that P.T.C. was to perform certain parts of the work, and that P.T.C. would have the right to inspect the work.
If, for example, a contract were to impose no obligation to do the work involved, but merely an obligation to provide men and equipment to be placed at an owner's disposal, then it might be said that the contractor, having no duties with regard to the work, had therefore no right of occupancy. But short of this, contractual provisions which, although limiting the complete freedom of the contractor, still obligate the contractor to get the work done, necessarily carry with them the right to do the work, to occupy and control. In our view, those contractual provisions relied on by plaintiff fall far short of relieving Belanger of his obligation to do the work.
It is true that in its answer Belanger 'admits that Philadelphia Transportation Company had possession, maintenance and control of the portions of the said elevated as alleged.' This is no more than an allegation of actual possession and control and is of no legal significance, since the test laid down in Girardi is right of occupancy or right of control. Indeed, in Girardi, Lipsett's (general contractor's) counsel conceded that at the time of the injury, Lipsett had no actual control or possession. The fact that P.T.C. may have had control or possession is meaningless under the Girardi test of the general contractor's continuing duty under its prime contract.
It is also true that there was a jury finding of retention of right of control by Lipsett. However, as we read Girardi, such right flows as a matter of law from the unreleased duty of performance by the principal contractor. But in any event, there was no jury finding in Girardi on the right to occupancy, notwithstanding which the Court of Appeals held that '* * * here we have on the part of Lipsett a right to occupancy as well as a right of control * * *'. This right of occupancy follows equally with the right to control when, as here, the general contractor has not been released and where the owner has not agreed to look solely to the subcontractor for performance and responsibility. Since the clause 'occupied by him or under his control' must be read in the disjunctive and since at the very least Belanger had a right of occupancy, it follows that Belanger qualifies as a statutory employer, and that its motion must be granted.
This result makes it unnecessary for us to consider plaintiff's argument that at least part of his claim of liability against Belanger arises from the breach of contractual provisions and does not require control in Belanger. In Sarne v. Baltimore & Ohio R.R. Co., 370 Pa. 82, 87 A.2d 264 (1952), the court cast the plaintiff upon the horns of a legal and logical dilemma, holding that if the general contractor was in control he was a statutory employer, and that if he was not in control, there was no basis for liability in negligence. Had we concluded that Belanger was not the statutory employer, plaintiff's argument may have released him from the second horn of that dilemma. But once having concluded that Belanger is the statutory employer, the Compensation Act provides that his exclusive remedy is workmen's compensation. The Act makes no distinction between injuries arising as the result of negligence and injuries arising from breach of contractual obligations. Having concluded that no genuine issue of fact exists which would be sufficient to submit to a jury on the question of statutory employer, the motion for summary judgment as to Belanger must be granted.
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