The opinion of the court was delivered by: Goldberg, J.
This case stems from injuries suffered by Plaintiff when a precast concrete panel manufactured by Artex Systems, Inc., ("Artex") fell on him at a construction site. Plaintiff originally sued Artex who subsequently filed a third-party complaint against Plaintiff's employer, Cornell & Company, Inc. ("Cornell"). Currently before the Court is Cornell's motion to dismiss the third-party complaint. This motion raises the issue of whether Artex is entitled to indemnification from Cornell, under contracts entered into between Artex and Cornell and Artex and the general contractor, Turner Construction Company ("Turner"). For the reasons set forth herein, Cornell's motion will be granted.
Plaintiff, Charles Collins, was injured at a construction site, in Philadelphia, Pennsylvania, known as the 10 Rittenhouse Plaza project. As part of the project, Turner, the general contractor, contracted with Artex for the manufacture and delivery of more than 1,400 precast concrete panels. Artex also contracted with Cornell, with whom Plaintiff was employed as an ironworker, to install the panels.
According to the complaint, on January 22, 2009, Plaintiff was securing a concrete panel onto a trailer when the panel fell on him, resulting in injuries. (See generally, Compl.). On August 5, 2009, Plaintiff filed suit against Artex in the Philadelphia County Court of Common Pleas, alleging negligence and loss of consortium. The case was subsequently removed to this Court. After a Rule 16 Conference and a scheduling order was issued, Artex sought and was granted permission to file a third-party complaint.
On January 22, 2010, Artex filed its third-party complaint against Cornell and Turner. First, Artex alleged that Cornell caused the accident and that by virtue of the contracts between Artex and Cornell and Artex and Turner, Cornell was required to indemnify Artex for Plaintiff's claims. Artex also raised a claim against Turner based on Turner's purported failure to provide insurance.On February 3, 2010, Cornell filed a motion to dismiss the third-party complaint, which is currently before the Court.*fn1
When ruling on a motion to dismiss, a court must accept the facts pleaded in the complaint as true and construe them in the light most favorable to the plaintiff. Semerenko v. Cendant Corp., 223 F.3d 165, 173 (3d Cir. 2000). A motion to dismiss for failure to state a claim "tests the legal sufficiency of plaintiff's claim." Petruska v. Gannon University, 462 F.3d 294, 302 (3d Cir. 2006). A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). However, a plaintiff must provide more than a formulaic recitation of a claim's elements that amounts to mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The complaint's "factual allegations must be enough to raise a right to relief above the speculative level." Id. "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 570).
Cornell first argues that the indemnity provision in the contract entered into with Artex (the "Artex/Cornell contract") is insufficient to require Cornell, as Plaintiff's employer, to indemnify Artex for Plaintiff's claims.
The pertinent provision of this contract reads:
7. [Cornell] agrees to indemnify and save "Artex" harmless, from and against any and all claims, loss or expense caused or occasioned directly or indirectly by [Cornell's] failure to fully comply with this agreement.
(Artex/Cornell Contract, ¶ 7).
In Pennsylvania, under the terms of the Worker's Compensation Act, a third party may not seek indemnification from the employer of an injured person absent an express provision for indemnity in a written contract. 77 P.S. ...