ALEXANDER v. TUTOR PERINI CORPORATION et al

Filing 29

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 09/14/2017. 09/14/2017 ENTERED AND COPIES E-MAILED.(nds)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
AARON ALEXANDER,
Plaintiff,
v.
TUTOR PERINI CORPORATION, et al.,
Defendants.

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CIVIL ACTION
NO. 16-0546

M E M O R A N D U M
EDUARDO C. ROBRENO, J.

September 14, 2017

This personal injury action arises out of a
construction accident that occurred on January 30, 2014, at the
Chestnut Street Tower Project (the “Project”) located at 30th
and Chestnut Streets in Philadelphia, Pennsylvania. Defendant
Tutor Perini Building Corporation (“TPBC”), the construction
manager on the Project, subcontracted the concrete
superstructure work to Carson Concrete Corporation (“Carson”).
Plaintiff Aaron Alexander, an employee of Carson who worked on
the Project as a concrete laborer, suffered injuries when he was
struck from behind by pieces of concrete that unexpectedly shot
out of a hose used to place concrete on site. He seeks to hold
TPBC and its parent company, Tutor Perini Corporation (“Tutor
Perini”), liable for these injuries on a theory of negligence.

Following discovery, Defendants together moved for
summary judgment, and Plaintiff responded in opposition thereto.
For the reasons that follow, the Court will grant summary
judgment in favor of Defendants on all claims in this case.
I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff is a 30-year-old resident of Philadelphia,

Pennsylvania, who has worked as a construction worker for
various construction companies since 2008. See Aaron Alexander
Dep. Tr. at 6:19-24; 9:22-11:19; 13:5-15:19; Defs.’ Mot. Summ.
J. Ex. A, ECF No. 26-3. At the time of the accident underlying
this lawsuit, Plaintiff had been working for Carson as a
concrete laborer for approximately one year. See id. at 9:2210:3.
TPBC is a construction management company and a
wholly-owned subsidiary of Tutor Perini, a publicly traded
company.1 See Rule 7.1 Disclosure Statement Form, ECF No. 2. TPBC
was hired to manage the Project, which was the construction of a
34-story high-rise apartment building located on 30th Street
between Chestnut and Walnut Streets in Philadelphia. See Jack
Cooney Dep. Tr. at 13:13-22, Defs.’ Mot. Summ. J. Ex. C, ECF No.

1

Aside from being the parent company of TPBC, neither
party has alleged that Tutor Perini played any role whatsoever
in the Project.

2

26-5. This hire was made by Campus Crest at Philadelphia, GP
(“Campus Crest”), which effectively owned the premises on which
the Project was located (the “Premises”).2 See Constr. Mgmt.
Servs. Agmt., Oct. 22, 2012, Defs.’ Mot. Summ. J. Ex. D-1, ECF
No. 26-6. In turn, TPBC entered into a subcontract agreement
with Carson regarding the superstructure concrete work on the
Project.3 See Carson Subcontract, Defs.’ Mot. Summ. J. Ex. E, ECF
No. 26-8.
In conjunction with the Project, TPBC developed an
environmental health and safety plan detailing the rules and
procedures with which subcontractors and their employees were
expected to comply. See Safety Plan, Defs.’ Mot. Summ. J. Ex. G,
ECF No. 26-10; see also John Schellenberg Dep. Tr. at 35:7-24;
37:10-18, Defs.’ Mot. Summ. J. Ex. H, ECF No. 26-11. TPBC kept
an office and a trailer on the premises of the Project in order
to monitor the Project and enforce its safety procedures, and
TPBC employees maintained a constant presence on site. See John
Schellenberg Dep. Tr. at 92:11-20 (testifying that TPBC had an

2

Campus Crest is not a party to this lawsuit.

3

Carson is not a party to this lawsuit. Defendants
sought leave to join Carson as a third-party defendant over
three months after their deadline to do so had passed. The Court
denied this motion for leave in an order dated July 29, 2016, on
the basis that “Defendants have not shown good cause for their
request for a nunc pro tunc expansion of the deadline set in the
First Scheduling Order.” ECF No. 16.
3

office on site at the Project); Jack Cooney Dep. Tr. at 26:9-13,
27:16-24 (testifying that at least one TPBC superintendent was
on site at the Project every day).
On the morning of the accident, January 30, 2014,
Plaintiff arrived on the premises of the Project around 7:00
a.m. and learned that he, along with a crew of four to six
additional laborers, needed to determine the location of a
concrete jam inside the pipes. See Aaron Alexander Dep. Tr. at
66:4-6. After disconnecting a series of pipes several floors
below the location of the day’s planned concrete pour, this crew
identified two to four pipes in which the concrete had become
“frozen” or “hard.” Id. at 83:14-21; 85:4-18. The crew removed
this concrete from the pipes, and Plaintiff thereafter returned
to the upper floors to prepare for the pour--only to discover
that more concrete had become jammed somewhere else in the
pipes. Id. at 89:13-16; 91:5-8. Plaintiff and the rest of the
crew began disassembling the pipes on the upper floors and found
more of what Plaintiff described as “[f]rozen concrete, solid
hard concrete in the top of the pipe.” Id. at 94:4-7. While
chipping this concrete out of the top of the pipe, Plaintiff was
“hit from behind with concrete in the back of [his] leg and in
[his] back.” Id. at 95:14-21.
Plaintiff was then taken in a Carson work truck to the
emergency room at Hahnemann Hospital. Id. at 113:1-7. He was
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discharged after several hours without being administered any
medication. Id. at 113:18-114:1. Plaintiff’s medical records
reflect a diagnosis of “[k]nee contusion and first degree burn
to the buttocks.”4 Hahnemann Records, Defs.’ Mot. Summ. J. Ex. L
at 4, ECF No. 26-15.
Plaintiff initiated this action by filing a complaint
in the Philadelphia County Court of Common Pleas on January 14,
2016. On February 3, 2016, Defendants timely removed the case to
this Court on the basis of diversity jurisdiction. ECF No. 1.
Defendants answered the complaint on February 4, 2016. ECF No.
3. Following discovery, Defendants moved for summary judgment,
which Plaintiff opposed. ECF Nos. 26, 27. The motion is now ripe
for disposition.

II.

LEGAL STANDARD
Summary judgment is appropriate if there is no genuine

dispute as to any material fact and the moving party is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(a). “A motion
for summary judgment will not be defeated by ‘the mere existence’
of some disputed facts, but will be denied when there is a
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Plaintiff’s medical records indicated that he could
“Return to Work Without Restrictions As Of: 1/30/14,” and more
specifically that Plaintiff “may return to full duty in the
morning given that this is a mild contusion without much in the
way of physical findings.” Id. at 2, 5. Nevertheless, Plaintiff
did not return to work for Carson after the accident. See Aaron
Alexander Dep. Tr. at 114:24-115:1.
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genuine issue of material fact.” Am. Eagle Outfitters v. Lyle &
Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009) (quoting Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986)). A fact is
“material” if proof of its existence or nonexistence might
affect the outcome of the litigation; a dispute is “genuine” if
“the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson, 477 U.S. at 248.
In considering a motion for summary judgment, the
Court views the facts in the light most favorable to the
nonmoving party. “After making all reasonable inferences in the
nonmoving party’s favor, there is a genuine issue of material
fact if a reasonable jury could find for the nonmoving party.”
Pignataro v. Port Auth. of N.Y. & N.J., 593 F.3d 265, 268 (3d
Cir. 2010). The moving party bears the initial burden of showing
the absence of a genuine issue of material fact, but meeting
this obligation shifts the burden to the nonmoving party, who
then must “set forth specific facts showing that there is a
genuine issue for trial.” Anderson, 477 U.S. at 250 (quoting
Fed. R. Civ. P. 56(e)).

III. DISCUSSION
Defendants argue at the outset that they are entitled
to immunity under the Pennsylvania Workers’ Compensation Act
(the “Act”), which serves as the exclusive remedy in personal
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injury lawsuits for both common law employers and employers
statutorily defined under the Act. See 77 Pa. Stat. Ann.
§ 481(a). The Pennsylvania Supreme Court has established a fivepart test for use in determining whether a general contractor is
the “statutory employer” for purposes of determining immunity
under the Act:
1)

the general contractor must be under contract
with an owner or one in the position of an owner;

2)

the general contractor must occupy or control the
premises of such owner;

3)

the
general
subcontract;

4)

the general contractor must entrust part of its
regular business to such subcontractor; and

5)

the injured party must be an employee of such
subcontractor.

contractor

must

enter

into

a

See McDonald v. Levinson Steel Co., 153 A. 424, 426 (Pa. 1930);
see also Six L’s Packing Co. v. Workers’ Comp. App. Bd., 44 A.3d
1148, 1151 (citing five-part McDonald test).
A general contractor who meets the McDonald test is
“entitled to its historic immunity as a ‘statutory employer’
from suit for common law negligence,” even if the general
contractor is not the common-law employer of the injured party.
Fonner v. Shandon, Inc., 724 A.2d 903, 907 (Pa. 1999); see also
Braun v. Target Corp., 983 A.2d 752, 764-65 (Pa. Super. Ct.
2009) (“The classic statutory employer situation is in the

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construction industry, where a property owner hires the general
contractor, who hires a subcontractor to do specialized work on
the jobsite, and an employee of the subcontractor is injured in
the course of his employment.”). The remedial purpose motivating
this immunity is “to ensure payment of workers’ compensation
benefits in the event of defaults by primarily liable
subcontractors.” Patton v. Worthington Assocs., Inc., 89 A.3d
643, 645 (Pa. 2014); see also Qualp v. James Stewart Co., 109 A.
780, 782 (Pa. 1920) (“The act intended to throw the burden on
the man who secured the original contract from the owner to the
end that employés of any degree doing work thereunder might
always be protected in compensation claims.”).
Defendant argues in its motion for summary judgment
that “TPBC fulfills the five McDonald elements and, thus, is
entitled to statutory employer immunity from Plaintiff’s
negligence claim.” Defs.’ Mem. Supporting Mot. Summ. J. at 23,
ECF No. 26-1. Specifically, Defendants claim the following:
1)

TPBC was under contract with Campus
entity in the position of the owner;5

2)

TPBC occupied the premises;

3)

TPBC and Carson entered into a subcontract;

5

Crest,

an

Defendants explain in a footnote the series of
transactions that resulted in Campus Crest ultimately assuming
“all of the rights and interest in the [p]remises as the
original lessee.” Defs.’ Mem. Supporting Mot. Summ. J. at 4 n.1.
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4)

The concrete work subcontracted to Carson was
entrusted to TPBC in the [Construction Management
Services] Agreement;

5)

Plaintiff was Carson’s employee.

Id. at 23-27.
Plaintiff does not appear to dispute most of these claims.
Instead, Plaintiff contests only the fourth McDonald
requirement; Plaintiff disagrees that, by subcontracting the
superstructure concrete work to Carson, TPBC entrusted part of
its regular business to Carson. See Pl.’s Mem. Resp. Opp. Summ.
J. at 3, ECF No. 27. Plaintiff argues, without citation, that
“TPBC is in the business of that of a general contractor, not a
concrete company,” and “Plaintiff worked for a concrete company
that has a very distinct different [sic] business than that of a
general contractor.” Id.
Importantly, Plaintiff does not dispute, as a factual
matter, that TPBC entrusted the superstructure concrete work to
Carson under the subcontract between those two entities. Rather,
Plaintiff appears to be arguing that, as a legal matter, the
concrete work entrusted to Carson was not part of TPBC’s
“regular business” under the McDonald test. This position
misunderstands the Pennsylvania courts’ approach to the regular
business of a general contractor.
As courts within this district have explained, “the
regular business requirement is satisfied ‘wherever the
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subcontracted work was an obligation assumed by a principle
contractor under his contract with the owner.’” Al-Ameen v.
Atlantic Roofing Corp., 151 F. Supp. 2d 604, 609 (E.D. Pa. 2001)
(quoting Jamison v. Westinghouse Elec. Corp., 375 F.2d 465, 468
(3d Cir. 1967)); see also Scafidi v. Perini Corp., No. 89-7483,
1991 WL 30249, at *2 (E.D. Pa. Mar. 5, 1991) (“The plaintiffs’
second argument is that the work being completed by [the
subcontractor] was not part of the ‘regular business’ of Perini,
as required by element four. Element four, however, does not
require that the statutory employer be capable of carrying out
that specific task itself, but only that the type of work be in
the regular business of Perini.”). This standard is bolstered by
the rationale that “[i]f subcontracting construction work to
specialist companies removed the general contractor from the
ambit of the statutory employer doctrine, it would effectively
eliminate the doctrine.” Scafidi, 1991 WL 30249, at *2.
The record plainly reveals, and the parties do not
dispute, that TPBC was responsible for the overall construction
of the Project, including the concrete work. See Constr. Mgmt.
Servs. Agmt. at § 5.6.1 (requiring TPBC to, among other things,
“perform, or cause to be performed, the Work” with respect to
the Project”); see also id. at § 17.21.60 (defining “Work” as
“the construction identified by the Contract Documents,
including all labor necessary to complete such construction, all
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materials and equipment incorporated or to be incorporated in
such construction and all services, facilities, tools and
equipment necessary to complete such construction.”).
Further, the record shows, and the parties do not
dispute, that TPBC entrusted to Carson, as subcontractor, the
obligation to perform the concrete work on the Project. See
Carson Subcontract at § 2.1 (requiring Carson to “[c]omplete all
SUPERSTRUCTURE CONCRETE WORK as required under the Contract
Documents”). Under Pennsylvania law, the fact that TPBC itself
did not perform the concrete work does not preclude a finding
that TPBC was obligated to perform that work and that the work
was part of TPBC’s regular business. See Al-Ameen, 151 F. Supp.
2d at 609; Scafidi, 1991 WL 30249 at *2. The Court therefore
finds that, at least for purposes of statutory employer
analysis, TPBC entrusted Carson with part of its regular
business.
Plaintiff does not dispute that the other four
elements of the McDonald test are satisfied, and the Court finds
support in the record for each. First, TPBC entered into an
agreement--that is, the Construction Management Services
Agreement--with Campus Crest, which was in the position of an
owner of the premises. Second, TPBC occupied the premises by
keeping an office on site, and further by having multiple
employees on the premises every day. Third, TPBC entered into a
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subcontract with Carson, pursuant to which TPBC delegated work
to Carson. Finally, Plaintiff has admitted that he was an
employee of Carson at the time of the accident underlying this
litigation.
In light of the satisfaction of all five McDonald
factors necessary to establish its status as a statutory
employer, the Court concludes that TPBC is entitled to immunity
under the Pennsylvania Workers’ Compensation Act. Accordingly,
Plaintiff’s negligence claim against TPBC will be dismissed with
prejudice.
The Court will also dismiss with prejudice Plaintiff’s
negligence claim against Tutor Perini upon finding that
Plaintiff has effectively abandoned this claim. The record
contains no evidence whatsoever regarding Tutor Perini’s role in
the Project or its liability for Plaintiff’s injuries. Moreover,
Plaintiff does not even address--let alone attempt to rebut-Defendants’ argument that Tutor Perini cannot be held liable
solely by virtue of its status as TPBC’s corporate parent.
Plaintiff’s negligence claim against Tutor Perini therefore may
be deemed abandoned. See Glenn v. Raymour & Flanigan, 832 F.
Supp. 2d 539, 547 (E.D. Pa. 2011) (deeming the plaintiff to have
abandoned certain claims by failing to address them in his
response to the defendants’ motion for summary judgment); Ankele
v. Hambrick, 286 F. Supp. 2d 485, 496 (E.D. Pa. 2003) (finding
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that the plaintiff “waived his opportunity to contest” an
argument to which he “[made] no response.”).6
IV.

CONCLUSION
For the foregoing reasons, the Court will grant

Defendants’ motion for summary judgment, dismiss both counts of
Plaintiff’s complaint, and enter judgment in favor of Defendants
in this case. An appropriate order and judgment follow.

6

Having dismissed Plaintiff’s negligence claims against
each Defendant on grounds of statutory immunity and abandonment,
respectively, the Court need not reach any of the parties’ other
arguments in this case.
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