PENNSYLVANIA: PERSONAL INJURY―Statutory Employer Defense Alive and Well in Philadelphia

by Suzanne Curran Murphy

On February 19, 2015, plaintiff was working at a renovation project as an electrician employed by an electrical subcontractor. He alleged that while carrying a six-foot ladder through the building’s mechanical room, his ladder struck a nitrogen tank that was not secured and the tank fell onto his left foot. Plaintiff claimed significant injury to his left foot.

Plaintiff filed suit against the owners and our client, the general contractor, in Philadelphia County. We joined the electrical subcontractor and the plumbing subcontractor who owned the subject tank.

Liability was contested by all defendants. Rawle & Henderson LLP filed Summary Judgment on behalf of our client, the general contractor, based upon its statutory employer status. We argued that our client met the necessary requirements to be considered a statutory employer pursuant to the McDonald test based upon the following criteria:

(1) It is under contract with an owner or one in the position of an owner;
(2) The premises in question are occupied by or under the control of such employer;
(3) The employer makes a subcontract;
(4) Part of the employer’s regular business has been entrusted to such subcontractor; and
(5) An employee of the subcontractor is the party bringing the claim.

McDonald, 153 A. at 426. See also Braun v. Target Corp., 2009 PA Super 206, ¶ 31, 983 A.2d 752, 764.

Multiple parties filed opposition to our Summary Judgement motion. The primary argument was that our client served dual roles on the project. Our client was both the construction manager and performed the carpentry work on the site. Our client did not have a separate contract for the carpentry work.

In addition, the opponents argued that our client billed separately for the carpentry work. The opponents further argued that the first requirement of the McDonald test was not met because our client, the general contractor, did not have a contract for the carpentry work with the owner. It was argued that the second requirement was not met because our client did not show control of the site mainly because it was alleged that its employees had moved the tank as part of their carpentry work and the carpenters did not have actual control of the site and did not serve in any supervisory role on the site. It was further argued that the fourth requirement was not met because our client did not have a specific contract with the owner for electrical work.

We argued that all parties had agreed in deposition that our client was the general contractor. There was no case law cited that made any exception with regard to the statutory employer status because a general contractor performed dual roles. We asserted that the opposition’s argument that dual roles had any effect on our client’s statutory employer status was a red herring meant to sidetrack and confuse the court.

We further argued that it was made clear in O’Boyle v. J.C.A. Corp. 538 A.2d 915 (Pa. Super 1988) that the subcontracted work need not mimic verbatim the obligation assumed by the general contractor; rather, a general contractor tasked with completing a construction project may subcontract work in furtherance of this overall goal, even if the task is not mentioned in the general contractor’s obligations. See generally Id at 918.

Therefore, the fact that carpentry and electrical work were not specifically mentioned in the contract were not relevant factors in determining the statutory employer status of the general contractor.

The court did not find the arguments of the opposing parties compelling and concluded that our client was the statutory employer and granted the motion for Summary Judgment dismissing all claims against our client with prejudice.

Suzanne Curran Murphy is Of Counsel to the firm in our Philadelphia office. She concentrates her practice in the areas of premises liability, construction litigation and school bus/commercial motor vehicle litigation. Suzanne received her B.A. from Loyola College in 1989 and J.D. from Widener University School of Law in 1993. She served as a judicial law clerk for the Honorable Frank X. O’Brien, Court of Common Pleas in Philadelphia. She is admitted to practice in the state courts of Pennsylvania and New Jersey as well as the U.S. District Court for the District of New Jersey and the U.S. District Court for the Eastern District of Pennsylvania. She has argued successfully before the Pennsylvania Superior Court. Suzanne is an active participant in the University of Pennsylvania Law School’s Quaker Classic Mock Trial Tournament.

Suzanne can be reached directly at (215) 575-4242 • smurphy@rawle.com

SCHOOL SUPPLY DRIVE

Rawle & Henderson LLP participated in the Global Citizen annual School Supply Drive in August 2017 to benefit students in Philadelphia public schools. Global Citizen partnered with the School District of Philadelphia, Philadelphia Media Network (Philadelphia Inquirer, Daily News & Philly.com), 900AM-WURD, the African American Museum in Philadelphia, High Point Café, iHeart Media, Coca-Cola and Home Depot for this year’s drive to benefit students in underserved Philadelphia public schools. Rawle & Henderson LLP donated pens, pencils, erasers, markers, notebooks, binders, backpacks, rulers and other items. Pictured above (l.-r.): Michael P. Zabel, Partner Tara Gill Nalencz, Joseph A. Gorman, Partner William J. Carr and Partner Brett A. Wolfson.

COMMERCIAL VEHICLE SAFETY SUMMIT

Gary N. Stewart, a partner in our Harrisburg, Pennsylvania office, attended the Commercial Vehicle Safety Summit in August 2017 at the Pennsylvania State University. The event, presented by Penn State, the Pennsylvania Department of Transportation, the National Highway Traffic Safety Administration and the Pennsylvania Motor Carrier Safety Advisory Committee, was held at the Penn Stater Hotel and Conference Center.

Gary focuses his practice on the defense of commercial motor vehicle companies and their insurers. He is admitted to practice in Pennsylvania, New Jersey, Massachusetts, Connecticut, Vermont and Rhode Island, as well as before the U.S. District Courts for the Eastern, Middle and Western Districts of Pennsylvania, the District of New Jersey, the District of Massachusetts, the District of Rhode Island, the District of Connecticut and the U.S. Court of Appeals for the First and Third Circuits. He graduated magna cum laude from the Harrisburg campus of Widener University School of Law. Gary was the recipient of the James C. Crumlish Jr. Award for Excellence in Scholarship and Administrative Law. He received his undergraduate degree from the U.S. Merchant Marine Academy at Kings Point, New York, and holds U.S. Coast Guard professional licenses as Master of Oceans, Steam or Motor Vessels up to 1600 gross tons as well as Chief Officer, unlimited tonnage, all oceans. Gary served as the law clerk for the Honorable Rochelle Friedman, Commonwealth Court of Pennsylvania in Harrisburg. He has been selected by his peers as a Transportation/Maritime Pennsylvania Super Lawyer in 2017, 2016, 2012, 2011, 2010, 2009 and 2007. He is a member of Rawle & Henderson LLP’s Executive Committee.

Gary can be reached at (717) 234-7730 • gstewart@rawle.com

NEW ADDITION

Edward I. Wicks has joined our Philadelphia office as an associate. He focuses his practice in the areas of general liability, commercial motor vehicle defense, insurance coverage and employment relations. Edward graduated from Temple University Beasley School of Law in Philadelphia, Pennsylvania, in 2008. While attending law school, he served as a legal intern for Temple Law’s Center for Community and Non-Profit Organizations. He also served as a legal intern for the New Jersey Department of the Public Advocate. Edward earned a B.S. in International Business, summa cum laude, from Messiah College in Grantham, Pennsylvania, in 2001. Edward is admitted to practice in Pennsylvania and New Jersey, as well as the U.S. District Court for the Middle District of Pennsylvania, the U.S. District Court for the District of New Jersey and the Third Circuit Court of Appeals.

Edward can be reached directly at: (215) 575-4285 • ewicks@rawle.com

  RRV21N9.pdf