United States District Court, Eastern District of Pennsylvania
July 5, 2001
ATLANTIC ROOFING CORP. DEFENDANT. ATLANTIC ROOFING CORP. THIRD-PARTY PLAINTIFF, V. NEUBER ENVIRONMENTAL SERVICES, THIRD-PARTY DEFENDANT.
The opinion of the court was delivered by: Anita B. Brody, J.
EXPLANATION and ORDER
EXPLANATION and ORDER
Plaintiff Ishmil Al-Ameen alleges that, on August 6, 1997, while
working to remove the old roof of the East High School in West Chester,
Pennsylvania, he slipped on roofing insulation materials negligently left
scattered about by the general contractor on the job, Atlantic Roofing
Corporation ("Atlantic"). The slip allegedly caused Al-Ameen to fall from
the roof and incur serious personal injuries.
On August 3, 1999, Al-Ameen filed this tort claim against Atlantic.*fn1
Atlantic subsequently filed a third-party complaint against its
subcontractor on the West Chester job, Neuber Environmental Services,
Inc. ("Neuber"). Neuber, which was responsible for the removal of the old
roof, employed Al-Ameen at the time of the accident. In its third-party
complaint, Atlantic alleged that Neuber was required to indemnify
Atlantic pursuant to the terms and conditions set out in their
Neuber has moved for summary judgment on two grounds. Neuber claims
that the primary defendant, Atlantic, and therefore Neuber, should be
dismissed from the action under the statutory employer doctrine.
Defendant Atlantic, in its answer to Neuber's motion for summary
judgment, incorporates Neuber's argument for dismissal pursuant to the
statutory employer doctrine, and asks the court to enter judgment in its
favor. Given this answer, Atlantic has joined in the motion for summary
judgment on the basis that it is immune to suit as Al-Ameen's statutory
employer. Neuber also claims that the indemnity provision in the
subcontract with Atlantic did not validly waive its immunity from suit
under section 481(b) of the Pennsylvania Workers' Compensation Act ("the
Act"). 77 Pa. Cons. Stat. § 1 et seq.
I will grant Neuber and Atlantic's motion for summary judgment and
dismiss both defendants pursuant to the statutory employer doctrine.
Summary Judgment Standard
Summary judgment is proper where 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 judgment as a
matter of law." Fed.R.Civ.P. 56(c). The court should determine whether
there are factual issues that merit a trial. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-48 (1986). Summary judgment is appropriate
if no factual issues exist and the only issues before the court are
legal. See Sempier v. Johnson and Higgins, 45 F.3d 724, 727 (3d Cir.
At summary judgment, the non-moving party receives the benefit of all
reasonable inferences. See Sempier, 45 F.3d at 727. The motion should be
granted if "the record taken as a whole could not lead a rational trier
of fact to find for the non-moving party, [and] there is no `genuine
issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986).
Statutory Employer Doctrine
Neuber argues that Atlantic, and therefore Neuber, should be dismissed
pursuant to the statutory employer doctrine. Defendant Atlantic has joined
Neuber's request to dismiss both parties pursuant to the theory that
Atlantic was Al-Ameen's statutory employer.
As a quid pro quo for being subjected to a statutory, no-fault system
of compensation for worker injuries, the Act provides employers immunity
from lawsuits by employees for any "injury" defined within it. See Poyser
v. Newman & Co., Inc., 522 A.2d 548, 550 (Pa. 1987). The Act subjects
both "statutory" employers and actual employers to its terms, defining a
statutory employer as:
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 same extent as
to his own employe.
77 Pa. Cons. Stat. § 52. As a statutory employer may be held
liable for payment of benefits, it also enjoys the tort immunity
afforded employers under the Act.*fn2
In McDonald v. Levinson Steel Co., 153 A. 424 (Pa. 1930), the Supreme
Court of Pennsylvania set forth the five-part test for determining
whether a general contractor qualifies as the statutory employer of a
subcontractor's employee. To create the relation of statutory employer
under the Act, all of the following conditions must be met:
(1) An employer [Atlantic] who is under contract with
an owner [West Chester Area School District] or one in
the position of an owner.
(2) Premises occupied by or under the control of such
(3) A subcontract made by such employer [Atlantic].
(4) Part of the employer's [Atlantic's] regular
business intrusted to such subcontractor [Neuber].
(5) An employee [Al-Ameen] of such subcontractor [Neuber].
Id. at 426. Plaintiff Al-Ameen argues that Atlantic does not qualify as a
statutory employer under the Act because it fails the second and fourth
elements of the test.*fn3
To meet the second element of the McDonald test, Atlantic must have
occupied or controlled the premises.*fn4 Atlantic can satisfy the second
element with a showing that it occupied the premises. Uncontroverted
testimony indicates that an Atlantic supervisor, William Bradney, was
present at the site on a daily basis.*fn5 In addition, Neuber and
Atlantic cite deposition testimony indicating that Atlantic employees
were regularly present on the premises at the same time as Neuber
employees.*fn6 Al-Ameen, in response, does not produce evidence that
controverts the presence of Atlantic employees at the job site. Al-Ameen
alleges that Atlantic project manager Chris Conn testified that Atlantic
and Neuber employees were on the site together "maybe one time." Closer
examination of the testimony, however, indicates that Conn had been asked
about instances when the Atlantic and Neuber employees actually worked
together, not when they occupied the premises simultaneously, if working
independently. Deposition testimony of Chris Conn, Plaintiff's Reply in
Opposition to Third Party Defendant, Neuber Environmental Services, Inc.'s
Motion for Summary Judgment ("Plaintiff's reply"), Exhibit B, pp. 26-27.
Nor can Al-Ameen controvert his own deposition testimony, which mentions
observing and even conversing with Atlantic employees at the site.
Deposition testimony of Ishmil Al-Ameen, Third Party Defendant Neuber
Environmental Services, Inc.'s Motion for Summary Judgment ("Neuber's
Motion"), Exhibit B, pp. 56, 63, and 111.
Atlantic may also satisfy the second element by showing that it
exercised control over the premises. To do this, Atlantic must show
actual control of the premises; a mere showing of a right of control will
not satisfy element two of the test. See Dougherty v. Conduit &
Foundation Corp., 674 A.2d 262, 266 (Pa.Super.Ct. 1996) (citing Donaldson
v. Commonwealth, Dept. of Transp. 596 A.2d 269
Atlantic not only occupied the premises, but also fulfills the second
element of the test because it actually controlled the premises at the
time and place of Al-Ameen's accident.
The most persuasive evidence of control is Al-Ameen's own deposition
testimony. Al-Ameen specifically admits that Atlantic had control over
the roofing materials on which he slipped, and he argues that his
accident resulted from directions given by the Atlantic foreman. At his
deposition, Al-Ameen gave the following testimony:
Q: Now, the insulation that you stepped on which slid
Q: — was anyone using that insulation at the
time? Not the particular piece you stepped on, but
A: Yes. Atlantic Roofing is using that insulation to
put on the roof . . . .
Q: And the foreman from Atlantic told you to walk on this?
A: Yes, he told me to walk on top of it.
Deposition testimony of Ishmil Al-Ameen, Neuber's Motion, Exhibit
B, p. 111. That direct testimony is sufficient to determine that
Atlantic did in fact have actual control over the job premises at
the time and place of Al-Ameen's injury, and therefore satisfies
the second part of the McDonald test.
Atlantic has produced additional evidence to show that it had actual
control over the premises as required under Pennsylvania law. In
Perma-Lite of Pennsylvania v. Workmen's Compensation Appeal Board,
393 A.2d 1082 (Pa.Commw.Ct. 1978), the Commonwealth Court found that the
general contractor, Perma-Lite, did not exercise actual control over the
premises at which the subcontractor's employee was injured, and therefore
could not be considered a statutory employer under the Act. See Id., 393
A.2d at 1084. Perma-lite had subcontracted the entire job to the
subcontractor and had never entered onto the premises. See Id. at
482-83. Distinguishing Perma-Lite, the Commonwealth Court held in Wright
Demolition & Excavating Co. v. Workers Compensation Appeal Board,
434 A.2d 232 (Pa.Commw.Ct. 1981), that the general contractor did
exercise actual control over the premises where the subcontractor's
employee was working. See Id. at 234-35. In Wright, the general
contractor had subcontracted only a portion of the work to be done, and
had entered onto the property while the subcontractor's work was in
progress; "[s]uch conduct goes beyond a mere right to control the premises
and constitutes an exercise of actual control and dominion over the
workplace." Id. at 235.; see also Gordon v. Vaughn, 1998 WL 401688 at *4
(E.D.Pa. June 20, 1998) (defendant bore its burden of demonstrating
actual control "over the premises, not the day to day work of the
Atlantic has produced uncontroverted evidence sufficient to show that
it had actual control of the premises at the time and place of Al-Ameen's
accident. As in Wright, Atlantic subcontracted only a part of the work,
namely, the demolition of the roof, and completed the rest of the work
with its own employees. Atlantic had a full-time supervisor on the site
daily, and, as noted in my discussion of Atlantic's occupancy of the
premises, often had its employees on the site while Neuber's work was in
progress. Atlantic instructed Neuber employees on how much roof to tear
off. Deposition testimony of John Yanan, Plaintiff's reply, exhibit C,
p. 92. In addition, Al-Ameen's own testimony establishes that an Atlantic
foreman instructed him to walk on top of Atlantic's roofing materials,
allegedly causing his accident. Atlantic does not need to show that it
managed the day-to-day activities of the Neuber workers to meet its
burden of showing actual control. See Gordon, 1998 WL 401688 at *4. The
evidence it has produced is adequate to show that Atlantic had actual
control of the premises at the time and place of the accident, and
therefore meets element two of the McDonald test.
To satisfy the fourth element of the McDonald test, defendants must
show that the work subcontracted to Neuber was a part of Atlantic's
regular business. Under Pennsylvania law, this requirement is met when
the subcontracted work is an obligation assumed by the general contractor
in its contract with the owner. See Jamison v. Westinghouse Electric
Corp., 375 F.2d 465, 468 (3d Cir. 1967); McCarthy v. Lepore & Sons Co.,
Inc., 724 A.2d 938, 943 (Pa.Super.Ct. 1999); O'Boyle v. J.C.A. Corp,
538 A.2d 915, 917 (Pa.Super.Ct. 1988). In Jamison, the Third Circuit held
that the regular business requirement is satisfied
wherever the subcontracted work was an obligation
assumed by a principle contractor under his contract
with the owner. A clear illustration is the case of a
general construction contractor all of whose
obligations are fixed in the contract with the owner
and who obviously will subcontract various portions of
his contractual obligation. In such a case, while the
principal contractor may not directly perform a
particular part of his general obligation, choosing
instead to subcontract it, nevertheless he may
accurately be said to be in the business of assuming
the broad obligations of a principal contractor and
therefore equally to be in the business of letting out
portions of his undertaking to others to perform on
Jamison, 375 F.2d at 468-69.
Atlantic's obligations under the contract with the West Chester Area
School District included both the removal of the old roof and the
installation of a new roof at the East High School. Article 2 of that
contract provided that "[t]he Contractor shall execute the entire work
described in the Contract Documents." Neuber's Motion, Exhibit E, at
Article 2. In addition, the "Summary of Work" attached to the contract
indicated that the job involved removal of existing roofing systems and
handling and disposal of asbestos-containing roof membranes. Neuber's
Motion, Exhibit E, p. 01010-1 "Summary of Work." Atlantic's obligations
under its contract to the West Chester Area School District included the
work subcontracted to Neuber.
Al-Ameen does not dispute that Atlantic agreed and contracted to remove
an old roof containing asbestos materials. Rather, he argues that it was
impossible for Atlantic to assume the responsibility for asbestos
handling and removal pursuant to the laws of the Commonwealth of
Pennsylvania, because Atlantic was not certified and/or licensed in
asbestos abatement. Therefore, the argument runs, as Atlantic could not
legally perform the asbestos removal, the work subcontracted to Neuber
could not be part of its contractual obligations.
Al-Ameen's argument is not persuasive. He seems to confuse Atlantic's
ability to perform asbestos removal work with its ability to assume the
obligation to execute a contract that involves asbestos removal. The fact
that Atlantic was not able to perform the asbestos removal itself does
not preclude a determination that it was obligated by contract to execute
the subcontracted work. As Atlantic entrusted a part of contractual
obligations to Neuber, the regular business requirement of the McDonald
test is satisfied.
As Atlantic satisfies all five prongs of the McDonald test, I find
was Al-Ameen's statutory employer, and is therefore
immune from suit under the Pennsylvania Workers' Compensation Act.
77 Pa. Cons. Stat. § 481(b). I will grant Neuber and Atlantic's
motion for summary judgment and dismiss both Atlantic and Neuber
from the action.
AND NOW, this day of June, 2001, it is ORDERED that Third-Party Defendant
Neuber Environmental Services, Inc.'s Motion for Summary Judgment (docket
entry no. 13, filed 11/20/00) is GRANTED. Defendant Atlantic Roofing
Corporation and Third-Party Defendant Neuber Environmental Services,
Inc. are hereby DISMISSED from the action.
It is further ORDERED that the Clerk shall close this case