Bartley v. Concrete Masonry Corp.

469 A.2d 256, 322 Pa. Super. 207, 1983 Pa. Super. LEXIS 4563

Opinions

BROSKY, Judge:

John P. Bartley commenced this action to recover damages for injuries suffered by his decedent, Charles J. Bartley. Charles J. Bartley, an employee of appellee Carolin Masonry was injured while working as a laborer on a job site in Plum Borough, Allegheny County. Appellee Massaro Company was the general contractor.

The original defendants in this action were appellant Concrete Masonry Corporation and F.J. Meyerl, Inc., which companies were performing work at the site. These companies, charged by Bartley with having negligently caused Charles Bartley’s death, joined Massaro Company and Carolin Masonry as additional defendants.

Motions for summary judgment were filed by Massaro and Carolin Masonry and granted by the trial court. It is from the order granting the motions that this appeal is taken.

The trial court found that Massaro was decedent’s statutory employer under the Workmen’s Compensation Act, and concluded that, pursuant to Section 303 of the Act,¹ neither Massaro nor Carolin Masonry could be joined as additional defendants in this suit.

Appellant urges us to find that Massaro was not the decedent’s statutory employer and that, in any event, the statutory employer and the employer can be joined as additional defendants.

We have concluded that Massaro was indeed the decedent’s statutory employer, and is therefore immune from suit by him. We hold also that as such it is immune from joinder as an additional defendant. Carolin Masonry is immune from joinder as an additional defendant because of its employer status. We, therefore, affirm the order.

We discuss first appellant’s contention that Massaro ought not to be accorded statutory employer status. Its argument is that certain amendments to 302(b) of the Act,² effectively amended Section 203³ which defines statutory employer immunity in the following manner:

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.

This statute has long been interpreted as requiring that five criteria be met if statutory employer status is to attach. In McDonald v. Levinson Steel Company, 302 Pa. 287, 295, 153 A. 424 (1930), these criteria were established and explained as follows:

(1) An employer who is under contract with an owner or one in the position of an owner. (2) Premises occupied by or under the control of such employer. (3) A subcontract made by such employer. (4) Part of the employer’s regular business entrusted to such subcontractor. (5) An employee of such subcontractor.

Appellant does not contest that Massaro meets these guidelines. Instead, it urges us to find that in view of amendments to Section 302(b) of the Act, these criteria alone no longer entitle a general contractor in the position of Massaro to statutory employer status.

Section 302(b), which pertains to the payment of workmen’s compensation, was amended in 1974. Prior to that date, it provided that it was to be conclusively presumed that a contractor, who (like Massaro) permitted sub-contrac tors and their employees on the premises had agreed to pay workmen’s compensation. The statute did, however, contain “elective compensation” language that permitted nonpayment of compensation under certain circumstances.

The 1974 amendment to Section 302(b) eliminated the presumption that the contractor had agreed to pay compensation. Instead, it provides that:

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 such employer’s regular business entrusted to that employe or contractor, shall be liable for the payment of compensation to such laborer or assistant unless such hiring employe or contractor if primarily liable for the payment of such compensation, has secured the payment thereof as provided for in this act. Any employer or his insurer who shall become liable hereunder for such compensation may recover the amount thereof paid and any necessary expenses from another person if the latter is primarily liable therefor. 77 P.S. 462 (see also 77 P.S. § 461)

It is uncontroverted that appellee, Carolin Masonry, the sub-contractor and decedent’s employer, and Massaro entered into an agreement which provided that Carolin Masonry was to procure workmen’s compensation insurance for its employees and hold harmless Massaro. Appellant would have us hold, essentially on public policy grounds, that because Carolin Masonry and not Massaro, was responsible for the payment of workmen’s compensation benefits to the decedent, that Massaro ought not to be accorded statutory employer status. The same argument was advanced to us in Cranshaw Construction Inc. v. Ghrist, 290 Pa.Super. 286, 434 A.2d 756 (1981), and we rejected it then as we do today.

In Cranshaw, supra, we held the amendment of Section 302 of the Act worked no amendment of § 203. We noted that our Supreme Court in Capozzoli v. Stone & Webster Engineering Corporation, 352 Pa. 183, 42 A.2d 524 (1945), held

... undér the former Section 302, an agreement by a subcontractor to provide workmen’s compensation for its employees does not operate to remove the statutory employer from the scope of Act II of the Workmen’s Compensation Act, even though it may operate to relieve such employer from payment of compensation by placing that responsibility upon the subcontractor.

It is well established that when confronted with questions of statutory construction, the words of a statute are to be interpreted in light of the antecedent case law. Truck Terminal Co. v. Comm. of Pennsylvania Dept. of Transportation, 486 Pa. 16, 23, 403 A.2d 986, 989 (1979).

We conclude, as we did in Cranshaw, supra, that had the Legislature intended to alter the effect of Section 203 of the Act according to whether a statutory employer had the responsibility to pay workmen’s compensation benefits, it could have so amended that article. As it is, the Legislature, long after the Capozzoli decision, made no such change. We cannot do so.

We turn next to appellant’s contention that Section 303(b) of the Act does not preclude the joinder of the employer and statutory employer as additional defendants for purposes of determining whether a “set-off” should be allowed the original defendant.⁴

We have held several' times recently that an employer cannot be joined as a third party defendant in an action brought by the employee against a third party.

In Heekendorn v. Consolidated Rail Corp., 293 Pa.Super. 474, 439 A.2d 674 (1981), we held that an employer could not be joined as an additional defendant for purposes of appointing liability under the Comparative Negligence Act. We said of Section 303, “It has ‘obliterated’ the common law cause of action against the employer and foreclosed the adjudication of liability on the part of the employer.” Id., 293 Pa.Superior Ct. at 477, 439 A.2d at 675.

We held similarly in Kelly v. Carborundum Co., 307 Pa.Super. 361, 453 A.2d 624 (1982), and said, “It seems clear, therefore, that substantive law precludes the joinder of an employer for the purpose of determining fault in an action commenced by an employee against a third person. Id., 307 Pa.Superior Ct. at 367, 453 A.2d at 627. See also Brozzetti v. Hempt Brother, Inc., 310 Pa.Super. 249, 456 A.2d 595 (1983); William Harter and Cleaver Brooks, A Division of Aquachem, Inc. v. Yeagley, 310 Pa.Super. 449, 456 A.2d 1021 (1983) (all causes of. action against the employer obliterated). Appellant urges us to do precisely what we have said we cannot do — that is, permit joinder of the employer to determine the fault of all possible tortfeasors.

Appellants argue that the result we reach is an unfair one because it places the burden of a judgment on the original defendant even if he is not entirely at fault. Such arguments have been made before and as we said in Heckendorn, supra, 293 Pa.Super. at 482, 439 A.2d at 678, the argument that this statute creates too absolute a victory for “the employer is an argument based on social policies and should, more properly, be addressed to the legislature.” See also William Harter, supra, 310 Pa.Superior Ct. at 454, 456 A.2d at 1024.⁵

The grant of summary judgment as to Carolin Masonry was consistent with existing law. Similarly, we held in Cranshaw, supra, 290 Pa.Super. at 294-296, 434 A.2d at 760-761, that Section 303(b) encompasses statutory employees and renders them immune from joinder.

Therefore, the order of the lower court is affirmed.

HESTER, J., files a concurring and dissenting opinion.

Footnotes

1

. Act of June 2, 1915, P.L. 736, as amended by Act of December 5, 1974, P.L. 782, No. 263 § 6; 77 P.S. § 481.

2

. 77 P.S. § 462.

3

. 77 P.S. § 52.

4

. Section 303 provides:

(a) The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employes, his legal representative, husband or wife, parents, dependents, next of' kin or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined in section 301(c)(1) and (2) or occupational disease as defined in section 108.

(b) In the event injury or death to an employe is caused by a third party, then such employe, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to receive damages by reason thereof, may bring their action at law against such third party, but the employer, his insurance carrier, their servants and agents, employes, representatives acting on their behalf or at their request shall not be liable to a third party for damages, contribution, or indemnity in any action at law, or other wise, unless liability for such damages, contributions or indemnity shall be expressly provided for in a written contract entered into by the party alleged to be liable prior to the date of the occurrence which gave rise to the action.

Act of Dec. 5, 1974, P.L. 782, No. 263; 77 P.S. § 481.

5

. Appellant’s arguments as to the constitutionality of Section 303(b) have been addressed by our Supreme Court in Tsarnas v. Jones & Laughlin Steel Corp., 488 Pa. 513, 412 A.2d 1094 (1980).