UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: February 19, 1975; As corrected.
GEORGE HATTERSLEY AND SUSANNE HATTERSLEY, HUSBAND AND WIFE
THEODORE BOLLT, INDIVIDUALLY AND TRADING AS "NATIONAL PROPERTIES" AND/OR "NATIONAL PROPERTIES, INC." AND INTERNATIONAL PROPERTIES, INC., AND FRED I. LIEBMANN, A.I.A. V. LAZOVITZ, INC. AND UNITED ELEVATOR COMPANY AND THOMAS LINDSTROM & CO. (3RD PTY. DEFTS.) LAZOVITZ, INC., THIRD-PARTY DEFENDANT, APPELLANT IN NOS. 74-1043 & 74-1044
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 71-1354).
Van Dusen, Hunter and Garth, Circuit Judges.
Author: Van Dusen
Opinion OF THE COURT
VAN DUSEN, Circuit Judge.
This is an appeal from a judgment of contribution*fn1 entered against appellant-third-party defendant, Lazovitz, Inc., and in favor of appellee-third-party plaintiff, Bollt. Bollt, the owner of an office building,*fn2 joined Lazovitz, which was acting as general contractor in the renovation of Bollt's property,*fn3 in a personal injury action brought by Hattersley, an employee of a subcontractor to a subcontractor, and Hattersley's wife.*fn4 Hattersley was injured on September 30, 1970, when he fell into an elevator shaft just as the elevator was passing the floor from which he fell. The elevator was being operated by Daniel Small,*fn5 an employee of Bollt.
Before the case was submitted to the jury, Bollt agreed to pay the Hattersleys $500,000. in damages, should the jury return a verdict for the Hattersleys. Lazovitz neither knew of this agreement nor concurred in it.
The case was submitted to the jury on special interrogatories, pursuant to F.R. Civ. P. 49(a).*fn6 On September 18, 1973, the jury reached a verdict in favor of the Hattersleys, finding both Bollt and Lazovitz negligent. A judgment was filed on November 26, 1973.*fn7
I. Appealability of Judgment Filed November 26, 1973
Appellee Bollt contends that the judgment filed November 26, 1973, was not a final judgment appealable under 28 U.S.C. § 1291 because it "leaves some matter involved in the controversy in the District Court still open for further hearing and determination before the ultimate rights of the parties are conclusively adjudicated . . .." Brief for Appellee at 3.*fn8
The district court entered a "Civil Judgment" phrased in substantially the form prescribed by this court in Smith v. Whitmore, 270 F.2d 741, 746 (3d Cir. 1959).*fn9 In accordance with the jury verdict, Lazovitz was adjudged a joint tortfeasor, liable in contribution to Bollt for any amount which Bollt should pay the Hattersleys "in excess of the sum of two hundred fifty thousand . . . dollars." The district court rejected Bollt's contention that Lazovitz was liable on a contract of indemnification for any amount "over and above the amount which Lazovitz, Inc. might be required to pay by way of contribution . . .." 208a. This judgment does not, in terms, assess the precise monetary amount owed by Lazovitz to Bollt. Moreover, it conditions Bollt's right to payment from Lazovitz upon Bollt's prior payment of the judgment to the Hattersleys. Nevertheless, because the judgment fixes Lazovitz's ultimate liability and clearly establishes the parameters of that liability, it is a final, appealable order.*fn10 The Supreme Court of the United States has emphasized that "the requirement of finality is to be given a 'practical rather than a technical construction.'" Gillespie v. United States Steel, 379 U.S. 148, 152, 13 L. Ed. 2d 199, 85 S. Ct. 308 (1964).
Where the practical effect of a judgment or order is final and only requires a ministerial act to implement it, such judgment or order is appealable under 28 U.S.C. § 1291. Since the effect of this district court judgment settles "the primary issue then existing between the parties," Massachusetts Casualty Ins. Co. v. Forman, 469 F.2d 259, 260 (5th Cir. 1972), and determines the rights and equities between the parties, it is a final judgment, notwithstanding any provision for future determination of the actual amount of recovery. Durkin v. Mason & Dixon Lines, 202 F.2d 425 (6th Cir. 1953). In Forman, supra, the court held final an order of the district court which enforced a settlement between the insurer and the insured, even though the efficacy of the order "was conditioned on surrender of the policy and delivery of the check." 469 F.2d at 260. Durkin, supra, allowed an appeal under 28 U.S.C. § 1291 from an order which granted recovery in an amount to be later determined. And in Friedman v. Wilson Freight Forwarding Co., 320 F.2d 244, 247 (1963), this court clearly implied that a Smith v. Whitmore judgment effectively determined the parties' rights and was appealable, using, inter alia, this language:
"Steinman's basic legal obligation of contribution had already been properly determined, subject only to the payment of money by Wilson to the plaintiff. All that followed was administration of that basic decision. In this process, different from a trial, the court could assure itself in any reasonable way that Wilson had paid the plaintiff and, therefore, that the matter was ripe for an unqualified order that Steinman reimburse Wilson. The filing of the plaintiff's receipt and release as part of the post-judgment record was a normal and proper way of supplying the court with that assurance.
". . . the judgment was . . at most subject to vacation upon a subsequent showing of mistake [or] misrepresentation . . .."
The judgment now appealed from has determined the rights of the parties by adjudging Lazovitz's status as a joint tortfeasor and Bollt's right to contribution from Lazovitz under the procedure used in Friedman. The amount of that liability will be subject to arithmetic computation when Bollt pays more than half the judgment. For example, upon the mere filing of a praecipe evidencing full payment of the judgment, Bollt is entitled to collect from Lazovitz $250,000.*fn11 Where actual payment awaits only a future ministerial order, finality is not lacking. See United States v. 1,431.80 Acres of Land, 466 F.2d 820, 822 (8th Cir. 1972). Since Bollt's claim against Lazovitz has thus been effectively established "both as to liability and as to amount," the judgment is a final one.*fn12 Cf. United States v. Estate of Pearce, 498 F.2d 847, 848-49 (3d Cir. 1974).
We recognize that a subsequent appeal is possible under the procedure contemplated by Friedman, supra, challenging a district court ruling on an allegation that the praecipe containing a representation of payment by the third-party plaintiff is inaccurate.*fn13 However, we believe such appeals are unlikely and will be infrequent. Any departure from the strictest construction of "final decisions" appealable under 28 U.S.C. § 1291 may encourage parties to appeal from orders of barely arguable finality. Multiplications of such appeals would doubtless result in much "useless expenditure." 9 J. Moore, Federal Practice, P 110.12 at 152 (2d ed. 1973). We are, however, of the opinion that, in this situation, the possibility of such appeals is outweighed by "the danger of denying justice by delay." Dickinson v. Petroleum Conversion Corporation, 338 U.S. 507, 511, 94 L. Ed. 299, 70 S. Ct. 322 (1950).
If this appeal is disallowed, Lazovitz will be unable to raise the issues which it urges here until such time as Bollt files a praecipe and sues on the resulting judgment against Lazovitz as third-party defendant. The Hattersleys have at least 20 years to collect their judgment from Bollt. If we hold the "Civil Judgment" non-final, Bollt would presumably have another 20 years to seek contribution from Lazovitz.*fn14 The time thus elapsing prior to a final ruling in this court on the issues determined by the district court judgment could easily be lengthy. Such a delay could result if the Hattersleys dallied in seeking to collect their judgment, if they were unable to collect it speedily, or if Bollt were to pay in installments over a period of years. Lazovitz's ability to raise its defense against Bollt in a trial granted years later as a result of such a delayed appeal would be handicapped with the passage of time and the consequent loss of evidence, as through the dimming of witnesses' memories, loss of records, or death of witnesses. By contrast, delay would pose no barrier to Bollt's suing on the judgment unless he delayed beyond the long 20-year limitation period.*fn15
For the foregoing reasons, we will deny Bollt's motion to dismiss the appeal.*fn16
II. Bollt's post-trial motion for rehearing and reconsideration
Neither at oral argument nor in his brief did Bollt request a remand of this case so that the district court could determine Bollt's post-trial motion.*fn17 We have not, however, overlooked decisions in other courts of appeals which provide for remand to the district court for decision of a timely post-trial motion filed in the district court during the pendency of an appeal.*fn18 We believe that the procedure, recommended in 6A J. Moore, Federal Practice, P 59.09 at 59-223 - 59-229 (2d ed. 1974), is desirable.*fn19 If a timely motion under F.R. Civ. P. 59 has been filed in the district court after the filing of a notice of appeal, the court of appeals should be moved to ". . . remand the case to the district court so that the latter court may pass on the motion . . . that was timely made there." Id. at 59-223.
"[A] showing of substantial merit underlying the motion for new trial should be made to the appellate court in order to satisfy the latter that the trial court would be justified in granting a new trial.
"[Alternatively] if the district court indicates that it will grant a new trial, the movant should then make a motion in the appellate court for a remand of the case in order that the district court may grant the motion. Careful practice dictates that the movant suggest to the court within appeal time that this procedure has been adopted by him and that further proceedings on appeal, if any appear imminent, should be stayed until the lower court has time to hear the motion.
"The party desiring to move for new trial, if not the party that has taken the appeal, should consider whether in addition to moving for new trial [or for alteration or amendment of judgment] he also desires to take an appeal. If so, he should perfect a cross-appeal within the time for appeal as computed from the entry of judgment." Id. at 59-224 - 59-229.
In this case, Bollt has made no effort to secure from the district court a determination of the likelihood that he will prevail on the merits of his post-trial motion for reconsideration and rehearing.*fn20 See Asher v. Harrington, supra. On the facts of this record, we hold that any attempt by either party to secure a ruling on this post-trial motion prior to disposition of this appeal would be untimely.
Furthermore, we note that Bollt's failure to file a cross-appeal precludes our consideration of the issues raised in that motion. See Swarb v. Lennox, 405 U.S. 191, 200-01, 31 L. Ed. 2d 138, 92 S. Ct. 767 (1972).
III. The Merits
Lazovitz argues that the evidence is insufficient to support the judgment of its liability as a joint tortfeasor in the potential amount of $250,000.*fn21 The amended third-party complaint, filed November 18, 1971, as Document 26, set forth a tort theory of liability and averred that Lazovitz was either "alone liable to the plaintiffs or liable over to the defendants and third-party plaintiffs [Bollt], or jointly or severally liable thereon with the defendants and third-party plaintiffs . . .."*fn22 Lazovitz contends, however, that the evidence actually adduced could establish only sole, not joint, liability on its part. We disagree with this contention. The record indicates that Bollt continued in possession and operation of the One East Penn Square Building, which functioned normally during the construction of the two additional floors. Deposition of T. Bollt at 12-15, 17-18, 29, 46. L. C. Raymond, the superintendent of the building and an employee of Bollt, testified that maintenance and other services were furnished the building's tenants while the renovation was proceeding. See, e.g., N.T. 568, 573. Only Bollt employees were authorized to operate the elevators. Small, a Bollt employee, was operating the elevator at the time of Hattersley's injury. N.T. 555, 573-75, 608. It was also established that another Bollt employee, S. J. Lattimore, was in charge of shutting down the elevators when requested to do so by "one of the contractors working on the job." N.T. 581, 564-67. In spite of extensive testimony pointing to Bollt's control of the elevator operations, there was also testimony that Lazovitz had the ultimate responsibility both for barricading the elevators and for having the elevators shut down when the barricades were not in place. N.T. 132, 137, 262-63, 333, 337-38, 564, 574, 579, 594, 602-03. Bollt's superintendents were not responsible in any way for the construction site. Deposition of T. Bollt at 17-18, 46-47. We also note that counsel for Lazovitz, in arguing his motion for a directed verdict, contended that "the evidence shows that Bollt was at least partly negligent . . .." N.T. 618. We believe this evidence is sufficient to support the jury's verdict that both Bollt and Lazovitz were negligent and that the negligence of each party was a substantial factor causing Hattersley's injuries.
Nevertheless, we vacate the judgment of the district court because we agree with Lazovitz's assertion that its liability in contribution must be limited to the amount of the workmen's compensation award due Hattersley under the Pennsylvania Workmen's Compensation Act.
Lazovitz's points for charge 18, 19, 28, 31 and 33 requested the trial court to charge the jury that Lazovitz was a statutory employer under 77 Purdon's Pa. Stat. Ann. § 52.*fn23 Lazovitz did not ask that the statutory employer issue be decided as a question of fact by the jury, nor did it request that the factual elements of the statute's definition of "employer" be determined as a question of fact. Cf. Jamison v. Westinghouse Electric Corp., 375 F.2d 465, 468 (3d Cir. 1967); Hayes v. Philadelphia Transportation Co., 312 F.2d 522, 524 (3d Cir. 1963). The trial court correctly declined to charge the jury as requested, since, under Pennsylvania law,*fn24 the employer-employee relationship is not to be submitted to the jury. Socha v. Metz, 385 Pa. 632, 641, 123 A.2d 837, 842 (1956). The court erred, not in its conclusion that the statutory employer question was a legal one,*fn25 but in its legal conclusion that 77 P.S. § 52 was inapplicable to limit Lazovitz's liability. Both the amended complaint and the uncontradicted evidence compel the conclusion that Lazovitz is a statutory employer under 77 Purdon's Pa. Stat. Ann. § 52.
Pennsylvania courts have interpreted the statute as setting forth "five strict requirements . . . which an employer must meet to establish that he is a statutory employer . . .." Stipanovich v. Westinghouse Electric Corp., 210 Pa. Super. 98, 101, 231 A. 2d 894, 896 (1967). These are:
"(1) An employer who is under contract with an owner or one in the position of an owner.
"(2) Premises occupied or under the control of such employer.
"(3) A subcontract made by such employer.
"(4) Part of the employer's regular business entrusted to such subcontractor.
"(5) An employee of such subcontractor."
McDonald v. Levinson Steel Co., 302 Pa. 287, 295, 153 A. 424, 426 (1930); Pape v. Smith, 227 Pa. Super. 80, 83, 323 A.2d 856, 857 (1974).
Only the second element -- occupancy or control of the premises by Lazovitz -- is disputed on appeal.*fn26 See Brief for Appellee at 7-8. Bollt argues that Lazovitz cannot qualify as a statutory employer because the evidence established Bollt's possession of the premises. See III-A, supra, and N.T. 677. However, it is the right to either occupancy or control that determines Lazovitz's status. See Hayes, supra at 524; Girardi v. Lipsett, Inc., 275 F.2d 492, 497 (3d Cir.), cert. denied, 364 U.S. 821, 5 L. Ed. 2d 50, 81 S. Ct. 56 (1960); Davis v. City of Philadelphia, 153 Pa. Super. 645, 650, 35 A.2d 77, 80 (1943). Bollt's possession of the building is fully compatible with Lazovitz's control of the portion of the premises under construction. Indeed, Bollt's amended complaint appears to recognize this compatability in alleging that the "portion of the premises . . ., wherein the plaintiff sustained his injuries, was operated, possessed, maintained and controlled by the third-party defendants . . .." At 3. This allegation is fully supported by the evidence. There was uncontradicted testimony that Lazovitz was responsible for barricading the elevators. N.T. 81-82, 132, 262-63, 333, 579, 594, 602-03. Raymond, who was employed by Bollt as building supervisor, testified that Lazovitz was in charge of supervising all construction work, N.T. 561, and that "control of the elevator was basically in the hands of the contractor," Lazovitz. N.T. 564; see also N.T. 343-45. He also testified that he established no procedures for having the elevator operators check whether the shaftways were open on the floors under construction "because the job was under the control of the contractor." N.T. 574. Raymond further testified that he had nothing whatever to do with supervising the work; "curiosity" was his sole motivation for visiting the construction site. N.T. 560. S. T. Lattimore, hired by Bollt as maintenance superintendent for One East Penn Square, testified that Lazovitz's employee, Low, was the job superintendent. N.T. 579. Low himself testified that, although there was no specially appointed safety man on the site, "everybody" on the Lazovitz staff was responsible for safety. N.T. 590-93. Significantly, there was no testimony that Bollt or his employees were in any way responsible for, or in control of, the job site.
Although Lazovitz requested no jury finding on control, such a finding is implicit in the jury's verdict. The district court charged on the question of control as follows:
". . . a possessor of land who retains and exercises control over work performed by an agent or contractor, may be liable if he fails to use reasonable care in the exercise of that control. However, where the possessor has given up control of the performance of the work and in addition warns the contractor, here Third-Party Defendant Lazovitz, of the existence of any dangerous conditions on the premises of which he has knowledge or should have knowledge, the possessor is not required to warn the contractor's employees of the existence of those dangers.
"Third-Party Defendant Lazovitz, Incorporated, owes a duty to George Hattersley to exercise reasonable care under the circumstances to protect Plaintiff George Hattersley from risks of harm of which it, through its agents or employees, has or should have knowledge. This duty, although it is owed to the plaintiff, George Hattersley, may be enforced by Defendant Bollt in a suit against the third-party defendant, Lazovitz, for contribution. You will remember that one of Defendant Bollt's contentions is that if you find Defendant Bollt negligent, and if you find that such negligence was a proximate cause of the accident, then Defendant Bollt is entitled to contribution from Third-Party Defendant Lazovitz because Defendant Bollt contends that Lazovitz was also negligent and that such negligence was a proximate cause of the accident.
"I charge you that you must first determine whether or not Third-Party Defendant Lazovitz was in control of some or all of the work*fn27 being performed at the One East Penn Square Building on the day this accident was happening. You must determine this from the evidence presented by all the parties. Remember, your recollection of the testimony is controlling.
"If you find that Lazovitz was in control of some or all of the work, you must next determine whether or not Lazovitz breached a duty which it owed to Plaintiff George Hattersley. Lazovitz, Inc., as general contractor, must provide plaintiff with a safe place to work or must warn him of dangers of which he might not be aware. . . .
"If you find that Third-Party Defendant Lazovitz was in control of some or all of the work, and if you find that Third-Party Defendant Lazovitz breached a duty to Plaintiff George Hattersley by either failing to provide George Hattersley with a safe place to work or failing to warn George Hattersley of dangers of which he might not be aware, you may find that Third-Party Defendant Lazovitz was negligent.
"Now, if you find that Third-Party Defendant Lazovitz was negligent, then you must consider whether or not such negligence on the part of Lazovitz was a proximate cause of the accident."
After deliberating for some time, the jury requested the trial judge to "issue clarifying instructions" on that portion of the charge relating to Lazovitz's liability. N.T. 698. The judge re-charged the jury, inter alia, as follows:
"I charge you that you must first determine whether or not Third-Party Defendant Lazovitz was in control of some or all of the work being performed at the One East Penn Square Building on the day this accident was happening. You must determine this from the evidence presented by all the parties. Remember, your recollection of the testimony is controlling.
"If you find that Lazovitz was in control of some or all of the work, you must next determine whether or not Lazovitz breached a duty which it owed to Plaintiff George Hattersley. Lazovitz, Inc., as general contractor, must provide plaintiff with a safe place to work or must warn him of dangers of which he might not be aware. This duty on the part of Lazovitz, Inc., exists regardless of any provisions contained in the contract between the defendant, Bollt, and the third-party defendant, Lazovitz.
"If you find that Third-Party Defendant Lazovitz was in control of some or all of the work, and if you find that Third-Party Defendant Lazovitz breached a duty to Plaintiff George Hattersley by either failing to provide George Hattersley with a safe place to work or failing to warn George Hattersley of dangers of which he might not be aware, you may find that Third-Party Defendant Lazovitz was negligent."
In light of the court's charge, the jury must necessarily have found Lazovitz "in control of some or all the work" in order to find Lazovitz negligent. Bollt, however, could be found negligent without any similar finding of control. See N.T. 677-78, 679. Thus the jury findings are consistent with the testimony recounted supra ; both findings and testimony point to Lazovitz's control of the floors under construction.
The evidence in this case is remarkably similar to that adduced in Coyne v. Marquette Cement Mfg. Co., 254 F. Supp. 380 (W.D. Pa. 1966). The district court in Coyne found the requisite "control" where the contractor "was in actual control of the premises and the safety of the workmen" and where the contractor's supervisor "was in actual charge of [the subcontractor's] employees . . . and issued directions and orders to them." The opinion in Coyne further noted that the contract there, like the one in the present case,*fn28 provided for the contractor to "take all necessary precautions for the safety of employees . . . erect and properly maintain . . . all necessary safeguards, [and provide a supervisor]." 254 F. Supp. at 386, 382. We agree with the court in Coyne that such evidence suffices to establish, as a matter of law, that a contractor is a statutory employer.
As a statutory employer, Lazovitz can be liable in contribution to Bollt for no more than the amount of the workmen's compensation award due Hattersley.*fn29 O'Neill v. United States, 450 F.2d 1012, 1016, 1018 (3d Cir. 1971); Elston v. Industrial Lift Co., 420 Pa. 97, 216 A.2d 318 (1966); Brown v. Dickey, 397 Pa. 454, 155 A.2d 836 (1959); Maio v. Fahs, 339 Pa. 180, 14 A.2d 105 (1940). Since Lazovitz's liability is thus limited, we need not consider Lazovitz's other contentions as to the damages.*fn30
For the foregoing reasons, Bollt's motion to dismiss will be denied; the judgment of the district court will be vacated; and the case will be remanded for such further proceedings consistent with this opinion as may be necessary, including disposition of Bollt's Rule 59(e) motion (see note 17 above) and entry of a revised, final judgment. Costs shall be taxed against appellee Bollt.