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WHAYNE v. TRANSPORTATION MGMT. SERV.

February 11, 1966

Mabel WHAYNE
v.
TRANSPORTATION MANAGEMENT SERVICE, INC.



The opinion of the court was delivered by: VAN DUSEN

 The above two actions were consolidated and tried to the court on December 6-7, 1965. As shown by paragraph 3 of the Report of the Pre-Trial Conference held 12/2/65 (Document 33), *fn1" the issues presented for trial on December 6 were plaintiff-libellant's (hereinafter referred to as plaintiff) contention that defendant-respondent (hereinafter called defendant) operated, managed and controlled the activities in which the M. V. "Shuttler" was engaged at the time of the collision and that it was part of a transportation complex, of which the owner of the above vessel was an integral member. At the conclusion of the trial on December 7, counsel agreed to take depositions of certain witnesses to supplement the record made at the trial and these depositions are contained in Document 37.

 The issue for decision now before the court is defendant's Motion to Dismiss at the Close of Plaintiff's Evidence (Document 36). *fn2" The plaintiff is a woman who was employed as a cook aboard the M. V. "Shuttler" (hereinafter "Shuttler"), a vessel used in towing river barges. The plaintiff alleges that on April 19, 1957, she was injured in the course of her employment when the "Shuttler" collided with a barge in the Monongahela River while en route from McKeesport, Pennsylvania, to Clairton, Pennsylvania. The plaintiff charged that the cause of her injuries was the unseaworthy condition and negligent operation of the "Shuttler" and brought these two actions, one in admiralty and one under the Jones Act. The trial has commenced with Transportation Management Service, Inc. alleging initially that it neither managed nor controlled M. V. Shuttler, Inc. to such an extent as to impose tort liability on itself under principles of respondeat superior.

 Plaintiff contends that M. V. Shuttler, Inc. was so completely controlled by Transportation Management Service, Inc. that the former must be considered the agent of the latter, in which case Transportation Management Service, Inc. would have to answer for tortious conduct committed by M. V. Shuttler, Inc. or, in the alternative, that both corporations were part of a single, unitary enterprise controlled by the Leaman Estate so that their corporate entities should be disregarded.

 In 1957, M. V. Shuttler, Inc. was the owner of record of the vessel "Shuttler," which was the corporation's principal asset. *fn3" The officers and directors of the corporation in 1957 were John J. Fetsko, Elizabeth Fetsko, and Felicia L. Bandos. *fn4" John J. Fetsko, a resident of Florence, Alabama, was the sole stockholder of M. V. Shuttler, Inc., *fn5" and was closely connected with the operation of the vessel. The plaintiff, herself, testified that on several occasions Mr. Fetsko came aboard at McKeesport and Pittsburgh, Pa., and gave orders to the vessel's engineer. *fn6" The testimony of Mr. Graver was that Mr. Fetsko was often aboard the "Shuttler" and may have acted as that vessel's engineer during certain periods.

 The "Shuttler" was built without any "risk capital" by the Sturgeon Bay Shipbuilding and Dry Dock Company, and the Bank of Sturgeon Bay, which took a ship's mortgage on the vessel. *fn7" After completion sometime in 1956, "Shuttler" was engaged in towing barges on the Upper Ohio, Allegheny, and Monongahela Rivers, but not on the Mississippi. *fn8"

 Most of the time "Shuttler" hauled barges for Lea River Lines, Inc. and Indian River Lines, Inc., *fn9" but occasionally did hauling for other companies. *fn10"

 The company that handled the paper work for M. V. Shuttler, Inc. was Transportation Management Service, Inc. (hereinafter "TMS") located at 1813 Ranstead Street, Philadelphia, Pa. TMS performed a variety of services for M. V. Shuttler, Inc., including bookkeeping, *fn11" preparation of tax returns, *fn12" maintenance of the minute book of the corporation, *fn13" payment of bills, *fn14" preparation of government licensing forms, *fn15" and preparation of the "Shuttler" payroll under specific instructions from Mr. John Fetsko. *fn16" TMS also furnished bookkeeping and similar services to companies completely independent of those corporations in which the Leaman estate had any financial interest, such as Boyer Brothers of Allentown, a plant in Frankford, the Ace Manufacturing Company and Machine Shop, Marine Transportation Company, the Pennsylvania Meat Packers Association, etc.

  But TMS did not solicit business, *fn17" advertise, *fn18" sign purchase orders, *fn19" or do any buying *fn20" for M. V. Shuttler, Inc. Furthermore, the testimony of both Mr. Graver and Miss Bandos indicates that the movement of the "Shuttler" was in no way directed by TMS, although the offices of TMS were apparently used to transmit teletype messages from Lea River Lines, Indian River Lines, or some other company that might want to employ the "Shuttler" for hauling barges. *fn21" There was no testimony that TMS ever initiated these teletype messages, but only that TMS acted as a conduit for mesages initiated by others.

 In 1957, at the time of the accident, the directors and officers of M. V. Shuttler, Inc. were John Fetsko (President), Elizabeth Fetsko (Vice President), and Felicia Bandos (Secretary-Treasurer). The directors and officers of TMS at that time were Emerson Graver (President), Thomas Pepper (Vice President) and Felicia Bandos (Secretary-Treasurer). *fn22"

 The sole stockholder of M. V. Shuttler, Inc. in 1957 was John Fetsko and all the stock of TMS at that time was owned by Rea Eastwood and Mrs. G. M. Fernald. *fn23" Thus, the only formal link between the two corporations was Felicia Bandos, who was a director and officer of both.

 At the time of the plaintiff's accident, the captain on board the "Shuttler" was John P. Morris. *fn24" Captain Morris was responsible for rehiring *fn25" the plaintiff and was her immediate superior during the times she was employed aboard the vessel. The record discloses that the management and control of the vessel was exercised by Captain Morris and John Fetsko *fn26" and, although they in turn may have often acted in accordance with teletype messages which passed through the office of TMS, there is nothing in the record that would indicate that the "Shuttler" could move only on receipt of such teletype messages or that TMS did anything more than transmit these teletype messages originally coming from third parties.

 It is noted that TMS was never the record owner of the "Shuttler." That vessel was owned by M. V. Shuttler, Inc., a corporation in its own right, *fn27" all of whose stock was owned by John Fetsko. But the plaintiff contends that M. V. Shuttler, Inc. was so directly controlled by the "Leaman Complex," of which TMS was the dominant corporation, that TMS should be held liable here. *fn28"


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