The opinion of the court was delivered by: Anita B. Brody, J.
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 ...