6 Pa. Commw. 384 | Pa. Commw. Ct. | 1972
Opinion by
Sears, Roebuck & Company here appeals from a decision of the Workmen’s Compensation Board affirming a referee’s award of benefits to Richard Fishel.
Sears sold aluminum awnings from its store in Harrisburg to one Anna Driver, the owner of an apartment house in that city. The contract of sale provided that Sears would arrange for installation of the awnings and the §1(509 purchase price included the cost of installation. One Ronicky Johnson had undertaken to install various items sold by gears, including aluminum awnings. His written contract with Sears provided that each job should be charged to Sears based on a schedule of charges included as part of the contract. Sears gave Johnson the job of installing Anna Driver’s awnings. Without the knowledge of Sears, Johnson engaged the claimant, Richard Fishel, to assist him. Fishel, who had other regular employment, was hired by Johnson for the Driver work only, for “. . . at least $5.00 an hour if we got it done in good time.” This was Fishel’s first and only employment by Johnson as a helper. About one-half hour after commencing work at the Driver apartment house, Fishel fell from a ladder and was hurt. Although Johnson’s contract with Sears obliged him to carry Workmen’s Compensation Insurance, he had none. Fishel filed his claim petition under the Pennsylvania Workmen’s Compensation Act, Act of June 2, 1915, P. L. 736, as amended, 77 P.S. §1 et seq., naming Sears as his employer.
Obviously, if Sears is to be held to be liable for the benefits conferred by the Compensation Act, its status as Fishel’s employer must be of the fictional, or as it is usually called, the statutory variety, provided for by Section 203, 77 P.S. §52, which reads: “An employer
Workmen’s Compensation, because it limits the amounts recoverable by employees of negligent employers and enlarges the liability of non-negligent employers to injured employees, required constitutional authority. This was provided in Pennsylvania by Section 18 of Article 3, added to our Constitution in 1915 and empowering the General Assembly: “. . . [to] enact laws requiring the payment by employers, or employers and employes jointly, of reasonable compensation for injuries to employes arising in the course of their employment, and for occupational diseases of employes, whether or not such injuries or diseases result in death, and regardless of fault of employer or employe, and fixing the basis of ascertainment of such compensation and the maximum and minimum limits thereof, and providing special or general remedies for the collection thereof; but in no other cases shall the General Assembly limit the amount to be recovered for injuries resulting-in death, or for injuries to persons or property. . . Section 203 of the Pennsylvania Workmen’s Compensation Act enacted in 1915, Act of June 2, 1915, P. L. 736, pursuant to the constitutional warrant thus given, was exactly as the same section now is, as hereinbefore quoted, in 1937 the General Assembly amended Sec
Since the Rich Hill holding and the further amendment of Section 203 by the restoration of its original wording, the courts have adhered to a rule of actual as opposed to the right to control as a requisite to the applicability of Section 203. In Lee v. McMinn Industries, Inc., 167 Pa. Superior Ct. 501, 507, 76 A. 2d 493, 497 (1950), the court said: “In the decision of this question, account must be taken of the realities of the situation, and it cannot be resolved by attributing an artificial or theoretical meaning to the word ‘premises’.” In Boettger v. The Babcock & Wilcox Company, 242 F. 2d 455 (3rd Cir. 1957), the trial court had concluded that Babcock & Wilcox was the statutory employer under Section 203 of the employee of a subcon
“But, the district court reasoned, even if Boettger’s admissions did not establish that he was the employee of Babcock & Wilcox, enough appeared to establish a statutory employer-employee relationship nnder the Pennsylvania Workmen’s Compensation Act. Section 203 of the Pennsylvania Workmen’s Compensation Act, 77 P.S. §52 defines a special situation in which one who in actuality is not the employe?* of an injured workman may be charged with the responsibilities and may enjoy the immunities of an employer under the statute. . . .
“The courts of Pennsylvania have construed this section strictly. See McDonald v. Levinson Steel Co., 1930, 302 Pa. 287, 153 A. 424; Gallivan v. Wark Co., 1927, 288 Pa. 443, 136 A. 223. For present purposes the important requirement is that the person to be charged as a statutory employer must, in fact, occupy or control the premises, while the employee must be one whom that responsible occupant has permitted to enter the premises in furtherance of his regular business. The Pennsylvania courts regard this requirement that the statutory employer occupy or control the premises to which he has admitted the workman in question as the one feature of the scheme of Section 203 which makes constitutional this imposition of an employer’s Workmen Compensation responsibility upon one who is not an actual employer. D’Alessandro v. Barfield, 1944, 348 Pa. 328, 35 A. 2d 412; Rich Hill Coal Co. v. Bashore; 1939, 334 Pa. 449, 7 A. 2d 302; see Skinner, Workmen’s Compensation Law of Pennsylvania, 4th ed. 1947, 90-92.” 242 F. 2d at 457, 458.
“There is justification for holding an employer liable for injuries sustained by the employee of a subcontractor while that employee is on the employer’s premises. His presence there gives the employer the power of control over him and over the conditions surrounding him. If he is doing his work in a reckless manner the employer can make him correct his conduct or order him off the premises. If he is working under dangerous conditions, the employer can correct the conditions or order him off the premises until the danger is averted. When such an employee is off the employer’s premises this power of control over him and his surroundings no longer exists. For the legislature to attempt to make the employer liable to one who is in fact not an employee of his and who is not on the employer’s premises at the time of the injury would go far beyond anything Article 3, Sec. 21 of the Constitution authorized when it declared: ‘The General Assembly may enact laws requiring the payment by
“The appellant relies largely upon the case of DeNardo et ux. v. Seven Baker Bros., 102 Pa. Superior Ct. 347, 156 A. 725. That was an action of trespass for the wrongful death of plaintiff’s son, William De-Nardo, and the appellant corporation there sought to escape common law liability on the ground that the boy was its employee at the time he met his death and that, therefore, it was ‘within the sheltering protection of the Workmen’s Compensation Act.’ The Superior Court accepted that view, saying: ‘The status of the boy as a statutory employe of defendant when he was helping Hendzel load the truck on the premises did not terminate when he left the premises and was working off the premises when he sustained the injuries from which he died. He was still in the course of his employment. It was only necessary that he should perform part of his work on the premises in order to bring him within the above mentioned sections of the statute.’ The opinion offers no reasons in support of the conclusions stated and we can think of none outweighing those advanced by this court when it reached a contrary conclusion in the case of Rich Hill Coal Co. v. Bashore, supra, and therefore the just cited decisions in the DeNardo case is not approved.” 348 Pa. at 334, 335, 35 A. 2d at 414, 415.”
Fishel was not known by Sears to be working for Johnson and was never on Sears’ premises or any premises occupied or controlled by it, as that phrase has as a matter of constitutional necessity been defined by the courts.
An authorized representative of Sears in a letter to Fishel’s counsel sent some months before the claim petition was filed wrote: “Since Mr. Johnson did not
Order
And now, October 11, 1972, the order of the Pennsylvania Workmen’s Compensation Board is reversed and the Claim Petition herein is dismissed.