Commonwealth Court Cases - Commonwealth Court Case Law from PA - Pennsylvania Commonwealth Court

Microsoft Word - 1013CD97.doc

	ROMINGER LEGAL
		Pennsylvania Court Cases and Opinions - PA Legal Research
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case was taken from the Pennsylvania Courts. Search our site for more cases - CLICK HERE

MOST CURRENT PENNSYLVANIA SUPERIOR COURT CASES

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
HAROLD LEONARD and ANGELA
:
LEONARD, his wife,
:
Appellants
:
:
v.
:
NO. 1013 C.D. 1997
:
COMMONWEALTH
OF :
PENNSYLVANIA, DEPARTMENT
:
OF TRANSPORTATION; and
:
PERINI CORP.; and PETER KIEWIT :
AND SON COMPANY; and KIEWIT
:
EASTERN CO., incorrectly
:
identified as KIEWIT
:
EASTERN CORPORATION; and
:
KIEWIT/PERINI, a Joint Venture; and :
HIGH STEEL STRUCTURES, INC.;
:
and CORNELL AND COMPANY; and :
CONSTRUCTION METHODS AND
:
COORDINATION, INC. (CMC)
:
ARGUED: October 8, 1998
BEFORE:
HONORABLE JAMES R. KELLEY, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
HONORABLE CHARLES P. MIRARCHI, JR., Senior Judge
OPINION BY JUDGE KELLEY
FILED: December 30, 1998
Harold and Angela Leonard appeal from an order of the Court of
Common Pleas of Delaware County (trial court). The trial court's order denied the
Leonards' motion for post-trial relief requesting the removal of the compulsory
nonsuits entered in favor of all defendants. We affirm.
The Pennsylvania Department of Transportation (DOT), entered into a
contract with Kiewit Eastern Company and Perini Corporation (Kiewit/Perini) on
June 14, 1988 for the improvement of Interstate 476 through Delaware County.

The contract required Kiewit/Perini to demolish existing structures and to rebuild
various bridges along Interstate 476, including the Chester Road Bridge.
Subsequently, Kiewit/Perini entered into a subcontract with High Steel Structures,
Inc. (High Steel) for fabrication of the steel to be used in the bridges and the
erection of the steel during the construction of the bridges. High Steel then
subcontracted the actual erection of the steel to Cornell and Company (Cornell)1,
who employed Harold Leonard (Leonard) as an ironworker.
While helping a fellow worker carry a plank across the upper flange
of an I-beam on the Chester Road Bridge, Leonard fell approximately forty feet to
the street. Leonard sustained various injuries to his back and right elbow. At the
time of the accident, Leonard was wearing a safety belt, but it was not connected to
any safety device such as a static safety line. In addition, the construction site did
not have a safety net below the work area.
As a result of the fall, Leonard and his wife commenced a civil action
for negligence against DOT which owned the construction site, Kiewit/Perini,
general contractor for the construction project, and Cornell. Kiewit/Perini joined
High Steel, as an independent contractor, alleging that High Steel is obligated to
indemnify Kiewit/Perini pursuant to an indemnification provision in their
subcontract. Leonard later added Construction Methods and Coordination, Inc.
(CMC) as a defendant alleging that it failed to inspect and monitor the construction
site pursuant to its general contract with DOT.
The complaint asserted that Leonard sustained his injuries because of
unsafe conditions at the construction site and the absence of necessary safety
precautions. Leonard averred that each defendant had a duty to provide a safe

1 Cornell is currently in the midst of bankruptcy proceedings and reorganization.
2.

working environment, and that each negligently failed to properly and reasonably
inspect the work area, thereby causing the accident.
Leonard originally filed the civil action in the Court of Common Pleas
of Philadelphia County, but a change of venue moved the case to Delaware
County. The trial court consolidated all matters in the case, including cross-claims
and indemnification claims, by order dated March 1, 1993. Eventually, the trial
court ordered High Steel to indemnify and defend Kiewit/Perini and DOT. The
trial court certified the issue for appellate review which this court denied. The trial
court also denied defendants' various motions for summary judgment and
commenced a jury trial on October 16, 1995. At the close of evidence, and after
reargument of the motions, the trial court granted compulsory nonsuit in favor of
all defendants on October 19, 1995.2
Leonard filed timely post-trial motions which the trial court denied in
an order and opinion dated April 3, 1997. Leonard then filed the instant appeal
with this court presenting the following issues for our review3: (1) whether the
trial court failed to follow and apply this court's decision in Donaldson v.
Department of Transportation, 596 A.2d 269 (Pa. Cmwlth. 1991), petition for
allowance of appeal denied, 530 Pa. 667, 610 A.2d 46 and 531 Pa. 648, 612 A.2d
986 (1992) and thus failed to find that Kiewit/Perini and the subcontractor High

2 The trial court did conclude that Cornell is responsible for Leonard's work-related
injuries under the Workers' Compensation Act, Act of June 2, 1915, P.L.736, as amended, 77
P.S. §§ 1-1041.4; 2501-2626.
3 A compulsory nonsuit may be affirmed only if, giving the appellant the benefit of every
reasonable inference and resolving all evidentiary conflicts in his or her favor, the facts and
circumstances nonetheless lead to the clear conclusion that no liability exists. Berman v.
Southeastern Pennsylvania Transportation Authority, 698 A.2d 1362, 1363 (Pa. Cmwlth. 1997),
citing Harvilla v. Delcamp, 521 Pa. 21, 555 A.2d 763, 764 (1989).
3.

Steel breached their separate and independent duties to Leonard to make certain
that the workplace was safe and in compliance with fall protection and other
regulations as required in their contract and pursuant to Occupational Safety and
Health Administration (OSHA) regulations; (2) whether CMC's contract with
DOT, to provide inspection services and to monitor for safety and OSHA
compliance, makes it liable to Leonard when CMC failed to provide such
inspection or monitoring or to assure OSHA compliance, notwithstanding the fact
that DOT did not specifically request such safety monitoring services at the job site
on the day of the accident; (3) whether DOT is subject to liability for failing to
design the I-beams used in the highway project in accordance with OSHA
safeguards; and (4) whether the evidence fails to show as a matter of law that
Leonard was contributory negligent or assumed any risk.
Initially, we note that Leonard failed to raise the third and fourth
issues in either the post-trial motion for relief filed pursuant to Pa.R.C.P. No. 227.1
or in the concise statement of matters complained of on appeal. Only the issues
that a party specifically raises in post-trial motions are preserved and subject to
review by an appellate court. Pa.R.A.P. 302; Giosa v. School District of
Philadelphia, 630 A.2d 511, 516 (Pa. Cmwlth. 1993), overruled in part on other
grounds by Fernandez v. City of Pittsburgh, 643 A.2d 1176 (Pa. Cmwlth. 1994).
We will now address Leonard's remaining issues.
Leonard asserts that Donaldson stands for the proposition that all
contractors and subcontractors of a federally aided highway construction project
must, by virtue of federally mandated contractual provisions, make certain that the
workplace is safe and in compliance with applicable federal, state, and local safety
laws, in particular, OSHA regulations. Because this duty cannot be delegated to
another party, Leonard contends that, even though neither Kiewit/Perini nor High
4.

Steel were involved in the erection of the steel, each entity had a duty to ensure a
safe workplace.4 Accordingly, Leonard argues that his accident occurred because
Kiewit/Perini and High Steel independently failed to make certain that safety nets
or properly located safety lines were in place as required by OSHA regulations.
We are unwilling to accept this proposition.
In Donaldson, the plaintiff sustained permanent injuries after a board
on a scaffold broke and he fell sixty-five feet onto an embankment. Based on the
general contractor's control over the work site, we concluded that the general
contractor owed a duty to the plaintiff to insure that the proper type of wood would
be used in the construction of the scaffolding. Donaldson, 596 A.2d at 273-74.
When the evidence of record revealed that the general contractor used
construction-grade planking instead of scaffold-grade planking in a scaffold over
which the workers walked, this court properly reversed the trial court's grant of
judgment n.o.v. in favor of the general contractor. Id.
Here, neither Kiewit/Perini nor High Steel had any involvement in the
erection of the steel for the Chester Road Bridge. Reproduced Record (R.R.) at
264. As a result, neither party could have committed any OSHA violations
because they did not have control over the construction site or Leonard's work
activities. In fact, Leonard testified that Cornell maintained exclusive control over

4 Leonard relies on 29 C.F.R. §§ 1926.10 and 1926.16 in making this assertion. These
OSHA regulations, however, do not define how liability is to be assigned amongst contractors at
a construction site. Rather, the regulations establish which party or parties are subject to the
enforcement provisions of the Occupational Health and Safety Act. See Egan v. Atlantic
Richfield Company, 566 A.2d 1249, 1251-52 (Pa. Super. 1989), petitions for allowance of
appeal denied, 525 Pa. 630, 525 Pa. 634, and 525 Pa. 636, 578 A.2d 925, 578 A.2d 929 and 578
A.2d 930 (1990).
5.

the steel erection at the construction site, and that he never received any instruction
from Kiewit/Perini or High Steel personnel. R.R. at 501a-04a, 545a.
In addition, Kiewit/Perini assumed DOT's obligation to comply with
the applicable OSHA regulations pursuant to the contract it entered into with DOT.
R.R. at 114a-18a. Kiewit/Perini in turn contracted with High Steel for the
fabrication and erection of the steel. Under that contract, High Steel agreed to
accept all responsibility for safety precautions relating to the work site. R.R. 207a-
09a. High Steel then entered into a subcontract with Cornell to erect the steel at
the work site. Specifically, section 11 of the subcontract between High Steel and
Cornell provides in relevant part:
[Cornell] agrees to conduct and carry on its work in such
a manner as to avoid injury or damage to persons or
property including its own work and be strictly
responsible for damage to persons or property by failure
so to do or by [Cornell's] negligence, and shall assume as
to its work hereunder all obligations imposed on [High
Steel] under the provisions of the General Contract . . . .
R.R. at 900a.
It is an accepted rule that the duty to provide safety precautions at a
construction site can be delegated to a subcontractor. Egan, 566 A.2d at 1250-52
(Pa. Super. 1989), Weiser v. Bethlehem Steel Corp., 508 A.2d 1241, 1245 (Pa.
Super. 1986). In addition, the general rule in this Commonwealth is that one who
employs an independent contractor is not responsible for the negligence of that
independent contractor. Donaldson, 596 A.2d at 274. Based on our review of the
contracts, it is clear that Kiewit/Perini delegated its duty to provide safety
precautions to High Steel and High Steel subcontracted the duty to Cornell.
Assigning liability to these parties for Leonard's injuries without the existence of a
cognizable duty would be contrary to existing law. Furthermore, it would
6.

needlessly increase the cost of bridge and road construction by requiring all
contractors to be insured against the negligence of third parties. Egan, 566 A.2d at
1252.
Next, Leonard contends that CMC assumed an independent and
inescapable obligation to monitor for safety and OSHA compliance at the work site
pursuant to the contract CMC entered into with DOT. Because ironworkers
regularly walked unsecured on the top flange of the I-beams, Leonard believes that
CMC should have been aware of OSHA violations and taken appropriate remedial
action. When CMC failed to perform their duty, it became liable for Leonard's
injuries. Again, we disagree.
CMC is neither the general contractor nor a subcontractor at the
Chester Road Bridge location and, therefore, no contractual duty arose regarding
the safety at the construction site. Furthermore, CMC only supplemented DOT's
staff in inspecting the bridge and road construction on the entire Interstate 476
project and ultimate responsibility for safety inspections rested with DOT.5 R.R. at
167a. Consequently, no legal duty on behalf of CMC existed on the date of
Leonard's accident and, therefore, no liability can be assigned to this entity.
Accordingly, the trial court's order denying Leonard's motion for
post-trial relief is affirmed.
_________________________________
JAMES R. KELLEY, Judge
Judge Leadbetter concurs in the result only.

5 We note that the trial court determined that DOT was excused from any liability as a
matter of law due to sovereign immunity. Leonard did not appeal this determination.
7.