discernible relevance to the thrust of the legislative policy determination.
And indeed, holding one liable under the Act where he has retained the right of control is certainly not without justification.
'* * * 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. * * *' D'Alessandro v. Barfield, 1944, 348 Pa. 328, 334, 35 A.2d 412, 414.
The crucial feature is the ability of the one charged to take precautions against possible injuries. The absence of authority which the Supreme Court found objectionable in the Rich Hill case is satisfied by retention of a right of control. The fact that an employer may choose not to utilize the authority retained certainly does not in any way diminish the justification of charging him with liability for injury, nor is it a factor of constitutional significance.
Plaintiff's case is an appealing one. He has suffered severe injuries, and it may be that the recovery in a common law action would recompense him more adequately than a compensation award. However, the effect of accepting plaintiff's contention would not be limited to the instant case, but rather would redound to the detriment of other workmen similarly situated. Exclusion of plaintiff from the Act's protection necessitates exclusion of others as well. The short-sightedness of thus endangering the legislative scheme by predicating a rule upon the appealing features of a single case is obvious and to be shunned. Cf. Byrd v. Blue Ridge Cooperative, Inc., 1958, 356 U.S. 525, 555-556, 78 S. Ct. 893, 2 L. Ed. 2d 953 (Frankfurter, J. dissenting). Accordingly, the Court must conclude that retention of a 'right of control' satisfies the statutory requisites for liability under the Act. Plaintiff's reliance on Boettger v. Babcock & Wilcox Co., 3 Cir., 1957, 242 F.2d 455, is misplaced; for the question now before the Court was not involved and hence not decided there.
But this does not dispose of the case, for plaintiff has another string to his bow. He next contends, citing McDonald v. Levinson Steel Co., 1930, 302 Pa. 287, 153 A. 424, that § 203 may be invoked only where there is a principal contract upon which a subcontract depends. Stated another way, one who is an owner or is in the position of an owner cannot be charged as an employer. The rule as stated is unquestionably borne out by the McDonald case. There the defendant was erecting a shed upon ground he held under a lease. Although not obliged by terms of the lease to construct the shed, it was to become the property of the lessor at the conclusion of the term. Defendant contracted out portions of the work; and subsequently an employee of one of the contractors was injured. The Court held that since there was no principal contract between defendant and the lessor, he was in the position of an owner so far as the erection of the shed was concerned, and hence not within the coverage of § 203.
Plaintiff seeks to turn the principle of the McDonald case to his advantage by insisting that defendant Lipsett's contract with Pennsylvania Power and Light Company was a purchase and sale rather than merely a demolition contract. Since it was a sale, the argument proceeds, there is no prime contract upon which liability under § 203 may be premised.
It is not clear from a reading of the Lipsett-Pennsylvania Power and Light contract that the building at Williamsport was purchased in addition to the equipment therein. However, this is a point of no consequence. In assessing the effect of the contract its real nature rather than its form will be determinative. See Capozzoli v. Stone & Webster Engineering Corp., 1945, 352 Pa. 183, 186-187, 42 A.2d 524, 525. In the instant case, regardless of the technical form of the contract, Lipsett was obligated thereby to demolish the building and stacks, remove the equipment, and dispose of the resulting debris to the satisfaction of the Power Company. In this sense it was a demolition contract even if also a sale. This much was conceded by plaintiff's counsel on oral argument. There was, therefore, an obligation on the part of Lipsett which was subsequently subcontracted to plaintiff's immediate employer Andershonis, Inc. In the McDonald case the Court emphasized the fact that the lessee was under no compulsion to erect the shed, 302 Pa. at page 298, 153 A. at page 428; in the instant case there was compulsion, and § 203 is applicable. Although not factually identical, Frankel v. International Scrap Iron & Metal Co., D.C.E.D.Pa.1957, 157 F.Supp. 709, is in accord with the proffered analysis.
Plaintiff also raises several subsidiary questions on this motion. These were not pressed either in his brief or at oral argument; and no discussion is deemed necessary to indicate their lack of cogency. Plaintiff's motions, therefore, will be denied.
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