JOHN SPREEN v. CURB CON INC., FRANK PULIDO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0906-06T50906-06T5

JOHN SPREEN,

Petitioner-Appellant,

v.

CURB CON INC., FRANK PULIDO,

SUSAN POLIDO & S.F.P. INC.,

Defendants-Respondents.

_____________________________________________________________

 
Argued Telephonically October 11, 2007 - Decided

Before Judges R. B. Coleman and Lyons.

On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, Claim Petition Nos. 1997-43283, 1998-35834, 1998-37679.

John Spreen, petitioner pro se.

Richard J. Williams argued the cause for respondents Curb Con, Frank Pulido and Susan Pulido (McElroy, Deutsch, Mulvaney & Carpenter, attorneys; Michael J. Marone, of counsel, Mr. Williams and Joseph G. Fuoco, on the brief).

Stephen M. Leitner argued the cause for respondent S.F.P. (Leitner, Tort & DeFazio, attorneys; Christopher B. Leitner, on the brief).

PER CURIAM

Petitioner John Spreen appeals pro se from the July 14, 2006 order denying his motion before the Division of Workers' Compensation to set aside the Division's May 13, 2005 order. After he had decided the matter from the bench, Workers' Compensation Judge Andrew M. Smith, Jr. issued a written opinion setting forth his findings and conclusions. He summarized his determination as follows: "I determine that Petitioner John Spreen was not an employee of either Mr. or Mrs. Polito [sic] or of any corporations that they might have owned when he was injured on July 4, 1997. He was an independent contractor and therefore ineligible for workers compensation benefits." We affirm substantially for the reasons articulated in Judge Smith's written opinion.

On July 4, 1997, petitioner sustained severe injuries when he fell from a ladder adjacent to the roof of a residence he was painting in Barnegat. The residence was owned by Susan Pulido, who resided in the home with her husband, Frank Pulido. Frank Pulido's name was not listed on the deed of the property. The Pulidos are the principals of two incorporated businesses, Curb Construction, Inc. (Curb Con.) and S.P.F. Inc. (S.P.F.). Curb Con. is in the business of installing curbs, sidings, factory floors, foundations, and sidewalks. S.P.F. essentially handles the payroll for Curb Con.

Petitioner urges that he was hired by one of the Pulidos' corporations and then assigned to paint the Pulidos' home. After hearing testimony from the parties, the compensation judge concluded that "[t]here is absolutely no evidence that the painting of Mrs. Pulido's house was in any way connected to the curbing business of Curb Concrete [sic] or SFP Inc. Nor is there any evidence that Curb or SFP derived any benefit from the house being painted." Pulido was not a professional painter and did not perform that type of work for any of the respondents.

On May 13, 2005, Workers' Compensation Judge Andrew Smith, ruling from the bench, assessed the petitioner's relationship with the Pulidos as follows:

[H]ere, we have a situation where the [Pulido] is basically the homeowner . . . . There's been quite a bit of discrepancy in the testimony between his recollection and that of Mr. Laux. And not sure that I have to address that issue.

I have found Mr. Pulito [sic] to be credible. I don't think that he - I think what happened here is that he had a conversation with Mr. Spreen, and asked Mr. Spreen, I find that he did, and refer [sic - infer] that further from the testimony here, that he had a conversation with Mr. Spreen at some time and asked him to do some work on his house, and to do some painting on the house, and he, Mr. Spreen, told him he wasn't available to do it at the time that it was to be done. But that he would spread the word around and he did spread the word around and spoke to, spoke to Mr. Laux, and Mr. Gallagher, and Mr. Laux and his father and Mr. Gallagher showed up and began doing the work.

Mr. Spreen may have been on the premises, may have stopped by there, as Mr. Laux said he did, Mr. Pulito [sic] really couldn't - never saw him there. But that, I just don't find enough - I don't believe the Petitioner's satisfied the burden here of showing that there's an employment relationship existed here. That this was out of the Pollack case, the landowner who hires someone is not the employer of that person. There has to be some kind of a, has to be engaged in some sort of a business. And if Mr. Pulito [sic] were a, in the painting business, I think that the Petitioner might have a stronger case, but where there's a private home and the owner of the home hires some people to fix it, that's not enough to create any more than a casual employment situation which is exempt under the Workers Compensation Act.

I'll dismiss the last of these complaints.

Thereafter, petitioner moved for reconsideration but, based on the arguments, previous trial testimony, and documentary evidence, the judge issued his July 14, 2006 written opinion and order upholding his previous dismissal of petitioner's claim. In reaching his decision, the judge quoted extensively from Pollack v. Pino's Formal Wear & Tailoring, 253 N.J. Super. 397 (App. Div. 1992).

In Pollack, the owner of a clothing business decided to build an addition onto an existing building so as to add a dry-cleaning service. Id. at 400. The owner hired a person to install the piping and dry-cleaning machinery who, in turn, employed another individual to assist in the task. Ibid. At some point during installation, the assistant fell from a ladder, injuring himself. Id. at 401. Like the case currently before the court, the petitioner in Pollack asserted he was entitled to benefits under the Workers' Compensation Law. Ibid.; see N.J.S.A. 34:15-36. The Pollack court followed the reasoning of Gerber v. Sherman and Arrow Constr. Co., 120 N.J.L. 237 (1938) and denied petitioner's claims:

where, as here, a landowner undertakes to erect a building upon his lands, and lets the construction work to independent contractors in several parts, he is not a "contractor" within the purview of the cited statute. And this is so even though he supervises the work of the individual contractors with a view to securing conformance to stipulated plans and specifications, and reserves to himself the doing of some of the work essential to the whole.
 
[Id. at 240 (citations omitted).]

Judge Smith relied upon this precedent to conclude that petitioner was an independent contractor and therefore ineligible for workers' compensation benefits.

Petitioner argues vehemently that the Pulidos have lied to the court, however, in the workers' compensation setting, the scope of this court's review is limited to "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole, with due regard to the opportunity of the one who heard the witnesses to judge of their credibility.'" Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 262 (2003) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). "Deference must be accorded the factual findings and legal determinations made by the Judge of Compensation unless they are 'manifestly unsupported by or inconsistent with competent relevant and reasonable credible evidence as to offend the interests of justice.'" Ibid. (quoting Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 282 (App. Div. 1994)); Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484 (1974).

Mindful of the limited scope of our review, we are satisfied that the Division of Workers' Compensation Judge's ruling is supported by sufficient credible evidence. We defer to the Division's determination that petitioner performed work on a casual basis for the Pulidos, but that arrangement did not create the relationship of employer and employee as between the Pulidos and/or their corporations and petitioner as defined in the Workers' Compensation Act, N.J.S.A. 34:15-36, such as to entitle petitioner to receive workers' compensation benefits.

Affirmed.

 

A handwritten entry on the July 14, 2005 order indicates it is denying a motion to set aside a dismissal of May 15, 2005, however, the record contains no order of May 15, 2005. Instead, an order dated May 13, 2005 was entered dismissing John Spreen's petition against Frank and Susan Pulido and Curb Con Inc. for petitioner's failure to sustain his burden of proof. Earlier, by order dated March 11, 2005, John Spreen's petition against S.F.P., Inc. and Susan Pulido, individually, was dismissed because "petitioner failed to establish employment by respondents." A second order dated March 11, 2005 was entered dismissing a petition by John Spreen against Susan Pulido for "failure to sustain burden of proof." The case numbers on the various orders in the appendices of the parties are not legible on the copies provided.

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A-0906-06T5

January 4, 2008