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March 24, 1966

Howard JAMISON, Administrator of the Estate of Jesse Click, Deceased,

The opinion of the court was delivered by: ROSENBERG

 The defendant, Westinghouse Electric Corporation, is here on its Motion for Judgment N.O.V. and seeks to set aside the two verdicts in favor of the plaintiff in the sum of $71,816.00 under the Pennsylvania Wrongful Death Statute, and $1,238.20 under the Pennsylvania Survival Action.

 The deceased, Jesse, Click, met his death while employed as a painter by Eichleay Corporation, a sub-contractor of the defendant, on the premises owned by the United States of America and operated by the Atomic Energy Commission. The Atomic Energy Commission had entered into a contract with the defendant, Westinghouse Electric Corporation, for the performance of atomic energy work. The relationship of the parties had been set out in a contract between the Atomic Energy Commission and Westinghouse. The premises known as the Bettis Atomic Power Laboratory, as owned by the Government, had been turned over to Westinghouse in accordance with the terms of that contract. At the time of the deceased's death, a sub-contract had been entered into between Westinghouse and Eichleay for the performance of certain work by Eichleay.

 The dispute presented to the jury which is now involved in the defendant's Motion For Judgment N.O.V. related to whether or not Westinghouse was a statutory employer within the meaning of the Pennsylvania Workmen's Compensation Act of June 2, 1915, P.L. 736, Art. II, § 203, as amended 77 P.S. § 52. *fn1"

 The deceased as the employee of Eichleay, while employed with others in the painting of the Bettis Laboratory ceiling, had done so from a vantage place of a scaffold. During the course of the painting one of the chokes (an iron cable) which lashed a part of the scaffold together broke and the scaffolding collapsed. The deceased was hurled to a sudden death. The claim of the plaintiff was based upon the negligence of the defendant Westinghouse. The defendant Westinghouse, in addition to denying negligence, also claimed the benefits of Eichleay's Workmen's Compensation insurance as it covered the deceased and other employees performing the work as painters at the time. The issues as they developed at the trial are well defined by counsel for the parties.

 The present Motion for Judgment N.O.V. sets forth the following reasons:

"1. The Verdicts and judgments referring to Statutory employer regarding the regular part of Westinghouse's business were against the law; and
2. The verdicts and judgments are against the weight of the evidence and the law on the issue of statutory employer."

 The motion as here presented is thus predicated on the words of § 203 of the Pennsylvania Workmen's Compensation Act - "for the performance upon such premises of a part of the employer's regular business entrusted to such employe or contractor."

 The verdicts as rendered resulted in the second trial of this case. At the first trial the jury answered interrogatories in favor of the defendant. Upon motion by the plaintiff, I granted a new trial for the reason, not raised by counsel, that certain contracts were admitted into evidence contrary to a determination by our Court of Appeals in Howard Jamison, Adm. of the Estate of Albert Tucker, Deceased v. A. M. Byers Company, 330 F.2d 657, C.A. 3, 1963.

 At the second trial of this case, the jury returned the verdicts as indicated, in addition to answers to interrogatories. Thereafter, I granted a motion for a new trial limited to damages on account of the paucity of the evidence not substantially supporting the jury's verdicts. The next trial proceedings came before Judge Miller of this Court. After the commencement of the third trial, the parties agreed to the amount of damages, without prejudice, but with the right of the defendant to proceed on the determination of the technical question as contained in the Motion For Judgment N.O.V. This was the same question which counsel for the defendant had urged be referred to the Court of Appeals prior to a determination on damages. I, however, required that all questions be first decided here so that the entire case could be presented thereafter in orderly fashion to the Court of Appeals.

 The Motion For Judgment N.O.V. here hinges upon whether the defendant was or was not the statutory employer of the deceased, Jesse Click, as of the time of the accident with its resulting dire consequences. Ordinarily, the question of whether or not one is a statutory employer hinges upon the right of control. Girardi v. Lipsett, 275 F.2d 492, C.A. 3, 1960; Boettger v. Babcock & Wilcox Co., 242 F.2d 455, 458, C.A. 3, 1957; D'Alessandro et al., v. Barfield et al., 348 Pa. 328, 331-332, 35 A.2d 412, 1944; McDonald v. Levinson Steel Co., 302 Pa. 287, 294, 153 A. 424, 1931.

 The parties gravitated to this question and ultimately agreed upon its incorporation in Interrogatory No. 1 for the jury's determination. The record amply supports this. I shall refer to some of the excerpts to demonstrate this fact.

 First of all, it is reflected in the arguments of counsel before the jury at Transcript page 324 by Mr. Egler:

"The issue is whether the painting of 'F' Building was a regular part of Westinghouse's business under the contract."

 It was discussed by the plaintiff's counsel before the jury at Transcript pages 339 et seq. In substance he argued to the jury on what was the regular work of Westinghouse under this contract, and referred to what one of the witnesses said of painting as "housekeeping", and that this work had been going on prior to the contracts. He argued that this was "home making" work.

 The defense counsel on the other hand argued the contrary to the jury at Transcript pages 320 et seq. that Westinghouse was commanded by its contract with the Government to take all reasonable measures to protect the property in accordance with sound industrial practice, to protect from loss or damage, and subject to the provisions of Section 5, to keep in good operating condition and repair all such government property. He also argued that this contract gave Westinghouse the right to retain necessary personnel, to do all things required for the efficient prosecution of the work in accordance with good industrial practice and for the major portion of research development in engineering and design to enter into contracts for other services.

 He argued at Transcript page 323:

"Now, what is Westinghouse doing at the time of the accident? At the time of the accident Westinghouse is renovating and painting, having Eichleay paint the ceiling on the "F" Building.
Now, what could be more in accordance with sound industrial practice? And in the attempt to protect government property, than the painting of the ceiling of a building?"

 Further, at Transcript page 325 it was repeated in these words:

"Well, under the prime contract, Westinghouse agreed to take care of the government-owned facilities in accordance with sound industrial practice. It agreed to protect the government property.
I submit to you, that it was what we were doing when we were painting. We were renovating, protecting, taking care of the property so it would last."

 In my presentation of the case to the jury, I discussed the portions of the contract relating to Interrogatory No. 1, prior to my presenting that interrogatory to it, and I said, at Transcript page 365:

"You are now being called upon in answering interrogatory number one, in effect, to make the determination of whether or not what Eichleay did under its subcontract in the erecting of the scaffolding within 'F' Building, at the Bettis project, and the processes of painting the ceiling there amounted to a part of the regular business of the defendant Westinghouse.
In other words, was Mr. Click in painting the ceiling engaged in the performance upon the premises of Westinghouse doing a part of Westinghouse's regular business as such work was entrusted to Mr. Click through his employer Eichleay?
The plaintiff says that the painting of the ceiling was not performance of a part of the regular business of Westinghouse; but the defendant says that it was as is indicated in the Atomic Commission agreement, as excerpts ...

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