# Travaglia v. C.H. Schwertner & Son, Inc.

> Supreme Court of Pennsylvania · December 29, 1989 · 391 Pa. Super. 61

URL: https://www.frixlaw.com/law-library/cases/9647755

## Case

- **Full name:** Michael TRAVAGLIA and Ilene Travaglia, Appellants, v. C.H. SCHWERTNER & SON, INC., United Engineers & Constructors, Inc. and Providence Steel Company. (Two Cases); Michael TRAVAGLIA and Ilene Travaglia, v. C.H. SCHWERTNER & SON, INC., United Engineers & Constructors, Inc. and Providence Steel Company. Appeal of C.H. SCHWERTNER & SON, INC., United Engineers & Constructors, Inc.
- **Court:** Supreme Court of Pennsylvania
- **Decided:** December 29, 1989
- **Citations:** 391 Pa. Super. 61; 570 A.2d 513; 1989 Pa. Super. LEXIS 3767
- **Precedential status:** Published
- **Opinion:** Dissent by Cirillo
- **Judges:** Cirillo, Melinson, Hester
- **Cited by:** 20 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9647755

## Opinion text

CIRILLO, President Judge,
dissenting:
I respectfully dissent. I would find that United Engineers & Constructors, Inc. (“United”) was the statutory *75 employer of the appellant, Michael Travaglia (“Travaglia”), and therefore was entitled to common law tort immunity. Consequently, I would affirm the trial court’s order granting United’s motion for summary judgment as a matter of law.
On May 13,1981, Travaglia sustained injuries to his ankle and foot while participating in the construction of four concrete storage silos at an electrical generating station in Eddystone, Pennsylvania. The station is owned by the Philadelphia Electric Company (“PECO”). Prior to 1971, PECO had received a directive from the Environmental Protection Agency mandating that it undertake measures to clean sulphur dioxide fumes which were being emitted from the chimneys at the general operating station. Pursuant to that order, PECO retained United to furnish consulting, engineering, design, and construction services for the project. Among its duties, United was obligated to construct foundations, structures, and auxiliaries; install piping, electrostatic precipitators, ash disposal systems, electrical equipment and wiring; provide a switchyard, and yard facilities, and service equipment necessary for the completion of the job. As “constructors,” United agreed to “execute the construction and to install the machinery and equipment with [Unitedj’s forces;” except in instances where PECO and United “considered] it advantageous, parts of the work [were to be] let to contractors.” The contract expressly provided that all orders and contracts placed by United would be in the name of PECO and signed by United as agents for PECO.
On April 20, 1981, United, acting as agents for PECO, entered into a contract with C.H. Schwertner & Son, Inc. (“Schwertner”), for the design and construction of four silos intended to be used as storage facilities for magnesium oxide and magnesium sulfate ores. These silos were to be constructed using the slip form method of construction. In order to fulfill its contractual obligation, Schwertner entered into an agreement with Providence Steel Company (“Providence”), Travaglia’s employer. While Travaglia was *76 performing his duties, he allegedly slipped on an accumulation of wet concrete or oil which had been spilled on the silo work platform.
The majority, applying the criteria set forth in McDonald v. Levinson Steel Co., 302 Pa. 287 , 153 A. 424 (1930), concludes that United could not be a statutory employer because the contract entered into with Schwertner was not a “subcontract made by” United, and therefore United did not satisfy the third element of the McDonald test for acquiring the status of a statutory employer. I disagree. 1
It is well-settled that to become a statutory employer under the Workmen’s Compensation Act (“Act”), the follow-' ing five elements must be present:
(1) An employer who is under contract with 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. (5) An employee of such subcontractor.
McDonald, 302 Pa. at 294-295 , 153 A. at 428 .
By utilizing the reasoning of Grant v. Riverside Corp., 364 Pa.Super. 593 , 528 A.2d 962 (1987), Cox v. Turner Construction Co., 373 Pa.Super. 214 , 540 A.2d 944 (1988), and Stipanovich v. Westinghouse Electric Corp., 210 Pa. Super. 98 , 231 A.2d 894 (1967) to. reach its conclusion, the majority assails the rationale espoused in Qualp v. James Stewart Co., 266 Pa. 502 , 109 A. 780 (1920), and applied in Dume v. Elkcom Co., 368 Pa.Super. 280 , 533 A.2d 1063 (1987). In Dume , as in the instant case, the third element of the McDonald test was at issue.
Initially, it is imperative to recall the underlying purposes of the Workman’s Compensation Act (“Act”), as stated in Qualp :
The legislature wanted to definitely fix some responsible party with the obligation of paying compensation to in *77 jured workmen, and the party selected was the first whose duty it was to assume control of the work. It selected the first in succession from the owner, believing the owner would contract with none but responsible persons. He was the first in the field and in the contracting scheme of work, the head of the endeavor, the person to whom an employee would naturally look____ The act intended to throw the burden on the man who secured the original contract from the owner to the end that employees of any degree doing work thereunder might always be protected in compensation claims.
Qualp, 266 Pa. at 509 , 109 A. at 782 . Thus, an immediate contractual relationship is not required between the general contractor and an employee of a subcontractor before the general contractor is liable for the payment of workmen’s compensation benefits to that employee. Id. at 508 , 109 A. at 781 ; Dume, 368 Pa.Super. at 287 , 533 A.2d at 1067 . Likewise, since a direct contractual relationship is unnecessary to expose a general contractor to liability for workmen’s compensation benefits, such a contractual relationship should not be required to achieve the status of a statutory employer. The rationale underlying the above concept is explained in Judge Barbieri’s treatise on Pennsylvania’s workmen’s compensation law:
[I]n negligence cases, the general contractor has the full immunity from suit by the employe of a subcontractor which an immediate employer would have. He is the statutory employer and is the injured employe’s employer for negligence immunity purposes and is secondarily liable for compensation even though the immediate employer or some other intermediate subcontractor ... is insured and responds fully on the injured employe’s claim. The reason for this difference cannot be found in the language of the statute, but the rationale must be that, since the general contractor remains statutorily liable, although only in a reserve status, in return for this he has the statutory employer’s immunity from statutory employe negligence suits in all events.
*78 1 Barbieri, Pennsylvania Workmen’s Compensation & Occupational Disease, § 4.09(3) (1975) (footnotes omitted); see also Dume, 368 Pa.Super. at 288 , 533 A.2d at 1067 . I am in complete concurrence with Judge Barbieri’s analysis. To engage in an intricate labelling of the parties, and embark on a protracted and detailed analysis of whether a general contractor is a statutory employer entitled to tort immunity, as the majority does here, can only lead to a spate of decisions with no resulting uniformity. When a party is either primarily or secondarily liable for workmen’s compensation benefits to a plaintiff, that party should be granted the protection of common law tort immunity. This approach remains mindful that the Pennsylvania Workmen’s Compensation Act was promulgated to “protect employees and their families by insuring quick and certain payment for work-related injuries without having to resort to the courts.” Wagner v. National Indemnity Co., 492 Pa. 154, 161-162 , 422 A.2d 1061, 1065 (1980) (plurality opinion) (emphasis added); Blouse v. Superior Mold Builders, Inc., 363 Pa.Super. 516, 518 , 526 A.2d 798, 799 (1987).
Here, it is clear that United has a contingent liability for the payment of workmen’s compensation benefits to Travaglia. See 77 P.S. §§ 461, 462. Consequently, United should enjoy the privilege of common law tort immunity afforded by the Act. Dume, 368 Pa.Super. at 290 , 533 A.2d at 1068 .
Since the existence of a contractual relationship is not a prerequisite to a general contractor’s obligation to provide workmen’s compensation benefits, it reasonably follows that no contractual relationship need exist between the general contractor and the subcontractor in order for the general contractor to enjoy common law tort immunity under the Act.
Dume , 368 Pa.Super at 289-290, 533 A.2d at 1068 . It is my belief that the third requirement of the McDonald test does not mandate that a strict contractual relationship be demonstrated to afford a party the protections of a statutory employer. Because I would conclude that United was a *79 statutory employer under the Act entitled to common law tort immunity, and that the trial court was correct in granting United summary judgment as a matter law, I respectfully dissent.
. Although the majority concludes that United did not satisfy the third element of the McDonald test, the appellants contend in their brief that only the first and fourth requirements of McDonald are at issue in this case.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9647755. Public record. Not legal advice.