The opinion of the court was delivered by: LORD
At a pre-trial conference in the present case, before the Honorable Thomas J. Clary on October 9, 1957, counsel for the plaintiff and counsel for the defendant, International Scrap Iron and Metal Co., Inc. (hereinafter referred to as 'International') obtained approval of the Court to submit for disposition preliminary to the trial of the case, the question of whether International was the statutory employer of the plaintiff's decedent under the provisions of the Pennsylvania Workmen's Compensation Act.
Argument before this Court was thereafter heard as if a formal motion for summary judgment as to the 'statutory employer' defense had been filed by the plaintiff. In consequence, if the ruling of this Court accords with plaintiff's contention that International was not in the position of an employer by virtue of the Act, an order barring defendant International from raising the statutory employer defense, and directing that the cause to recover damages shall proceed to trial on its merits, will be appropriate. On the other hand, if the motion is decided in favor of defendant International on this issue, plaintiff as a matter of law will not be in position to recover in this cause, and his action will accordingly be dismissed.
The instant case arises out of a fatal accident which occurred on March 9, 1950, in the city of Chester, Pennsylvania. Suit is brought by the Administrator, a citizen and resident of New Jersey, against International (inter alios), a Pennsylvania corporation, on behalf of the estate of the deceased who was killed in said accident. The amount in controversy exceeds three thousand dollars.
On the day mentioned, the plaintiff's decedent and a number of other men employed by John Konopka, third party defendant, were congregated inside a brick kiln when it collapsed, causing the decedent to suffer fatal injuries. The accident occurred upon premises owned by the Scott Paper Company. A contract had been entered into by and between Scott Paper Company and International on December 7, 1949, which provided that International would receive all of the construction material and equipment and supplies contained in the buildings located upon said premises in consideration of demolishing all buildings and structures situated thereon and removing all of the debris.
At or about the same time, John Konopka proposed to International to demolish all kilns and to remove all fire brick located therein, which proposal was accepted by International -- apparently without notice to Scott.
Before Konopka's demolition could be started, it was necessary that the steel work which surrounded the kiln be removed. A few weeks after International completed that job, Konopka commenced demolition of the kiln.
Since the weather conditions were adverse, workmen engaged in the clearing operations tended to seek shelter in the kilns, where they would warm themselves about small fires which they would build in oil drums. It was for this reason that a group of Konopka's men, including plaintiff's decedent, was gathered in the particular kiln which collapsed and caused him to receive the injuries from which he shortly thereafter died.
Whether decedent was the statutory employee of International depends upon whether the transaction between Konopka and International was within the situations prescribed by the Pennsylvania Workmen's Compensation Act, 77 P.S. § 1 et seq. The pertinent sections of the Act are § 203 and § 302(b), 77 P.S. § 52 and § 462, respectively, which are in turn subject to the definition of contractor in § 105, 77 P.S. § 25. Section 203 provides:
'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. 1915, June 2, P.L. 736, art. II, § 203; 1937, June 4, P.L. 1552, § 1; 1939, June 21, P.L. 520, § 1.'
Section 302(b) is to the same effect except that in the place of the phrase 'shall be liable to such laborer or assistant in the same manner and to the same extent as to his own employee,' it provides:
'* * * shall be conclusively presumed to have agreed to pay to such laborer or assistant compensation in accordance with the provisions of article three, * * *'
Section 105 defines 'contractor' as follows:
'The term 'contractor,' as used in article two, section two hundred and three, and article three, section three hundred and two (b), shall not include a contractor engaged in an independent business, other than that of supplying laborers or assistants, in which he serves persons other than the employer in whose service the accident occurs, but shall include a sub-contractor to whom a principal contractor has sub-let any part of the work which such principal contractor has undertaken. 1915, June 2, P.L. 736, art. I, § 105; 1937, June 4, P.L. 1552, § 1; 1939, June 21, P.L. 520, § 1.'
Solution of the present pure question of Pennsylvania law is substantially aided by judicial interpretation of those sections. A leading case is McDonald v. Levinson Steel Co., 1930, 302 Pa. 287, at page ...