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MOHAN v. CONTINENTAL DISTILLING CORPORATION (09/27/66)

decided: September 27, 1966.

MOHAN, APPELLANT,
v.
CONTINENTAL DISTILLING CORPORATION



Appeals from orders of Court of Common Pleas No. 4 of Philadelphia County, March T., 1959, No. 341, in case of James F. Mohan, administrator of estate of Alma Mohan, deceased, and James F. Mohan, in his own right v. Publicker Industries, Inc., Continental Distilling Corp. et al.

COUNSEL

Sheldon L. Albert, with him James E. Beasley, for plaintiff.

Albert L. Bricklin, with him David F. Binder, Richard P. Brown, Jr., and Bennett & Bricklin, and Morgan, Lewis & Bockius, for defendant, Continental Distilling Corporation.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen. Mr. Justice Musmanno dissents.

Author: Cohen

[ 422 Pa. Page 589]

This case presents two appeals -- one by plaintiff from an order of the trial court granting a new trial and the other by defendant Continental Distilling Corporation (Continental) from an order denying its motion for judgment n.o.v. -- arising out of wrongful death and survival actions brought by plaintiff as administrator of his wife's estate and in his own right.

Decedent was injured while at work on March 10, 1958 and died the following morning as a result of her injuries. Action in trespass was brought against Continental, Publicker Industries, Inc. (Publicker), and

[ 422 Pa. Page 590]

    four wholly-owned subsidiaries of Publicker. At the opening of the trial, plaintiff agreed to a voluntary non-suit as to all defendants except Continental, which is also a wholly-owned subsidiary of Publicker. The jury returned verdicts of $26,450 in the wrongful death action and $55,000 in the survival action. Continental filed motions for judgment n.o.v. and, in the alternative, for a new trial. The court denied the motion for judgment n.o.v. but granted a new trial because of an error in the charge which the court believed had led to an excessive verdict in the survival action.

In its motion for judgment n.o.v., Continental argued (1) that it was the employer of plaintiff's decedent and that plaintiff's exclusive remedy was under the Workmen's Compensation Law; (2) that plaintiff failed to prove that any negligence on the part of Continental caused injury to plaintiff's decedent; and (3) that decedent was contributorily negligent as a matter of law.

The paramount issue is whether decedent's employer was Continental or Publicker. If Continental was the employer, plaintiff's sole remedy is to proceed under the Workmen's Compensation Law, and judgment n.o.v. is proper.

Plaintiff contends that Continental was not the employer because decedent's W-2 forms identified Publicker as her employer, as did her own income tax returns; her pay envelopes came from Publicker; when she desired time off she was required to obtain Publicker's permission; the gate passes used by workers in the Continental plant were issued by Publicker; and all lay-off notices and notices instructing her to return to work were signed by Publicker. On the other hand, the record reveals that although wholly-owned by Publicker, Continental ...


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