Llewellyn's Appeal , 1883 Pa. LEXIS 191 ( 1883 )

Mr. Justice Clark delivered

the opinion of the court,

On the 24th day of March 1880, Austin Curtin & Co., became the lessees of the old Mill Hall Iron Furnace, in Clinton county. It had been abandoned for some twenty-four years, and in consequence the works were dismantled, the buildings decayed and the machinery almost destroyed. The whole property was so dilapidated that it was unfit for use, for the purposes for which it was originally designed. In order, therefore, that the furnace might bo operated it was necessary that the property should be repaired and reconstructed.

The works had been originally used, and were leased to A. Curtin & Co., to be used, in the manufacture of pig-metal from iron ore for rolling mill purposes. These repairs were made from May 2d 1881, to December 20th 1881, inclusive, and were so completed by the 6th October 1881, that about that time the works were started, and the manufacture of metal resumed. After the works were started, however, the old bridge house, upon which was deposited the ore, coke and limestone, used in the manufacture of iron, was found to be insufficient for the purpose, and it was rebuilt by the lessee.

On the 21st day of December 1881, the sheriff of Clinton county levied upon all the lessee’s lights and personal property connected with the business upon a writ of fieri facias, issued by the Bellefonte Nail Co., Limited, against A. Curtin & Co., the lessees, and, on the 14th January 1882, Sold the levy for $2,268.75, and this sum constitutes the fund for distribution.

The appellants, L. It. Llewellyn, John Keener, William McGregor, John Mayes and Charles Parker were carpenters, or millwrights, and Gabriel O. and M. P. Stiver were wagonmakers and blacksmiths, who had been employed by the lessees and labored in making the repairs and improvements upon the furnace property above stated. They claim the right, under the Act of 9th April 1872, to receive out of the fund for distribution, the wages for their labor, in, preference to the execution creditor, having given notice of their claim under thí¡t Act.

Were the appellants named, or any of them, of the class of mechanics or laborers, embraced within the protection of the first section of the Act of 1872? We think the learned court below was certainly right in holding that they were not.

It is admitted that none of these appellants were employed in the manufacture of iron, nor were they engaged in operating the works in any branch or department of the business to which they were especially devoted. The manufacture of pig metal was the particular, permanent and continuous business of the works, and the class of laborers or mechanics, within the meaning of the Act, we think, is such as is employed in this business.

In order to start the manufacture of iron it is requisite, first to construct the buildings, supply the machinery and equip the works ; the labor bestowed upon the construction and equipment is merely temporary and preliminary in its character to the general employment for which the works are designed. The construction of a manufactory is one thing and the operating of it is another ; the price of the materials furnished and labor done in the former is preferred, under the mechanics’, lien law, whilst the wages of the labor performed', in the latter, is covered by the provisions of the Act of 1872..

In Pardee’s Appeal, 4 Out. 408, we held that the business of cutting saw-logs and driving them to the place of manufacture, is not such as is contemplated by the Act of 1872. Justice Sterrktt, in delivering the opinion of the court in that case, says : “The words f works, mines, manufactory,’ thus employed in the Act, have a definite signification, well known in the generhl and popular acceptation. Ex vi termini the branches of business, intended to be described by them, are in a certain sense complete and independent,, and of a fixed and permanent character, as opposed to a temporary employment, that is merely incidental to any particular branch of business. ”

In the Gibbs & Sterrett M’f’g Oo.’s Appeal, 4 Out. 528, we held that a. person employed to drill oil wells, at a certain price per foot*, who had no interest in the land, nor the oil, but who was simply a contractor, engaged in drilling wells for different persons, moving his tools from place to place as occasion might require, did not belong to either of the classes of employers, designated by the Act; that the contractor, mentioned in the Act, must.be the operator of the wells, and his property, not. that of the mere driller, is-the property from which the laborer is to be paid. As the employer must be the operator so the employee to receive the protection of the Act must be the operative.

. It does not follow, however, that the labor preferred is that which is skilled in the particular art or craft pursued alone, all who are engaged as operatives, whether as ore diggers, teamsters, furnace-men or common laborers.

A carpenter, a.blacksmith or machinist, regularly employed in a manufactory to conduct continuously the repairs and regulate the machinery — indeed any laborer who by a continuous employment contributes to the general work or manufacture, is within the meaning of this- Act, but the labor of those who are only temporarily employed in repairing, are in no sense operatives.

The claim of Robert Miller one of the appellants, was for a balance owing to liim fox* quarrying, hauling and furnishing limestone. He paid fifteen cents per ton to Furst Bi*os. for the privilege of their quan-y and delivered the limestone to A. Cur-tin & Co. at $1 per ton. He liaxxled with his own teams, and was to receive pay according to his contract. He employed hands to assist him and paid them out of his own pocket. He was not employed upon any materials of the company ; he was an independent contractor, and although he delivered the limestone in part at least by his own labor, he is not entitled to prefei'enee under the Act of 1872.

■ The decree is therefore affirmed, and the appeal dismissed, at the cost of the appellant.