The opinion of the court was delivered by: CLARY
The present action was instituted to recover damages for the death of Juan Santiago Rivera on August 11, 1954. Rivera, a painter, was employed by S. Kooperman & Sons, painting contractors, who had been engaged by the defendant, Turner Construction Company, to paint a newly installed escalator in Snellenburg's Department Store at 11th and Market Streets, Philadelphia, Pennsylvania. Turner, the general contractor, had entered into a contract with the City of Philadelphia, Trustee under the Will of Stephen Girard, to renovate the Snellenburg store at a cost in excess of $ 3,000,000. Part of the painting work had been entrusted to Kooperman, plaintiff's employer. The complaint alleges that because of the negligence of defendant Turner in the faulty construction of guard rails around the escalator Rivera fell and sustained injuries resulting in his death.
Defendant has moved for summary judgment under Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C., basing its motion on the fact that plaintiff's decedent was its statutory employee and that any right of recovery for the unfortunate accident which caused Rivera's death is limited to the rights granted by the Pennsylvania Workmen's Compensation Act, 77 P.S. § 1 et seq.
Under the facts of the instant case there is no doubt that defendant, Turner Construction Co., was the statutory employer of the deceased Juan Santiago Rivera. Section 203 of the Workmen's Compensation Act of Pennsylvania, 1915, June 2, P.L. 736 et seq., as amended, 77 P.S. § 52, reads as follows:
'An employer who permits the entry upon premises occupied by him or under his control of a laborer or an assistant hired by an employe or contractor, for the performance upon such premises of a part of the employer's regular business entrusted to such employe or contractor, shall be liable to such laborer or assistant in the same manner and to the same extent as to his own employe.'
Plaintiff, however, seeks to avoid the consequences of the statutory employer-employee relationship and contends that he should be permitted to maintain the action on the ground that by negligently erecting and maintaining defective guard rails the defendant had taken itself out of the protection of the Compensation Statute for the purposes of this suit; further, that it would be against public policy of permit the defendant here to take all of the advantages of a statutory employer when, by the contract between the general contractor Turner and subcontractor Kooperman, Kooperman agreed to and actually did carry Workmen's Compensation Insurance, which insurance satisfied the obligation of the general contractor to the deceased under the Workmen's Compensation Act of Pennsylvania. Unfortunately for the plaintiff here both of these contentions have been raised in previous Pennsylvania cases and decided adversely to the contentions of the plaintiff here made. Swartz v. Conradis, 1929, 298 Pa. 343, 148 A. 529; Qualp v. James Stewart Co., 1920, 266 Pa. 502, 109 A. 780; Shoffler v. Lehigh Valley Coal Co., 1929, 290 Pa. 480, 139 A. 192; Gallivan v. Wark Co., 1927, 288 Pa. 443, 136 A. 223; Welsch v. Pittsburgh Terminal Coal Corp., 1931, 303 Pa. 405, 154 A. 716.
Another contention advanced by plaintiff is that the case should be submitted to a jury on the question as to whether Turner Construction Co. had such control of the premises involved in the accident as to bring into existence the statutory employer-employee relationship, arguing that since the work was done without disturbing the operation of the Snellenburg Department Store, a jury should be permitted to pass upon that question. That contention, likewise, has been raised in the Supreme Court of Pennsylvania and decided adversely to plaintiff in the case of Sarne v. Baltimore & Ohio R. Co., 1952, 370 Pa. 82, 87 A.2d 264. In Sarne the evidence disclosed that the Railroad Company had entered into a contract with Hauser, a general contractor, to renovate and alter one of its roundhouses. The general contractor employed subcontractors to do various portions of the work. The Railroad Company, after the renovations started, continued to use the roundhouse for its own purposes. Sarne, an employee of one of the subcontractors, was injured during the course of the work and sued the railroad, the general contractor and the subcontractors, other than his own employer. The Supreme Court of Pennsylvania reversed a verdict in favor of the plaintiff against the general contractor, holding that there was no liability on the general contractor and stating that if Hauser was in control of the premises where the work was performed, plaintiff's sole remedy would be statutory under the workmen's compensation legislation. It further added that there was no necessity for reviewing the record and determining whether there was evidence from which the jury could have found that Hauser was actually in control of the premises. If he was, plaintiff's only remedy was under the Workmen's Compensation Act; if he was not, there was no liability.
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