Petition — Jones & Laughlin Steel Corp. v. Pfeifer

IN THE

Supreme Court of the United States

October Term, 1982

JONES & LAUGHLIN STEEL CORPORATION,

owner or owner pro hac vice of Barges 1011,

1384, 1400, 1363, and others in a fleet,

Petitioner,

vs.

HOWARD E. PFEIFER,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

ROBERT W. MURDOCH

JONES, GREGG, CREEHAN

AND GERACE

1010 Grant Building

Pittsburgh, Pennsylvania 15219

(412) 261-6400

Attorney for Petitioner

Batav.s Times Publishing Co. +

Pittsburgh, Pa. (412) 881-7463

Questions Presented

I. Did the Lower Courts err in ruling that the plain-

tiff had a valid cause of action against his employer

under Section 905(b) of the Longshoremen’s and Harbor

Workers’ Compensation Act?

II. Did the Lower Courts err in applying the law of

the Commonwealth of Pennsylvania, specifically the case

of Kuczkowski vs. Bolubasz, to a case filed under a

federal statute, determining the proper measure of

damages?

III. Did the Lower Courts err in not applying, as a

set-off to plaintiff's damages, the wages introduced by

the defendant for light duty work, without first deter-

mining who has the obligation to offer work or mitigate

damages?

TABLE OF CONTENTS.

Questions Presented ............ccc cece cee ceees

IED 6.4 ctbd CGR bemsenned cocccséees

I cin vod capo cckebutiencccccses ae

ISS é odin’ d's on o Kae Biivie Ko nccpatabese

Statutory Provisions Involved................. ;

Statement of the Case. ...........cccccccceccees

Reasons for Granting the Petition................

I. The courts of appeals are sharply divided

and Congress’ intent unclear concerning $905(b)

third-party negligence actions against

employer-vessel owners under the 1972 amend-

II. The Lower Courts applied Pennsylvania's

law of damages and the different treatment

strates the need for resolution by this Court .. .

A. The Lower Courts applied Penn-

sylvania’s law of damages.................

B. Different treatment among the circuits

regarding inflation demonstrates the need for

resolution by this Court ..................

III. The Lower Courts have imposed on

the employer the additional burden of offering

to a (totally) disabled claimant whose disability

is totally unrelated to his claim, light duty work

and have abrogated the plaintiff's duty to

mitigate his damages by seeking work which he

is capable of performing ...................-

iii.

page

A. There is no basis in fact or reason for .

requiring an employer to offer work to an

employee, totally disabled for non-work re-

lated reasons, in order to receive credit for a

SD 0.5 6.a cds 606207) eSBs adaeee cccee 16

B. An employee's failure to pursue in good

faith employment which he is capable of per-

forming should not impose upon the employer

the burden of providing work to receive a set-

GP thc ne 0s cnc cakaden opbpebeants<ésclns 17

RS is nc cc egabaet Once sus aehales « otal 18

Appendix A, Opinion of the Third Circuit Court

GID. 6 5k s 0 0 tn Cuwaded ccpdetaceseawar la-16a

(1) Judgment on Petition for Rehearing... ... 17a

(2) Amendment Sur Petition for Rehearing . 1$a-22a

(3) Certified Judgment in lieu of formal

REND s nuive-ne Oe sada cae Wie > cence 23a

(4) Order Recalling the Mandate............. 24a

Appendix B, Opinion of the District Court for

Western District of Pennsylvania............ 27a-44a

TABLE OF AUTHORITIES.

Cases: |

Alexander vs. Meiji Kaiun K.K., 195 F. Supp. 831,

ees OR Fe Gee ctiban hbsede 9.0008 soe thins 18

Arvidson vs. Dillingham Corp.. 462 F.2d 1......... 7

Bach vs. Penn Central Transportation Co., 502

Pate BEDE Ri. Bic dieie ictal dawe sx Besveed 12,14

Baker vs. Baltimere & Ohio R. Co., 502 F.2d

BE AUS. Fae Bb ahs MES ys bb Sheek WeSC sie eee 18

iv.

page

Byrd vs. Reederie, 638 F.2d 1300, rehearing granted,

SD Gs scbuducceinse-denDhes b vslewad 13

Complaint of Allied Towing Corp.; 416 F.Supp. 1207 6

Cooper Stevedoring Co. vs. Fritz Kopke, Inc., 417

2 8 DORE AR es ee Pee ee Or 9

Doca vs. Marina Mucante Nicaraguenge, S.A.,

SG Fe ho nss dk cé0 ckaded cin Whacciae cris 12,13

Feldman vs. Allegheny Airlines, Inc., 382 F.Supp.

1291, Aff’d, 524 F.2d 384.................. unin ae

Griffith vs. Wheeling-Pittsburgh Steel

Corp., 521 F.2d 31, cert. denied, 423 U.S.

MD. 6406 8t% call cab <b bees yatapbadecaseuns 5,6,7,8

Housto.: vs. Bechtel Associates Professional Corp.,

522 F.Supp. 1094........ inane beadvs esceuun 7

Kaczkowski vs. Bolubasz, 491 Pa. 561, 421 A.2d

BEE bc SS ob sabebews tupca nets atteressecs 5,11,12,14

Lottawanna, The, 88 U.S. (21 Wall.) 558........... 11

Magill vs. Westinghouse Electric Corp. 464

PUR ds to Kee MawUaGS COLANME Rc ccs owbosews 13

McGinley vs. United States, 324 F.Supp. 62 ....... 18

Murphy vs. Woods Hole, Martha's Vineyard & Nan-

tucket Steamship Authority, 545 F.2d 235....... 7

Napoli vs. Hellenic Lines, Ltd, 536 F.2d

PPE RPP er yee, A ee Oe eee re 6

Norfolk Western Railway vs. Liepelt, 444 U.S. 490.. 13

Northeast Marine Terminal Co. vs. Caputo, 432 U.S.

O'Rourke vs. Long, 41 N.Y.2d 219, 391 N.Y.S.2d

RS SD RG TOE iain ok vc Rh aBe cc cdscsveess +

O'Shea vs. Riverway Towing Co., No. 81-1924, Slip

Op. (7th Cir. April 27, 1982)...............60-- 12

Perini Corporation vs. Heyde, 306 F.Supp.

page

Pope & Talbot, Inc. vs. Hawn, 346 U.S. 406........ ll

Powell vs. Hellenic Lines, Ltd. 347 F.Supp.

ES arene ee ee ee 15,17

Reed vs. The Yaka, 373 U.S. 410............... 5,6,7,8

Riha vs. Jasper Blackburn Corp. 516 F.2d

Dead Saabs 0 cb Uiiedds by ot Chae as O46 O85 <a 12,14

Smith vs. M/V Captain Fred, 546 F.2d 119......... 6

Steckler vs. United States, 549 F.2d 1375.......... 13

St. Hilaire Moue vs. Henderson, 496 F.2d 973, cert.

Ge GOD BG. GUE. o'sno v0 Cd adbcdcccss casees 12

United States vs. English, 521 F.2d 63......... 12,13,14

Williams vs. United States, 435 F.2d 804.......... 13

Statutes:

Se, SEE ox og cede npadeseebendaeebewe ad 2

i, 2s <i edna a's cae caledbaie odmeake 4,5

SP... ons Uhitbasdaseubeacumn 2,3,5,6,7,8

PTD, 5 0.0% 460 60's 9606 06Veks s sak baa 3,8

Legislative Materials:

3 U.S. Code Cong. & Admin. New, pp. 4704-05 ..... 9

Rules of Court:

Federal Rules of Civil Procedure

Supreme Court of the United States

October Term, 1982

JONES & LAUGHLIN STEEL CORPORATION,

Petitioner,

vs.

HOWARD E. PFEIFER,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Petitioner, Jones & Laughlin Steel Corporation, re-

spectfully prays that a Writ of Certiorari issue to review

the Judgment and Opinion of the United States Court of

Appeals for the Third Circuit entered on April 16, 1982.

Opinions Below

The opinion of the Court of Appeals (App A, infra, la-

16a) has not yet been reported. The opinion of the

District Court (App. B, infra, 27a-44a) has not yet been

reported.

Jurisdiction

The judgment of the Court of Appeals (App. A, infra,

17a) was entered on April 16, 1982. A sur petition for re-

hearing en banc was denied on May 20, 1982, with Judge

Adams joined by Judge Hunter dissenting (App. A, in-

fra, 21a). The certified judgment in lieu of formal man-

date was issued on May 28, 1982 (App. A, infra, 23a).

Appellant's motion for stay of mandate filed on June 2,

1982 was treated as a motion to recall the mandate. The

motion was granted and the mandate recalled by Judge

Aldisert on June 8, 1982 (App. A, infra, 25a).

The jurisdiction of this Court is invoked uncer Title 28

U.S.C. $1254(1).

Statutory Provisions Involved

1. 33 U.S.C.A. §905

(a) The liability of an employer prescribed in Sec-

tion 904 of this title shall be exclusive and in place

of all other liability of such employer to the

employee, his legal representative, husband or wife,

parents, dependents, next of kin, and anyone other-

wise entitled to recover damages from such

employer at law or in admiralty on account of such

injury or death, except that if an employer fails to

secure payment of compensation as required by this

chapter, an injured employee, or his legal represen-

tative in case death results from the injury, may

elect to claim compensation under the chapter, or to

maintain an action at law or in admiralty for

damages on account of such injury or death. In such

PEE ELE ad

“i iuidt ih Hh il

BUTRIUNTAA A eee

Hid did agate 1

ide ene HEE

4

employee where he is injured, or to his eligible sur-

vivors or legal representatives if he is killed, by the

negligence or wrong of any other person or persons

in the same employ: Provided, That this provision

shall not affect the liability of a person other than

an officer or employee of the employer.

January 13, 1978, respondent suffered injuries when he

fell on the gunnel of the barge while carrying a motor

and breaker box for use in puraping out barges.

The District Court determined that petitioner, as a

vessel owner pro hac vice, was liable for negligence under

§905(b) of the LHWCA, rejecting petitioner's argument

that §905\a) precludes an employer's third-party liavility

where the employer has secured payment of compensa-

tion in compliance with §904 of the LHWCA, 33

U.S.C.A. §904. The District Court also held that the re-

cent Pennsylvania Supreme Court case of Kaczkowski

vs. Bolubasz, 491 Pa. 561, 421 A.2d 1027 (1980), dictated

that the damages for jost future earnings not be dis-

counted to present value. Finally, the District Court held

that damages for future earnings should be factored on

the basis of the minimum wage rate instead of wages for

light duty work. In reaching this conclusion, the Court

rejected petitioner's argument that there is no logical

reason why J&L should have been required to offer a

light duty position to respondent when the facts adduced

at trial showed that respondent was totally disabled and

the disability was unrelated to the incident of January

13, 1978.

The Third Circuit Court of Appeals affirmed all three

questions on appeal. The appeals court rejected peti-

tioner's §905(b) LHWCA argument on the basis of the

holdings in Griffith vs. Wheeling Pittsburgh Steel Corp.,

521 F.2d 31 (3d Cir. 1975), cert. denied, 423 U.S. 1054

(1976), and Reed vs. The Yaka, 373 U.S. 410 (1963). Like-

wise, the appeals court rejected petitioner's argument

that lost future wages be discounted to present value.

And although the Court stated that the holding in the

Lower Court was limited to the proper federal measure of

damages, it stated later in the opinion that it could find

no jurisprudentia. impediment to the adoption of Penn-

sylvania’s measure of damages. Finally, the Court con-

cluded that the District Court's set-off based on the

minimum wage rate was not “clearly erroneous” under

the standard of Fed.R.Civ.P. 52(a).

The Court of Appeals denied petitioner's sur petition

for rehearing on May 20, 1982, and a certified judgment

in lieu of mandate was issued on May 28, 1982. Peti-

tioner’s motion for stay of mandate was treated as a mo-

tion to recall the mandate. Judge Aldisert granted the

motion and recalled the mandate in order to allow peti-

tioner the opportunity to petition this Court for writ of

certiorari.

REASONS FOR GRANTING THE PETITION

Petitioner respectfully submits that all three issues

passed upon by the Courts below present important

questions of federal law which have not been, but should

be, settled by this Court. Accordingly, the reasons and

arguments for the allowance of the writ are treated

separately for each issue below.

I. The courts of appeals are sharply divided and Con-

gress’ intent unclear concerning §905(b) third-party

Four circuits have ruled or indicated in dicta that

§905(b) affords an injured employee a cause of action in

negligence against the vessel owner, even though the

owner is also the employer. Napoli vs. Hellenic Lines,

Ltd., 536 F.2d 505 (2d Cir. 1976); Griffith vs. Wheeling

Pittsburgh Steel Corp., 521 F.2d 31 (3d Cir. 1975), cert.

denied, 423 U.S. 1054, 96 S.Ct. 785, 46 L.Ed. 2d 643

(1976); Smith vs. M/V Captain Fred, 546 F.2d 119 (5th

Cir. 1977); Complaint of Allied Towing Corp. 416

F.Supp. 1207 (E.D. Va. 1976). These courts have side-

stepped the literal interpretation of §905(a) in favor of

this Court’s decision in Reed vs. The Yaka, 373 U.S. 410,

83 S.Ct. 1349, 10 L.Ed. 2d 448 (1963).

negligence against the owner-employer. Murphy vs.

Woods Hole, Martha's Vineyard & Nantucket Steamship

Authority, 545 F.2d 235 (1st Cir. 1976) (dictum); Arvid-

son vs. Dillingham Corp., 462 F.2d 1 (9th Cir. 1972);

Houston vs. Bechtel Associates Professional Corp., 522

F. Supp. 1094 (D.C.D.C. 1981); O'Rourke vs. Long, 41

N.Y.2d 219, 391 N.Y.S.2d 553, 359 N.E.2d 1347 (1976).

The two cases which best point up the dichotomous

results and reasoning are Griffith, supra, and Baker vs.

Pacific Far East Lines, Inc., 451 F.Supp. 84 (N.D. Calif.

1978). Most importantly, these cases, the question in-

volved, and the frequency at which the question is likely

to arise, present the strongest reasons for review by this

Court.

The Third Circuit Court of Appeals in Griffith relied on

this Court's pre-amendment holding in Reed, supra, and

on legislative history to reach the conclusion that §905(b)

permits a negligence action against an owner-employer.

The Court first discussed the language of §905(A) which

reads in part:

“The liability of an employer prescribed in section

904 of this title shall be exclusive and in place of all

other liability of such employer to the employee . . .”

There is no exception in §905(a) for §905(b) liability of an

‘employer’ who is also a “vessel,” other than, of course,

the exception where the employer fails to secure payment

required by the Act. Griffith I, 521 F.2d at 42. The Court

recognized further that a literal interpretation would be

consistent with the language in §933(a), which reads in

part:

“If ... the person entitled to such compensation

determines that some person other than the

employer ... is liable in damage, he need not elect

whether to receive such compensation or to recover

a against such third person.’’ (emphasis sup-

Finally, the Court conceded that there is “no argument

in logic and reason’’ why longshoremen should be treated

any differently under the LHWCA than their land based

counterparts under workmen’s compensation laws. The

Court stated: “The heart of all workmen’s compensation

systems is the trade-off between the certainty of benefits

and the limitation of employer liability." Griffith I, 521

F.2d at 42.

However, the Court felt compelled to permit plaintiff's

cause of action because of this Court’s decision in Reed

and certain language found in House Reports made in

contemplation of the 1972 LHWCA amendments. As this

Court well knows, Reed construed §905(a) (then §905) as

permitting a §905(b) suit based on unseaworthiness

against a pro hac vice owner who was also an employer.

The Griffith court reasoned that “‘since Congress made

no change in the operative language of the exclusive

remedy provision, [it] would appear to be bound by the

eviscerating construction of Reed vs. The Yaka .. ."’ Grif-

fith I, at 43. The Congressional language relied upon by

the Court provide in part:

i?

A

bout a dangerous condition ...”" 3 U.S.

Cong. & Admin. News, p. 4704 (1972).

As indicated earlier, the Ninth Circuit, among others,

has taken the exact opposite approach in Baker us.

Pacific Far East Lines, Inc., supra. In concluding that

§905(a) provides absolute exclusivity, the Court relied on

this Court's holding in Cooper Stevedoring Co. vs. Fritz

Kopke, Inc., 417 U.S. 106, 94 S. Ct. 2174, 40 L.Ed.2d 694

(1974), language from the above quoted House Report,

and an analogy to state workmen’s compensation

ee er een eee Cena

was entitled to claim compensation from

the Harbor Workers’ Ais. ‘ail Bela wun svcoreaahy

entitled to the protective mantle of the Act's

limitation-of-liability . 417 U.S. at 115, 94

S.Ct. at 2179, 40 LBa.2d 694,

10

It further reasoned that since the Sieracki-Ryan-Yaka

decisions only applied in the unseaworthiness context,

and since the 1972 amendments eliminated unseaworthi-

ness, the “slate was wiped clean.” “Given that Congress

worked so hard to preclude the pussibility of iadirect

recovery, it would be anomalous if Congress had

simultaneously allowed direct employed versus employer

lawsuits." Baker, at 94.

The Baker court quickly disposed of plaintiff's argu-

ment based on the language of the House Report. Noting

that the same argument prevailed in the Fifth Circuit,

the Court found that the same language can be interpret-

ted to require precisely the opposite result: since

negligence actions are not permitted against stevedore-

employers, such actions should not lie against vessel-

employers either. Ibid. at 95.

Finally, the Court held that since negligence actions

against employers are not permitted under state compen-

sation statutes, and since Congress’ intent has always

been to guarantee injured longshoremen treatment

similar to that received by land-based workers covered

by workmen’s compensation, it should follow that

LHWCA employers are also immune from negligence

suits. The Court cited this Court’s decision in Northeast

Marine Terminal Co. vs. Caputo, 432 U.S. 249, 97 S.Ct.

2348, 53 L.Ed.2d 320 (1977), in support of its rational:

Thus, these cases represent the two completely dif-

ferent approaches taken and results reached on this very

important issue. Because this involves very substantial

rights and liabilities, petitioner strongly urges this Court

to resolve the matter at this time.

11

Il. The Lower Courts applied Pennsylvania's law of

damages and the different treatment among the circuits

regarding inflation demonstrates the need for resolution

by this Court.

A. The Lower Courts applied Pennsylvania's law of damages.

In 1980, the Pennsylvania Supreme Court announced

that inflation must be considered in awarding damages

for lost future earnings. Kaczkowski vs. Bolubasz, 491

Pa. 561, 421 A.2d 1027 (1980). The Court adopted, what

is commonly called, the total offset method, whereby the

award is not discounted to present value presumably

because the inflation rate is equivalent to the discount

rate.

It is petitioner's position that the District Court ap-

plied Pennsylvania damage law and this was improper

since jurisdiction in a LHWCA case is based, of course,

on a federal question. And while the Court of Appeals

dismissed this point, petitioner refers this Court to

Judge Cohill’s opinion (App. B, infra, 27a) and submits

that the conclusion is inescapable that the learn-

ed Judge felt bound by Kaczkowski. The Petitioner raised

this point prior to the start of testimony and filed a Pro-

posed Finding of Fact relating to reduction of any award

to present worth. The ruling by the Lower Court is con-

trary to this Court’s holdings in Pope & Talbot, Inc. vs.

Hawn, 346 U.S. 406, 74 S.Ct. 202, _..__._ L.Ed.

(1953), and The Lottawanna, 88 U.S. (21 Wall.) 558

(1875). The cases reinforce the mandate of Article III, §2

of the Constitution by requiring a uniform federal stan-

dard in “all Cases of admiralty and maritime Jurisdic-

12

Petitioner recognizes that admiralty courts may apply

state law by express or implied reference when the

federal law is incomplete, St. Hilaire Moue vs. Hender-

son, 496 F.2d 973 (8th Cir. 1974), cert. denied, 419 U.S.

884, 95 S.Ct. 151, 42 L.Ed.2d 125 (1974), but submits

that this simply is not the case here. Notwithstanding

the approach taken by a majority of the circuits sitting

ir. federal question jurisdiction cases, the Third Circuit

requires that damages for future impairment or future

lost earnings be reduced to present worth. There was no

need for the Lower Courts to resort to Pennsylvania’s law

of damages and the need for upholding the integrity and

uniformity of federally created causes of action dictate

that this approach be examined and the issue resolved.

B. Different treatment among the circuits regarding inflation

demonstrates the need for resolution by this Court.

Assuming arguendo that the Lower Courts merely

borrowed the underlying theory of Kaczkowski, rather

than applying the state !aw per se, the proliferation of

confusing appellate decisions and the different treatment

that the issue of future inflation has received among the

circuits demonstrate the need for this Court to rule upon

the issue. A survey of the different approaches reinforces

the need for a definitive standard.

Presently, six circuits permit future inflation to be

taken into account in damage calculations. Doca vs.

Marina Mucante Nicaraguenge, S.A., 634 F.2d 30 (2d

Cir. 1980); Bach vs. Penn Central Transportation Co.,

502 F.2d 1112 (6th Cir. 1974); O'Shea vs. Riverway Tow-

ing Co., No. 81-1924, Slip Op. (7th Cir. April 27, 1982);

Riha vs. Jasper Blackburn Corp., 516 F.2d 840 (8th Cir.

1975); United States v. English, 521 F.2d 63 (9th Cir.

13

1975); Steckler vs. United States, 549 F.2d 1375 (10th

Cir. 1977). Three circuits have declined to do so.

Williams vs. United States, 435 F.2d 804 (1st Cir. 1970);

Magill vs. Westinghouse Electric Corp., 464 F.2d 294 (3d

Cir. 1972) (until the instant case): Byrd vs. Reederie, 638

F.2d 1300, rehearing granted, 650 F.2d 1324 (5th Cir.

1981). And, the Fourth and D.C. Circuits have yet to

make an appellate pronouncement on the issue. General-

ly, the rationale advance by the majority is that dis-

counting, which values a lump sum award to reflect the

present purchasing power of the dollar, leaves the plain-

tiff less fully compensated, given the realities of modern

economics. Those Courts rejecting inflation adjustments

have done so on the grounds that estimates of future in-

flation are too speculative to serve as a basis for cal-

culating damages.

While it can be argued that this Court's holding in

Norfolk Western Railway vs. Liepelt, 444 U.S. 490, 100

S.Ct. 755, 62 L.Ed.2d 689 (1980), at least portends the

mood of the Court regarding inflation adjustments in

future damage awards, the Second Circuit, in Doca, did

not suggest that Liepvelt compelled the result reached

there, permitting inflation adjustments. The Fifth Cir-

cuit, in Byrd, expressly stated that Liepelt is not con-

trolling and that ic would adhere to its discounting rule

until this Court speaks more directly or until that Court

en banc overturns the rule. Petitioner respectfully sub-

mits that “the practical wisdom of the trial bars and the

trial bench’’ will not soon resolve the issue without a

definitive statement from this Court on the propriety of

inflation adjustments.

14

There remains the unresolved question of the proper

method by which inflation should be considered. The

Courts that have permitted inflation adjustment have

taken one of four approaches. The first approach submits

the question to the factfinder after expert opinion

evidence on the rate of future inflation has been in-

troduced. United States vs. English, supra at 75-76. The

second approach forbids expert testimony and permits

the fact-finder to apply his own knowledge and predic-

tion in estimating a future inflation rate. Bach, supra at

1122-23. The third method is a blend of the first and sec-

ond, and allows both common sense and expert opinion

evidence. Riha, supra at 845. The fourth method removes

the issue from the fact-finder and adopts a rule of law

that infers a constant relationship between the interest

rate and inflation rate. Kaczkowski, supra 491 Pa. at

581, 421 A.2d at 1037. There, the Pennsylvania Supreme

Court adopted the total offset method. A slightly dif-

ferent approach was adopted in Feldman vs. Allegheny

Airlines, Inc., 382 F.Supp. 1291 (D. Conn. 1974), aff'd,

524 F.2d 384 (2d Cir. 1975), where the Court used an in-

flation adjusted discount of 1.5% after determining that

the interest rate averaged 1.5% less than the inflation

rate.

The confusion and controversy among circuits is under-

standable given the variety of approaches outlined above

and the general uncertainty surrounding economic fore-

casting. Petitioner believes that the law is at a stalemate

and will develop no further without clarification by this

Court.

15

III. The Lower Courts have imposed on the employer

the additional burden of offering to a (totally) disabled

claimant whose disability is totally unrelated to his

claim, light duty work and have abrogated the plaintiff's

duty to mitigate his damages by seeking work which he

is capable of performing.

The law is clear that the burden is on the employer to

establish that an employce who proves he is disabled

from his regular employment. has actual opportunities to

obtain other work. Perini Corporation vs. Heyde, 306

F.Supp. 1321 (R.D.1. 1969). It is equally established,

however, that the plaintiff has the duty to minimize his

damages by doing work that he can perform. Powell vs.

Hellenic Lines, Ltd., 347 F.Supp. 855 (E.D.La. 1972). It

follows that the Trial Court's findings concerning the ex-

tent and nature of piaintiff's disability are crucial in

determining the burdens imposed on the respective par-

ties. Where a finding of total disability is made, the

duties imposed by Perini and Powell are inapposite, and

in petitioner's case, it would have no duty to prove that

the plaintiff is capable of performing other work.

However, in cases of partial disability, the respective

The District Court made inconsistent findings of fact

and the Appellate Court failed to face that issue. In

Findings numbers 34 and 36 the Court found the plain-

tiff to be totally disabled, but specifically for reasons not

involving the accident complained of. In Findings 41 and

42 the Court then found that plaintiff could perform

In the Conclusions of Law, the Court completely ig-

nored any conclusion as to the legal obligation of the par-

ties regarding the availability and/or offer of work. By ig-

noring the Finding of Fact that plaintiff was totally dis-

A. There is no basis in fact or reason for requiring an

employer to offer work to an empioyee, totally disabled from non-

work related reasons, in order to receive credit for a set-off.

If the District Court calculated its measure of damages

on the basis that respondent was totally disabled, peti-

tioner submits that the employer's showing that light

work was available should entitle petitioner to a set-off

based on light work wages. It is a meaningless formality

to require the employer to offer a position to the

17

the Perini doctrine. That doctrine limits, by its terms

and the facts of that case, the employer's duty of show-

light duty work, there is an obvious conflict between the

employer's duty to show that work is available, Perini,

and the employee's duty to mitigate his damages,

Powell. These cases do little to define these duties and it

is on this issue that petitioner requests this Court's

clarification.

As mentioned earlier, the District Court relied heavily

Tat

fk f

ia

pie 1

Huis

[ttl

18

Respondent's failure to mitigate his damages leaves the

petitioner to choose between employing respondent in a

different capacity and claiming the set-off based on that

wage or not empioying the respondent and bearing the

entire burden of a set-off based on the minimum wage.

This result is anomolous when one considers the results

reached in Baker vs. Baltimore & Ohio R. Co., 502 F.2d

638 (6th Cir. 1974); McGinley vs. United States, 324 F.

Supp. 62 (E.D. Pa. 1971); and Alexander vs. Meiji Kaiun

K.K., 195 F.Supp. 831 (E.D. La. 1961), aff'd, 311 F.2d

385 (5th Cir. 1962). Petitioner submits that the amount

of an employer's set-off should not be determined as a

matter of the employee's choice and respectfully requests

this Court to clarify the duties of the employer and

employee in situations such as the one presented in the

instant case.

Conclusion

The Petition for a Writ of Certiorari should be granted.

_ Respectfully submitted,

ROBERT W. MURDOCH

JONES, GREGG, CREEHAN

AnD GERACE

1010 Grant Building

Pittsburgh, Pennsylvania 15219

(412) 261-6400

Attorney for Petitioner