Tarantino v. P.H. Glatfelter Co.

2 Pa. D. & C.4th 198, 1989 Pa. Dist. & Cnty. Dec. LEXIS 289
CourtPennsylvania Court of Common Pleas, York County
DecidedFebruary 21, 1989
Docketno. 84-S-2401
StatusPublished

This text of 2 Pa. D. & C.4th 198 (Tarantino v. P.H. Glatfelter Co.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, York County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tarantino v. P.H. Glatfelter Co., 2 Pa. D. & C.4th 198, 1989 Pa. Dist. & Cnty. Dec. LEXIS 289 (Pa. Super. Ct. 1989).

Opinion

CHRONISTER, J.,

This matter is before the court on defendant’s motion for summary judgment. Plaintiff Michael Tarantino was injured while working for his employer Combustion Engineering at defendant P.H. Glatfelter’s premises on July 21, 1982. The complaint alleges that plaintiffs injuries were caused by Glatfelter’s failure to take adequate safety precautions.

C.E. had contracted to rebuild a boiler unit for Glatfelter. Plaintiff was working in the bottom of the boiler unit where he and other C.E. employees were raising and lowering materials through a “lifting well.” The lifting well consisted of rectangular openings in the upper floors created by removing sections of grates which ordinarily covered the openings. Materials could then be passed vertically from floor to floor through the openings using a “skip-bucket” on a hoist. Plaintiffs job at the time of the accident was to use a rope to guide the skip-bucket [a container used to carry debris from the upper floors] as it was being hoisted in the lifting well. The skip-bucket struck a section of grate as it passed through the opening of one of the upper floors, causing the grate to fall and crush plaintiffs leg.

Defendant Glatfelter has moved for summary judgment based on the premise that the work being done and the premises in question were controlled [200]*200by plaintiffs employer, Combustion Engineering, an independent contractor. In support of that, it recites the following facts. Stan Tomasevich, Combustion Engineering’s construction manager on the project, testified that C.E. had supplied the equipment used by its employees in the debris-removal operation. He also testified that the relevant part of the premises had been turned over to C.E. for the performance of its work, that C.E. had sole control over the manner in which the work was done, that no one from Glatfelter ever controlled or directed C.E.’s operation at all; and that the decision to leave some of the grates in place was made by someone from C.E. John Scanlan, Combustion Engineering’s general foreman, also testified that the relevant part of the premises had been turned over to C.E., that C.E. controlled the manner in which it performed the work, and that Glatfelter had no authority to give directions to C.E. personnel. John Carlisle, the C.E. employee working with plaintiff at the time of the accident, testified that no one from Glatfelter ever told the C.E. employees how to go about their work, and his opinion was that C.E. personnel would not have taken any instruction from Glatfelter if it had attempted to direct the manner of the work.

Defendant Glatfelter also recites these facts. This type of lifting operation is an ordinary procedure, typical of debris-removal jobs, not unique or different from any other similar project, and the risk of objects being dislodged and then falling is a normal risk. Lifting operations using a skip-bucket and a hoist are a normal and typical part of the job. Plaintiff had worked with the skip-buckets prior to the day of the accident; he knew there had been problems with the grating prior to his accident; and he had been told that the grates would move from their positions if struck. Plaintiff has admitted that [201]*201he was working on behalf of C.E. and at C.E.’s direction at the time of the accident; that C.E. supplied. the equipment used by plaintiff at the time of his accident; and that C.E. was a competent and careful contractor at the time C.E. was hired by Glatfelter.

Defendant argues that summary judgment , is appropriate because the accident occurred in the course of work being done by plaintiffs employer C.E. which was an independent contractor in full control of the premises and of the work being done on the premises. It says that ordinarily,, one who engages an independent contractor is not liable for the acts of such independent contractor or his employees, citing Hader v. Coplay Cement Manufacturing Co., 410 Pa. 139, 150, 189 A.2d 271, 277 (1963). Furthermore, it says, where, as here, an owner turns the premises over to an independent contractor for the performance of the work, the owner owes no relevant duty to the contractor’s employees with respect to obvious or known dangers. Id. at 151, 189 A.2d at 277. Defendant’s position is that it is free from liability because the owner of the property is under no duty to protect the employees of an independent contractor from risks arising from or intimately connected with defects or hazards which the independent contractor has undertaken to repair or which are created by the job contracted, citing. Celender v. Allegheny County Sanitation Authority, 298 Pa. Super. 390, 394, 222 A.2d 461, 463 (1966).

Plaintiff counters that the facts are not as defendant portrays them. He says, in his brief, that the “skip-bucket” or hopper was the property of defendant; that two C.E. employees had complained to defendant’s “safetyman” about conditions and problems that the gratings created; that defendant had a safetyman in the area while the work was being [202]*202performed; and that subsequent to the accident, the lighting was improved and the grates were secured. Unfortunately, these “facts” are not of record, plaintiff having failed to support them with any sworn testimony. Where a motion for summary judgment is supported by depositions and admissions of record, the opposing party cannot dispute the facts by merely relying on his pleadings or making bald, unsupported allegations in a brief. Pa.R.C.P. 1035(d).

Plaintiff also cited a number of authorities which are completely irrelevant to this case: Lineaweaver v. Wanamaker, 299 Pa. 45, 149 Atl. 84 (1930) (injured plaintiff was a customer); Smith v. Hillside Coal & Iron Co., 186 Pa. 28, 40 Atl. 287 (1898) (injured plaintiff was an employee of defendant); Pietruszka v. Bethlehem Mines Corp., 156 F.Supp. 523 (1957) (gratuitous licensee injured); Arzt v. Lit, 198 Pa. 519, 48 Atl. 297 (1901) (11-year-old boy gave defendant “permission” to run an elevator); Orrv. Burns Detective Agency, 337 Pa. 587, 12 A.2d 25 (1940) (master held responsible for injury inflicted by his servant upon a third person); Toole v. United States, 588 F.2d 403 (3d Cir. 1978) (manufacture of anti-tank explosives held to be extraordinarily dangerous activity); Greenbaum v. United States, 366 F. Supp. 26 (D.C. Pa. 1973) (business invitee on leased premises); and Glass v. Freeman, 430 Pa. 21, 240 A.2d 825 (1968) (land owner had duty to supervise seven-year-old).

Plaintiffs argument is somewhat difficult to follow, but we think it centers on the “special danger” or “peculiar risk” exemption to the general nonliability rule announced by Hader v. Coplay, supra. Defendant in its reply brief urges us not to consider this argument for two reasons — first, that plaintiffs brief was not timely filed; and second, that the “peculiar risk” exception was not pleaded. Defen[203]*203dant’s points are well taken. However, we prefer to address the argument on the merits rather than dismiss it on a technicality.

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Related

Hader v. Coplay Cement Mfg. Co.
189 A.2d 271 (Supreme Court of Pennsylvania, 1963)
Colloi v. Philadelphia Electric Co.
481 A.2d 616 (Supreme Court of Pennsylvania, 1984)
Ortiz v. Ra-El Development Corp.
528 A.2d 1355 (Supreme Court of Pennsylvania, 1987)
Celender v. Allegheny County Sanitary Authority
222 A.2d 461 (Superior Court of Pennsylvania, 1966)
Glass v. Freeman
240 A.2d 825 (Supreme Court of Pennsylvania, 1968)
Commonwealth v. Walker
444 A.2d 1228 (Superior Court of Pennsylvania, 1982)
Real Estate Land Title & Trust Co. v. West Chester Street Ry.
149 A. 84 (Supreme Court of Pennsylvania, 1930)
Lineaweaver Et Ux. v. Wanamaker
149 A. 91 (Supreme Court of Pennsylvania, 1929)
Orr v. William J. Burns International Detective Agency
12 A.2d 25 (Supreme Court of Pennsylvania, 1940)
Smith v. Hillside Coal & Iron Co.
40 A. 287 (Supreme Court of Pennsylvania, 1898)
Arzt v. Lit
48 A. 297 (Supreme Court of Pennsylvania, 1901)
Philadelphia Electric Co. v. Julian
228 A.2d 669 (Supreme Court of Pennsylvania, 1967)
McDonough v. United States Steel Corp.
324 A.2d 542 (Superior Court of Pennsylvania, 1974)
Pietruszka v. Bethlehem Mines Corp.
156 F. Supp. 523 (W.D. Pennsylvania, 1957)
Greenbaum v. United States
366 F. Supp. 26 (E.D. Pennsylvania, 1973)

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Bluebook (online)
2 Pa. D. & C.4th 198, 1989 Pa. Dist. & Cnty. Dec. LEXIS 289, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tarantino-v-ph-glatfelter-co-pactcomplyork-1989.