The opinion of the court was delivered by: Golden, J.
MEMORANDUM OPINION AND ORDER
Plaintiff brought this action seeking to recover damages from Defendant Construction Management Technology, Inc. ("CMT") for injuries allegedly sustained from a slip and fall during a snowstorm at a construction site at which CMT was the general contractor. At the time of the accident, Plaintiff was an employee of a subcontractor at the site, Engelman Construction Co. ("Engleman"). CMT has filed a Third-Party Complaint against Engelman for indemnity. Presently before the Court are CMT's Motion for Summary Judgment and Engelman's Motion for Summary Judgment on the Third-Party Complaint. For the reasons that follow CMT's Motion is granted and Engelman's Motion is denied as moot.
Under Fed.R.Civ.P. 56, summary judgment should be granted 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. Davis v. Portline Transportes Maritime Internacional, 16 F.3d 532, 536 n.3 (3d Cir. 1994). The movant bears the initial burden of identifying those portions of the record that fail to demonstrate a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Thereafter, "an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). Otherwise, "summary judgment, if appropriate, shall be entered." Id. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
On January 26, 2007, CMT entered into a design-build contract (the "Contract") with the owner, McLane Company, Inc. ("McLane") for a construction project in Jessup, Pennsylvania (the "Project'). CMT was the general contractor for the project and had contracted directly with the owner, McLane. Under the terms of the Contract, CMT would locate a subcontractor, negotiate a deal and then pass the cost plus a percentage onto McLane. Exhibit 6 to Plaintiff's Response to CMT's Motion for Summary Judgment at 26-28. Under the Contract, CMT would not make a payment to any subcontractor unless it first received payment from McLane.
On July 7, 2007, CMT entered into a subcontract with Engelman to provide concrete work at the Project. On December 13, 2007, Plaintiff fell on an access road at the site. At the time of the accident, Plaintiff was acting within the course and scope of his employment for Engelman. Plaintiff subsequently applied for and received Workers' Compensation benefits from Engelman. Plaintiff did not collect any benefits from CMT.
The work site, including the access road on which Plaintiff fell, was under the exclusive control of CMT. CMT had the full time presence of its Job Supervisor and Foreman on site to oversee activities. Both individuals were on site on the date of the accident. CMT also had a trailer on site along the access road from which CMT conducted weekly "Construction Progress" meetings with all onsite subcontractors, including Engelman, dealing with safety, contractor coordination and general job progress.
Plaintiff filed the instant Complaint on February 29, 2008. On April 8, 2008, CMT filed an Answer together with Affirmative Defenses. CMT's Answer with Affirmative Defenses did not raise "statutory employer" under the Pennsylvania Workers' Compensation Act as a potential defense. On August 22, 2008, CMT filed a Third Party Complaint against Engelman for indemnification, alleging that Plaintiff's injury was caused by Engelman's negligence. On December 19, 2008, the Court issued a Jury Trial Scheduling Order which stated, inter alia, that amended pleadings were due by January 30, 2009. On July 30, 2009, Plaintiff forwarded to CMT two expert liability reports together with expert medical reports.
On August 25, 2009, 16 months after it filed its Answer with Affirmative Defenses and one month after Plaintiff had filed its expert reports, CMT terminated its attorneys and hired new counsel. On August 31, 2009, new counsel filed a Motion for Summary Judgment, raising for the first time the statutory employer defense. On October 1, 2009, the Court denied the Motion for Summary Judgment with leave to renew in order to give the parties additional time to conduct discovery. Following completion of this discovery, CMT has renewed its Motion.
In its Motion for Summary Judgment, CMT contends for the first time that it is immune from suit because it qualifies as a statutory employer under the Pennsylvania Workers' Compensation Act, 77 P.S. § 1 et seq. Plaintiff responds that the statutory employer defense is an affirmative defense which is waived if not raised during the initial pleadings stage of the proceedings. According to Plaintiff, since CMT raised the statutory employer defense for the first time in its Motion for Summary Judgment, CMT has waived the defense.
The Supreme Court of Pennsylvania has specifically held, however, that the Workers' Compensation Act is "not an affirmative defense which may be waived if not timely pled." LaFlar v. Gulf Creek Industrial Park, 515 A.2d 875, 879 (Pa. 1986). The Court further stated that the "lack of jurisdiction of the subject matter may be raised at any time and may be raised by the court sua sponte if necessary." Id. See also Winfree v. Philadelphia Electric Co., 520 Pa. 392, 396-98, 554 A.2d 485, 487 (1989) ("We recently held that failure to raise the [Workers'Compensation] Act as an affirmative defense to a tort action did not result in a waiver."); Noyes v. Cooper, 579 A.2d 407, 411 (Pa.Super. 1990) (finding defendant could raise immunity under the Workers' Compensation Act for first time on appeal because it is a non-waivable defense).
Despite this pronouncement from Pennsylvania's highest court, Plaintiff argues that workers' compensation immunity is indeed a waivable defense. In support of his argument, Plaintiff cites to the following footnote in a decision from the Superior Court of Pennsylvania, Taras v. Wausau Ins.Co, 602 A.2d 882, 883 n.1 (Pa. Super. 1992).
We urge counsel for appellees to take note that immunity is an affirmative defense which is properly raised in new matter, rather than by preliminary objections. 42 Pa.R.C.P. 1030. See also Helfetz v. Philadelphia State Hospital, 482 Pa. 386, 393 A.2d 1160 (1978). However, because appellants failed to challenge the propriety of appellees' raising immunity in its preliminary objections, either before this court or the trial court, we can properly rule on the preliminary objections. (citation omitted).
The Superior Court in Taras specifically noted, however, that the issue of waiver was never raised and therefore was not before the court. As such, the Superior Court's statement in Footnote 1 is nothing more than dicta. This Court is bound by the ruling of the Supreme Court of Pennsylvania and not by dicta from the Superior Court of Pennsylvania. See Ciccarelli v. Carey Canadian Mines, Ltd., 757 F.2d 548, 554 (3d Cir. 1985)(federal courts exercising diversity jurisdiction are bound by the decisions of the state's highest court as to the application of state law). In addition, the Court notes that the Superior Court in Taras did not cite to the Supreme Court's decision in LaFlar which was decided eight years after Helfetz. Accordingly, Plaintiff's argument that workers' compensation immunity is a waivable defense has no merit.*fn1
Turning to the merits of CMT'S argument that it is immune from suit in this action, the Court notes that in McDonald v. Levinson Steel Co., 302 Pa. 287, 153 A. 424 (1930), the Supreme Court of Pennsylvania established the test for determining whether a party qualifies as a statutory employer under Section 203 of the Workers' Compensation Act. 77 P.S. § ...