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MICHAEL TRAVAGLIA AND ILENE TRAVAGLIA v. C.H. SCHWERTNER & SON (12/29/89)

filed: December 29, 1989.

MICHAEL TRAVAGLIA AND ILENE TRAVAGLIA, APPELLANTS,
v.
C.H. SCHWERTNER & SON, INC., UNITED ENGINEERS & CONSTRUCTORS, INC. AND PROVIDENCE STEEL COMPANY. (TWO CASES) MICHAEL TRAVAGLIA AND ILENE TRAVAGLIA, V. C.H. SCHWERTNER & SON, INC., UNITED ENGINEERS & CONSTRUCTORS, INC. AND PROVIDENCE STEEL COMPANY. APPEAL OF C.H. SCHWERTNER & SON, INC., UNITED ENGINEERS & CONSTRUCTORS, INC.



Appeal from the Order Entered August 31, 1988, in the Court of Common Pleas of Philadelphia County, Civil No. 6587 March 1983. Appeal from the Order Entered September 1, 1988, in the Court of Common Pleas of Philadelphia County, Civil No. 6587 March 1983.

COUNSEL

Joseph I. Fineman, Philadelphia, for Travaglia, appellants (at 2714 and 2715) and appellees (at 2826).

Frank C. Bender, Philadelphia, for Schwertner and United Engineers, appellants (at 2826) and appellees (at 2714 and 2715).

Andrew L. Braunfeld, Norristown, for Providence Steel, appellee (at 2714, 2715 and 2826).

Cirillo, President Judge, and Melinson and Hester, JJ. Melinson, J., files a concurring statement. Cirillo, President Judge, files a dissenting statement.

Author: Hester

[ 391 Pa. Super. Page 62]

Appellants, Michael and Ilene Travaglia, appeal from the September 1, 1989 order entered by the Court of Common Pleas of Philadelphia County granting summary judgment in favor of United Engineers & Constructors, Inc. We reverse and remand for trial.

The record reveals the following. In November, 1972, Philadelphia Electric Company (PECO) entered into an agreement with United Engineers & Constructors (United) whereby United would furnish consulting, engineering, design and construction services for various pollution control facilities of PECO. United thereafter proceeded to supervise construction of various facilities of PECO, including those at its Eddystone power station. On October 26, 1981, PECO and United updated and formalized United's obligation to continue to provide consulting, engineering, design, and construction services for this project.

[ 391 Pa. Super. Page 63]

In April, 1981, PECO entered into a written contract with C.H. Schwertner & Son, Inc. (Schwertner) whereby PECO was to pay Schwertner $2,240,958.00 to design and construct four concrete storage silos using the slip-form method of construction, a highly sophisticated procedure wherein concrete and reinforced steel are installed in forms to create the silo walls in a continuous-pour basis, an operation wherein United lacked expertise. This construction was to be done at the PECO Eddystone power station. The contract was signed by United but solely on behalf of PECO; United was not a party to this contract. Schwertner then entered into a sub-contract with Providence Steel Company (Providence) for the installation of steel reinforcing bars in the walls where the concrete was to be poured. Plaintiff-appellant Travaglia was employed by Providence and was injured while employed.

Travaglia argues that the trial court erred as a matter of law by granting summary judgment in favor of United on the basis of statutory employer immunity after all parties had stipulated that Schwertner was Travaglia's statutory employer. Pennsylvania Rule of Civil Procedure 1035(b) provides, in pertinent part, that on a motion for summary judgment:

[t]he 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); Dume v. Elkcom Co., 368 Pa. Super. 280, 533 A.2d 1063 (1987).

When reviewing a trial court's imposition of summary judgment, we have stated:

Summary judgment is made available by Pa.R.C.P. 1035 when the pleadings, depositions, answers to interrogatories, admissions on file and supporting affidavits considered together reveal no genuine issue of material fact and the moving party is entitled to judgment as a matter

[ 391 Pa. Super. Page 64]

    of law. To determine the absence of a genuine issue of material fact, we must view the evidence in the light most favorable to the non-moving party and any doubts must be resolved against the entry of judgment. In so doing, we accept as true all well-pleaded facts in appellant's pleadings and give appellant the benefit of all reasonable inferences to be drawn therefrom. Summary judgment is appropriate only in those cases which are clear and free from doubt.

Bobb v. Kraybill, 354 Pa. Super. 361, 364, 511 A.2d 1379, 1380 (1986) (citations omitted). Thus, we are required to determine the existence of any genuine issues of material fact which the trial court may have overlooked. In so doing, we may reverse the trial court only where there has been an error of law, or a clear or manifest abuse of discretion. Lened Homes v. Department of Licenses and Inspections, 386 Pa. 50, 123 A.2d 406 (1956); Dume v. Elkcom Co., supra; Peters Township School Auth. v. United States Fidelity & Guaranty Co., 78 Pa. Commw. 365, 467 A.2d 904 (1983). Applying these principles, we must resolve whether the trial court properly concluded that no genuine issue of material fact existed and whether Travaglia's claim was barred as a matter of law.

Travaglia argues that United was not a party to the silo construction contract between PECO and Schwertner, and further, that United's prior letter agreement contract with PECO was not referenced in any PECO -- Schwertner contract. Due to this omission, and the fact that PECO allegedly paid Schwertner directly, Travaglia maintains that United cannot be considered the general or principal contractor of the silo construction. Without the status of principal or general contractor, United cannot claim immunity as the "statutory employer" under the Workmen's Compensation Act. "Most compelling," appellant states, "is the argument that under the rationale of McDonald v. Levinson Steel Company, 302 Pa. 287, 153 A. 424 (1930), an owner or one standing in the place of an owner cannot be a statutory employer." Appellant's brief at 14.

[ 391 Pa. Super. Page 65]

In evaluating United's contention that United was Travaglia's statutory employer, we must keep in mind the following guidelines:

[V]ery great care . . . must be exercised before allowing an employer to avoid his liability at common law by asserting that he is a statutory employer. Section 203 of the Workmen's Compensation Act, which was designed to extend benefits to workers, should not be casually converted into a shield behind which negligent employers may seek refuge.

Stipanovich v. Westinghouse Electric Corp., 210 Pa. Super. 98, 106, 231 A.2d 894, 898 (1967). See Grant v. Riverside Corp., 364 Pa. Super. 593, 528 A.2d 962 (1987).

In construing section 203 of the Workmen's Compensation Act, we held that five elements must be present before a contractor may be considered the statutory employer of another contractor's employees.

To create the relation of statutory employer under section 203 of the act, all of the following elements essential to a statutory employer's liability must be present: (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 entrusted to such subcontractor. (5) An employee of such subcontractor.

McDonald v. Levinson Steel Co., supra, 302 Pa. at 294-95, 153 A. at 428; Cox v. Turner Construction Co., 373 Pa. Super. 214, 540 A.2d 944 (1988); see also Zizza v. Dresher Mechanical Contractors, 358 Pa. Super. 600, 518 A.2d 302 (1986) (en banc); O'Boyle et ux. v. J.C.A. Corp., et al., 372 Pa. Super. 1, 538 A.2d 915 (1988); Dume v. Elkcom Company, Inc., supra; Grant v. Riverside Corp., supra. McDonald v. Levinson Steel Co., supra, labeled these criteria as "essential." Stipanovich v. Westinghouse Electric Corp., supra, characterized them as "strict" requirements.

[ 391 Pa. Super. Page 66]

Travaglia was an employee of Providence; Providence was subcontracted by Schwertner. Schwertner was contracted by the owner, PECO. United was not involved in this chain of contracts. United was not a party to the contract between PECO and Schwertner. Consequently, summary judgment should not have been awarded to United. The following three findings of the trial court are in error: 1) that Travaglia was an employee of a second subcontractor of United; 2) that United need not be a party to the construction contracts in question to fulfill requirement number three of the McDonald mandate; and 3) that no direct contractual relationship is necessary for United to be entitled to common law tort immunity.

A reading of the McDonald, Stipanovich, Grant, and Cox opinions substantiates this conclusion. The McDonald test requires that to create the relationship of statutory employer under section 203 of the act, the following element must be present: "(3) A subcontract made by such employer." Construing the third element of the McDonald test strictly as Stipanovich stated we must, the absence of a subcontract made by ...


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