Thomas v. Aethos Construction Co.

66 Pa. D. & C.4th 187, 2004 Pa. Dist. & Cnty. Dec. LEXIS 247
CourtPennsylvania Court of Common Pleas, Alleghany County
DecidedMarch 22, 2004
Docketno. GD 02-2629
StatusPublished

This text of 66 Pa. D. & C.4th 187 (Thomas v. Aethos Construction Co.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Alleghany County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thomas v. Aethos Construction Co., 66 Pa. D. & C.4th 187, 2004 Pa. Dist. & Cnty. Dec. LEXIS 247 (Pa. Super. Ct. 2004).

Opinion

BALDWIN, J.,

— -Plaintiff Raymond Thomas appeals and defendant Aethos Construction [189]*189Company (Aetos)1 cross-appeals the judgment entered in this negligence action in favor of Aetos.

On February 18, 2000, plaintiff Thomas was working on the night shift as an electrician at the West View Giant Eagle supermarket when he slipped and fell on a ramp while exiting the work site after a snow fall. At the time, Thomas was employed by Miller Electric Construction Company Inc., a subcontractor of defendant Aetos. As a consequence of the fall, Thomas suffered a fractured ankle and related injuries. Thereafter, Thomas filed this lawsuit, generally claiming that defendants were negligent in connection with the design, construction and maintenance of the ramp and in failing to warn and protect Thomas. This case was tried by jury as to defendant Aetos only. The jury found in favor of Thomas and against Aetos; however, after consideration of defendant’s post-trial motion, this court directed judgment in favor of Aetos based on Aetos’ argument that it was immune to tort liability in this case because it was a statutory employer of Thomas. This appeal followed.

In his statement of matters complained of on appeal, plaintiff argues that this court erred in granting defendant’s motion for post-trial relief based on the statutory employer defense. “A statutory employer is a master who is not a contractual or common-law one, but is made one by the [Workers’ Compensation Act, 77 P.S. §§1-2626].” O’Donnell v. R.M. Shoemaker & Co., 816 A.2d 1159, 1162 (Pa. Super. 2003). The following section of the Act sets forth the nature and liability of a statutory employer:

[190]*190“Employers’ liability to employee of employee or contractor permitted to enter upon premises.

“An employer who permits the entry upon premises occupied by him or under his control of a laborer or an assistant hired by an employee or contractor, for the performance upon such premises of a part of the employer’s regular business entrusted to such employee or contractor, shall be liable to such laborer or assistant in the same manner and to the same extent as to his own employee.” 77 P.S. §52.

“Although not apparent from its express terms, the language from section [52] stating that the statutory employer shall be liable to such laborer or assistant in the same manner and to the same extent as to his own employee confers upon the statutory employer immunity from suit.” O’Donnell, 816 A.2d at 1162-63 (quoting Peck v. Delaware Co. Board of Prison Inspectors, 572 Pa. 249, 254, 814 A.2d 185, 188 (2002) (Newman, J., plurality)).

In construing this section, Pennsylvania courts have set forth the following elements that a general contractor must demonstrate to prove its status as a statutory employer:

“(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.

[191]*191“(5) An employee of such subcontractor.” Emery v. Leavesly McCollum, 725 A.2d 807, 810 (Pa. Super. 1999) (quoting McDonald v. Levinson Steel Co., 302 Pa. 287, 294, 153 A. 424, 426 (1930)).

“These criteria should be applied strictly ....” Cox v. Turner Construction Company, 373 Pa. Super. 214, 223, 540 A.2d 944, 948 (1988).

Plaintiff argues that defendant waived and/or abandoned the statutory employer defense. Although Aetos claimed its status as a general contractor and raised the statutory employer defense in its complaint, this court agrees that Aetos made no mention of this defense as the case progressed. Aetos did not raise the defense by way of a motion for summary judgment, Aetos did not mention this defense in pretrial conferences or even during its opening argument during the trial of the case. Instead, Aetos defended this case at trial by contesting plaintiff’s claim of negligence on the merits. For this reason, this court denied Aetos’ motion for a compulsory nonsuit at trial.

This issue was raised again by post-trial motion. At that time, a review of the transcript revealed that while Aetos for some reason never articulated to the court prior to moving for a compulsory nonsuit at trial that it was pursuing the statutory employer defense, Aetos in fact put forth sufficient evidence, as a matter of law, to prove that it was a statutory employer.

Aetos provided testimony that it was a general contractor and employer hired under contract with an owner, Giant Eagle, through the testimony of William Sommers, a field superintendent for Aetos. (Trial Transcript at 183.) Thomas testified that Aetos was the general contractor [192]*192and in charge of the work site, that Aetos hired Miller to work as a subcontractor and that as far as he knew, Miller received work assignments from Aetos. (TT at 30, 51-53.) Sommers testified that Aetos had control of the work site, i.e., that Aetos decided the order and time of work and provided instruction to the subcontractors. (TT at 184.) There was testimony that Miller was hired to do the electrical work for the remodeling job which was part of the work that Aetos had contracted to do for Giant Eagle. (TT at 30, 52,177.) There was testimony that Thomas was an employee of Miller. (TT at 30.) Although the above testimony was conclusory, it was not challenged by plaintiff at trial. Thus, in light of this testimony, it was not an error for this court to rule as a matter of law on post-trial motions that judgment must be entered against plaintiff and in favor of Aetos due to Aetos’ status as a statutory employer.

By its appeal, Aetos argues that this court erred in failing to direct the entry of judgment in its favor based on the “hills and ridges” doctrine. The hills and ridges doctrine provides that an owner or occupier of land is not liable for general slippery conditions on one’s walks caused by ice and snow. Heasley v. Lumber, no. 183 WDA 2003, 2004 WL 351791 (Pa. Super. February 26, 2004); Wentz v. Pennswood Apartments, 359 Pa. Super. 1, 5, 518 A.2d 314, 316 (1986). Citing Biernacki v. Presque Isle Condominiums Unit Owners Ass’n Inc., 828 A.2d 1114 (Pa. Super. 2003), Aetos argued that it was not negligent under the hills and ridges doctrine because plaintiff failed to prove the following elements at trial: “(1) that snow and ice had accumulated on the sidewalk in ridges or elevations of such size and character as to un[193]

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Related

Emery v. Leavesly McCollum
725 A.2d 807 (Superior Court of Pennsylvania, 1999)
Cox v. Turner Construction Co.
540 A.2d 944 (Supreme Court of Pennsylvania, 1988)
Bitting v. Wolfe
82 A.2d 21 (Supreme Court of Pennsylvania, 1951)
Peck v. Delaware County Board of Prison Inspectors
814 A.2d 185 (Supreme Court of Pennsylvania, 2002)
Wentz v. Pennswood Apartments
518 A.2d 314 (Supreme Court of Pennsylvania, 1986)
Szumski v. Lehman Homes, Inc.
406 A.2d 1142 (Superior Court of Pennsylvania, 1979)
McDonald v. Levinson Steel Co.
153 A. 424 (Supreme Court of Pennsylvania, 1930)
O'Donnell v. R.M. Shoemaker & Co.
816 A.2d 1159 (Superior Court of Pennsylvania, 2003)
Biernacki v. Presque Isle Condominiums Unit Owners Ass'n.
828 A.2d 1114 (Superior Court of Pennsylvania, 2003)
Wilson v. Howard Johns Restaurant
219 A.2d 676 (Supreme Court of Pennsylvania, 1966)

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Bluebook (online)
66 Pa. D. & C.4th 187, 2004 Pa. Dist. & Cnty. Dec. LEXIS 247, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-v-aethos-construction-co-pactcomplallegh-2004.