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FISHEL v. SEARS (10/11/72)

decided: October 11, 1972.

FISHEL
v.
SEARS, ROEBUCK & CO.



Appeal from the Order of the Workmen's Compensation Board in case of Richard Fishel v. Sears, Roebuck & Company, No. A-64238.

COUNSEL

R. J. Woodside, with him Shearer, Mette, Hoerner & Woodside, for appellant.

Richard L. Placey, with him Shumaker, Williams, Placey & Wright, for appellee.

Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. President Judge Bowman did not participate. Opinion by Judge Rogers.

Author: Rogers

[ 6 Pa. Commw. Page 385]

Sears, Roebuck & Company here appeals from a decision of the Workmen's Compensation Board affirming a referee's award of benefits to Richard Fishel.

Sears sold aluminum awnings from its store in Harrisburg to one Anna Driver, the owner of an apartment house in that city. The contract of sale provided that Sears would arrange for installation of the awnings and the $1600 purchase price included the cost of installation. One Ronicky Johnson had undertaken to install various items sold by Sears, including aluminum awnings. His written contract with Sears provided that each job should be charged to Sears based on a schedule of charges included as part of the contract. Sears gave Johnson the job of installing Anna Driver's awnings. Without the knowledge of Sears, Johnson engaged the claimant, Richard Fishel, to assist him. Fishel, who had other regular employment, was hired by Johnson for the Driver work only, for ". . . at least $5.00 an hour if we got it done in good time." This was Fishel's first and only employment by Johnson as a helper. About one-half hour after commencing work at the Driver apartment house, Fishel fell from a ladder and was hurt. Although Johnson's contract with Sears obliged him to carry Workmen's Compensation Insurance, he had none. Fishel filed his claim petition under the Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1 et seq., naming Sears as his employer.

Obviously, if Sears is to be held to be liable for the benefits conferred by the Compensation Act, its status as Fishel's employer must be of the fictional, or as it is usually called, the statutory variety, provided for by Section 203, 77 P.S. § 52, which reads: "An employer

[ 6 Pa. Commw. Page 386]

    who permits the entry upon premises occupied by him or under his control of a laborer or an assistant hired by an employe or contractor, for the performance upon such premises of a part of the employer's regular business entrusted to such employe or contractor, shall be liable to such laborer or assistant in the same manner and to the same extent as to his own employe." The referee and the Board reasoned that Sears answered the description of employer, because it had the right to control the Driver premises where the awnings were being installed by Johnson and Fishel. This was error and we must reverse.

Workmen's Compensation, because it limits the amounts recoverable by employees of negligent employers and enlarges the liability of non-negligent employers to injured employees, required constitutional authority. This was provided in Pennsylvania by Section 18 of Article 3, added to our Constitution in 1915 and empowering the General Assembly: ". . . [to] enact laws requiring the payment by employers, or employers and employes jointly, of reasonable compensation for injuries to employes arising in the course of their employment, and for occupational diseases of employes, whether or not such injuries or diseases result in death, and regardless of fault of employer or employe, and fixing the basis of ascertainment of such compensation and the maximum and minimum limits thereof, and providing special or general remedies for the collection thereof; but in no other cases shall the General Assembly limit the amount to be recovered for injuries resulting in death, or for injuries to persons or property. . . ." Section 203 of the Pennsylvania Workmen's Compensation Act enacted in 1915, Act of June 2, 1915, P.L. 736, pursuant to the constitutional warrant thus given, was exactly as the same section now is, as hereinbefore quoted. In 1937 the General Assembly amended Section

[ 6 Pa. Commw. Page 387203]

so as to impose liability under the Act upon employers for injuries to employees of contractors whether their injuries occurred upon premises occupied or controlled by the employer or not. The Supreme Court in Rich Hill Coal Company v. Bashore, 334 Pa. 449, 7 A.2d 302 (1939), struck this provision down, giving the following explanation for its action: "Section 203 of the Workmen's Compensation Act of 1915 imposed on the general employer liability for injuries to those 'laborers or an assistant hired by an employee or contractor for the performance upon such premises [italics supplied] of a part of the employer's regular business entrusted to such employee or contractor.' In Qualp v. James Stewart Co., 266 Pa. 502, 109 A. 780, this court held the applicable section of the Workmen's Compensation Act of 1915 related only to employees who were 'upon premises under his [the employer's] control.' In Gallivan v. Wark Co., 288 Pa. 443, 449, 136 A. 223, this court in construing section 203 of Article II of the 1915 Workmen's Compensation Act referred to this section as 'the most drastic interference with individual rights to be found in the act,' and that it 'forced liability upon parties who are not in privity of contract.' It is clear that section 203 of the Act No. 323 of 1937 goes far beyond 'the drastic interference' of the old act. Under the old act, the 'employee' of the subcontractor could not recover from the principal contractor unless he was injured on the premises of the latter or under his control. This propinquity ...


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