Pelliccioni v. Schuyler Packing Co.

• Decision Date: 10 March 1976
• Citation: 356 A.2d 4,140 N.J.Super. 190
• Parties: Armando PELLICCIONI, Plaintiff-Appellant, v. SCHUYLER PACKING COMPANY and Penn Central Transportation Company, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 190

140 N.J.Super. 190

356 A.2d 4

Armando PELLICCIONI, Plaintiff-Appellant, v. SCHUYLER PACKING COMPANY and Penn Central Transportation Company, Defendants-Respondents.

Superior Court of New Jersey Appellate Division.

Argued Feb. 17, 1976.

Decided March 10, 1976.

George J. Duffy, Hoboken, for plaintiff-appellant (Baker, Garber, Duffy & Baker, Hoboken, attorneys).

John M. Walsh, Jersey City, for respondent Penn Central Transp. Co. (Schumann, Hession, Kennelly & Dorment, Jersey City, attorneys; Alan H. Kress, of counsel).

Martin B. Wallerstein, Livingston, filed statement in lieu of brief on behalf of respondent, Schuyler Packing Co. (Morgan, Melhuish, Monaghan & Spielvogel, Livingston, attorneys).

Before Judges CARTON, CRAHAY and HANDLER.

The opinion of the court was delivered by

CARTON, P.J.A.D.

Plaintiff brought this common law negligence action against defendant Schuyler Packing Company and for negligence under the Federal Employers' Liability Act (FELA), 45 U.S.C.A. §§ 51 to 60, against defendant Penn Central Transport Company.

At the conclusion of the trial before a jury, the judge dismissed the action against both defendants. On appeal this court affirmed the action of the trial court, and the New Jersey Supreme Court denied certification, 65 N.J. 290, 321 A.2d 251 (1974).

The United States Supreme Court granted plaintiff's petition for writ of Certiorari (Pelliccioni v. Schuyler Packing Co., 419 U.S. 1099, 95 S.Ct. 769, 42 L.Ed.2d 796 (1975)), vacated this court's judgment, and remanded the matter for reconsideration of the action against Penn Central in light of Kelley v. Southern Pacific Co., 419 U.S. 318, 95 S.Ct. 472, 42 L.Ed.2d 498 (1974).

Although plaintiff raised a number of issues on his direct appeal, the single issue relevant on remand is whether plaintiff made out, on the record below, a jury question that he was, at the time of the injury, an employee of Penn Central within the meaning of the FELA.

In FELA cases brought in the state courts, the rights and obligations of the parties are governed by the act, 45 U.S.C.A. §§ 51 to 60, and by federal principles of common law. See, E.g., Chesapeake & Ohio R. Co. v. Kuhn, 284 U.S. 44, 46--47, 52 S.Ct. 45, 76 L.Ed. 157 (1931). Plaintiff and Penn Central correctly agree that the employer-employee question is ordinarily a fact question for the jury. Ward v. Atlantic Coast Line R. Co., 362 U.S. 396, 80 S.Ct. 789, 4 L.Ed.2d 820 (1960); Baker v Texas & Pacific R. Co., 359 U.S. 227, 79 S.Ct. 664, 3 L.Ed.2d 756 (1959).

Thus, the only true federal question remaining is whether the trial court applied the correct legal principles in concluding that plaintiff had not made out a jury question on the issue of his status as an employee of Penn Central.

The presence of a federal question is, of course, the Sine qua non of the exercise of appellate jurisdiction by the United States Supreme Court over a decision of a state court. See, E.g., Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965); Martin v. Hunter's Lessee, 1 Wheat. 304, 4 L.Ed. 97 (U.S. 1816); 28 U.S.C.A. § 1257; Hart & Wechsler, The Federal Courts and the Federal System (2 ed. 1973), at 470--526.

The Supreme Court's vacation order is directed only toward this court's determination of the federal question raised by plaintiff. Hence, we will not, as we need not, reconsider plaintiff's other points of reversal; they are left for possible reconsideration by the New Jersey Supreme Court. Cf. Schuylkill Trust Co. v. Pennsylvania, 302 U.S. 506, 58 S.Ct. 295, 82 L.Ed. 392 (1938); Georgia Ry. Co. v. Decatur, 297 U.S. 620, 56 S.Ct. 606, 80 L.Ed. 925 (1936), noting that state courts, after a United States Supreme Court remand, are free to alter--subject only to the state's jurisprudence--prior decisions in the case on state law so long as the altered decision is consistent with the federal Supreme Court's ruling on the federal question presented and remanded.

There is no substantial dispute as to the underlying facts. At all relevant times plaintiff was employed as a 'yard driver' by New York Central Transportation Company (Transport), a wholly-owned subsidiary of defendant Penn Central. As part of his job plaintiff operated a yard tractor, known as a 'commando,' to tow truck-trailers from place to place in Penn Central's North Bergen yard. The trailers themselves were either incoming or outgoing via Penn Central trains.

On March 22, 1969 plaintiff was towing a trailer that had been packed with meat by defendant Schuyler Packing Company. While making a left turn over rough ground, the trailer tipped onto its side, taking the yard tractor and plaintiff with it. Plaintiff's claim is that substantial injuries resulted from the accident.

Plaintiff alleged that defendant Penn Central had negligently maintained its yard and that the rough and uneven condition of the yard roadway had precipitated the accident. Plaintiff also claimed that the Nebraska packing company had loaded the trailer unevenly, thus making it unstable. Finally, in order to seek the benefits of the FELA, plaintiff alleged additionally that he was only nominally an employee of New York Transport and that, in reality, he was employed by Penn Central.

Transport was formed originally by defendant Penn Central's predecessor railroad, the New York Central. (In 1968 New York Central merged into the Penn Central.)

The record below reveals that plaintiff had been employed by Transport since July 1967; that the North Bergen yard where plaintiff was injured was owned and controlled by defendant Penn Central; that Penn Central police patrolled the yard, and that only Penn Central trains were serviced by the yard and by Transport. There was further testimony that plaintiff was always paid by Transport; that he took direct orders from his foreman, a Transport employee; that he never took direct instructions from a Penn Central employee, and that he was a member of the Teamsters Union, and not a railroad union.

The trial judge, for the purposes of his dismissal order, also considered certain documentary evidence (originally excluded) as received. That evidence consisted of a 1960 petition by Transport to the Interstate Commerce Commission (ICC) for a modification by the ICC of Transport's scope of operations; a brief submitted in support of that petition, ¹ and certain admissions made by Penn Central during the litigation here on appeal. All three bear on the relationship between Penn Central and Transport and will be considered in some detail below.

In dismissing the action (and provisionally excluding the documentary evidence) the trial judge took the position that the Sine qua non of an employer-employee relationship for FELA purposes was the ability of the putative employer (Penn Central) to exercise direct supervisory control over the manner in which plaintiff carried out his day-to-day job activities.

The basic issue before us, as a result of the remand, is whether, from the proofs tendered in the trial court under the criteria delineated by the Supreme Court, a jury could reasonably conclude that plaintiff was an employee of defendant Penn Central.

The standard to be applied here is the federal one for removing a fact question from jury consideration. Any fact question--here plaintiff's employment status--must go to the jury unless 'reasonable men could not reach differing conclusions on the issue * * *.' Baker v. Texas & Pacific Ry. Co., 359 U.S. 227, 228, 79 S.Ct. 664, 665, 3 L.Ed.2d 756 (1959). Under the remand order we are required to reconsider that fact question in light of Kelley v. Southern Pacific Co., 419 U.S. 318, 95 S.Ct. 472, 42 L.Ed.2d 498 (1974).

In Kelley plaintiff was an employee of a wholly-owned subsidiary of a railroad. He was injured when he fell from the top of a railroad car while unloading automobiles. As here, Kelley claimed that, although he was technically employed by a transport company wholly owned by the parent railroad, he was sufficiently under the control of the railroad to bring him within the coverage of FELA. 419 U.S. at 319, 95 S.Ct. at 474. The District Court found that the transport company served generally as the railroad's agent and that that principal-agent relationship was sufficient to bring plaintiff under the protection of FELA. 419 U.S. at 320, 95 S.Ct. at 474. The Court of Appeals reversed, Kelley v. Southern Pacific Co., 486 F.2d 1084 (9 Cir.1973), and the Supreme Court granted Certiorari to resolve an apparent conflict between the Courts of Appeals for the Fourth and Ninth Circuits.

The Supreme Court concluded that the trial court had erred and rejected the determination that the existence of a principal-agency relationship was sufficient to make an employee of the agent also an employee of the principal for FELA purposes. 419 U.S. at 323, 95 S.Ct. at 476. In the majority opinion, expressing the views of six of its members, the court stated: '(T)his Court has repeatedly required more than (an agency relationship) to satisfy the 'while employed' clause of the FELA. From the beginning The standard has been proof of a master-servant relationship between the plaintiff and the defendant railroad.' 419 U.S. at 323, 95 S.Ct. at 476 (emphasis supplied).

In discussing the possibilities for the requisite master-servant relationship to exist in a two employers one worker situation (the fact pattern presented in Kelley and this appeal), the Court noted three methods

* * * by which a plaintiff can establish his 'employment' with a rail carrier for FELA purposes even while he is nominally employed by another. First, the employee could be serving as the borrowed servant of the railroad at the time of his injury. * * * Second, he could be deemed to be acting for two masters simultaneously. * * * Finally, he could be a subservant (Sic, probably servant) of a company that was in turn a servant of the railroad. * * * (419 U.S. at 324, 95 S.Ct. at 476 (citations...