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MITCHELL v. W.S. CUMBY & SON

January 3, 1989

THOMAS WILLIAM MITCHELL and HELEN MITCHELL,
v.
W.S. CUMBY & SON, INC.


Van Artwerpen, United States District Judge.


The opinion of the court was delivered by: ARTWERPEN

VAN ARTWERPEN, UNITED STATES DISTRICT JUDGE

 This matter comes before the court on defendant's Motion for Summary Judgment. The action arises out of plaintiff's suffering personal injuries during the course of his employment. For the reasons stated below, after hearing oral argument, defendant's motion will be granted.

 FACTS

 On September 21, 1985, CIB Associates ("CIB") hired defendant W.S. Cumby & Son, Inc. ("Cumby") as general contractor for the reconstruction of the Cast Iron Building. (Complaint para. 6). Pursuant to its contract with CIB, Cumby subcontracted with RVS, Inc. ("RVS") for labor, material, and equipment for some of the demolition and rehabilitation work of the Cast Iron Building. (Contract at Defendant's Exhibit E). To discharge its contractual responsibilities, RVS brought several employees to the worksight, including plaintiff Thomas Mitchell.

 On March 28, 1986, while in the course of his employment, plaintiff allegedly fell in a stairwell and sustained personal injuries. (Complaint para. 7). As a result, plaintiff allegedly incurred medical expenses and experienced lost wages. (Defendant's Exhibit A at Interrogatory 3). Plaintiff brought this action to recover for his losses.

 DISCUSSION

 Defendant argues that we should grant its motion for summary judgment because under the Pennsylvania Workmen's Compensation Act it qualifies as a statutory employer. As a statutory employer, defendant is immune from suit by a statutory employee; the employee's exclusive remedy is through Workmen's Compensation. Thus, defendant argues, we should dismiss plaintiff's action.

 Fed.R.Civ.P. 56(c) instructs a court to enter summary judgment when the record reveals 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." This rule provides the court with a useful tool when the critical facts are undisputed, facilitating the resolution of a pending controversy without the expense and delay of conducting a trial made unnecessary by the absence of factual dispute. Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982); Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 97 S. Ct. 732, 50 L. Ed. 2d 748 (1977). Summary judgment is inappropriate, however, where the evidence before the court reveals a genuine factual disagreement requiring submission to a jury. An issue is "genuine" only if the evidence is such that a reasonable jury could find for the non-moving party. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). At the summary judgment stage, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id. at 2511. However, if the evidence is merely "colorable" or is "not significantly probative", summary judgment may be granted. Id.

 In a summary judgment action, the moving party bears the initial burden of identifying for the court those portions of the record which it believes demonstrate the absence of a material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). Following such a showing in a case where the non-moving party is the plaintiff and therefore bears the burden of proof, it must by affidavits or by the depositions and admissions on file "make a showing sufficient to establish the existence of [every] element essential to that party's case." Id. at 2552-53; Anderson, supra, 106 S. Ct. at 2514; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); Fed.R.Civ.P. 56(e). In making its ruling on a summary judgment motion, the court must view all inferences in a light most favorable to the non-moving party, United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 994, 8 L. Ed. 2d 176 (1962); Continental Ins. Co. v. Bodie, 682 F.2d 436, 438 (3d Cir. 1982), must resolve all doubts against the moving party, Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985), cert. denied, 474 U.S. 1010, 106 S. Ct. 537, 88 L. Ed. 2d 467 (1985), and must take as true all allegations of the non-moving party that conflict with those of the movant, Anderson, supra, 106 S. Ct. at 2513.

 Jurisdiction in this case is based on 28 U.S.C. § 1332 because the parties are of diverse citizenship and the amount in controversy exceeds $ 10,000. When federal courts sit in diversity cases, they must apply the substantive law of the forum state. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938). The parties have agreed that we should apply Pennsylvania law. While we look to the Pennsylvania Supreme Court for authority on a substantive issue, where that court has not faced an issue, we may predict how it would decide the issue if it confronted it. See Rabatin v. Columbus Lines, 790 F.2d 22, 24 (3d Cir. 1986) (citing Pennsylvania Glass Sand Corp. v. Caterpillar Tractor Co., 652 F.2d 1165, 1167 (3d Cir. 1981)).

 The liability of an employer to an employee under the Workmen's Compensation Act is exclusive of all other remedies. Pa. Stat. Ann. tit. 77 P.S. § 481(a) (Purdon Supp. 1988). *fn1" Under § 203 of the Pennsylvania Workmen's Compensation Act, the employer of a subcontractor is statutorily the employer of the subcontractor's employees:

 
An employer who permits the entry upon premises occupied by him or under his control of a laborer or an assistant hired by an employe or contractor, for the performance upon such premises of a part of the employer's regular business entrusted to such employe or contractor, shall be liable to such laborer or assistant in the same manner and to the extent as to his own employe. Pa. Stat. Ann. tit. 77 P.S. § 52 (Purdon 1952).

 In McDonald v. Levinson Steel Co., 302 Pa. 287, 294-95, 153 A. 424 (1930), the court outlined five elements necessary to establish the statutory-employer status which would ...


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