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10/30/97 SAMUEL LASCIO AND FAY LASCIO VS BELCHER

October 30, 1997

SAMUEL LASCIO AND FAY LASCIO, APPELLANT VS BELCHER ROOFING CORP., AND HOLY REDEEMER HOSPITAL, INC., HOLY REDEEMER HOSPITAL, HOLY REDEEMER HOSPITAL AND MEDICAL CENTER, MEDIFAC ARCHITECTS, INC. AND BARCLAY-WHITE, INC., AND MCKEON, INC., AND GLASS & METAL ERECTORS INC.


Appeal from the Order dated January 27, 1997 docketed January 28, 1997 in the Court of Common Pleas of Philadelphia County, Civil No. 4503 August Term 1991. Before GOODHEART, J.

Before: Cirillo, P.j.e., Cercone, P.j.e., and Montemuro, J.* Opinion BY Cirillo, P.j.e.

The opinion of the court was delivered by: Cirillo

OPINION BY CIRILLO, P.J.E.:

Filed October 30, 1997

Samuel and Fay Lascio (the Lascios) appeal from an order granting Appellee Barclay-White, Inc.'s (Barclay-White) motion for judgment notwithstanding the verdict (j.n.o.v.) on the basis that it was a statutory employer. We reverse and remand for a new trial limited to the issue of whether Samuel Lascio was an employee or independent contractor of Barclay-White.

Appellee, Barclay-White, a general contractor, was awarded a construction contract to make certain improvements to Holy Redeemer Hospital. On May 27, 1988 Barclay-White entered into a contract with McKeon (the subcontractor) to do certain aluminum and glass work. McKeon, in turn, subcontracted the labor portion of that contract to its wholly-owned subsidiary Glass and Metal Erectors, Inc. (the sub-subcontractor). Samuel Lascio, an employee of Glass and Metal Erectors, was injured when he fell from the roof of Holy Redeemer Hospital. Lascio fell as he was attempting to cross a raised center section of the roof while holding onto a windowsill.

The Lascios filed negligence claims against Barclay-White and Glass and Metal Erectors. Glass and Metal Erectors was dismissed from the case because it was immune from tort liability as a statutory employer. See 77 P.S. § 52. Barclay-White also moved for dismissal based on the statutory employer defense, but the trial court reserved consideration of the motion until after the jury verdict. The jury found Barclay-White negligent and returned verdicts totaling $1,350,400.00 ($1,800,000.00 for Samuel Lascio and $300,000.00 for Fay Lascio, less 36% comparative negligence). After the jury verdict and further consideration of Barclay-White's motion, the trial court granted j.n.o.v. for Barclay-White on the statutory employer defense. It is from this order that the Lascios appeal. The Lascios raise three issues for our consideration.

1) Is Barclay-White a statutory employer of Samuel Lascio, an employee of a sub-subcontractor?

2) Is payment of Workers' Compensation benefits to an injured employee a prerequisite to claiming the protection of the statutory employer defense?

3) Did Barclay-White waive the statutory employer defense in its contract with McKeon?

Judgment n.o.v. is proper only in a clear case. Lokay v. Lehigh Valley Cooperative Farmers, Inc., 342 Pa. Super. 89, 94, 492 A.2d 405, 407 (1985). Judgment n.o.v. will be entered only where the facts are such that no two reasonable minds could fail to agree that the verdict was improper. Dougherty v. Conduit & Foundation Corp., 449 Pa. Super. 405, 410, 674 A.2d 262, 264 (1996). An appellate court will reverse a trial court ruling only if it finds an abuse of discretion or an error of law that controlled the outcome of the case. Id.

The first issue raised by the Lascios is whether a general contractor can apply the statutory employer defense against a claim brought by the employee of a sub-subcontractor. Section 52 of the Workers' Compensation Act sets forth the "statutory employer" defense. 77 P.S. § 52. That section provides:

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 ...


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