjacent to Route 51 in Pittsburgh. Pursuant to plans prepared by A.M. Richardson and Associates, Inc. (Richardson), the City undertook a construction project involving removal of a rock overhang for the purpose of stabilizing the hillside. The City retained Ram as the general contractor to correct the hazardous condition. Ram chose CBI to perform blasting which was required to displace the rock overhang.

Prior to commencing the construction project, the City obtained a highway occupancy permit from PennDOT which allowed it to occupy the cartway of Route 51 during the course of the project and to establish temporary lanes of travel adjacent to the site for motorists.

On February 16, 1983, after Ram had released traffic which it had been holding back during blasting periods, a rockslide occurred on the hillside along Route 51 in an area where CBI had set off an explosion approximately seven or eight minutes earlier. A Ram employee, Andrew Burgan, was operating a bulldozer under the rock overhang when the rockslide occurred. Burgan was struck by falling rock and killed. Thomas Apitsch, a police officer for the City, sustained injuries jumping from fallen debris during the rescue effort after the rockslide. An automobile owned by Cramer Reclamation, Inc. and a truck owned by the Kroger Company were damaged by falling debris while traveling on Route 51 at the time the rockslide occurred.

The defendants in the Burgan action were the City, CBI, and Richardson. PennDOT was joined as an additional defendant. The City settled the matter for $250,000.00. The Apitsch action was filed against Ram,

[ 115 Pa. Commw. Page 571]

CBI, and Richardson. PennDOT was joined as an additional defendant in this action as well.*fn2 Ram settled this personal injury suit for $319,843.81. Ram, CBI, and Richardson were named as defendants in the Cramer action and PennDOT and the City were joined as additional defendants. The City, CBI, PennDOT, Ram, and Richardson were named as defendants in the Kroger action.*fn3 The City and Ram settled the Cramer suit for $2,609.44. Apparently Richardson subsequently reached a settlement with Ram and the City in these actions. There was no settlement of the Kroger action but the parties stipulated that the plaintiff was entitled to a verdict against any defendants found liable by the jury for $42,046.62 plus delay damages. Ram filed a cross-claim in the Kroger action for damage to its bulldozer. The parties stipulated that the damages to the bulldozer in the rockslide amounted to $48,332.00.*fn4

In light of the settlements and the stipulations with regard to the Kroger case, the four actions went to a jury on the issue of liability for purposes of contribution. The jury answered special interrogatories which were molded by the trial court to reflect a finding that

[ 115 Pa. Commw. Page 572]

    the City, Richardson and PennDOT were negligent and CBI was strictly liable. Ram was found both negligent and strictly liable.*fn5 The trial court, by orders dated December 17, 1985, and December 18, 1985, entered monetary verdicts as to all defendants in accordance with the jury's findings. PennDOT, CBI and Ram filed post-trial motions. In its opinion and order dated November 3, 1986, the trial court denied all the post-trial motions except for one, striking that part of its December 17, 1985, order apportioning the settlements and revised the contribution among the joint tort-feasors in order to reflect the fact that the obligations owed the plaintiffs in the Burgan, Apitsch, and Cramer cases had been satisfied.

On appeal, PennDOT contends that the trial court erred in holding that the claims against it were not barred by sovereign immunity and in not holding that the highway occupancy permit, associated regulations and Section 541 of the State Highway Law*fn6 place responsibility on either the City or Ram to regulate traffic and protect the public during the construction project. PennDOT also contends that the trial court erred in concluding it was not entitled to indemnification from

[ 115 Pa. Commw. Page 573]

    the City and that the charge to the jury was improper. PennDOT further maintains that the trial court's method of apportioning liability was improper and the judgment should be modified to reflect an alternative method of apportionment.

CBI raises three issues for our review. It contends that the trial court erred in refusing to enforce an indemnity provision between it and Ram and alternatively that the trial court should have submitted the question of whether CBI's employees were borrowed servants of Ram to the jury. CBI also questions the trial court's method of allocating liability for purpose of contribution.

On its cross-appeal, Ram argues that the trial court erred by concluding its cross-claim for damages to its bulldozer was barred.

We will address CBI's contentions first. Rather than entering into a subcontract, CBI and Ram executed a Service Agreement on February 1, 1983. The agreement provided that during the course of the project, the employees and equipment were to be considered as employees and equipment of Ram subject to its "sole supervision and control" and that Ram was to assume sole and absolute responsibility for the result of the services or work of such employees. The Service Agreement further provided that Ram was to:

     indemnify and hold harmless the CBI-Controlled Blasting, Inc., its employees and agents, from any and all liabilities, damages, losses or claims of any character, whether caused by negligence or otherwise, as a result of injuries to any property, any person or the said customer [Ram] from such services or work (excepting only liability for injury or death of CBI-Controlled Blasting, Inc. employees).

[ 115 Pa. Commw. Page 574]

The trial court ruled as a matter of law that CBI's employees were not borrowed servants of Ram. The court also ruled that the Service Agreement was unenforceable as it was entered into for the purpose of evading equal employment requirements and that CBI failed to fulfill the terms of the agreement*fn7 resulting in a failure of consideration for Ram's promise to indemnify.

CBI contends that the trial court erred by refusing to submit to the jury the question of whether its employees were borrowed servants of Ram and in concluding the Service Agreement was unenforceable. We disagree. As our Supreme Court stated in Mature v. Angelo, 373 Pa. 593, 595, 97 A.2d 59, 60 (1953):

The crucial test in determining whether a servant furnished by one person to another becomes the employe of the person to whom he is loaned is whether he passes under the latter's right of control with regard not only to the work to be done but also to the manner of performing it. (Emphasis deleted.)

It is true that where the record will support different inferences as to whether the lending or borrowing employer or both is in control at the time of the accident, the question is one for the jury. Lane v. Schacht, 260 Pa. Superior Ct. 68, 393 A.2d 1015 (1978). However, in the instant case, the facts belie the language of the Service Agreement as to Ram being in control of the blasting.

CBI supplied the explosives, equipment to both transport and detonate the explosives, blasting mats, tools, a warning siren and personnel to operate the equipment. The employees from CBI who were engaged

[ 115 Pa. Commw. Page 575]

    in blasting determined how much explosive to use. When the blasters were ready to blast they would tell the Ram employees who would set up flagmen to stop traffic. The blasters would check the site after the blast and give the Ram employees an "all clear" signal when traffic could be resumed. Although Ram drilled the blast ...


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