Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Fulgham v. Daniel J. Keating Co.

September 29, 2003


The opinion of the court was delivered by: Brotman, District Judge.



Presently before this Court are motions by Defendants Turner Construction Company, Daniel J. Keating Company and Super Sky Products, Inc. for summary judgment under Federal Rule of Civil Procedure 56 and a motion by Third-Party Defendant Mountain Pacific, L.L.C. to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), or in the alternative for summary judgment under Federal Rule of Civil Procedure 56.


This case arises from the personal injury of an employee of Mountain Pacific Enterprises, LLC ("Mountain Pacific"), a subcontractor, installing skylights in the High Speed Line station during renovations of Terminals B and C at the Philadelphia International Airport. On April 24, 1999, Robert F. Fulgham was working as a glazier, installing a "Z clip" into a skylight panel in the roof when he stepped onto a 2' by 12' board and fell to the platform below. (See Super Sky Statement of Undisputed Facts at 2). Fulgham sustained serious injuries from the fall. He was cited as having performed an unsafe act by failing to be "tied off" to a safety line in accordance with safety guidelines. (See Keating Statement of Undisputed Facts at 3). Mountain Pacific currently pays Fulgham workers' compensation benefits under the Pennsylvania Workers' Compensation Act, 77 P.S. § 1 et seq., as a result of this accident.

In 1998, the City of Philadelphia contracted with Daniel J. Keating Company ("Keating") to act as general contractor for the renovations at the Philadelphia International Airport. As general contractor, Keating was responsible for completing all of the work and labor associated with the renovation of the terminals. (See Defendant Keating's Statement of Facts). Keating subcontracted various labor, including the manufacture and installation of the skylights, to Super Sky Products, Inc. ("Super Sky"). Super Sky subcontracted the installation of the skylights to Mountain Pacific. The City of Philadelphia had also contracted with Turner Construction Company ("Turner"), in 1993, to serve as the engineer and construction manager for the renovation of the airport terminals. Turner did not contract directly with any of the above-mentioned contractors. (See Turner Statement of Undisputed Facts).

In January 2001, Fulgham filed a complaint against Keating, Turner and Super Sky, as well as various unknown supervisors, i.e. the "John Does," alleging that the companies and individuals were negligent in exercising reasonable care and providing proper safety procedures for the project. (See Plaintiff's Third Amended Complaint). Fulgham alleges that he suffered serious pain and incurred medical expenses, economic loses and lost wages as a result of this negligence. Fulgham asserts that he presently suffers from those injuries and will continue to suffer indefinitely. (See id at 4). The defendants brought cross-claims against one another for indemnification and Super Sky brought a third-party complaint for indemnification against Mountain Pacific.



As the plaintiff and defendants are citizens of different states and the amount in controversy exceeds seventy-five thousand dollars ($75,000), this Court has jurisdiction over the present matter pursuant to 42 U.S.C. § 1332.


All of the parties are in agreement that Pennsylvania law applies to this case. The Court concurs. See Veazey v. Doremus, 510 A.2d 1187, 1189 (N.J. 1986) (applying the governmental interest test to New Jersey choice of law analysis and applying the law of the state with the greatest interest in the issue). Pennsylvania has the greatest interest in this case, in which an employee, working in Pennsylvania, is injured at his workplace and is collecting workers' compensation under the Pennsylvania Workers' Compensation statute, 77 P.S. § 1 et. seq.


The standard for granting a motion for summary judgment is a stringent one, but it is not insurmountable. Fed. R. Civ. P. 56 provides that summary judgment may be granted only when materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Serbin v. Bora Corp., 96 F.3d 66, 69 n.2 (3d Cir. 1996). In deciding whether there is a disputed issue of material fact, the court must grant all reasonable inferences from the evidence to the non-moving party. The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

Supreme Court decisions mandate that a summary judgment motion must be granted unless the party opposing the motion "provides evidence `such that a reasonable jury could return a verdict for the nonmoving party.'" Lawrence v. National Westminster Bank New Jersey, 98 F.3d 61, 65 (3d Cir. 1996) (quoting Anderson, 477 U.S. at 248). Once the moving party has carried its burden of establishing the absence of a genuine issue of material fact, "its opponent must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The non-moving party must "make a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial." Serbin, 96 F.3d at 69 n.2 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); see also Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir. 1991) (declaring that non-movant may not "rest upon mere allegations, general denials, or . . . vague statements"). Thus, if the non-movant's evidence is merely "colorable" or is "not significantly probative," the court may grant summary judgment. Anderson, 477 U.S. at 249-50.


Defendant Daniel J. Keating Company moves for summary judgment, contending there are no genuine issues of material fact as to whether Keating qualifies as a "statutory employer" under the Pennsylvania Workers' Compensation Act and therefore it is entitled to immunity as a matter of law.

The Pennsylvania Workers' Compensation Act holds employers liable to compensate any employee injured in the course of employment. The Act expands this liability to "statutory employers" as well as common law employers. It holds general contractors, who subcontract parts of their labor, liable for the payment of workers' compensation benefits to those subcontractors' employees whose immediate employers default on payments. The Act states in relevant part:

An employer who permits the entry upon premises occupied by him or under his control of a laborer or assistant hired by an employee or contractor, for the performance upon such premises of a part of an 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.

77 P.S. § 52.

The term "contractor" under this provision includes "a subcontractor to whom a principal contractor has sublet any part of the work which such principal contractor has undertaken." 77 P.S. § 25. The purpose of the Act is to guarantee injured employees compensation by clearly enumerating responsible parties. Stipanovich v. Westinghouse Electric Corp., 210 Pa. Super 98, 231 A.2d 894 (Pa. Super. 1967). To accomplish this goal, the Act holds statutory employers liable for benefits in a "reserve status," calling for their payment of benefits to injured employees whose direct employers fail to pay. See Fonner v. Shandon, Inc., 555 Pa. 370, 377, 724 A.2d 903, 906 (Pa. 1999). In exchange for this secondary liability, the Act serves as the exclusive remedy for injured workers, "in place of any and all other liability to such employes." 77 P.S. §463.

The Act provides for immunity for statutory employers as well as common law employers "as a quid pro quo for being subjected to a statutory, no fault system of compensation for worker injuries . . . ." Al-Ameen v. Atlantic Roofing Corp., 151 F.Supp.2d 604, 606 (E.D.Pa. 2001). However, in order for an employer to qualify as a statutory employer and receive immunity under the Act, it must satisfy the five elements set by the Pennsylvania Supreme Court in McDonald v. Levinson Steel Co., 302 Pa. 287, 153 A.424 (1930). An employer will receive immunity from negligence suits brought by injured workers as a statutory employer if it is: (1) an employer who is under contract with an owner or one in the position of the owner; (2) the premises are occupied by or under the control of such employer; (3) a subcontract was made by such employer; (4) a part of the employer's regular business was entrusted to such contractor; and (5) the claim is brought by an employee of such subcontractor. McDonald, 302 Pa. at 295, 153 A. at 426 (Pa. 1930).

Once an employer qualifies as a statutory employer under the Act, it is immune from suit even if the injured worker's immediate employer provides benefits. The statutory employer "retains its common law immunity in exchange for its secondary liability." Cox v. Turner Construction Co., 373 Pa. Super. 214, 223 n.5, 540 A.2d 944, 947 n.5 (Pa. Super. 1988).

Keating alleges that it meets the five part statutory employer test and is therefore immune from any negligence suit, regardless of the fact that Plaintiff's immediate employer, Mountain Pacific L.L.C. provides worker's compensation benefits. Plaintiff does not dispute the fact that if Keating qualifies as a statutory employer, it is immune from any other type of liability. Further, Plaintiff concedes that Keating meets the first, fourth and fifth elements of the statutory employer test. Plaintiff, however, contends that Keating fails to establish the second and third prongs of the test and therefore is not entitled to immunity.

The second prong of the test for statutory employer immunity requires that Keating "occupy or control" the premises upon which the worker was injured. Plaintiff alleges that Keating failed to establish sufficient control of the premises and asserts that the control cannot be established by the presence of a supervisor alone but requires evidence of "actual control."

In 1998, Defendant Keating contracted with the City of Philadelphia to serve as the general contractor for the renovations of the terminals at the Philadelphia International Airport. It subcontracted several parts of the labor to be performed by subcontractors at the work site. The Act does not require that Keating have "exclusive" control of the premises, only that it had control of the workplace. Colloi v. Philadelphia Electric Co., 332 Pa. Super. 284, 299, 481 A.2d 616, 623 (Pa. Super. 1984). Pennsylvania courts have held that prong two of the test is disjunctive, such that an employer will meet this prong if it either controls or occupies the premises. Dougherty v. Conduit & Foundation Corp., 449 Pa. Super. 405, 413, 674 A.2d 262, (Pa. Super. 1996). Therefore, even if the evidence presented merely showed that Keating occupied the premises rather than exercised actual control of the workplace, it would still satisfy the second element. Zizza v. Drescher Mechanical Contractors Inc., 358 Pa. Super. 600, 604-605, 518 A.2d 302, 304 (Pa. Super. 1986).

Here, Keating provided sufficient evidence of its occupation and control of the work site to fulfill the second element of the statutory employer test. As part of its role as general contractor, Keating was required by the City of Philadelphia to exercise charge and control of the entire renovation project. See Dougherty, 449 Pa.Super. at 413 (finding satisfaction of prong two where the contract delegated responsibility for the work site to the contractor and the contractor's superintendent supervised the subcontractor's employees). Keating exercised this control by employing an on-site supervisor who approved a safety plan for employees, conducted weekly safety inspections of the work site, and held weekly progress meetings. (See Exhibits to Keating's Statement of Undisputed Facts: Exhibit C, Deposition of William Barton; Exhibit E, Deposition of James Thomas Bigante; Exhibit K, Deposition of Stephen Lane; Exhibit L, Deposition of George Warner; Exhibit M, Deposition of Thomas Dunbar; Exhibit N, Deposition of Stephen John McKendrick; Exhibit O, Deposition of Richard Butler). This supervisor also had the power to remove employees who violated safety procedures and to authorize an increase in subcontractors' manpower and authorize overtime for subcontractors' employees. (See Exhibit N, Deposition of Stephen John McKendrick). Keating's representatives also walked the site and inspected for safety violations during periodic safety audits. (See Exhibit L, Deposition of George Warner). Keating has demonstrated that it exercised control over the premises and has met the second prong of the test. See Mitchell v. W.S. ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.