Girardi v. Pennsylvania Power and Light Company

• Decision Date: 15 July 1959
• Docket Number: No. 21410.,21410.
• Citation: 174 F. Supp. 813
• Parties: Jerry GIRARDI v. PENNSYLVANIA POWER AND LIGHT COMPANY and Lipsett, Inc., Defendants and Andershonis, Inc., Third-Party Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

174 F. Supp. 813

Jerry GIRARDI v. PENNSYLVANIA POWER AND LIGHT COMPANY and Lipsett, Inc., Defendants and Andershonis, Inc., Third-Party Defendant.

No. 21410.

United States District Court E. D. Pennsylvania.

July 15, 1959.

B. Nathaniel Richter, Richter, Lord & Levy, Philadelphia, Pa., for plaintiff.

Lynn L. Detweiler, Swartz, Campbell & Henry, Philadelphia, Pa., for defendants.

George P. Williams, III, Philadelphia, Pa., for third-party defendant.

CLARY, District Judge.

This is an action by plaintiff, a resident of Pennsylvania, against defendant, Lipsett, Inc., a New York contracting firm, to recover damages for injuries sustained when he was dismantling equipment at an electric station in Williamsport, Pennsylvania. At the trial of the issue the Court submitted certain interrogatories to the Jury and on the basis of the answers the Trial Judge entered judgment in favor of the defendant on the ground that Lipsett, Inc. was the statutory employer of the plaintiff. The facts which form the basis of the action are as follows:

On November 5, 1954, Lipsett, Inc. contracted with Pennsylvania Power and Light Company "to purchase the equipment at Pennsylvania Power and Light's * * * Allentown, Kulpmont, Lykens and Williamsport Steam Electric Stations for a consideration of One Hundred Thousand Dollars, ($100,000), and * * * to remove and load same * * *." With reference to the work at the Williamsport plant the contract further stipulated:

"All the equipment in the main power plant building to be removed, that building and the two stacks demolished and all the debris disposed of to our satisfaction by April 1, 1956."

On August 29, 1955, after having begun work at Williamsport, Lipsett contracted with Andershonis, Inc. whereby the latter agreed, for a consideration, "to demolish the existing power plant and two smoke stacks * * *. All resultant debris to be removed * * * and the area graded to the satisfaction of the Pennsylvania Power and Light Company." In addition, Andershonis was to "prepare and outload all steel and iron and nonferrous (sic) and equipment generated from this plant * * *" for which it was paid at a given rate per ton. This material was shipped in accordance with instructions given by Lipsett.

Lipsett then withdrew completely from the plant, and Andershonis thereafter commenced operations. On November 4, 1955 plaintiff, an employee of Andershonis, was injured while dismantling equipment in the plant. He now seeks recovery from Lipsett on tort principles.

Lipsett interposed the defense that it was liable to plaintiff under the Pennsylvania Workmen's Compensation Act and hence not amenable to common-law suit. In support of this position Lipsett relied upon § 203 of the Act, Pa.Stat.Ann. tit. 77, § 52 (1952), which reads:

"An employer who permits the entry upon premises occupied by him or under his control of a laborer or an assistant hired by an employee or contractor, for the performance upon such premises of a part of the employer's regular business entrusted to such employee or contractor, shall be liable to such laborer or assistant in the same manner and to the same extent as to his own employe."

In reply, plaintiff insisted that the word "control" as used in § 203 referred to actual physical control; and that Lipsett's complete withdrawal prior to the entry of Andershonis therefore rendered the section inapplicable. The Court, being of the opinion that the correct test of the so-called "statutory employer" status under § 203 was the "right of control" rather than "actual" control, submitted an interrogatory to the jury that posed the question whether defendant Lipsett had retained a right of control over the work done by Andershonis. This was answered in the affirmative; and judgment was entered for defendant on the theory that it was the statutory employer of the plaintiff and liable only under the Workmen's Compensation Law. In response to other interrogatories the jury found both Lipsett and Andershonis negligent and assessed damages in the sum of $100,000.

Plaintiff now moves the Court to vacate the judgment and enter judgment for plaintiff in the amount of $100,000 and in the alternative for a new trial.

The principal, although not the sole issue on this motion, is whether the Court correctly interpreted § 203 as requiring merely a right of control as opposed to actual physical control. If the Court is in error in that regard, plaintiff is entitled to judgment in the amount of $100,000 since Lipsett clearly did not exercise actual control. The statutory language must be the initial source of guidance. The pertinent portion reads "premises occupied by him or under his control". The use of the word "control" without qualification may lend support to plaintiff's argument that to be charged with liability under the provision one must actually be present and exercising control while the work is in progress. On the other hand, since "occupied" connotes physical presence, the disjunctive use of the word "control" may suggest that physical presence is not an invariable characteristic of the latter. This interpretation is not, of course, the only permissible one; for "occupied" may imply something in the nature of a proprietary interest as opposed to physical presence. If it does, "control" could be read as necessitating actual control consistently with the requirements imposed by the term "occupied". Lack of clarity in the statutory phrasing is further revealed by the failure to specify the time at which "control" must exist. The conclusion that it need obtain only when the subcontractor enters the premises is readily supported by the language of the Act. Adoption of this interpretation would render nugatory the lack of actual control thereafter. At best, the provision is somewhat nebulous on this point. The opposing parties seek to resolve the ambiguity by recourse to either "strict" or "liberal" interpretation. No aid is discernible in the use of these terms, for they are themselves of varying content. Compare 3 Corbin, Contracts § 533 (1951). The Court feels that the proper approach to the difficult task of interpretation involves a consideration of the purposes and philosophy of the statute together with whatever legislative history is available. With the insight derived from such an examination, a solution may be reached that is most nearly in accord with the intent of the legislature. See McDonald v. Levinson Steel Co., 1930, 302 Pa. 287, 292, 153 A. 424, 425; Gallivan v. Wark Co., 1927, 288 Pa. 443, 450, 136 A. 223, 225; Davis v. City of Philadelphia, 1943, 153 Pa.Super. 645, 649-650, 35 A.2d 77, 80.

The search for legislative history has been unproductive. Records of hearings, debates and committee reports are nonexistent; the only material for scrutiny is the legislative pattern that has developed over the years. The section, as originally enacted, was identical to that now in force. See Act of June 2, 1915, P.L. 736; Laws of Pa.1915, No. 338, Art. II, § 203, at 738. In 1937 it was amended to read in part:

"* * * whether said injury occurred upon premises occupied or controlled by the employer or not * * *."

Act of June 4, 1937, P.L. 1552; 2 Laws of Pa.1937, No. 323, Art. II, § 203, at 1555. This section was held unconstitutional in Rich Hill Coal Co. v. Bashore, 1939, 334 Pa. 449, 464-467, 7 A.2d 302, 310-311. The Court reasoned that while the former Act made it possible for the employer to supervise the conditions of the work, the section as amended "imposes responsibility upon an employer without giving him reciprocal authority." 334 Pa. at pages 464-465, 7 A.2d at page 310. As an outgrowth of this case the legislature enacted the present provision. Act of June 21, 1939, P.L.520, P.S. 77, § 52.

If the state legislature were treated as a single entity the difficulties in interpretation might be considerably fewer. Having been thwarted in its 1937 attempt to render "control" irrelevant, the argument might lie that the legislature intended the section now in force to merely satisfy the objections set forth in the Rich Hill decision. In other words, the legislature intended to retain as much of the extremely broad coverage attempted in the 1937 Act as was constitutionally possible. Since a right of control would arm the employer with the authority deemed necessary in the Rich Hill case, this would presumably be the preferred criterion. The infirmity in this approach stems from the fact that the composition of the General Assembly in 1939 differed from that of 1937. To thus base decision upon a projection of the intent of the earlier legislature would appear unwarranted.

Fortunately, more substantial aid is found in a consideration of the purposes and philosophy of the Workmen's...