Coatman v. Lower Allen Leisure Enterprises

42 Pa. D. & C.3d 19, 1985 Pa. Dist. & Cnty. Dec. LEXIS 63
Pennsylvania Court of Common Pleas, Cumberland County·Decided January 17, 1985·No. no. 3728 Civil 1980·Published

Opinion

BAYLEY, J.,

This case arises out of a December 5, 1978, accident during the construction of the Alpha Racquetball Club in Lower Allen Township in Cumberland County. Plaintiffs complaint filed on Octobér 3, 1980, named as defendants, Alpha Racquetball, Inc., the alleged owner of the premises; Wohlsen Construction Co., the general contractor; Bortner Bros., Inc., the plumbing contractor, and Roland Nissley, the architect.

Plaintiff, Lester R. Coatman, was an employee of Mueller-Potteiger, Inc., the roofing contractor, when he was injured while working bn the Alpha job in the course of his employment. Bortner Bros, attempted to join Mueller-Potteiger as an involuntary plaintiff. This court, in an opinion and order of March 8, 1983, 33 Cumb. L.J. 238 relying on Kelly v. Carborundum Co., 307 Pa. Super. 361, 453 A.2d [21]*21624 (1982), dismissed the petition for joinder on the basis that Mueller-Potteiger was immune from suit under the Pennsylvania Workmen’s Compensation Act.

In an opinion and order of February 10, 1984, this court granted plaintiffs leave to amend their complaint to name Lower Allen Leisure Enterprises as a defendant. Plaintiffs then filed an amended complaint, identical in all aspects to the original complaint, except that the name “Alpha Racquetball, Inc.” was deleted as a defendant, and Lower Allen Leisure Enterprises was substituted therefor. The architect, Roland Nissley, was not named in this amended complaint since he had already been granted a summary judgment by. an order of this court dated April 6, 1982.

Defendant Lower Allen Leisure Enterprises then filed an additional defendant complaint against Mueller-Pottéiger, Inc., and the Cumberland County Industrial Development Authority, the alleged legal,owner of the land*. The theory of liability alleged against Mueller-Potteiger, Inc., is contractual indemnity; it is averred that the purchase order “agreement” between Mueller-Potteiger, Inc,., and Wohlsen, the general contractor, contains a provision which incorporates by reference all the provisions of Wohlsen’s contract with Lower Allen Leisure Enterprises, including the indemnity provision therein.

Mueller:Potteiger, Inc., has filed preliminary objections to this additional defendant complaint which includes a demurrer on the theory that it is immune from suit in connection with this work-related injury of its employee, plaintiff, Lester R. [22] Coatman, notwithstanding the provisions of its contract with Wohlsen and Wohlsen’s contract with Lower Allen Leisure Enterprises. ■

DISCUSSION

The interpretation of written documents is a matter of law for the court. Onofrey v. Wolliver, 351 Pa. 18, 40 A.2d 35 (1944). The documents upon which we can determine whether or not there is an indemnification agreement whereby Mueller-Potteiger, Inc., could be held into this case, notwithstanding their status as an employer of plaintiff, have been made part of the record in the pleadings. Accordingly, we are in a position to rule on Mueller-Potteiger’s demurrer.

A demurrer admits all inferences fairly deducible from the facts pleaded but not conclusions of law. Chorba v. Davlisa Enterprises, Inc. 303 Pa. Super. 497 (1982). The test of a demurrer as set forth by the Supreme Court in Firing v. Kephart, 466 Pa. 560, 353 A.2d 833 (1976), is:

“[yv]hether it is clear and free from doubt from the facts pleaded that the pleader will be unable to prove facts legally sufficient to establish his right to relief.”

The applicable sections of the Workmen’s Compensation Act at 77 P.S. §481 (a) and (b) provide:

“Section 481. Exclusiveness of remedy; actions by and against third party; contract indemnifying third party.
(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, dependants, next of kin or anyone otherwise entitled to damages in any action at law on account of any injury or death as defined [23] in §301(c)(1) and (2) or occupational disease as defined in §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 otherwise, 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 to the date of the occurrence which gave rise to the action. (Emphasis added.)

The contract between the owner, Lower Allen Leisure Enterprises, and the general contractor, Wohlsen Construction Company, provides that:

“[T]he contractor shall indemnify and hold harmless the owner from and against all claims, etc., arising out of or resulting from the performance of the work attributable to bodily injury caused in whole or in part by any negligent act or ommission of the contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, regardless of whether or not it is caused in part by the party indemnified hereunder.”

The subcontractor between the general contractor, Wohlsen, and its subcontractor, MuellerPotteiger, Inc., provides:

“6. You hereby acknowledge that opportunity has been given to you to acquaint yourself fully with the contract between Wohlsen Construction Company [24] and the owner and accompanying specifications and drawings, and, accordingly and to the extent that the said contract specifications and drawings apply to or involve the work and materials to be done or supplied by you, you agree to and shall be bound by the terms and provisions of the said contract, specifications and drawings as though they were physically incorporated in this document. (Emphasis added.)

Because the subcontractor refers to the general contract between Wohlsen and Lower Allen Leisure, and contains language whereby MuellerPotteiger agrees to be bound by the terms and provisions of the general contract as though it was physically incorporated into the subcontract, Lower Allen maintains that Mueller-Potteiger was assuming the role of “the contractor” with respect to the indemnity clause in the general contract. MuellerPotteiger maintains that the above-cited contractual provisions upon which Lower Allen Leisure relies in its claim of indemnity against it, are insufficient to show that it has expressly agreed to indemnify Lower Allen Leisure under the Pennsylvania Workmen’s Compensation Act, 77 P.S. §481(b) so as to fall within the limited waiver of immunity provision therein. We agree. Since there are no factual issues that need be submitted to a jury in order to resolve this dispute, a demurrer is entered.

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Coatman v. Lower Allen Leisure Enterprises, 42 Pa. D. & C.3d 19, 1985 Pa. Dist. & Cnty. Dec. LEXIS 63 (Pa. Super. Ct. 1985).

42 Pa. D. & C.3d 19 (Coatman v. Lower Allen Leisure Enterprises) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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