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Hain v. Borough of West Reading

December 23, 2009

ARCHER HAIN, APPELLANT
v.
BOROUGH OF WEST READING; WEST READING FIRE COMPANY NO. 1 OF WEST READING, PENNSYLVANIA; STIRLING ENGINEERING & CONSTRUCTION, INC.; ENVIROTECH & ASSOCIATES, INC.; DISEROAD WOLFF KELLY CLOUGH BUCHER, INC., AND GIGLIOTTI IRON WORKS, INC.



The opinion of the court was delivered by: Senior Judge Friedman

Argued: November 9, 2009

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge, HONORABLE JIM FLAHERTY, Senior Judge.

OPINION

Archer Hain (Hain) appeals from orders of the Court of Common Pleas of Berks County (trial court) granting summary judgment to the Borough of West Reading (Borough), West Reading Fire Company No. 1 (Fire Company), Gigliotti Iron Works, Inc. (Gigliotti), Stirling Engineering & Construction, Inc. (Stirling) and Envirotech & Associates, Inc. (Envirotech) in connection with a negligence lawsuit filed by Hain.*fn1 We affirm.

The Borough contracted with Stirling to construct a new fire house for the Fire Company. The Borough retained Envirotech to handle inspections and to provide reports to the Borough on the construction process. In correspondence with the Borough, Envirotech agreed to: (1) provide inspections totaling approximately seven hours per week; (2) attend all formal job meetings; (3) review all change orders for form and appropriateness; (4) review all applications for payment; (5) notify the architect of any issues arising from inspection activities; (6) keep a project diary and take photos throughout the course of the project for use in case of disputes; and (7) provide a monthly written report to the appropriate Borough representative in order to document progress.

Stirling hired F.L. Royer (Royer) as a masonry subcontractor for the project. Stirling controlled the day-to-day operations of the project, including the supervision of Royer. Hain was an employee of Royer. Gigliotti was the steel subcontractor for the project. Pursuant to the contract, Gigliotti was to use only galvanized steel; however, Gigliotti used some non-galvanized steel, which had to be replaced with galvanized steel after the initial masonry work was completed. On October 10, 2002, Hain was repairing masonry damaged in the replacement of the steel when he fell from scaffolding and suffered injuries.

Hain sued the Borough, the Fire Company, Stirling and Envirotech in negligence. The defendants filed motions for summary judgment, which the trial court granted. The trial court concluded that: (1) the Borough and Fire Company were entitled to governmental immunity pursuant to the Act known as the Political Subdivision Tort Claims Act (Tort Claims Act);*fn2 (2) Stirling was entitled to "statutory employer" immunity under the Workers' Compensation Act (WC Act);*fn3 and (3) Envirotech did not have a duty to inspect the work site for safety. Hain now appeals to this court.

I. Governmental Immunity

Hain first argues that the trial court erred in granting summary judgment to the Borough and the Fire Company based on governmental immunity. We disagree.

Section 8542(a) of the Tort Claims Act provides that a local agency shall be liable for damages on account of an injury to a person if: (1) the damages would be recoverable under common law if the injury were caused by a person not having available governmental immunity; and (2) the injury was caused by the negligent act of the local agencyor an employee thereof acting within the scope of his office or duties with respect to one of the exceptions to governmental immunity set forth in section 8542(b) of the Tort Claims Act, 42 Pa. C.S. §8542(b).

Hain contends that the Borough and Fire Company can be held accountable for his injuries under the real property exception to governmental immunity, which imposes liability on a local agency for the negligent care, custody or control of real property in its possession. Section 8542(b)(3) of the Tort Claims Act, 42 Pa. C.S. §8542(b)(3). However, in Maloney v. City of Philadelphia, 535 A.2d 209 (Pa. Cmwlth. 1987), appeal denied, 519 Pa. 669, 548 A.2d 258 (1988), this court held that the real property exception to governmental immunity does not apply to the negligent care, custody or control of scaffolding because scaffolding is not real property. Because Hain suffered his injuries as a result of his fall from scaffolding, we conclude that the trial court did not err in granting summary judgment to the Borough and Fire Company.*fn4

II. "Statutory Employer" Immunity

Hain next argues that the trial court erred in granting summary judgment to Stirling based on the "statutory employer" immunity provided by the WC Act when, under the facts of this case, "statutory employer" immunity deprives Hain of his ...


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