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Employees of two subcontractors laboring at one job site are considered co-employees for purposes of the Pennsylvania Workers’ Compensation Act, the Pennsylvania Superior Court has ruled. Therefore, in accordance with the act’s goals, employees cannot sue each other for alleged negligence at the job site that results in disability or death, the three-judge panel ruled in O’Donnell v. R.M. Shoemaker & Co. “Since [plaintiff] O’Donnell cannot maintain a tort action against his statutory employer, Fluidics [Inc.], it is unreasonable to conclude that he can maintain such an action against the statutory employer’s employee,” Judge Correale Stevens, the opinion author, said. The decision affirmed a ruling from the Philadelphia Common Pleas Court granting summary judgment to all defendants. Superior Court Judges Stephen McEwen and Peter Paul Olszewski were also on the panel. James O’Donnell worked for Len Parker Associates Inc. as a master steamfitter, Stevens said. He was injured while working on a job site at One Parkway Building. R.M. Shoemaker & Co. was the general contractor for the job, Stevens said. Fluidics was the subcontractor and subcontracted some of its work to Len Parker Associates. On the day of the accident, Nov. 28, 1997, O’Donnell was carrying a 21-foot, 300-pound steel pipe, assisted by Jerome Penn, a Fluidics employee, and James Parramore, whose employment affiliation was not stated in the opinion. Stevens said the pipe was suddenly dropped, pinning Parramore against a wall in what Stevens called a life-threatening situation. O’Donnell lifted the pipe off Parramore and suffered a herniated disc in the process, according to court documents. O’Donnell and his wife filed a complaint alleging that Penn was negligent in dropping the pipe and seeking damages from Fluidics and Shoemaker in addition to Penn. In their motion for summary judgment, the defendants argued that the Workers’ Compensation Act offered the exclusive remedy for the O’Donnells’ claims. The trial court agreed, granting the motion. In the appeal to the Superior Court, the O’Donnells conceded that their recovery from Shoemaker and Fluidics was limited to the WCA, because they were O’Donnell’s statutory employers. However, they argued that the same was not true of their claims against Penn, as Penn was not in the “same employ” as O’Donnell under � 72 of the WCA, nor was he O’Donnell’s statutory co-employee. Section 72 protects from liability a person who commits an act or omission that results in disability or death “while such person was in the same employ as the person disabled or killed except for intentional wrong.” Therefore, as the Superior Court stated in 1997 in Gardner v. Erie Insurance Co., in a decision later affirmed by the state Supreme Court, co-employees may not sue each other for alleged negligence. Stevens said that “intertwined” in the O’Donnells’ � 72 argument was a contention that � 52 of the act “does not require a finding that Mr. O’Donnell was in the same employ as Mr. Penn merely because Fluidics was Mr. O’Donnell’s statutory employer.” Section 52 deals with an employer’s liability to an employee’s employee. It states: “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 … shall be liable to such laborer or assistant in the same manner and to the same extent as to his own employee.” Section 52 provides a statutory employer with the same immunity given to a contractual or common-law employer, Steven said. Taking both �� 72 and 52 into consideration, Stevens said, the Superior Court agreed with the trial judge that Penn was O’Donnell’s co-employee, and, therefore, any claim against him was governed by the WCA. “The act makes it clear that an employer is liable under the act for the negligence of its employees. That being so, Fluidics would be liable for the negligence of its employees, including Mr. Penn,” Stevens said. “It is unreasonable to conclude that Fluidics would be immune from tort liability as to Mr. O’Donnell, but that Fluidics’ employees, for whom Fluidics is responsible, are not so immune.” Stevens said it also did not make sense to “segregate” two employees at the same site on the basis that one was paid by Len Parker Associates and the other by Fluidics. “Once each passed the perimeter and arrived at work, whoever may have sent them to their place of employment becomes immaterial, since each was equally subordinate to the on-the-job control of the general contractor,” Stevens said. “It is clear that Mr. O’Donnell and Mr. Penn worked side-by-side toward the same endeavor. … As such, for purposes of the act, we conclude that Mr. O’Donnell and Mr. Penn were in the ‘same employ,’ and Mr. O’Donnell’s exclusive remedy for his injuries are provided for under the act.” James A. Hamilton of Rizio & Hamilton represented the O’Donnells. Thomas E. Butler Jr. of Weber Gallagher Simpson Stapleton Fires & Newby was counsel for the defense.

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