Clapp, Jayne and Francis. The opinion of the court was delivered by Clapp, S.j.a.d.
This action was brought against defendants Michael W. Zanghi and Vincent Rando, individually and as partners doing business as the American Construction & Wrecking Co., to recover for personal injuries sustained by the plaintiff, allegedly as a result of Rando's negligence. The plaintiff was struck by a tractor operated by Rando on partnership business in Philadelphia, Pennsylvania. At the conclusion of the testimony, the trial court dismissed the case. Plaintiff appeals.
Plaintiff presents two points on the appeal. He claims, first, that the trial court erred in holding that he was a "statutory employee" of the defendant partners under the Pennsylvania Workmen's Compensation Act and therefore barred from maintaining a common law action against them; second, even if he was a statutory employee, nevertheless the employer was the partnership, a separate entity, and the partner Rando was a third person who could be held in this common law action.
The Wrecking Company was awarded a contract by the Philadelphia Housing Authority under which the company agreed to buy, raze and remove six two-story houses located in Philadelphia. To secure the contract, the Wrecking Company had bid (agreed to pay) $1,010.10. The first house was razed by the company by way of experiment, in an endeavor to find out whether it would be more practical to take the other houses down in panels or salvage them as a whole. Some of the materials secured from the first house were apparently sold on the site; some (it is rather important to note) were delivered by the company in its two
dump trucks to purchasers in Philadelphia; and some were transported in these trucks to the company's yard in Atlantic City, New Jersey, for sale there. Defendants lived and had their place of business in Atlantic City.
As a result of this experiment, the Wrecking Company agreed to sell the first floors and roofs of the other five houses as one-story dwellings to a purchaser at Cardiff, New Jersey, and to deliver them to him there. However, not having the huge low-boy tractor-trailers necessary for the hauling of an entire dwelling unit intact, it made an agreement with S. & E. McCormick, Inc. which had done that work. On the day of the accident plaintiff, one of McCormick's employees, entered upon the housing site in order to back one of McCormick's tractor-trailers under a dwelling unit, which had been or was being jacked up for that purpose. There was, however, an obstruction on the ground, and Rando sought to remove it with one of the Wrecking Company's shovel-tractors, but that tractor slipped, crushing plaintiff against his own trailer.
Were the defendants the "statutory employers" of the plaintiff under the applicable Pennsylvania statutes? 77 Purdon's Pa. Stat. Ann. , §§ 25, 52 and 462. To constitute a person a statutory employer, several conditions must exist (McDonald v. Levinson Steel Co. , 302 Pa. 287, 153 A. 424, 426 (Sup. Ct. 1930)), of which we are concerned here with only two. First -- to use the words of the statute (77 Purdon's Pa. Stat. Ann. , § 25) -- it must appear that McCormick was:
"a sub-contractor to whom a principal contractor [the defendants] has sub-let any part of the work which such principal contractor has undertaken." (Italics added.)
Defendants had contracted to remove from the site the six houses and the material composing them, and we think it can fairly be said that they "sublet" to McCormick "part of the work which" they had "undertaken." McCormick, by agreeing to haul off the roofs and first stories of five
houses, took over a substantial part of the removal operation. Plaintiff does not lay great stress on this point.
Second, it must appear that the defendants, the alleged statutory employer, permitted the plaintiff to ...