working hours, but assuming that they always took place after the end of the day, the total time thus spent by any one employee in an entire year would not be much over 30 minutes.
A careful consideration of all the testimony in the case leads me to the conclusion that 24 minutes a day is a reasonable allowance for employees other than those classified by the defendant as lead workers and that for lead workers, while it may be a matter of a minute or so short, the difference is de minimis.
I am, therefore, of the opinion that the defendant is entitled to judgment upon the plaintiffs' first cause of action.
The Cause of Action Under the Pennsylvania Lead Manufacturers Act
Prior to the trial, an amendment to the second cause of action adding a claim for impairment of health, reduction of life expectancy, increased susceptibility to other diseases and the like, alleged to have been caused by the defendant's negligent failure to perform the common law duty to furnish a safe place to work, etc., was proffered by the plaintiffs. The amendment contained other items of claim as well and, as to them, it was allowed. However, the Court disallowed the part summarized above, on the ground that the cause of action pleaded was barred by the election of the parties to accept the Pennsylvania Workmen's Compensation and Occupational Disease Acts, 77 P.S. § 1 et seq., 1201 et seq. The amendment pleaded no more than a claim against an employer for personal injury incurred or occupational disease contracted by employees in the course of their employment. The attempt by the plaintiffs to escape the provisions of these Acts by arguing that 'lead absorption' is not covered by the compensation Acts, which deal with lead poisoning, cannot be sustained. The testimony clearly demonstrates that lead absorption as used by the witnesses merely means that the plaintiffs have not absorbed enough lead into their bodies to cause disability. It is nothing more or less than a form of lead poisoning, though not compensated for by the Act, since it is not disabling.
In an opinion filed November 12 of this year in Eisenmann v. Gould-National Batteries, Inc., D.C., 169 F.Supp. 862, I held that a statute of the State of New Jersey, N.J.S.A. 34:6-50, containing substantially the same provisions as the Pennsylvania Lead Manufacturers Act of 1913, 43 P.S. § 474, was a penal statute intended to protect the health interest of employees and not their financial interests and did not create a private cause of action. The decision of the Court of Errors and Appeals in Pericin v. Denburg's Modern Bakery, 130 N.J.L. 547, 33 A.2d 825, so held, and the question was foreclosed for causes of action arising in New Jersey. However, the reasoning of that opinion, as well as what was said in the opinion of this Court referred to above, is fully applicable to the Pennsylvania Act and need not be set forth at length here. It may be noted, however, that both Acts provide penalties both for the employer's failure to furnish facilities and for the employees' failure to take advantage of them, and it could hardly have been the intention of the legislature to give the employer a private cause of action in case the employee's violation caused the employer any loss. The statute is a penal one and calls for strict construction not only under general principles of statutory interpretation but by virtue of the Pennsylvania Act of March 21, 1806, P.L. 558, 46 P.S. § 156.
It is, therefore, my opinion that the Pennsylvania Lead Manufacturers Act does not create a private civil cause of action and that the defendant is entitled to judgment upon the plaintiffs' second cause of action.
The defendant contends that the Pennsylvania Lead Manufacturers Act has no application to it since the evidence shows that it is engaged in the manufacture of storage batteries and not of any of the chemical compounds of lead enumerated in Section 2 of the Act. That issue was not touched in the Eisenmann case. The Eisenmann decision was upon an application by the plaintiffs to amend the complaint and a motion for summary judgment by the defendant, and the Court did not have before it any evidence as to the character of the manufacturing operations carried on in the defendant's plant beyond the fact that it made electric storage batteries. In view of what has been said to the effect that the Act, if applicable, does not support the plaintiffs' second cause of action, I deem it not only unnecessary but unwise to attempt to decide the question. The issue raised by the defendant concerns the jurisdiction, powers and duties of the Departments of Labor and Industry and of Health of the State of Pennsylvania. Neither those departments nor the State itself are parties to this litigation and a question affecting their relationship to a large industry of the state should not be decided in their absence, unless necessary to the disposition of the matter before the Court, since they have had no opportunity to brief, argue, or present evidence in the matter. Under these circumstances, I think that this Court should refrain from passing upon the question.